Even supporters of the death penalty should have some qualms about putting Dzhokhar Tsarnaev to death. The question of his appropriate punishment has moved to the forefront, after a federal jury, as expected, convicted Tsarnaev on all 30 counts Wednesday for his role in the Boston Marathon bombings. There’s never been much question that he and his older brother, Tamerlan, planted the homemade bombs that killed three spectators at the finish line on Boylston Street. But his lawyers have raised serious doubts already about whether he should be executed.
For death-penalty opponents, of course, it’s a no-brainer: He should spend the rest of his life rotting in prison instead. Sentencing Tsarnaev to death would ensure endless appeals, substitute vengeance for justice, and risk letting him become a martyr. But death-penalty opponents were kept off the jury, so all the jurors weighing the appropriate punishment have expressed support for the death penalty, at least in some cases.
The argument against imposing the death penalty in this particular instance comes in two flavors: one legal, and one that aims at the philosophical reasoning of death penalty supporters. Many advocates of the death penalty justify it as a necessary punishment for the worst of the worst. The defense team hammered away at the argument — and backed it up with evidence — that Tamerlan was the primary instigator of the bombing plot, and that he pulled the trigger when MIT police officer Sean Collier was killed days later. For jurors who believe execution should be reserved for the worst criminals, the lawyers laid out a clear path to conclude Dzhokhar wasn’t even the worst of the Tsarnaevs.
As the trial now moves into its sentencing phase — the jury must unanimously vote to execute Tsarnaev, or else he will receive a life sentence — the defense team may also raise legal mitigating factors. Tsarnaev was 19 at the time of the bombing; he was apparently a heavy drug user; he had no prior criminal record. By themselves, none of these would seem like a particularly good reason to spare him, but taken as a whole, and alongside evidence of his brother’s dominant role, they should plant seeds of doubt.
In sorting through such life-and-death considerations, jurors face an unenviable task — and mixed precedent. The Oklahoma City bomber, Timothy McVeigh, was put to death. The Unabomber, Ted Kaczynski, wasn’t. Tsarnaev obviously should spend the rest of his life in prison. His defense has already made a good case that he does not meet the exceptionally high standards for a federal execution.