Should Dzhokhar Tsarnaev Face the Death Penalty?

The acquittal of George Zimmerman has taken up most of the news coverage this week. But with the constant desire for some sort of trial to fill the news cycle, we’ll soon be engulfed in discussion about Dzhokhar Tsarnaev. The first and most important question will be: Should he face the death penalty?

Tsarnaev is incredibly young, and given the slow development of the prefrontal cortex (key to rational decision-making), the Tsarnaev in prison at age 60 may be an entirely different person than the Tsarnaev that we incarcerate. So there may be room for rehabilitation. On the other hand, we could argue that Tsarnaev may commit another crime from within the prison system, or that his age means the cost of locking him away for life would be exorbitant. One could argue that the problem of false conviction is absent in Tsarnaev’s case, given the overwhelming evidence. We may even wonder whether making a 19 year old rot in prison for life is really more humane than just getting it over with.

The trial raises important questions for our criminal justice system and I think that a robust case against the death penalty is still possible in the case of Tsarnaev. It’s worth noting that his case is exceptional. Most cases aren’t so clear-cut. That’s why the state of Alabama has exonerated one convict for every five executed. Florida has exonerated 26 death row inmates. It’s likely we’ve killed an innocent man.

When I write about the death penalty, one of the responses I get the most is “What about cases where the defendant is certainly guilty?” Since the United States should only be sentencing defendants guilty “beyond a reasonable doubt,” an argument like this can lead to a slippery slope. Remember that by using the best arson investigation techniques of the day, Cameron Todd Willingham was guilty. Similarly, nine eyewitnesses originally fingered Troy Davis as the man who shot a police officer. Seven recanted their testimony. Further, since the death penalty has little merit as a deterrence there is no reason to use it unless it is more successful at incapacitating or rehabilitating the prisoner.

This leads to the another objection I hear frequently: Can't an inmate in prison for life still kill, either in prison or, through a criminal gang, outside? Am I too quick when I argue that incapacitation can be just as easily achieved through the prison system? Warren Lee Hill (who is mentally retarded), for instance, had a life sentence for killing his girlfriend and then killed a fellow inmate. Two responses. First, the death penalty doesn’t entirely eliminate this problem. Most inmates spend 14 years on death row, and speeding executions up will only result in more wrongful executions. But secondly, I think that this reflects the awful state of our overcrowded prisons, more than a case for the death penalty. Prisons are understaffed and massively overcrowded with non-violent drug offenders. They are also incredibly underfunded. All of this sets up a system with less oversight and more confrontations that could lead to conflict. With better enforcement and oversight, the risk that a death row inmate could kill inside or outside the prison would be negligible.

There is also the question of cost. In fact, this argument flows against the death penalty. Death penalty cases are incredibly expensive because the legal proceedings are dragged out for 14 years. However, even if the death penalty were cheaper, I still think that this argument is foolish. If the death penalty is immoral, then we shouldn’t use it even if we save a few bucks. If it is moral, and justice requires it, then sparing the money is worth it.

In Connecticut, I wrote a letter to the editor about the Cheshire home invasion case. While I was researching for my letter, I found a statement one of the two killers, Stephen Hayes, had made saying he’d like to die. His accomplice, Joshua Komisarjevsky, has expressed a similar sentiment. It’s an interesting quandary. Could it be that death would be the most humane option for the killers? I’m open to the possibility that those serving for life in prison might choose to commit a physician-assisted suicide. My only fear is that an innocent man might commit suicide rather than rot in prison. This could be mitigated with a two-year waiting period, along with a consultation with a lawyer and an independent organization that works on DNA testing, to determine whether the prisoner could be exonerated.

Finally, there is the question of Tsarnaev’s age. With a man as young as he is, and possibly influenced heavily by his brother, are we truly putting in prison the same man who will be alive in 40 years? That’s a question I’m incapable of answering. Maybe Tsarnaev will truly rehabilitate, to the point that he can again be released into society. However, putting him to death leaves no room for that possibility. Death would not be a deterrent, and it would not further incapacitate Tsarnaev. It would only satiate our desire for revenge, rather than justice and rehabilitation.The state should not seek the death penalty.