Boston Marathon multiple killer Dzhokhar Tsarnaev is now on trial in federal court in Massachusetts. There is an illuminating article (again, courtesy of Doug Berman) about the chances that Tsarnaev will get the death penalty. The article concentrates on the historical odds that capital punishment will be imposed and, if so, whether it will be carried out. It's mostly a survey of statistics.
The most noteworthy feature of the piece is what it does not talk about. One might think that, in assaying the prospects that the jury will choose the ultimate punishment, the author would at least mention, somewhere (1) what exactly Tsarnaev did, and (2) whether, under commonly accepted principles of proportionality and justice, the death penalty might be warranted as a response.
Nope. None of that stuff. Instead, the piece discusses solely what has happened in other cases bearing little to no factual resemblance to this one. Factual specifics and just desserts never make an appearance.
This is a wonderfully typical abolitionist approach. It amounts to walking past the carnage while cackling that, because obstructionist tactics so often work, they'll probably (as a statistical matter) work again! So there!!
For those interested in something other than thinly disguised (and, I should add, premature) snickering, there is another story today about the Tsarnaev trial.
From the NBC News affiliate in Boston:
BOSTON (WHDH) - The father of the youngest victim of the Boston Marathon bombings gave testimony Thursday in the trial of accused bomber Dzhokhar Tsarnaev.
Bill Richard was the final witness to take the stand and answered questions from prosecutors for at least an hour.
He described how his wife, Denise, and his kids Martin [eight years old], Henry, and Jane, went to watch the 2013 Boston Marathon. He said it was a family tradition.
Jurors focused on his testimony and his descriptions of what his family went through after the second bomb went off outside Forum Restaurant.
"It was muted chaos I could hear," Bill Richard said in court. "It smelled like gunpowder, sulphur, burned hair. It smelled vile."
Dzhokhar Tsarnaev showed no emotion, while people in court were shaking, crying, and wiping away tears listening to Richard describe the chaos.
He said he was blown off of a barricade and onto Boylston Street, but managed to get back to the carnage on the sidewalk to find his wife leaning over his son, Martin.
Richard's son Henry was also injured, and he tried to help his daughter, Jane, who lost her leg.
"She tried to get up and she fell. It was then that I noticed her legs, picked them up and tried to shield both of their eyes," he said.
Prosecutors showed surveillance video and Richard circled pictures of his family members.
"I knew that I needed to get back and help. When I saw Martin's condition, I knew he wasn't going to make it," Richard said. "It was then I saw my son alive, barely, for the last time."
!['Martin Richard, the youngest victim of the Boston Marathon bombings, would have turned 9 years old on Sunday.
To honor his memory, hundreds of family and friends gathered at St. Ann Church in Dorchester for a remembrance. Cameras were not allowed inside the church where Martin's father, Bill, took to the podium to reflect on his young son's life.
1 Share= 1 Birthday Wish in Heaven.
@[183597521791528:274:R.I.P Martin Richard]'](https://fbcdn-sphotos-g-a.akamaihd.net/hphotos-ak-xap1/v/t1.0-9/s526x395/10641_203400196477927_651529885_n.png?oh=36400b17ff42e1a203facc586fbfa393&oe=558F659D&__gda__=1434169797_4955b29342b4bfc8e13ec702cf1ce422)
I wonder, Bill, if you would advocate for a mandatory death penalty in cases of terrorism if (when?) a majority of Justices were ever to overturn the questionable precedent that a mandatory death penalty scheme violates the Eighth Amendment.
Doug --
I'm a believer in the art of the possible. It is not possible to return a mandatory death penalty to the law, given the current SCOTUS. But get back to me when President Walker appoints some new people.
I do think it would be possible, and I fully support, doing away with the requirement of jury unanimity in the penalty phase -- a requirement that subverted justice in the recent case of defense bar heroine Jodi Arias. Kent recently posted on that case.
I would allow a vote of 11-1 or 10-2 to suffice. (I believe that is presently the case in Florida, although I'm not sure).
A rule like that would frustrate the hothead-holdout (or the juror who's been bribed or threatened by the defendant and/or his gang).
Doug --
You are so adept at changing the subject that you have me going along too!
So let me follow up my comment by asking directly about the actual subject here. That would be the appropriate punishment for an adult of sound mind, never a victim of Jim Crow or anything like it, and represented by top-flight lawyers, who blew to bits an eight year-old boy (and two young women) by manufacturing and them planting at his feet a nail bomb?
Do you think the jury would be justified in imposing, and the government in carrying out, the death penalty?
As I think you know, Bill, I am a death penalty agnostic and I am especially eager for democratic legitimacy and due process serve as my "death penalty diety." Since the Tsarnaev capital process is full of democratic legitimacy and due process, I will be very respectful of the jury verdict whether it is death or LWOP.
I guess I would throw the question back at you, which is what really prompted by mandatory DP query: will you respect the jury verdict if an LWOP sentence is returned?
One (of many) reasons I respect the death penalty process is because juries can/will help moderate your hothead concern if it turns out a prosecutor is the hothead. In contrast, the mandatory sentencing provisions for drug offenses that you so aggressively support has no remedy for the hothead problem. (Ooops, there I go changing the subject again.)
Doug --
I'm not sure what you mean by "respect." I respect the overall legitimacy of the sentencing process, yes, although I oppose the unanimity requirement, since it incentivizes and facilitates defense bribery and intimidation. But I would DISAGREE with any punishment less than death (as would a huge majority of the American public, according to a Washington Post poll I blogged about earlier). The crime here was calculated sadism and terrorism, intentional child murder and mutilation, and the killer shows no trace of remorse. The defense is, "It was someone else's fault." The whole thing turns my stomach.
If you were on the jury, and you knew only what you know now (which is a lot), would you vote for death or LWOP?
"One (of many) reasons I respect the death penalty process is because juries can/will help moderate your hothead concern if it turns out a prosecutor is the hothead."
Prosecutors don't sentence anyone.
"In contrast, the mandatory sentencing provisions for drug offenses that you so aggressively support has no remedy for the hothead problem."
As noted, prosecutors sentence no one, and to the extent they're "hotheads," they just make the cool and shrewd defense lawyer that much more persuasive.
In any event, it is simply not the case that an overboard sentence has no remedy. Clemency is the remedy, although it did not seem to be a very popular remedy with you or your commenters when I supported it for a first-time, non-violent offender.
"(Ooops, there I go changing the subject again.)"
Conceded.
Bill and Douglas A Berman
LWOP does not mean someone will not be released early only not paroled early. Furthermore, being in prison does not prevent a murderer from murdering again.