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George Will has a column in today's Washington Post titled, "Capital Punishment's Slow Death."  In it, Will makes three arguments against the death penalty.  All of them are wrong.

Here's how he puts it:

The conservative case against capital punishment, which 32 states have, is threefold. First, the power to inflict death cloaks government with a majesty and pretense of infallibility discordant with conservatism. 


Second, when capital punishment is inflicted, it cannot later be corrected because of new evidence, so a capital punishment regime must be administered with extraordinary competence. It is, however, a government program. Since 1973, more than 140 people sentenced to death have been acquitted of their crimes (sometimes by DNA evidence), had the charges against them dismissed by prosecutors or have been pardoned based on evidence of innocence....


Third, administration of death sentences is so sporadic and protracted that their power to deter is attenuated. And the expensive, because labyrinthine, legal protocols with which the judiciary has enveloped capital punishment are here to stay.


Let's start from the beginning.





Mitigating in whose opinion?

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I have downloaded the Tsarnaev jury verdict form from PACER and uploaded it here. There are several interesting things about this form, but one that I particularly want to note is the deficiency in what the jurors are asked to find about "catchall" mitigating factors.

The Supreme Court has mandated since 1978 that the defendant can proffer to the jury any aspect of his character, background, or record that he wants to argue as mitigating.  When he does, there are actually three decisions to be made.  (1) Is the factor factually true?  (2) If so, is it actually mitigating? (3) If so, how much weight should it be given?

It seems to me that there is not enough attention given to the second step.  Supposedly mitigating factor 16 on page 18, for example is, "Dzhokhar Tsarnaev's mother facilitated his brother Tamerlan's radicalization."  Ten jurors found that factually true.  How many considered it mitigating?  Did all 10 understand they could find it true and still say "So what?  That's not mitigating."

These kinds of failures to make clear to the jury the nature of what they are supposed to be deciding were held to be unconstitutional when they ran against the defendant many years ago.  But ambiguities and omissions that run in the defendant's favor apparently go uncorrected.

The jurors probably get to the right end result in any case.  In the weighing process, jurors may find that a true factor gets zero weight if it is not mitigating.  Still, I would like to see this cleaned up.
Opponents of the death penalty have been crowing in recent years about a supposed turn away from it, citing repeals in a few states, including New Jersey.  But those repeals represent failures of representative democracy, as legislatures act contrary to the views of the majority of the people.  They have gotten away with it because crime has not been high on the political radar screen while wars, terrorism, financial crises, and the revamp of the health care system dominated the political scene.

Yet, nine years after repeal, "if Garden State voters have their say, the death penalty will be here to stay," according this press release from the PublicMind Poll at Fairleigh Dickinson University.  "The most recent survey from Fairleigh Dickinson University's PublicMind finds support for the death penalty virtually unchanged from when the same question was asked in 2006."

The release contains this odd statement:  "There is considerably less support among Democrats, people of color, women, and Millennials -- all of whom oppose the death penalty in numbers almost reaching or exceeding a majority."  The "less support" is correct, but the "all of whom oppose" is odd.  A majority of women and a plurality of persons 18-34 are in favor.  A majority of black people are opposed, but no number is given for "people of color," which is not the same thing, especially on this issue.
I read the WSJ every day, and today's editorial about Dzhokhar Tsarnaev's death sentence illustrates why.  It gets right to the point:


Had Boston Marathon bomber Dzhokhar Tsarnaev been sentenced to life at a federal Supermax prison, his remaining years would have been spent in a tiny concrete cell, 23 hours a day, constantly alone, with barely a sight of the sky and none of the country. As punishment for crime goes, that might have been enough.

But more than punishment was at stake in the case of Tsarnaev...The bombing was no mere criminal act carried out on an especially large scale. Tsarnaev and his brother Tamerlan...carried out an act of war aimed at the institutions and values of American civic life.

The victims were unsuspecting and defenseless, and the damage done will be felt for decades. Think of the Richard family: Bill Richard, the father, eardrums blown and wounded with shrapnel; his wife Denise, who lost an eye; daughter Jane, who lost a leg; son Henry, unwounded but traumatized; son Martin, murdered at the age of eight.

No society serious about its self-defense and preservation can tolerate this.

One of the typical moves for a defense attorney in the sentencing phase of a capital case is to call some of the defendant's family.  This has the effect both of "humanizing" the defendant, and showing the jury the suffering it will cause if it orders his execution.

Some have wondered why Judy Clarke did not call any of her client's family.  The reason is provided in spades by this Time article.  You don't have to read far to see that, as ever, Ms. Clarke knew what she was doing:

Like many observers of the case in Russia, the Tsarnaev family has claimed -- without providing any meaningful evidence -- that the bombing was part of a U.S. government conspiracy intended to test the American public's reaction to a terrorist threat and the imposition of martial law in a U.S. city. "This was all fabricated by the American special services," Said-Hussein Tsarnaev, the convicted bomber's uncle, tells TIME.

No wonder little Dzhokhar is such a piece of work.

Abolitionism Runs Out of Steam

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What is left of the moral force of abolitionism  --  the idea that there is never, ever a case where the jury should be able to impose capital punishment  --  in light of the Boston Marathon bombing verdict?

Nothing, as far as I can see.

The major objections to the death penalty were never in the case to begin with: Guilt was certain, race was absent, mental competence not even in question.  It had honest and professional prosecutors, top-flight defense counsel, a seasoned and balanced judge, and ample resources for all.

So what's left of the moral case for abolitionism?

Three arguments I'm able to think of.  None of them works.

Mr. Tsarnaev, Tear Down These Appeals

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One of the arguments against the death penalty for the Boston Marathon bomber was that it would result in years of appeals and collateral review, renewing the anguish of survivors and the families of the dead.

Of course there is an obvious way to avert this problem:  Tsarnaev could waive further review and accept what he earned.

I note that the adverse coverage of the sentence, for example, here and here, never so much as mentions this possibility.  The abolitionist assumption is what it always is: The problem is not the killer.  The problem is us.  He's not the sadist. We are.  Years of review are needed to advance the admittedly tiny hope that our racist, brutish, wahoo, etc., country will come to its senses.

As Kent has noted, it is anything but a foregone conclusion that review will take its usual length.  This is the feds.  McVeigh was executed less than four years after he was sentenced.

And then there's the fact that no one has cited a ghost of a plausible reason to believe the results of the trial or sentencing will be overturned.

Ronald Reagan famously said, "Mr. Gorbachev, tear down this wall."  Perhaps, in the unlikely event those upset with the prospect of further victim suffering are sincere, they will join me in saying, "Mr. Tsarnaev, tear down these appeals."

For once in his young life, perhaps Tsarnaev could show an ounce of decency. 
No, they do not.  As noted in this post, Timothy McVeigh as executed less than four years after sentence.  He voluntarily gave up one of the many steps, appeal from the denial of collateral relief, but the case went through all the other steps.

Congress has made clear that review of capital cases should be handled expeditiously.  In 18 U.S.C. §3595(a), Congress provided that an appeal from a death sentence "shall have priority over all other cases."

From the date of affirmance of the direct appeal through the Supreme Court, the inmate has one year to file a collateral review motion under 28 U.S.C. §2255.  Again, Congress has provided, "The ... adjudication of any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters."


The federal government has an advantage over states in that there is normally only one round of collateral review, not two.

We need the Department of Justice, if it is going to live up to its name, to insist on prompt completion of these cases and to start frequently taking up writs if these statutes are ignored.
The Boston Herald reports:

U.S. Attorney Loretta Lynch said today in a statement that "Tsarnaev coldly and callously perpetrated a terrorist attack" in Boston.

"We know all too well that no verdict can heal the souls of those who lost loved ones, nor the minds and bodies of those who suffered life-changing injuries from this cowardly attack," Lynch said. "But the ultimate penalty is a fitting punishment for this horrific crime and we hope that the completion of this prosecution will bring some measure of closure to the victims and their families.  We thank the jurors for their service, the people of Boston for their vigilance, resilience and support and the law enforcement community in Boston and throughout the country for their important work."

I also thought this item in the Herald's story was noteworthy:

Only three of the 12 jurors bought into the defense argument that Tsarnaev was influenced by his older brother Tamerlan. The jurors unanimously agreed that Tsarnaev showed no remorse and they unanimously voted to put him to death.

I said at the time that it would backfire to try what Kent aptly called "remorse-by-proxy."  

Just so.

No Remorse, No Escape

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Once the prosecution pulled back the curtain on the hideousness of the Boston Marathon bombing, I thought Tsarnaev was probably headed for a death sentence. I wrote three weeks ago that his best chance to avoid it lay in taking a big risk  -- get on the stand and say you're sorry:

At first, I agreed with the conventional wisdom that defense counsel would not call their client to the stand.  Now, I have my doubts.  The government's evidence of the savagery and cruelty of this crime in my view makes the death penalty likely unless the defense can move the ball.

I think their best shot to avoid lethal injection is to call Tsarnaev and have him show remorse.  If he does so, and makes a convincing showing, I think he lives. It would help if he broke down in tears of grief in a way that struck the jury as sincere, and not a coached performance.

The defense apparently decided against it; one way or the other, Tsarnaev sat in silence the entire trial, looking (I glean from press reports) mostly indifferent. The best it could do was call a transparent abolitionist zealot, Sister Helen Prejean, to testify that Tsarnaev was, so she claimed, remorseful.

She was effectively impeached on cross-examination, making today's sentence less than a surprise.  There's not much to be happy about in this horrible case, but one thing at least to be satisfied about is that the jury wasn't taken in by the Sister Prejean Show.

Judy Clarke, Not Quite Invincible

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I have met Judy Clarke, Tsarnaev's lead counsel, only once.  I thought she was mild-mannered and pleasant.  It was not in a setting where I could assess her abilities as an attorney.

Ms. Clarke has a strong reputation for avoiding the death penalty for the worst of clients; she has done so more than once.  Her reputation is such that, at the time she came into the Boston Marathon bombing case, there was at least one prediction that the prosecution would get scared off and cave in:

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

I have often said that what counts in litigation is less the lawyers, whether good or bad, than the evidence.  It is no fault of Ms. Clarke that, even in a jurisdiction notably hostile to the death penalty, her client received it after all.  The hateful, calculated and grotesque manner of these murders was too much to overcome.

What Tsarnaev needed was not a lawyer but a magician.  

Tsarnaev Sentenced to Death

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Justice has prevailed.  Congratulations to an exceptionally talented prosecution team.  More later.

Remorse by Proxy?

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Following up further on my post Friday and Bill's post earlier today, Jeffrey MacDonald of USA Today gives us this description of Helen Prejean's testimony for terrorist/multiple murderer Dzhokhar Tsarnaev:

Prejean ... said she has met five times with Tsarnaev since early March. She said he told her how he felt about the suffering he caused to the bombing's victims.

"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did."

She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."

Jurors are expected to get the case on Wednesday to decide whether Tsarnaev will be executed or spend his life in prison without the possibility of parole.

Prejean said Tsarnaev "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.

Prejean said she talked with Tsarnaev about both their faiths, his Islam and her Catholicism.

"I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said.

There are multiple issues here.  Is it admissible?  Is it persuasive?  Will it backfire?  Can the prosecution say out loud the obvious inference?  What's with that last line?

Fool's Gold for Tsarnaev

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The defense succeeded in calling Sister Helen Prejean* to the stand as the last witness for Dzhokhar Tsarnaev.  Kent posted about this earlier, wondering what Prejean might have to say that would count as relevant evidence.  In fact, she did have relevant evidence; she testified that she has met with Tsarnaev five times, and that he is remorseful.

Evidence of remorse is, in my view, by far the most likely thing to save Tsarnaev from the death penalty, if anything will.  But I tend to think that defense counsel's success in getting Prejean on the stand will prove the old adage to beware of what you wish for. 
The defense wants to call the notorious Sister Helen Prejean to testify in the trial of the Boston Marathon Bomber.  I can't fathom that she can offer any relevant evidence.

"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the action."  Federal Rule of Evidence 401. "Irrelevant evidence is not admissible."  FRE 402.

What are the facts of consequence in the penalty phase of a federal capital cases?  They are the mitigating and aggravating factors listed in subdivisions (a) and (c), respectively, of 18 U.S.C. §3592.  Obviously the defense does not want to introduce evidence in aggravation, so that leaves the mitigating factors in subdivision (a).

The relevant mitigating factors are impaired capacity, duress, minor participation, equally culpable defendants getting off with less, no prior criminal record, mental disturbance, victim's consent, and the catchall factor:  "Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."

Any evidence that is not about this crime or this defendant is irrelevant and therefore inadmissible.

What does Helen Prejean know that is relevant?  Nothing, I strongly suspect.  If not, she should not testify.

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