Death for Dzhokhar Tsarnaev: The seduction of the legal maximum

His crimes were premeditated, merciless, vile, horrific.  The bombs killed and maimed indiscriminately, claiming young and old, severing limbs, shattering torsos, staining streets and sidewalks with blood.  Days later, in a city still gripped in anguish, he killed again.   This time his victim was a police officer.  His guilt was never in doubt.  He suffered no intellectual disabilities.  No pall of racism hovered over his trial.  Highly skilled defense attorneys represented him.  They left no stone unturned in asking a jury to spare his life.  It was not to be.  Dzhokhar Tsarnaev, guilty of murder for joining with his brother Tamerlan to commit inexcusable acts of terrorism targeting the 2013 Boston Marathon, was sentenced to death in a Boston federal courthouse. 

The jury passing judgment on Tsarnaev was required to choose between sentencing him to death and life imprisonment without the possibility of parole.  If ever a crime, if ever a murderer, deserved the ultimate punishment, the maximum allowed by law, this was the case.  If death were not imposed for these horrendous crimes, when would it ever be imposed?

{mosads}Punishment falls directly on the offender, but it has important social functions as well.  It allows a community of citizens to reaffirm their commitment to the norms enshrined by law by emphatically denouncing their violation.  Punishment is expressive.  It engenders solidarity by signifying society’s commitment to shared values and morality. 

That Tsarnaev’s jury opted to impose the maximum available punishment in response to his inexcusably odious crimes is fully understandable.

What is less apparent, however, is that punishment’s function of expressive denunciation, as in condemning murder and reaffirming the wrongness of taking innocent life, can be fulfilled when the worst of crimes is met with the most severe punishment authorized by law.  This is true, within reason, whatever that maximum penalty might be.

Under Massachusetts law, which years earlier renounced capital punishment, Tsarnaev’s crimes were punishable by life imprisonment without parole.  These worst crimes would be met with the law’s most severe punishment and, using that metric, proportional justice would be served.

Of course, Tsarnaev was prosecuted for violating federal law, where capital punishment reigns as the ultimate penalty.  And so it was that Tsarnaev was sentenced to death.

We can only speculate about what measure of justice would be demanded in a society not constrained by a constitutional prohibition against cruel and unusual punishments.  Among Tsarnaev’s victims were several who lost legs and arms.  Would it be fitting to amputate one or more of Tsarnaev’s limbs—carrying out his “partial execution”—before he is strapped onto a gurney and death is induced by lethal injection?  He killed not one innocent, but four.  Should his execution be prolonged, should he be tortured, made to suffer beyond what is necessary to cause death, in acknowledgment that his acts claimed multiple victims?

If the worst crimes merit the most severe punishment, are there limits to what Tsarnaev should suffer?

While debating whether capital punishment should be abolished in England, Lord Chancellor Gardiner remonstrated before the House of Lords: “When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disemboweled while still alive, and then quartered, we did not abolish that punishment because we sympathized with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect.”  England repealed its death-penalty laws a half-century ago.

The jury in the federal courthouse that sentenced Dzhokhar Tsarnaev for his crimes came to its decision within a framework of law where the most severe punishment was death.  Once, as Lord Chancellor Gardiner’s remarks make clear, death simpliciter would have been an inadequate response.  But the law serves in part to constrain the passions that lead to excess.  It allows us—it requires us—to act consistent with a measure of reflective self-respect.  The appetite for justice must be bounded by law.  It can be satisfied, even in a case like Tsarnaev’s, when the maximum punishment is less than death.

Acker is distinguished teaching professor, School of Criminal Justice, University at Albany.