Dzhokar did these things at 19—one year over the age of majority set by our law. He was a teenager. If his sentence is not reduced or overturned by some process of appeal or clemency, he will be killed by the state. How they will specifically manage to do this is a matter of some debate. If they can find the usual lethal injection drugs, they will put him under general anesthetic, then paralyze his body, then stop his heart from beating. Given the increasing difficulty of obtaining these drugs, however, due to the global revulsion against the American use of the death penalty and the refusal of many companies to supply chemicals that will enable it or be associated with it, Tsarnaev may instead be knocked out by a less effective painkiller, midazolam, which may cause him to wake into consciousness at a later stage of the process—perhaps after he has been paralyzed, meaning that he would experience the incomprehensible hell of feeling himself dying of poison without being able to fill his lungs to call out, or move any part of his body. To die while awake and conscious from potassium chloride – the last, fully lethal component of the executioner’s cocktail – has been compared by members of the US Supreme Court to being “burned alive from the inside.”
Dzhokar is faced with the federal death penalty, which is a separate system from the capital punishment of the states. It is also currently in a condition of suspension, while the Supreme Court decides if lethal injection can meet the constitutional standard prohibiting “cruel and unusual punishment,” so long as it carries the considerable risk of the consequences described in the last paragraph. We won’t know until June how the justices will decide on this question: judging from the oral arguments in the case so far, however, it sounds as if the four liberal justices are likely to be on their own in finding against the use of lethal injection under these circumstances, which would not be enough to constitute a majority. Tsarnaev’s execution would go ahead as others have, in that case. If the court finds against the use of the midazolam and potassium chloride cocktail, however, the state has other facilities at its disposal that might be more “humane.” Justice Sotomayor, in the service of making a point, mentioned a few of them: the gas chamber was one; the firing squad another. “Do we know that firing squads are painless?” asked Justice Ginsburg. So maybe Dzhokar will be blindfolded and shot by men with automatic rifles, as was done in Utah as recently as 2010.
Occasionally things happen that remind one that the world is a much stranger and uglier place than one was accustomed to think. Justice in her striding has been known to catch a foot in a root, and spill upon the ground. Her blindfold slips, revealing “two festering sores / that once perhaps were eyes.” (Hughes). The quest to find the “humane” way to end the life of someone against their will (and perhaps Sotomayor and Ginsburg would agree, perhaps this was precisely their point) is one of these revelatory grotesqueries. Every execution is a “botched” one. Every one is cruel and inhuman, by definition. Every one indicts us in the eyes of the world’s nations, most of whom have long since sent lethal injection the way of the firing squad and the gas chamber and the gallows and the electric chair.
Yesterday and today, I feel ashamed to be an American.
One can understand why the jury made the decision it did, of course. One can sympathize all the more with some of the victims and their families who favored the death penalty. One needs to remember them always and everywhere. I think that the times in the past when I’ve written about Dzhokar’s case on this blog, I didn’t manage to do this as well as I should. I didn't keep the names of Martin Richard, Lu Lingxi, Krystle Campbell, and Sean Collier as central to my understanding of the issues as I ought. In my desire to preserve one person from the ultimate and final denial of his humanity that is the death penalty, I did not fully keep in view just how horrible and irrevocable his own actions had been. This trial, though it was manifestly unfair to Dzhokar along numerous dimensions (including the fact that its jury was made up of members of the community most directly affected by his actions and thus least capable of impartiality, and the fact that his jurors had to show they were open to the death penalty in principle before they could be seated (which in a state like Massachusetts effectively guaranteed that Dzhokar’s jurors would have far harsher views on punishment than most of their peers)), at least ensured that I and other people were not likely to lose sight of this again.
If it is difficult to blame the jury, however, it is not so hard to fault a society and a government that faced them with this excruciating choice, and that offered them the abominable option of killing. And in truth, as much as I am unable to summon any anger toward the jurors, I was surprised that they took this offer. I did not see the capital sentence coming, though perhaps I should have.
The reasons why I thought Dhokar's life would be spared were many. Tsarnaev’s defense team at no point tried to claim his innocence. From one end of the trial to the other, they effectively did nothing other than plead for the small (very small) mercy of sending him to prison for life without possibility of parole, instead of ending his life. This was their only aim and message. The team was composed of the most seasoned death penalty abolitionists. They called upon the substantial moral authority of Sister Helen Prejean. They appealed to every principle and emotion they could think of. Judy Clarke, in her final speech to the jury, reminded them that “an eye for an eye” was the moral standard that Dzhokar had employed to murder four innocents and wound hundreds. That may be who he is, she said, “but it’s not who we are.” The greater victory over violence and injustice, she implied, was not to return it in kind: "Mercy is never earned. It is bestowed. I ask you to make a decision of strength that demonstrates the resilience of this community. We ask you to choose life." Nor did the defense spurn to use the retributive argument, however, if they thought it might save their client. They spoke to the jury about the misery and degradation of the maximum security prison to which Dzhokar would be confined, if his life was spared, and implied that it might indeed be the worse fate of the two (you may blink here, as I did – but to a certain mentality this would serve as an argument for life in prison, rather than against it).
Add to this the fact that Martin Richard's parents, the parents of the youngest victim of the bombings, asked that the state not pursue a sentence of death. Keep in mind too that all that was needed for a life in prison sentence was for a single juror to vote for it. Death had to be unanimous to be carried out.
None of it worked. Evidently, not one person on that panel thought that this 21-year-old boy, who had committed his crimes at the age of 19, should be allowed to live out the whole span of his life.
I have no fresh and clever arguments to use against the jury’s decision. I am disappointingly non-contrarian on this issue. Though our prisons are horrible places, I still think that taking someone’s life from him against his will is the worst of the bad things our state considers doing to people. It is an act that denies to that person his past, his present, and his future – everything he was, is, and might possibly be – “everything he’s got, and everything he’s ever gonna have,” to quote one of the profounder lines of one of the best of films, Unforgiven. And the religious and ethical principles that matter to me forbid me from trying to do the worst that is possible to any person, even if that person has done the worst to others. You will see from me therefore no unexpected maneuvers; no funny moral jiu-jitsu of the Bill O’Reilly variety (according to whom capital punishment should be opposed because it is in his judgment not bad enough. O'Reilly's instincts are more gratified by the thought of lifelong toil and pain being inflicted on the convict).
The defense, as mentioned above, made some use of the Bill O’Reilly argument, of course, as it would have made use of any appeal that might possibly spare Dzhokar’s life. When they described the fate that awaited Dzhokar as an alternative to death, they succeeded in presenting it as almost inconceivably awful. They portrayed a lifetime of near total isolation in the Supermax prison, and begged the jury to consider such a horror sufficient punishment. By the time I read that the defense was using this argument, I knew that there was effectively no hope one way or the other for mercy. Mercy had long since been taken off the table. The only question anyone was considering after this point was what was going to be the worst punishment they could think of to inflict on child Dzhokar – a lifetime of near-solitary confinement, from the age of 21 for however many decades upon decades he would live thereafter, or state murder. It took me some while during the sentencing phase of this trial to realize these were the only choices being contemplated: either death, or a lifetime of torture until death came. Those were the only possibilities that were deemed thinkable, reasonable, and possible options.
And don’t doubt that the Supermax fate would be torture. I maintain it's still preferable to death, but the place the defense described in its arguments is close to being as much an outrage to human dignity as capital punishment. The defense portrayed a life in an enclosed cell in which all “conversation” is limited to one outside phone call a month (the prosecution later tried to paint this and similar tiny concessions to the need for human contact as an obscene privilege). I don't believe that any human mind could maintain sanity or a sense of self for long in such a setting, let alone for an entire lifespan. The human personality lives by contact with others—left on its own, it consumes itself. The idea that this fate is somehow different from or less horrifying than bodily harm is absurd. No pain exists except that it is transmitted through the human brain anyway. There is no mere poetic hyperbole therefore behind a line from Nabokov's Ada, describing one character's descent into insanity: "the human brain can become the best torture house of all those it has invented, established and used in millions of years, in millions of lands, on millions of howling creatures."
For me, therefore, there was no good outcome to this trial, of the options presented. I was disturbed by either choice, and I had my objections to each one running in my head up to the last moment of sentencing, the same way they used to print two different versions of the newspapers the night before the presidential election because in either case they knew exactly what they had to say.
Indeed, there is some argument to be made that the death sentence might actually give more grounds for hope in this case than the alternative. There remain many stages of appeals and visits to clemency boards standing between Dzhokar and the execution chamber, which constitute many further chances to save his life. There would be no such possibilities, by contrast, if he had simply been shut away in a live coffin until his natural death (which would, most likely, be unnaturally hastened by the terrors and stresses that result from prolonged isolation).
What a world, though, in which these are the choices we have to contemplate. I do stand by the contention that a death penalty, if carried all the way through, is the worst of the punishments we consider inflicting, but the alternative to it never had to be the unthinkable atrocity of lifelong isolation. That brutal dilemma was something no one forced upon us – we elected to have it that way.
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Dzhokar's case is not, of course, the only or even a representative instance in which death penalty abolitionists need to make themselves heard. Indeed, there is a certain perverseness in the fact that precisely because Dzhokar’s crime was so grave and unrepresentative, and thus has received and will continue to receive more news coverage, his federal death sentence is likely to be more widely protested. It is chastening to recall that all this time, people who did less heinous things and under far more difficult psychological circumstances have been shuttered away into endless night at the state level, with far less vocal outrage coming from the likes of me. The night of May 12th, indeed-- just a couple of days before the Tsarnaev verdict -- the state of Texas killed a man, Derrick Dewayne Charles, who had suffered from mental illness all his life. This past January, Texas had killed a man who almost certainly had intellectual disabilities, Robert Ladd. On April 14th, the state of Missouri executed Andre Cole over the objections of the victim's family, and in the face of considerable evidence of mental disorder.
Cases like Dzhokar's, where the crime was sensationally horrific, where the perpetrator had seemed "normal" beforehand, where he expressed little contrition afterward, etc., become representative of capital cases in the public mind, which is to say that it is in regard to cases like these that most people form their lasting opinions as to the justice of the death penalty. Yet most of the cases ending in execution in the country look nothing like Dzhokar's. The defendants are often members of racial minorities, whereas Dzhokar might pass as "white." Their crimes are less premeditated and are committed on a far smaller scale than were the Marathon bombings. Very often they have long suffered from a mental disability or illness and/or they were the victims of violence and abuse as children. And many of them express remorse before they die (Robert Ladd told his victim's family the day the state killed him that he was “really, really sorry” and that he "really, really hope[s] and pray[s] you don’t have hatred in your heart.”)
In an extraordinary piece of journalism published this past week in the Atlantic, Jeffrey Stern takes us through the life history of Clayton Lockett, the man who was killed in the extremely gruesome botched execution in Oklahoma last year (the Governor, who might have saved him, chose to attend a basketball game while he was being killed), and who embodied many of these characteristics. The article tells of a man who did an incredibly terrible thing-- he murdered a 19-year-old girl and attacked several other people. But Stern, after pulling no punches and employing no euphemisms in the description of this crime, unfolds from that point on the story of a man who had been abused and surrounded by violence as a child; who had been sent to an adult prison in Oklahoma as a 16-year-old and repeatedly raped there; who in short, and in a thousand ways, had never had a chance. Year after year, this is the far more typical story of the men and some women who are killed by the state. This is the silent and unknown face that is anesthetized, paralyzed, and poisoned about 40 times per year. But these condemned receive far less glamorous attention, and don't ever enter into most people's consideration of whether or not they support the death penalty -- or into their consciousness at all.
In an extraordinary piece of journalism published this past week in the Atlantic, Jeffrey Stern takes us through the life history of Clayton Lockett, the man who was killed in the extremely gruesome botched execution in Oklahoma last year (the Governor, who might have saved him, chose to attend a basketball game while he was being killed), and who embodied many of these characteristics. The article tells of a man who did an incredibly terrible thing-- he murdered a 19-year-old girl and attacked several other people. But Stern, after pulling no punches and employing no euphemisms in the description of this crime, unfolds from that point on the story of a man who had been abused and surrounded by violence as a child; who had been sent to an adult prison in Oklahoma as a 16-year-old and repeatedly raped there; who in short, and in a thousand ways, had never had a chance. Year after year, this is the far more typical story of the men and some women who are killed by the state. This is the silent and unknown face that is anesthetized, paralyzed, and poisoned about 40 times per year. But these condemned receive far less glamorous attention, and don't ever enter into most people's consideration of whether or not they support the death penalty -- or into their consciousness at all.
But any attention directed to a capital punishment case is ultimately better than none; even if that attention is not distributed with perfect justice, and even if it tends to focus on atypically heinous cases. Because still, even in the case of the worst offenders, death by execution is very like an eclipse -- it is searing to look at it directly; the hand that was eager to work the hangman's lever in the abstract suddenly begins to tremble when given the chance to do so to an actual human being, a real person, with a name, who breathes and smiles and has a mother and father. We can only hope, then, that Dzhokhar's case continues to force people to look, that it stays in the news, that every day it asks people to decide for themselves all over again: do they think it's right to kill a 21-year-old boy? Or could they find it in their hearts to let him live?
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