In retrospect, it seems inevitable that Boston Marathon bomber Dzhokhar Tsarnaev would get the death penalty. He’s a self-acknowledged terrorist who killed and maimed adults and children in the middle of a major American city, which happens to be my own. The jury that sentenced him was limited to citizens who apparently believed that capital punishment was justified under at least some circumstances. If he’s not going to be sentenced to death, who is?
Yet I confess that, despite this ironclad logic, I still feel surprised and unsettled by the verdict — because here in Massachusetts, where I was born and have lived most of my life, the death penalty has, over the last several generations, come to seem distant, foreign and unfamiliar.
To be clear, I’m far from certain in principle that the death penalty is always wrong. Someone who’s committed a crime of genocide and killed thousands of people has surely forfeited the right to live. And when you come down to it, morally speaking, is it any less a crime to kill and maim scores than it is to kill and maim hundreds? Even a single premeditated murder, whether a child or an adult, is an act so heinous that it can plausibly be said to merit death.
In other words, my reaction doesn’t depend on principled sympathy for Tsarnaev or a deep rejection of capital punishment. Instead, what I’m experiencing, I think, is a sense of astonishment that, in a state where the death penalty has been abolished and most of the public outside the courtroom opposed capital punishment for Tsarnaev, we might actually put someone to death in an electric chair or gas chamber or by lethal injection.
The last execution in Massachusetts took place in 1947, when my father was 7. To me, the death penalty feels like something far away in place and time. It happens in other parts of the country, where people have different cultural values and ideals. Or it happens in the past. The image of Tsarnaev actually being executed seems about as comprehensible as witnessing the death of Anne Boleyn by the sword.
In practice, of course, it may never happen. Since the federal death penalty was reinstated in the aftermath of the U.S. Supreme Court’s decision in Gregg vs. Georgia, only three of the 80 people sentenced to death have actually been executed. One of these was Timothy McVeigh, who made no challenge to his sentence.
Tsarnaev can certainly be expected to appeal — and he does have some at least superficially plausible grounds. His best argument is probably the refusal of a change of venue for the trial away from Boston. The court spent a significant amount of time questioning jurors in advance to foreclose a successful appeal on this issue. Nevertheless, given the pervasive effects of the marathon bombing on Boston’s population, and the inevitability that all jurors would have known about the crime and perhaps affected by the subsequent lockdown, the argument will have some weight. Indeed, the bombing seems an almost archetypal case in which a change of venue should’ve been granted. If a change of venue wasn’t necessary here, it would be plausible to suggest that the doctrine has almost no practical bite.
Tsarnaev can also be expected to argue on appeal that his youth should have been treated as a more powerful mitigating factor. His lawyers already raised this issue, pointing to emerging brain science that suggests the brains of young adults are less than fully developed into their early 20s. It’s conceivable that an appellate court or a different federal court considering the issue on collateral review might find this argument more compelling, especially over time. If the science develops and get stronger, it might potentially lead to a reversal of the sentence at some point in the future.
Yet taken as a whole, my legal instinct at the moment is that Tsarnaev’s sentence probably will not be reversed on appeal or on collateral review. The prosecution knew the potential dangers, and the judge bent over backward to cross every t and dot every i.
The review process may be long. But Tsarnaev is young. More likely than not, he will eventually come up for execution.
And more likely than not, that will happen before a U.S. president declares a moratorium on administering the federal death penalty. I don’t actually think the federal government will be executing people in 50 years. But if President Obama’s Department of Justice not only didn’t stop using the federal death penalty, but also actively sought Tsarnaev’s execution, what are the odds that another, more liberal president will come along to do so in, say, the next 15 or 20 years?
That means that, in my foreseeable lifetime and yours, Massachusetts may very well see Dzhokhar Tsarnaev executed. If that happens, it will be a signal event in the history of the state. Almost certainly, the execution won’t actually take place here. McVeigh, for example, was executed by lethal injection in Indiana, far from his crime in Oklahoma City. Yet the event, if it ever occurs, will be covered here as a local matter — which it will be.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”