It would be easy to muster moral arguments for the jury to take what some might consider the easy way out and give Dzhokhar Tsarnaev life in prison after being convicted of 30 charges in the deadly Boston Marathon bombing. The trial's penalty phase, which began earlier this week, is taking place in Massachusetts--a state that banned capital punishment decades ago and where nearly two-thirds of residents think Tsarnaev should get life in prison. Furthermore, most executions in the U.S. have occurred in states that legally recognize the death penalty and not under federal law, under which this case was tried.
Life imprisonment seems more fair and humane given his youth and the particular circumstances of his seemingly benign, non-controversial life. He was the younger brother of Tamarlan, the real architect and executor of this malicious act, according to his defense team. Tamarlan, they argued, coaxed his brother in a fairly detailed orchestration, which resulted in a premeditated act of mass killing with intention to inflict as much death, pain and mayhem as possible and in spectacular fashion. However, the issue is not a simple as putting all the blame on the older brother.
The jurors in this case must now decide whether Dzhokhar deserves the death penalty, even if he was a naïve kid who fell prey to a domineering and psychopathic brother and, some could argue, this was a non-terrorist act. In so doing, we should not expect them to plumb the history of Western religious, philosophical and jurisprudential thought on how states have tried to justify executions. Nor will they will traverse the sinews of constitutional law to determine if and when capital punishment is humane and under what circumstances, i.e. by lethal injection rather than the electric chair. Rather, they will search their own conscience, and they will try to arrive at a decision for this particular individual, under these factual circumstances.
Oftentimes justice is sought in a dreamlike wish: that a previous state of affairs can be restored by eliminating the perpetrator of a horrific event like mass murder, while knowing full-well that the effect cannot be undone. Restorative justice tries to compensate those harmed by a crime. But this logic does not apply here. The bewildering fact of this particular crime, even if it is not construed as terrorism, is that the greatest moment of public trust--an open marathon in a major city for which both participants and spectators take great pride--was breached. The trauma is now burned in a public imagination that constantly needs to restore its sense of normalcy, and the death penalty could serve that purpose. This is not to say that the ends justify the means or that taking Tsarnaev's life will prevent future incidents from occurring.
Searching for new philosophical justifications of the death penalty is not the task of the jury. Sociologists and psychologists can easily deconstruct and dismiss abstract theoretical arguments that try to justify the death penalty by pointing empirically to both procedural and substantive flaws in our thinking about what capital punishment actually accomplishes in terms of creating a more secure and sane society. Look at Norway, which does not have a death penalty. Anders Behring Breivik, who murdered 77 people in a fascistic tirade against Islam, was sentenced to 21 years in prison because of the basic belief in Norwegian society, regardless of its homogeneous historical and religious roots, that everyone can be rehabilitated. But the obvious difference here is that not all societies are the same, both in terms of quantity and social fabric, and some are more prone to incidental and structural forms of violence than others.
The moral conviction of the jurors could come down to the simple recognition that something truly monstrous and tragic is occurring in our society and we do not need to have complex legal and philosophical arguments to justify the death penalty. People are now killing for often overlapping reasons, and it should not fall upon the burden of the state to prove beyond a reasonable doubt what is terrorism, what is purely insane, or what is opportunistic and hence preventable.
Since Columbine, America has suffered a series of unpredictable mass killings in the most innocent of settings (schools, theaters, marathons), and therefore terrorism, which is tantamount to an act of war against a sovereign state, cannot be the only category for which capital punishment is justified. The moral case for the death penalty has more to do with the increasingly amoral nature of society: one that was once cemented by a social contract grounded in natural law that preserved above all else the sanctity of life.
*The author does not support the death penalty per se and is not espousing the views of any particular institution. This piece is an attempt to imagine what a moral argument for the death penalty could look like for the particular case of Tsarnaev.