By Sam Groves | Opinion Editor
The U.S. Department of Justice announced on Jan. 30 that it will seek the death penalty in the case of Dzhokhar Tsarnaev, one of the two alleged perpetrators of the Boston marathon bombings in April 2013.
“The nature of the conduct at issue and the resultant harm compel this decision,” Attorney General Eric Holder said.
A recent Washington Post-ABC News poll showed that 70 percent of Americans support the death penalty in the case of Tsarnaev. Still, the decision is not without its harsh detractors. The Massachusetts branch of the American Civil Liberties Union issued a statement following the Justice Department’s decision, expressing opposition to the death penalty “because it is discriminatory and arbitrary, and because it inherently violates the Constitutional ban against cruel and unusual punishment.”
While part of a clear minority in the case of Tsarnaev, the ACLU is far from alone when it comes to general opposition to the death penalty. The most recent Gallup poll on the issue, conducted in October 2013, puts American public support for capital punishment at a more than forty-year low of 60 percent. That’s also a 10 percentage point difference between people who support the execution (pending conviction) of Tsarnaev and people who support execution in general.
It’s not hard to figure out the reason for this disparity.
As a matter of principle, the death penalty issue doesn’t seem so hard to navigate. There is no principled justification for killing people as a state function. For one thing, in a world as messy as this one, it’s nearly impossible to be sure that a defendant is guilty.
In the past decade, 30 people nationwide have been exonerated from death row due to acquittal, pardon or dropped charges. If we cannot be absolutely sure that an individual deserves punishment, and we know we’ve been wrong before, then why would we make that punishment irreversible? If the justice system must punish the guilty, it must also protect the innocent.
Furthermore, while government-administered death may not necessarily violate the Constitution, it does put the United States in some awkward company. North Korea, Iran, China, Syria and Sudan stand out as human rights horrorscapes among the list of countries that still allow and regularly use the death penalty. Meanwhile, not a single one of America’s NATO allies still has the death penalty. They’ve all abolished it.
But more importantly, the death penalty doesn’t fulfill the function of justice in the United States. Justice should work to maintain balance in a society. To some, revenge may feel like balance. After all, in theory revenge is nothing more than a proportional response—a neat and natural reaction to a wrong left unrighted, or a debt left unpaid.
But in reality, exchanges such as these are rarely so clean cut. People don’t always agree on which debts are unpaid, which wrongs are unrighted and what qualifies as a proportional response. You get martyrs. You get revenge killings to avenge revenge killings. It really is as simple as the famous Gandhi quote, “An eye for an eye only ends up making the whole world blind.”
Instead, justice can best preserve balance in society by keeping convicted criminals off the streets. Life in prison is a sufficient punishment, and this way they can’t do any more harm. Not only that, but when perpetrators are in prison, victims can’t perpetuate a cycle of violence by exacting revenge.
So the death penalty is wrong. From an objective, principled standpoint, it’s completely unjustifiable.
But is it?
That’s the question we start to ask ourselves when we view the death penalty issue not as a matter of principle, but one of pathos. When we look at specific cases, often we are so disgusted, so outraged or so shocked by the crime that it seems impossible that the perpetrator should pay anything other than the ultimate price.
This applies to the case of Dzhokar Tsarnaev. It also applies to dozens of other cases, such as that of Khalid Sheikh Mohammed, mastermind of the Sept. 11, 2001, terror attacks, or Timothy McVeigh, the man behind the 1995 Oklahoma City bombing.
This phenomenon accounts for the 10 percent difference between general support for the death penalty and support in the case of Tsarnaev. One asks for a principled position. The other brings pathos into the equation.
So how do we reconcile principle and pathos? We know that revenge is not the business of justice. But surely there is something that our justice system owes these grieving families, these mangled victims, and the collective conscience of countless Americans affected by such tragedy, terror and trauma.
What is that, then? As the subjects of terrible injustice, what are these people owed?
In fact, they are owed the same thing as every innocent member of society. They are owed, not as subjects of recent injustice, but as potential subjects of future injustice. Future injustice like another great calamity that upsets the balance of society. Future injustice like the economic or psychological impact of the violence they were just affected by.
Future injustice like the execution of someone whose guilt we can’t possibly be sure of.
To these innocent victims, we owe a swift and unforgiving carriage of justice, one that will limit their suffering and deter future terror. But to every innocent, we owe a fair and levelheaded carriage of justice, one that will secure their rights as citizens and as human beings, and maintain balance in our society. The death penalty is poisonous to that cause. And so as a matter of both principle and pathos, the death penalty is unjustifiable.