An Eye For An Eye

June 25, 2015

by Leah Ramsay


Dzhokhar Tsarnaev, 21, was formally sentenced to death Wednesday for his participation in the Boston Marathon bombings in 2013 which killed 3, wounded more than 260, as well as the death of a public safety officer during his escape. When given the opportunity to speak, Tsarnaev broke his public silence and apologized, contradicting impressions he had no remorse.


The Boston Globe reports that the reaction to Tsarnaev’s statement was mixed:

Outside the courthouse, Henry Borgard, one of those who gave victim impact statements, said he welcomed Tsarnaev’s decision to speak.


“I have forgiven him,’’ he said. “I have come to a place of peace, and I genuinely hope he does, as well. To hear him he say, ‘I’m sorry’ is enough for me.’’


Borgard said that when he gave his statement in court he was unnerved because when he looked up from his statement, he saw Tsarnaev looking back.


“When I made eye contact with him, I wasn’t looking into the face of a criminal, I was looking at the face of a boy.’’


But Lynn Julian, another survivor, was skeptical about his motivations. “A simple believable apology would have been great,’’ she said. “There was nothing simple and nothing sincere.”

The death penalty verdict, issued in May, surprised many in Boston and beyond, for a host of reasons: Massachusetts has no state death penalty; a poll of Bostonians showed only 15% supported the death penalty and the parents of the 8-year-old victim spoke out publicly against it; Tsarnaev was 19 years old when the crimes were committed; his lawyers claim he was under the influence of his older brother; and his remorse was vouched for by the Roman Catholic nun Helen Prejean, a respected and famous anti-death penalty advocate.


So what is the justification for capital punishment, in this or any other case?  Immanuel Kant famously contends that it is the ethical duty of the state to enact the death penalty:  “If an offender has committed murder, he must die. In this case, no possible substitute can satisfy justice. For there is no parallel between death and even the most miserable life, so that there is no equality of crime and retribution unless the perpetrator is judicially put to death. A society that is not willing to demand a life of somebody who has taken somebody else’s life is simply immoral.”


However, given the fact that the people of Massachusetts abolished the death penalty 30 years ago and overwhelmingly opposed it in this particular case, the ethical justification is not at all as clear-cut as Kant suggests, according to Berman Institute of Bioethics Professor Leonard Rubenstein. “The question is raised of ethical and policy appropriateness of using federal prosecution as a means of obtaining death penalty in circumstances where the state and its people don’t want it,” Rubenstein says.


Jury members, selected for their professed ability to deliver a death penalty sentence (and thus out of step with the majority of their community), deliberated and thought carefully about whether they would kill Mr. Tsarnaev; exactly what he was being punished for having done.


While this may seem oxymoronic, clearly there is philosophical support for the decision from those thinking like Kant, as well as, historically, the Roman Catholic Church, a faith that nearly half of Bostonians follow.


Thomas Aquinas, a giant on who’s shoulders much Roman Catholic thought rests, writes in Summa Theologiae, “Now every individual person is related to the entire society as a part to the whole. Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and healthful that he be killed in order to safeguard the common good.”


The potential for rehabilitation does not sway Aquinas from this commitment to public safety. “The fact that the evil ones, as long as they live, can be corrected from their errors does not prohibit that they may be justly executed, for the danger which threatens from their way of life is greater and more certain than the good which may be expected from their improvement,” he writes. The morality of murder in self-defense is generally accepted, and Aquinas scales it up to society’s defense, though its leadership, against a dangerous threat.


It could conceivably be argued that this justification applied to Osama Bin Laden; as living, he posed a threat. He had risen to the level of symbol. The same cannot be said of Dhokhar Tsarnaev.  In prison, he would pose no threat to society. And society, which contends that ending a life is wrong, could maintain moral consistency.


In recent decades leaders of the Roman Catholic Church have shifted their historical position in response to the modern world.  In his landmark encyclical Evangelium Vitae, Pope John Paul II wrote, “the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.”


Recently Pope Francis has taken this position even further, stating, “Nowadays the death penalty is inadmissible, no matter how serious the crime committed,” and added that capital punishment “does not render justice to the victims but rather fosters vengeance.”


In the case of Tsarnaev, local church leaders in Boston have said it would be against the church’s teaching to apply the death penalty. “The defendant in this case has been neutralized and will never again have the ability to cause harm,” the bishops said in a statement, adding “society can do better than the death penalty.”


So the United States and the world finds itself at a crossroads with state murder. Dhokhar Tsarnaev has been sentenced to die, while the US Supreme Court is considering a case that questions the use of certain drugs in lethal injection, and reports of botched executions have raised the public consciousness.  In 2011, European Union banned the export sodium thiopental, a key anesthetic in lethal injections, cutting U.S. prisons off from the drug’s last large-scale manufacturers. Smaller drugmakers elsewhere in the world have also declined to sell sodium thiopental and other lethal-injection drugs to U.S. states, citing activist pressure, the fear of lawsuits, and their ethical obligations.


And now another young terrorist has been charged in the US and may face the death penalty: Dylann Roof, 21, who according to reports has confessed to killing 9 people in a Charleston, SC, church. Though in unfocused extremism and age he is similar to Tsarnaev, he is Christian, not Muslim, white and born in the United States.


Catholic bishops in Virginia, which once was among the leading states for executions, have stated, “We are having the wrong debate… We should no longer debate which inmates we execute or how we execute them. Instead, we should debate this: If all human lives are sacred and if a civilized society such as ours can seek redress and protect itself by means other than taking a human life, why are we continuing to execute people?”


They add, “We must also be aware of the racial inequity inherent in the system, and that the death penalty has been administered to individuals with severe intellectual disabilities.”


Prof. Rubenstein echoes this sentiment. “The biggest problem with the death penalty in the US is that it is mostly imposed on poor, inadequately represented and largely African American defendants – and in an arbitrary way.”


A simple question, that many of these perspectives seem to address, is, what is the goal of the death penalty?  Early leaders of the Catholic Church claimed safety, though now Pope Francis claims it is vengeance. Kant claims retribution, which Mario Derksen distinguishes from revenge: “Revenge is vindictive and therefore reprehensible. Retribution, which is satisfaction that restores the moral order, is not.”


The question of that moral order, and who defines it, is hard to answer and could be at the root of current debates.  For Roman Catholics, the leaders that largely define the Church’s moral order have said that the death penalty does not serve this purpose. Indeed, the concept of “restoring” can be argued as impossible – a mass murderer can only die once, though he may have taken hundreds of other lives.


Rubenstein asserts (above) that the arbitrary delivery of death sentences on the already disadvantaged is ethically problematic.  “The only solution is abolition, and you can’t make exceptions, as the impact will mostly be on these very individuals even if the circumstances here are different,” Rubenstein says.


The United States has previously had a de-facto moratorium on capital punishment, from 1972-1976. Lauren Sudeall Lucas, a former clerk for US Supreme Court Justice Stevens, writes about the Justice’s grappling with Gregg v. Georgia, which reinstated the death penalty in ’76:

After several decades on the Court, [Justice Stevens] concluded, quoting Justice White’s concurring opinion in Furman v. Georgia, which temporarily outlawed the death penalty prior to the Court’s decision in Gregg: “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty “represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'”Yet Justice Stevens felt bound by the Court’s precedents and joined the Court in declaring lethal injection permissible.


In many ways, Justice Stevens represents the dilemma of someone who has witnessed enough to know that the system of capital punishment in this country is truly flawed, yet is too pure a jurist to allow his personal convictions to trump well-established precedent.


And the ethical struggle continues; soon the Court will deliver a new opinion on lethal injection, Tsarneav will likely appeal, and Dylan Roof will stand trial.

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Leah Ramsay

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