There was little surprise in a federal jury’s voting death for Boston Marathon bomber Dzhokhar Tsarnaev, and little ground for sympathy to be found in the record of the defendant himself beyond his sheer youth. While the evidence presented at trial seemed to confirm the picture of his enraged older brother Tamerlan as the radicalized instigator of their brutal and nihilistic marathon plot, Dzhokhar’s protracted and active role ahead of time, and his stone-cold activities in the hours following the bombing—calmly cruising the dairy aisle at Whole Foods—are not the material from which a strong mitigation case is made. To spare him, the jury would have had to vote against capital punishment itself; since they were “death qualified” ahead of time in the selection process this was never in the cards.
But while perhaps inevitable, Tsarnaev’s federal-court death sentence is still profoundly unsettling for most Bostonians—and should be unsettling nationwide too. Tsarnaev was sentenced to death in a state that had abolished capital punishment 31 years ago; in a city whose residents had overwhelmingly preferred him to be imprisoned for life; and in a courtroom in which sat survivors and family members left bereft by the Tsarnaevs’ warped jihad who themselves were deeply divided about his fate. What does it mean that a killer is sentenced to die by lethal injection against the wishes—expressed in law, polls and the words of many survivors—of the very community he injured? What is the purpose of a federal prosecution’s imposing capital punishment on a region that wants none of it, at a moment when capital punishment has been abandoned by more than one-third of all states?
State death-penalty law, for better or worse, is usually a deep reflection of local history, culture, and debate. That’s true in the states that still routinely execute prisoners—Texas, Oklahoma, and the Deep South death-penalty strongholds; those that shut their death rows decades ago, such as West Virginia and Michigan; and the nine states that have abolished capital punishment since 1980, including Massachusetts.
The federal death penalty, on the other hand, is a different story: largely a recent invention, radically expanded during a few brief years of Bill Clinton’s presidency. Ever since, the federal death penalty—both in the laws passed by Congress and the cases selectively pursued by US Attorneys—has been all about politics of the most cynically expedient variety. Most relevant to the Tsarnaev case, the federal death penalty has been a convenient vehicle for Washington Republicans and Democrats alike to profit from the same terrorism panic which after 9/11 saddled us with the Patriot Act.
Up until twenty years ago, the federal death penalty was limited to treason and a handful of other rare offenses not covered by state criminal laws. But in 1994, the Clinton administration—responding to the first World Trade Center bombing and otherwise hoping to burnish its tough-on-crime credentials—radically expanded capital punishment, writing terrorism in among dozens of new federal death-penalty offenses in that year’s sweeping criminal-justice reform package. It didn’t do much good; seven months after the bill was signed, Timothy McVeigh and two co-conspirators bombed the Murrah Federal Building in Oklahoma City (a tragedy whose 20th anniversary was marked during the Tsarnaev trial). So the next year, Clinton and Congress went even further, pushing through the Antiterrorism and Effective Death Penalty Act. This package—surely one of the most deceptively labeled bills of all time—limited habeas corpus and otherwise weakened the protections offered to state and federal death-row prisoners alike, most having nothing to do with terrorism, national security, or anything other than conventional murder.