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Are we going to kill Dzhokhar Tsarnaev or not?

Tsarnaev guilty of Marathon bombings
(Boston Globe) Boston Marathon bombing suspect Dzhokhar Tsarnaev is found guilty on all 30 counts he was charged with, including 17 that carried the possibility of a death sentence.

As verdicts go, the conviction of Dzhokhar Tsarnaev was one of the most anticlimactic in history.

His lawyer Judy Clarke admitted his guilt, almost willing the jurors to get this part over with, so we can get to the real meat of the case, which this really was all about from the get-go, a question more primal than legal: Are we going to kill Dzhokhar Tsarnaev or not?

The foregone conclusion of his guilt didn't make it any easier for his victims. Bill Richard put a comforting arm around his wife's shoulder, as court clerk Paul Lyness said the word "guilty" over and over again.


At one point, Denise Richard looked over toward the young man who murdered her 8-year-old son, Martin, and tore her daughter Jane's leg off. Tsarnaev just kept his head down, reading along with the verdict slip. She wiped tears away as he slipped away, behind a door, with the US marshals.

The trial of Tsarnaev was never about guilt or innocence. It is about punishment. Specifically, it's about whether he is put to death or put in prison for the rest of his natural life, because those are the only two options.

Tsarnaev himself sat through 16 days of testimony, during which people whose legs were flayed by the bombs he and his brother left near the Boston Marathon finish line passed within a few feet of him. Through it all, he acted like a bored college student in a chemistry class.

It's not that he didn't show remorse. He didn't show anything. Aching words about the death and chaos he caused, the bodies and souls he destroyed, floated by him as he tugged absentmindedly at his scraggly beard.

During moments of especially poignant testimony — Jess Kensky talking about the legs she lost; Bill Richard talking about the son he lost — a number of jurors cast their eyes toward Tsarnaev, as if to see whether any of this was registering. He betrayed nothing, and now those jurors, having pronounced him guilty of the most heinous of crimes, must somehow figure out whether there's a reason to spare his life.


If the guilt phase of the trial was about Dzhokhar Tsarnaev, the penalty phase which will begin next week is about us. Do we, or in this case the jurors acting as our surrogates, serve justice and honor the memory of Tsarnaev's victims more by killing him or by putting him in prison for the rest of his sorry life?

In the coming weeks, as prosecutors argue for death and Tsarnaev's lawyers plead for life, this fundamental question will be narrowly framed by many as either vengeance or mercy. But it's a little more complicated than that. Because at the end of the day, the best vengeance may in fact be mercy.

During the jury selection process, when potential jurors were asked about their views on the death penalty, a striking number of them said they thought life in prison was actually a worse fate for a 21-year-old like Tsarnaev than death.

One of the jurors who will decide Tsarnaev's fate, a man who works for a municipal water department, said the death penalty can be "the easy way out."

Another juror, a woman who works for a school system down the Cape, said she thought death was a worse punishment.


"Life in prison is a horrible life," she said, "but it's a life."

Another juror, a telecommunications engineer, said he was on the fence about what was worse.

Still another, a student whose mother came from Iran, said he believed the death penalty can sometimes be merciful.

"I think it takes away the burden of a person's soul," he said.

But it's quite conceivable that at least one of the jurors, and all it takes is one to take the death penalty off the table, believes that not just life in prison but life in solitary confinement is worse than a lethal injection that would put Dzhokhar Tsarnaev out of his miserable existence. And that position can be reached not through the notion of sympathy, but because someone believes putting Dzhokhar Tsarnaev to sleep, like an old dog, is letting him off too easy.

If Tsarnaev is sentenced to death, his lawyers will launch every available appeal at their disposal. Even if he loses those appeals, he will spend years and years on federal death row in Terre Haute, Ind., watching a flat screen TV in his cell.

When Gary Sampson, a serial killer and the last person to be sentenced to death at the federal courthouse in Boston, returned here for the first time in 11 years for a hearing in December, none of the long-serving court officers recognized him. He had put on 150 pounds, doubling in size.


They eat well in Terre Haute.

If Tsarnaev is sentenced to life, it is almost certain that the US Bureau of Prisons will ship him to the Super Max prison in Colorado, if only because Tsarnaev wouldn't last 15 minutes in general population anywhere. Once there, he would spend 23 hours a day in a 12-by-7-foot cell with a 3-foot-high window that is 4 inches wide. He won't get a view of the Rockies.

Tsarnaev would feel right at home, as the Super Max is the last destination of every notorious bomber in America. The Unabomber, Ted Kaczynski, is there. So is Eric Rudolph, who bombed the Atlanta Olympics.

There are even bombers there who share Tsarnaev's twisted view of Islam: Ramzi Yousef, the mastermind behind the first World Trade Center bombing; Zacarias Moussaoui, the 20th hijacker whose 9/11 co-conspirators finished the job Yousef started; Umar Farouk Abdulmutallab, the underwear bomber; Richard Reid, the shoe bomber.

Not that Tsarnaev would be able to trade jihadi war stories with his fellow travelers. He'd have to talk to himself, because that's whose company he'd be keeping.

So, from a practical point of view, what would be worse? Tsarnaev doing easy time on death row for God knows how many years, as he packs on the pounds and millions and millions are spent on endless appeals, or getting stuck in the Super Max, which a former warden once described as "a clean version of hell."

Of course, there is the moral view to take into account, too. But whatever the rest of us think on that, every juror who sat on this case had to swear that they were willing to impose the death penalty and could put their moral qualms aside.


Still, it would be supremely ironic that a jury in Boston would do for Tsarnaev what he didn't have the guts to do when he surrendered in that boat: make a martyr out of him.

Tsarnaev is an afterthought on all those jihadi websites he liked to surf. If he's executed by the Great Satan, he jumps way up the jihadi totem pole.

For all the horrific suffering that was on display in Courtroom 9 over the last month, revealing the darkest impulses of some, there was also a remarkable amount of testimony about many extraordinary acts of bravery, of humanity, of selflessness, of kindness.

If the Tsarnaev brothers represented the worst of the human condition, those who ran to help their victims represented the best.

Karen McWatters, who lost a leg to the bomb that Tamerlan Tsarnaev placed outside Marathon Sports, told of how she pressed her head against that of her friend Krystle Campbell and slid her hand into Krystle's as they both lay on the sidewalk. The last thing Krystle Campbell felt, beyond the searing pain in her shredded legs, was Karen's warm face and comforting hand.

After the bomb that Dzhokhar Tsarnaev left outside the Forum restaurant exploded, Lauren Woods, a Boston police officer, refused a superior officer's order to leave Lingzi Lu's side, even after it was obvious the 23-year-old Chinese grad student was dead.

"I didn't want her to be alone," Woods said.

Even after Tamerlan Tsarnaev tried to kill them, Watertown police officers Joe Reynolds, John MacLellan, and Jeff Pugliese tried desperately to save his life after his little brother ran him over in a hasty, if brief, escape from police.

Their actions, all of their actions, were an affirmation of the sanctity of life, even for a murderer like Tamerlan Tsarnaev. It was the ultimate repudiation of what the Tsarnaev brothers did. It showed, like nothing else, the difference between us and them.

Now the same jury that found Dzhokhar Tsarnaev guilty of killing others has the almost unfathomable responsibility of deciding whether he will be killed himself.

In the jihadi screed he left on the boat in Watertown where he was captured, explaining why he killed and maimed, Dzhokhar Tsarnaev said he believed in an eye for an eye.

Now, a jury in Boston will have to decide whether they agree with him.

Kevin Cullen is a Globe columnist. He can be reached at