Dzhokhar Tsarnaev: Would The Death Penalty Be The “Ultimate Punishment”?

Now that this entire, sad affair that has taken four lives and horribly injured several more is over – at least on the investigatory and law enforcement level – though the legal one just begins – I thought some thoughts from a Boston criminal lawyer are in order here.

No, you’re not going to hear “You don’t know this suspect, Dzhokhar Tsarnaev, is guilty until he’s been found guilty beyond any reasonable doubt in a court of law.” It seems quite obvious that this kid is eyeball deep in this horrible story, and his guilt seems all but a foregone conclusion. (Unless a legal technicality is available to prevent same.) No, what I want to address here, is everyone’s quite rational and normal desire for justice at the end of this story.

Everywhere around me, particularly on social media such as Facebook, Twitter and such, I keep seeing and hearing demands for the death penalty in this case. On a pedestrian level, it’s understandable why so many people want this: This was a premeditated, heinous, sadistic act of violence, which killed three people immediately, a fourth later, and maimed several more. It turned what has for decades been an enjoyable event that heralded spring for all, into a nightmare that heralded only more insecurity and grief for many. The individuals and the families affected by these sickening events, will never be the same. All wrought by two disaffected, maladjusted, twisted individuals, who probably wanted to feel “important.”

People want “justice.” People want this kid to “pay for it,” to “pay the ultimate price,” to “suffer.” They want the death penalty. They think that is the “ultimate punishment.” Others want it because they (very mistakenly) believe that it acts as a deterrent to similar crimes. As a Boston criminal defense lawyer, I can assure such people: They’re wrong on both counts.

First, the “Ultimate Punishment” argument: A big problem with capital punishment, is that it’s too easy a method of execution. Lethal injection is no more “unpleasant” than being given general anesthesia. In fact, it’s designed to be almost completely pain-free. The convict is spared a lifetime of being locked up in a cage with other animals, never to see or know freedom again. I don’t call that “punishment,” I call it mercy. Most anyone I know would beg for it, if sentenced to life in prison. Yet, the answer can’t be to go to the other extreme and make capital punishment an excruciatingly painful experience either, for two obvious reasons: 1) The Eighth Amendment’s ban against cruel and unusual punishment, and 2) Even if it weren’t for the Eighth Amendment, torturing someone to death would debase us all as a culture. The second problem with capital punishment, is that credible study after credible study, has PROVEN that it does NOT deter criminals from committing the types of acts punishable by the death penalty: Murder, terrorism, etc.

Especially in its current form of painless, anesthetized lethal injection, capital punishment has zero current deterrent effect. If anyone doubts that, take it down to a personal level and ask yourself: If you were the type of person to commit a crime like this, (note: that “type” is usually the most violent and disturbed type of person you could imagine) and you knew that this was the worst punishment that could be inflicted on you after conviction of a capital offense, would that “deter” you from committing such a crime? No animal who would commit such a crime would be deterred by such an easy exit. Did the fact that Timothy McVeigh was given the death penalty, ever “deter” anyone who followed him afterward? It certainly didn’t “deter” Dzhokhar and Tamerlan Tsarnaev. It just doesn’t work that way. I know this, as a professional who works in this field.

So what to do with such convicts? Answer: Restore the (largely abandoned, in the U.S.) concept of misery in prison (for which the French are well-known): Hard (and I mean HARD) labor 8 hours a day; the rest of the 16 hours locked in a cell; restricted visitors; no gym; no television or radio; no library privileges; no internet; 10 minutes of Yard time a day; no special meals or special privileges of any kind. Make such convicts pariahs within their own prison, scorned by the worst of the worst and the lowest of the low. Suffering every day, for all their days. THAT’S lifetime punishment, not being painlessly put to sleep and not waking up.

As a Boston criminal defense attorney, I can almost guarantee that federal prosecutors will seek the death penalty in this case. And, assuming that Tsarnaev is convicted, he will receive the death penalty, as did Timothy McVeigh. But if anyone thinks that will bring him “suffering”, or that it will be the “ultimate punishment”, or that it will “deter” other, like-minded people from committing similar such crimes, they’d be quite wrong. Capital punishment these days is almost institutional clemency. Deterrent? Hardly. Punishment? More like mercy than anything else.