04/23/2013 11:25 am ET Updated Jun 23, 2013

Should the Boston Bomber Face Execution?


As doctors fight to save the life of alleged Boston Marathon bomber Dzhokhar Tsarnaev, hospitalized with a "self-inflicted-style" gunshot wound, officials and pundits are calling for the federal government to finish the job.

"Throw the book at him," demanded Boston Mayor Thomas Menino. "I would be shocked if it's not a death penalty case," said Michael Sullivan, a former Massachusetts U.S. attorney. "Death penalty the only justice for bomber," headlined Howie Carr's column in the Boston Herald.

Understandable sentiments in light of the carnage last week when four were killed, more than 170 wounded and a major city paralyzed by domestic terrorism. And, not surprisingly, the Justice Department charged Tsarnaev yesterday with using a weapon of mass destruction, an offense that carries a maximum penalty of death.

But is capital punishment the answer?

In many cases, even law enforcement concedes it is not. Since the federal death penalty was restored in 1988, almost half of the 454 defendants charged with death-eligible crimes were allowed to cop pleas rather than face trial and possible execution, according to the Death Penalty Information Center. For example, the feds cut a deal with Jared Loughner, the Arizona gunman who shot then-U.S. Representative Gabrielle Giffords and killed six others. The deal will keep him behind bars for seven lifetimes. Unabomber Ted Kaczynski and Olympic Park bomber Eric Rudolph will similarly live -- while never breathing free air again -- after pleading guilty to murderous rampages.

Each of these cases involved mitigating factors against a death sentence. Several factors that might similarly spare the alleged Boston bomber are his age (19), spotless criminal record and the likelihood that he was influenced heavily by his older brother, Tamerlan, who was killed in a shootout with police.

Some would call plea-bargaining and mitigation "soft on crime," or "coddling killers," but justice demands caution before enforcing society's ultimate punishment. For one thing, there is the innocence issue. In the modern era of the death penalty, 143 condemned men and women have been exonerated and freed. And, in federal capital cases, 13 ended in acquittals and three others led to the dismissal of charges on the grounds of actual innocence.

But Tsarnaev is guilty, right? Sure looks like it, but seeking death for seemingly clear-cut cases like his means risking its wrongful application to crimes where the suspect turns out to be innocent. For every just conviction, there is an unjustly condemned Randall Adams, Kirk Bloodsworth, Sonia Jacobs, Anthony Porter and Dennis Williams. Relying on officials to decide who lives and dies is no better than trusting them to administer any other government program, except the consequences of a mistake in a capital case can be irreversible.

It has been argued that the death penalty is a deterrent, despite research that proves otherwise. Regardless, it is hard to imagine that killing Tsarnaev will stop terrorism in the future, any more than the federal execution of Oklahoma City bomber Timothy McVeigh in June of 2001 failed to prevent Al Qaeda's aerial assaults just three months later, or that shooting Osama bin Laden two years ago deterred last week's bombings. When terrorists are willing to die for a cause by flying planes into buildings, they do not fear lethal injection.

This leaves the moral question: Should those killed and maimed in Boston be avenged by executing Tsarnaev after the authorities learn what they can from him (and assuming he is found guilty)? An eye for an eye, Hammurabi's Code proclaims.

It is not a question I can answer personally, having never faced a situation like the families of Boston's bombing victims. So I turned to someone who suffered a similar tragedy. Her name is Jeanne Bishop, an attorney and board member of several civic groups, including the Chicago Innocence Project.

In 1990, Bishop's pregnant sister Nancy and brother-in-law Richard were murdered in their home in upscale Winnetka, Ill. The FBI initially suspected foreign terrorism. But it turned out that a deranged Winnetka teenager had herded the young couple into their basement and opened fire, shooting Richard in the head and Nancy in the abdomen. The killer later said he did it because "they were annoying." He got life without parole.

Bishop's reaction to the events in Boston?

"It struck me during the manhunt for the surviving brother that people were praying he would live, that he would be taken alive," she told me. "And now we want to kill him? What would that do, except prove to terrorists that they are right, that killing is the solution. Don't we want to prove them wrong?"

She continued: "The solution lies with the heroism of the people who rushed the wounded to the hospital, the dedicated doctors and nurses who labored to save them, the ordinary citizens who gave information to bring the killers to justice. The solution is found in the unprecedented number of spectators who lined the route of the London Marathon on Sunday to prove they had no fear. That is how you defeat a terrorist. Not by killing, by more bloodshed. You defeat them with love. Light overcomes darkness. It always will."

Bishop recalled the crime scene in Nancy and Richard's home. A trail of blood revealed that her sister was not killed instantly. She managed to crawl first to Richard's lifeless body, then to a shelf, where she drew a heart and the letter U in her own blood. Only then did she die.

"My sister is the reason I can comprehend all this." Bishop said. "Nancy had the last word the night she was killed, and that word was love. Evil cannot withstand it."