Two recent developments have highlighted the unexplained state of the American death penalty. First, the US Supreme Court approved the federal government’s appeal against the decision to overturn the death sentence of the Boston marathon bomber Dzhokhar Tsarnaev. Second, Virginia was the twenty-third state and the first south of the Mason Dixon Line to repeal the death penalty. Together, these developments reflect both our past and our future and illuminate the contrast between what we are as a nation and what we want to be.
Political majorities in state legislatures have recognized that the death penalty means accepting the risk of executing the innocent, a high risk if there is one one discharge for every nine executions. So enormous are the costs associated with a death sentence that it actually led to it Conservative lawmakers to consider abolishing it. The racist origins of the death penalty have become more and more evident as the nation grapples with its sordid history of enslavement and lynching of colored people. While abolishing the death penalty for heads of state can be a pragmatic choice, probably based more on cost-benefit analysis than on the inherent inhumanity of the death penalty, abolition also removes the unequal imposition of the definitive sentence.
Despite these concerns about the death penalty, which are widespread in both state and federal systems, the federal government executed more people in the past year than all 50 states combined. The federal prosecutor’s office, at the behest of the previous government, re-launched the executions, killing 13 people in six months. about the objection of some family members of the victims. The Supreme Court allowed the executions without considering legitimate issues such as deficiencies in trial and conviction. Convicts’ disabilities and illnesses, including intellectual disability, mental illness and the coronavirus, and concerns about fatal injectables. In none of these cases did the court issue a written opinion, which means we do not know why the judges saw no merit in the prisoners’ challenges.
All of this makes the court’s decision to review Tsarnaev’s judgment particularly noticeable. Unlike the cases in the most recent stage of federal executions, Tsarnaev does not appear to be asking any of the extraordinary questions that normally draw the court’s attention. The appeals court overturned his death sentence because the court failed to adequately question the jury about their exposure to pre-trial courtship and excluded evidence of the crimes of Tsarnaev’s accomplice, his older brother. None of these reasons are particularly noteworthy or unsupported by the record. Perhaps the court accepted the appeal because of Tsarnaev’s notoriety, which, if true, would symbolize the arbitrariness associated with the execution of the death penalty.
Even more puzzling than the court’s acceptance of the case is the new government’s continued pursuit of death. White House press secretary Jen Psaki said President Biden has “serious concerns about the compatibility of the current death penalty with values fundamental to our sense of justice and fairness.” Nonetheless, his government continues to seek the reinstatement of Tsarnaev’s death sentence.
Almost 50 years ago, Justice Potter Stewart, troubled by what he called the “wanton and insane” death penalty, wrote that “death sentences are cruel and unusual, just as it is cruel and unusual to be struck by lightning”. This is no less true today: we don’t know why the previous government decided that these 13 death row inmates should die as soon as possible, or what sets them apart from the dozen others awaiting execution. We know that the decision on whether to seek or pursue the death penalty continues to be based on factors such as race or geography.
Tsarnaev continues to be sentenced to death for being prosecuted in federal court on federal charges. Although he committed his crimes in Massachusetts, the Commonwealth carried out his final executions in 1947 and overturned the death penalty in 1984. As Virginia recently stated, abolition is the only way to end the arbitrary use of the death penalty. No doubt some citizens of Virginia – and Massachusetts – still believe that the death penalty serves a salutary purpose, all evidence to the contrary. But at least they know that their state governments will not kill anyone based on a reasoning no better than tossing a coin.
Lawrence Friedman teaches Constitutional Law for New England Law in Boston. Nicole Noel is the associate director of the Academic Excellence Program at New England Law in Boston and a former capital defense attorney who represents death row inmates in state and state courts.