If Dzhokhar Tsarnaev is convicted of willfully causing the death of three victims, he would — by biblical principles of life for life — deserve to die. But it is a serious mistake for the government to be seeking his execution.
Subjecting a terrorist to capital punishment plays right into his hands and only serves to encourage those who would follow in his lethal footsteps.
A death penalty trial raises the stakes, garners more media attention and elicits support for the defendant from the many Americans who oppose the death penalty. That’s precisely what terrorists such as Tsarnaev seek.
Tsarnaev actions strongly suggest that he was willing to die for the despicable cause for which he allegedly killed others. He would welcome martyrdom rather than living out his days in the obscurity of a supermax federal prison.
If he is convicted and sentenced to death, his trial and sentence would receive the scrutiny reserved for death cases and he would obtain the grudging sympathy accorded to defendants facing death.
It would be far better, for deterrence, for the preservation of resources and even for justice, if capital punishment were taken off the table. That may be hard to do now that Attorney General Eric Holder has decided to seek the death penalty, but it is not too late to reverse course.
Tsarnaev has already received a benefit from being charged with a capital crime: He will be represented by one of the best capital punishment lawyers in the country. Judy Clark is as good as they get in helping a defendant avoid the death penalty.
She also increases the odds, small as they may be, of obtaining an acquittal or a hung jury. She is an expert at marshalling mitigation factors in the defendant’s favor.
In this case, Tsarnaev’s relative youth, his good academic and work record, and the influence his older brother seemed to have on him, will all work in his favor. So will the fact that the case will probably be tried in Boston, or in another Massachusetts city, where it is likely that a jury pool skewed against the death penalty may well be seated.
So what is the case in favor of seeking Tsarnaev’s execution, other than some sense of Biblical symmetry? His alleged crime was beyond atrocious. He attacked vulnerable citizens in a crowd containing children, athletes and Bostonians celebrating a community event. He tried to kill and maim as many as possible. He and his brother apparently murdered a police officer in cold blood.
Moreover, we live in a world in which people who have done much worse, such as Yassir Arafat, are praised and awarded Nobel Peace prizes, despite the blood of thousands of innocent civilians on their hands. As terrorists go, Tsarnaev doesn’t come close to the worst, but that is hardly an argument for mitigation.
The truth is that if he is convicted he deserves the harshest penalty permitted by law. The question is what should be the harshest penalty permitted by law? The other question is do we deserve to see him achieve martyrdom by execution?
The answer to the first question is life imprisonment and to the second, no.
Tsarnaev’s lawyers are seeking to use his case to challenge the constitutionality of the death penalty, but this is not the right case on which to base that challenge, because many Americans who oppose the death penalty for ordinary murders favor it for terrorist murders.
Tsarnaev should receive a fair trial and if convicted sentenced to consecutive life sentences. His victims must always be remembered, but Tsarnaev should be forgotten and sentenced to spend the rest of his natural life in obscurity behind prison bars. That’s what we deserve.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He is a graduate of Brooklyn College and Yale Law School. His latest book is his autobiography, "Taking the Stand: My Life in the Law." Read more reports from Alan M. Dershowitz — Click Here Now.
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