Sunday, February 2, 2014

Ultimate Penalty for an Ultimate Crime?

       When President Kennedy decided to appoint his brother Robert to be attorney general, he joked about possibly announcing the decision by opening the door at 3 o’clock in the morning and whispering, “It’s Bobby.” Attorney General Eric Holder appears to have adopted something of the same, low-key public relations strategy last week [Jan. 30] when he announced the government’s decision to seek the death penalty against Boston Marathon bombing defendant Dzhokhar Tsarnaev.
       Holder passed up the chance to appear personally before reporters and cameras to make the announcement. Instead, he issued a terse, two-sentence statement, timed to coincide with the government’s filing of the eight-page notice of intent to seek the death penalty in federal court in Boston. “The nature of the conduct at issue and the resultant harm compel this decision,” Holder said.
       Holder may have decided to take the prosecutorial high road by passing up an opportunity to look tough in a high-profile criminal case. But it also possible that Holder, who is personally opposed to the death penalty, had no desire to be so visibly associated with the decision.
       Like Holder, I am personally opposed to the death penalty. It is not a deterrent, or at most a weak one. It is still invoked and imposed in an arbitrary and discriminatory manner despite four decades of efforts to rationalize death penalty practices. There remains a greater-than-zero risk of a wrongful execution. And, as seen in last week’s botched execution in Ohio, the lethal injection procedure now regarded as the most humane way to put a convicted murderer to death can go wrong and leave the condemned to a ghoulishly slow and painful death.
       With all those reservations, I cannot join in the criticisms being voiced in some quarters of the decision. The eight-page notice of intent lays out a compelling case for seeking the death penalty in this prosecution as long as federal law recognizes capital punishment as an option. As Walter Prince, a former federal prosecutor now practicing white-collar criminal defense in Boston, put it in a rhetorical question to a Wall Street Journal reporter: “If not this case, when?"
       Tsarnaev, 19 years old at the time of the Patriot Day bombing last April, faces half a dozen death-eligible charges. Five interrelated charges, including use of a weapon of mass destruction causing death, stem from the three deaths from the bombing itself; the sixth is for the killing of Massachusetts Institute of Technology police officer Sean Collier during the attempted getaway.
       The government’s notice of intent details thresholds listed in federal law that make the offenses eligible for the death penalty, including intentional killing, intentional infliction of serious bodily injury, intentional participation in acts resulting in death, and intentional engagement in acts of violence, knowing that the acts created a grave risk of death.
      The filing goes on to list five statutory aggravating factors applicable to the bombing, including the “heinous, cruel, and depraved manner of committing the offense.” It notes as well the “substantial planning and premeditation” and the “grave risk of deaths to other persons.” As one final factor, the government lists “vulnerable victim,” a reference to the eight-year-old Martin Richard, who died from the second bomb that day.
      The government also lists “non-statutory” aggravating factors, beginning with Tsarnaev’s alleged “betrayal of the United States” after having been granted asylum and citizenship in this country. The filing also charges that Tsarnaev made statements that encouraged others to commit acts of terrorism and chose a site, near the race’s finish line, “especially susceptible to the act and effects of terrorism.” And, the government says, Tsarnaev has shown “a lack of remorse” for his actions.
      Critics of Holder’s decision include absolutist opponents of the death penalty, who regret any impact the government may have in delaying what they hope is its eventual abolition in this country. In fact, only the federal government has executed only three people since reinstituting a federal death penalty in 1988, including Timothy McVeigh, the Oklahoma City federal building bomber. Seventeen other federal death sentences are currently on appeal, according to a compilation by the Federal Death Penalty Capital Resource Counsel.
      In editorially opposing Holder’s decision, the Boston Globe noted the likelihood of an unnecessarily prolonged trial. It also noted that Massachusetts does not allow capital punishment and that polls in Boston indicate public opposition to the death penalty in this case.
      Federal prosecutions are sometimes instituted in capital cases — improperly in my view — to get around states that do not allow the death penalty. But the state’s interest can reasonably be superseded in this case. The Boston bombing, like the Oklahoma City bombing, was no local crime, but an attack on the nation itself.
       At trial, Tsarnaev and his lawyers will have the chance to make a case for a lesser sentence. He may cite his relative youth, his record in school, and the influence of his older brother, Tamerlan, who appears to have been the mastermind of the bombing. A jury might find that plea persuasive, just as a jury in Virginia spared the life of the teenaged Washington-area sniper Lee Boyd Malvo in 2003.
       That result could represent both justice and mercy. But for now the government cannot be blamed for seeking the ultimate penalty for this ultimate crime.

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