The Brothers Tsarnaev and Capital Punishment

Capital punishment was common throughout history, both to punish criminals and to execute political opponents, including the United States. Joe Hill became a martyr to the labor movement in the United States: “I dreamt I saw Joe Hill last night.” Methods of execution could be brutal: boiling alive, burning at the stake, crucifixion, drawn and quartered, stoning, and tied to the mouth of a cannon. The British used this method after suppressing the 1857 Sepoy Revolt in India. Among the famous historical figures executed for political reasons are Jesus Christ, Joan of Arc, Saint Thomas More, and Socrates. Social values changed in the last half of the 20th Century. The tragedy of World War II and the brutal dictatorships of Hitler, Stalin and Chairman Mao led to a humanitarian reassessment of capital punishment. The European Union bans capital punishment in its member nations. Turkey thereby abandoned capital punishment in its so far unsuccessful effort to join the EU. The majority of the world’s nations no longer have capital punishment, although the four largest by population, China, India, Indonesia, and the United States still retain it. China has been by far the largest practitioner of capital punishment with Iran also being active. A minority of states, led by Michigan in 1846, including Massachusetts, have abrogated capital punishment. Connecticut has recently eliminated the death penalty. Texas leads the way in the United States in executions, which are rare in the federal system (Think Timothy McVeigh). Strong objections have been made to capital punishment in the United States because it has disproportionately been used against minorities, especially African Americans and Hispanics. Some jurisdictions acquired a reputation of being swift to convict and execute. In addition, if a mistake is made, the result is irrevocable. A strong anti-capital punishment bar developed over the past 4 decades. The result has been increasing delays in carrying out the death sentence, delays exceeding a decade in many cases. Appeals follow appeals with increasingly ingenious arguments. The costs of delay and litigation to states exceed millions of dollars. States have thereby found it desirable to end capital punishment for financial as well as humane reasons. Under the old English common law almost every felony was punished by capital punishment, usually followed by a speedy execution. English jurists who opposed capital punishment or were sympathetic to a particular defendant found, and created, loopholes and technicalities to avoid the punishment. Many jurists in the United States today have the same attitude. Two prime examples were the California Supreme Court under Chief Justice Rose Bird and the Ninth Circuit. The California Supreme Court heard 64 capital punishment cases during Chief Justice Bird’s ten years on the bench. It reversed 61 with the Chief Justice penning the opinion in each. California’s voters got their revenge on November 4, 1986 when they voted her out of office by a 67%-33% vote. Justices Joseph Grodin and Cruz Reynoso also lost retention in the election. The Ninth Circuit and the Supreme Court have long been at philosophical and jurisprudential odds. A famous example occurred with the scheduled execution on April 21, 1992 of Robert Alton Harris in California’s gas chamber. A district judge issued a ten day stay on April 18. A panel of the Ninth Circuit reversed the stay, but then ten judges of the Circuit issued a stay on April 20. The Supreme Court reversed. Robert Alton Harris was strapped into the chair in the gas chamber with the cyanide pellets about to drop when Ninth Circuit Judge Harry Pregerson issued a truly last minute stay. The Supreme Court was miffed. It vacated the stay and ordered “No further stays of Robert Alton Harris’ executions shall be entered by the federal courts except upon order of this Court.” Yet, sometimes society wants capitol punishment, out of a sense of outrage and vengeance for horrific crimes. Thus, few opponents of capitol punishment objected when Timothy McVeigh was executed on June 11, 2001 for the mass killings of 168 including 19 children, in his bombing of the Murrah Federal Building in Oklahoma City on April 19, 1995. Another 450 were injured in the bombing. 2000 demonstrators outside a Florida prison on January 24, 1989 cheered when the serial killer Ted Bundy was executed. His most recent crime had been killing two Chi Omega sorority sisters and battering two others at Florida State on January 14-15, 1978. Ted Bundy killed at least 30 women in Colorado, Florida, Idaho, Oregon, Utah, and Washington. Little sympathy was expressed for John Allen Muhammad, half of the D.C. Sniper, when he was executed by Virginia on November 10, 2009 for the 10 murders committed over three weeks in October 2002. An additional three victims were severely wounded in these attacks. James Holmes killed 12 and injured 58 in a shooting spree in an Aurora, Colorado movie theatre on July 20, 2012. His lawyers sought on March 27, 2013 a deal with the Arapahoe County District Attorney, George Braucher, whereby Holmes would plead guilty in exchange for life imprisonment. The DA denied the request, stating he was seeking the death penalty for Holmes. That brings us to the Brother Tsarneav. Tamerlan, named for a brutal conqueror, is dead, but the younger brother, Dzhokhar, is expected to live. Dzhokhar only faces life imprisonment under Massachusetts law, but could face the death penalty under federal law. Massachusetts State Representative James Miceli introduced several days before the Boston Marathon Bombing a bill into the Massachusetts Legislature seeking the reinstatement of capital punishment. Governor Romney had earlier unsuccessfully sought this action in 2005. The Massachusetts House of Representatives voted 119-38 on Tuesday to send the Bill to a committee to study it. The action avoided an up or down vote by the Representatives on capital punishment. Even if enacted, it could not be retroactively applied to Dzhokhar. Dzhokhar is clearly guilty. The only question is if the federal prosecutors will seek the death penalty or settle for life imprisonment. Oklahoma made it clear in the case of Timothy McVeigh that the state would seek the death penalty if the federal government failed to execute McVeigh. That alternative is not available with the younger brother in Massachusetts. This Administration will probably go all the way with Dzkohkar eventhough it has fumbled the case against Major Nidal Malik Hasan. If Dzhokhar escapes with life imprisonment, he will probably spend the rest of his life in Florence, Colorado at the government’s supermax prison, essentially in solitary confinement, sharing the facility with the Unabomber, The Underwear Bomber, the Shoe Bomber, the Times Square Bomber, the Olympic Bomber, Terry Nichols, the 1993 World Trade Center bombers, and a host of drug cartel, Mafia, and gang leaders.