Don't execute Dzhokhar Tsarnaev: Why present-day politics shouldn't dictate criminal penalties

Yes, his alleged acts were heinous. But the reason he could get the death penalty is based on the wrong principle


Published April 15, 2014 11:43AM (EDT)

This undated photo provided by the vkontakte website shows Dzhokhar Tsarnaev.                                                  (AP)
This undated photo provided by the vkontakte website shows Dzhokhar Tsarnaev. (AP)

As the Boston Marathon bombing reenters the news on the occasion of its one-year anniversary, one critical question is gaining renewed interest: Should accused bomber Dzhokhar Tsarnaev receive the death penalty?

It's a fine question for us as a nation to consider. But a quick glance at the history of the federal government and capital punishment should provide a clear answer: no.

The Justice Department has indicated that it would seek the death penalty for Tsarnaev, who is charged with participating in attacks that killed three people and injured more than 260 others. He would become only the fourth American to be executed by the federal government since Congress reinstated capital punishment in 1988, following a 16-year hiatus.

Earlier in our history, though, Uncle Sam put hundreds of people to death. Those decisions inevitably reflected the political passions of the moment, just as the Tsarnaev prosecution does. And that's precisely why our government should not be in the business of determining who lives or dies, no matter how repulsive their behavior.

In 1862, Lakota Sioux in Minnesota attacked whites who had settled on Lakota reservation lands. After U.S. Army forces suppressed the uprising, 393 Lakota were charged with murder and rape; 303 were sentenced to death.

President Abraham Lincoln reviewed the sentences and commuted most of them. But 38 executions were allowed to proceed. On the day after Christmas in 1862, the U.S. Army hanged all 38 Lakota from a single scaffold. Conducted in front of a cheering crowd, it was the largest mass execution in American history.

Some of these Lakota had surely committed horribly violent acts. But the decision to execute them reflected not so much criminal justice consistency or moral principle but the politics of the era. Lincoln feared that if he blocked all of the executions — or if he did not allow enough of them to proceed — white vigilantes in Minnesota would kill all of the accused Lakota. Indeed, three Lakota defendants had already been murdered by mobs.

Then there was the fate of a hideously unsympathetic figure, Nathaniel Gordon: the only person executed in the United States for slave trading. Although the transatlantic slave trade was outlawed in 1809, American vessels engaged in it with impunity for the next few decades.

Then came the Civil War. In November 1861, a few months after the war began, Gordon was convicted of transporting nearly 900 Africans for the purpose of selling them. He was sentenced to death and executed early the following year.

Gordon was no martyr; no one's shedding a tear for a departed slave trader. But the government effectively martyred him, anyway, by giving him a harsher punishment to tack with the political winds.

Slave trading was one of the most evil practices in the Western world, and of course it deserved to be severely penalized. But a prime reason Gordon got the ultimate penalty — while most of his fellow outlaws got off scot free — was simple timing: He came up for trial during a war that was fought over slavery itself.

Nearly a century later, Julius and Ethel Rosenberg would become the only Americans executed for espionage. Despite years of debate among historians, it's now clear that Julius Rosenberg passed scientific secrets to Soviet intelligence agents.

But it’s also clear that the decision to execute the Rosenbergs had more to do with the politics of their times than it did with the content of their crimes. The information that Julius provided was of little strategic value to the Soviet nuclear program, especially compared to the secrets divulged by other spies.

But the Rosenbergs’ 1951 conviction came on the heels of the Soviet testing of a hydrogen bomb, the Maoist revolution in China, and the outbreak of the Korean War. “You have undoubtedly altered the course of history to the disadvantage of our country,” their sentencing judge declared. “No one can say that we do not live in a constant state of tension.”

Nowadays, we live in constant tension, too, thanks to a different threat: international terrorism. The Boston Marathon bombings reignited for many the feelings of instability that they last felt after Sept. 11, 2001. There are other people plotting to do us grave harm, of course, and we need to remain on constant guard against them.

But we also need to guard against our own emotions in sentencing Dzhokhar Tsarnaev. As the Justice Department correctly noted, Tsarnaev’s acts were “heinous, cruel, and depraved.” Yet so were the deeds of hundreds of other federal murder convicts, most of whom will not face execution.

All of our criminal penalties reflect judgments about cruelty and depravity and especially about responsibility; for example, we typically assign more guilt to a person who lacks contrition than to one who shows some. But our decisions are also highly influenced by our political climate, which can change as quickly as the weather. And a death sentence is the only kind that can't be reversed.

Naturally, I don’t have a single ounce of sympathy for Tsarnaev, who allegedly caused unfathomable grief and horror in Boston last year. But if we single him out for death, we will have let our present-day politics get the best of us. While passions of a crowd can be hard to resist, nobody can really know who is evil enough to deserve the ultimate penalty. And that’s ultimately why nobody should receive it.