By a 24 point margin, Boston residents oppose the death penalty for a man who terrorized their city last April along with his deceased brother. Only 33 percent of Boston residents support the death penalty for Dzhokhar Tsarnaev, who is now facing federal charges for detonating two bombs during the most recent Boston Marathon. 57 percent of poll respondents believe Tsarnaev should receive a life sentence. Although Massachusetts law does not allow for executions, Tsarnaev potentially faces capital charges because he is accused of violating federal law.
As Zack Beauchamp and I explained shortly after Tsarnaev’s arrest, the best argument for the death penalty — the argument that it deters future crimes — is doubtful at best. “[A]n overwhelming majority among America’s leading criminologists [have concluded that] that capital punishment does not contribute to lower rates of homicide,” according to Dartmouth University statistician John Lamperti. Moreover, while the Tsarnaev case does not raise the same concerns regarding uncertainty and racial bias that plague so many death penalty cases, applying the death penalty only in cases where these concerns do not exist raises serious constitutional concerns:
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, as we argued last April, it is likely that the death penalty is already unconstitutional under this rule, as death sentences are increasingly disfavored in the American justice system. A study of death sentences and executions from 2004–2009 found that just 10 percent of U.S. counties returned a single death sentence and only 1 percent of counties produced more than one. Four states make up 65 percent of new death sentences, and in 2011, there were an estimated 14,612 murders in the United States but only 43 executions.