The Tsarnaev Victims Should Have Their Say On Sentence

04/29/2015 09:38 am ET | Updated Jun 29, 2015

In an opinion piece ("Death or Life for Tsarnaev?") in the Boston Globe (April 22) conservative columnist Jeff Jacoby argues that in our legal system prosecutors represent the public, "not the victims." Ultimately the appropriate sentence to seek in a criminal case is the prosecutor's call and in a capital case the jury makes the ultimate decision after hearing aggravating and mitigating testimony. That's the theory but its only half the story. As is often the case in the criminal courts, the actual practice is more complicated.

The reality is that officials not only listen to the views of crime victims but often craft charges and sentencing recommendations in light of what they are told. There is nothing wrong with this practice so long as the government doesn't simply rubber stamp vengeful and punitive impulses, understandable as they may be, but makes decisions on the basis of the purposes of the law and the public interest. But for victims to have any faith in the criminal justice system they need to have an opportunity to express their thoughts and feel they count even if they're not decisive.

Which brings us to the Tsarnaev sentencing hearing. In capital cases, victims have a legal right to testify on the harm the murder has caused, especially to the loss of the victim to family and friends. It is almost always the prosecution that presents such impact testimony to the jury at the sentencing phase of a capital case, often to devastating effect on the defendant's chance to avoid a death sentence.

In the Marathon trial the victim population will probably be restricted to giving evidence about the aggravating circumstances of the crime and the impact of the deaths and injuries on the victims and their families because the general understanding is that witnesses will be precluded from recommending a specific sentence because as Jacoby puts it "the survivors don't get a vote."

But baring victim opinion about the proper sentence in an infamous case like this, subject to intense and relentless press coverage, would be truly bizarre. All of Massachusetts knows of the Richards family plea, backed by others, to end the case now with a life sentence and many people have heard that others sufferers want to see Tsarnaev dead. Both media and the public are aware that jurors aren't supposed to pay attention to any outside the courtroom commentary but many believe that at least one juror will know about the statements.

The obvious solution is to let the jury hear what the victims and their families have to say in open court regardless of whether they are for or against a death sentence. It seems unreal to keep such common knowledge from the jury but, even more significantly, should deliberating jurors consider what gossip they have heard without basing the information on exact testimony given in a courtroom presided over by a judge there is a real risk of the facts being garbled or misunderstood.

The roots of the separate capital sentencing hearing go back to the 1976 case that reestablished the constitutionality of the death penalty and set us on our present approach to reaching life and death decisions. In the key opinion, three Supreme Court Justices wrote about the separate capital sentencing hearing: "We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument... So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision."

The brave members of the Tsarnaev jury have been relentlessly exposed to the grim face of death and extreme injury caused by the defendant. Before reaching the momentous decision that confronts them, they deserve to hear directly what the victims think and feel.

Michael Meltsner, author of Cruel and Unusual: The Supreme Court and Capital Punishment, is the Matthews University Professor of Law at Northeastern University School of Law.