Boston bombing suspect Dzhokhar Tsarnaev has only been in custody a few days, and at least two U.S. senators have already called for him to face the death penalty. It is difficult indeed to imagine a crime more deserving of society’s most severe sanction than the one allegedly committed by Tsarnaev and his brother. The brothers built bombs, targeted a public event packed with spectators, and, as a final cruelty, attacked the finish line of a marathon — guaranteeing that many of their victims would be too exhausted to flee after just completing a 26 mile run. One of their victims will not see his ninth birthday. Another victim, who they allegedly murdered during their failed effort to escape justice, had barely begun his career as a police officer. We still do not know what motivated the Tsarnaevs to such meaningless destruction, but it’s hard to see their actions as anything other than pure evil.
So Dzhokhar Tsarnaev may present one of the strongest possible cases for the death penalty. And yet, even in this case, the argument for pursuing a death sentence against Tsarnaev does not hold up.
The best argument for the death penalty is that it deters people from committing homicides in the first place, an argument that suggests we should execute far more people than just Dzhokhar Tsarnaev. If you think the death penalty is about deterrence, then you need to have it as an available option for all crimes you want to deter with it.
The deterrence argument, however, is doubtful at best. According to Dartmouth University statistician John Lamperti, “an overwhelming majority among America’s leading criminologists [have concluded that] that capital punishment does not contribute to lower rates of homicide.” While some studies do claim a deterrent effect, these studies are based on tiny data samples that yield doubtful results. As Yale Law Professor John Donohue explains, death sentences are “applied so rarely that the number of homicides it can plausibly have caused or deterred cannot reliably be disentangled from the large year-to-year changes in the homicide rate caused by other factors.” Murder rates in states without the death penalty are consistently lower than those in states that do sentence people to die.
Meanwhile, few institutions expose the hazards inherent in government-mandated punishment more nakedly than the death penalty. Capital cases are difficult and incredibly expensive for prosecutors. As a consequence, the wealthy and privileged, who have the resources to hire outstanding legal counsel, are very rarely executed. The people that are convicted, by contrast, tend to be poor and disproportionately non-white. Nor is such arbitrariness limited to the way we distinguish among defendants, as the way we dole out death sentences also gives the lie to any claim that America values all human life equally. According to one study, defendants who kill high-status white people with college degrees are six times more likely to be sentenced to die than defendants who kill black victims closer to the margins of society.
Indeed, there is simply no escaping the role that race plays in determining death sentences. To take one demonstrative statistic from an ocean of them, six percent of murders in Alabama involved black defendants and white victims, but ten times that percentage of black death row inmates were convicted of murdering whites.
The death penalty also kills innocent people. Roughly 139 death row inmates have been exonerated since 1973, 61 percent of whom were people of color. At least ten innocent people that we know of have been executed — and these are only the ones that we know of.
These three realities — the impact of wealth, the disparate treatment based on race, and the risk of killing innocents — are themselves reasons why the death penalty should not exist. But are they arguments against applying it, so long as it does exist, in the most heinous of cases? Though Tsarnaev may well face prejudice on the basis of his religion, the fact that this is such a high profile case means he will likely receive excellent legal counsel, and his guilt is hardly in doubt. Though not quite as “hard” a case for anti-death penalty advocates as, say, Aurora shooter James Holmes — who was white, wealthy, and also almost certainly a mass murderer — Tsarnaev is one of the cases where the death penalty appears most likely to be applied fairly and justly.
The Boston Marathon bombing is as horrible a crime as one can imagine, so Tsarnaev’s case raises the difficult question of whether America can limit executions to only the most heinous crimes — at least under circumstances where the defendant’s guilt isn’t in question and there’s no evidence that his trial will be conducted unfairly in any fashion. Can we limit death sentences only to people as evil as Tsarnaev appears to be?
The simplest answer to this question is that we are a nation of laws, and our most fundamental law says we cannot create a brutal, rarely applied punishment targeting just a handful of crimes. The Constitution forbids “cruel and unusual punishments. So as a punishment becomes more “unusual” — or, in the Supreme Court’s words, as it no longer can be squared with “evolving standards of decency that mark the progress of a maturing society” — it stands on increasingly weaker constitutional ground.
Indeed, it is likely that the death penalty is already unconstitutional under this rule. The number of death sentences has been on the decline in the United States, but not principally because of legal reforms limiting the death penalty to a small number of cases: it’s a combination of full legal abolition in some jurisdictions and the spread of anti-death penalty norms among citizens and prosecutors in others. 60 percent of U.S. counties have stopped seeking the death penalty entirely as a punishment for any crime. One study of death sentences and executions from 2004-2009 discovered that just 10 percent of counties returned a single death sentence, and only 1 percent of counties produced more than one death sentence. Just four states made up 65 percent of national new death penalty convictions. In 2011, there were an estimated 14,612 murders in the United States, but only 43 executions. These data strongly suggests that executions no longer comport with our “evolving standards of decency.” We are increasingly uncomfortable with death sentences, and unwilling to execute people.
But beyond the cold language of the law, there is a deeply personal reason why we should not preserve the death penalty simply for the most heinous criminals like Tsarnaev. If you think the death penalty is a just response to murder or important to provide victims’ families with closure, then trying to limit it to a small number of multiple murders makes no sense. Why does taking one life not merit death, while taking two, three, or any other arbitrary number does? Why is the pain of one victim’s family any less important to address than the pain of families whose loved one was part of a multiple murder? There are many families that deserve the satisfaction of knowing their loved one’s murderer received society’s stiffest sanction for their crime, and it’s far from clear that the death penalty fills that need better than life without parole — indeed, it may even prolong a families’ grief. Yet the moment we say one victim, or set of victims, must be avenged by death, we lose the ability to consistently limit the death penalty’s application to rare cases — and the uncertainty and arbitrariness that plagues capital sentencing generally comes flooding back. When life without parole is the harshest penalty our courts dole out, such a sentence will stamp everyone who receives it as among the very worst criminals without opening the door to an unjust and unconstitutional policy.
So the death penalty is arbitrary. It discriminates on the basis of race and income. It kills the innocent. It is unconstitutional. And it may even deepen the wounds of families already grieving from the most terrible tragedy imaginable.