The shocking and horrific acts of terrorism committed by convicted defendant, Dzhkohar Tsarnaev, in the Boston Marathon bombing have revived discussions of the applicability of the death penalty in Massachusetts. The Commonwealth of Massachusetts and New England has always been at the forefront of great legal scholarship, has been home to some of this nations most respected legal minds, such as John Adams, Daniel Webster, and Alan Dershowitz. For the majority of its history the death penalty was part of its history, yet in 1984 the death penalty in Massachusetts was abolished. Despite attempts to revive it, most recently by former Governor Mitt Romney, the death penalty has had no place in Massachusetts since 1984.
The Tsarnaev case is unique in that it is a death penalty case within Massachusetts. The critical distinction it is that Tasarnaev committed an act of terrorism elevating his crime to that of a Federal offense thereby allowing the federal courts jurisdiction, not the Massachusetts state courts. This case has raised the specter of whether the death penalty in Massachusetts. In order to fairly evaluate its application, one must first examine the reasons for its abolition.
After the landmark case of the Commonwealth v. Colon-Cruz, the courts deemed the death penalty unconstitutional since it was applied unfairly between those defendants that plead guilty and those that are found guilty at trial. It begs the question, how can both defendants, convicted of the same crime, be subjected to such unequal punishment. The case has been criticized as not taking into account the realities of the function of the plea deal in criminal law, yet its opinion has been largely unchallenged since 1984.
We now come to a new fork in the road where Tsarnaev’s crimes committed against Massachusetts citizens resonate strongly with the populace. The thought of giving Tasarnaev any leniency in terms of punishment is not even a question. The greater issue is whether the death penalty does more harm than good in societal terms. There have been some documented cases of innocents being sentenced to death when new evidence discovered after the fact proved their innocence. In addition, can the Commonwealth bear the cost of sentencing one to die? It is not as simple as one would perceive. The death penalty phase of a criminal defense can cost the State millions in legal fees for public assistance through the trial and appellate process. Lastly, it is a fitting punishment? One may argue it is far more fitting a punishment that one rot in prison for the rest of his or life subjected to all the stresses the correctional system offers, albeit there is a wide variance based on the facility. Lastly, is it an effective deterrent? Studies have shown that individuals, like Tsarnaev will act regardless of the punishment.
In weighing all these, I turn to the old adage in prosecutor’s circles,” It is better that a guilty man go free, than an innocent be punished.” The costs, lack of deterrence, and the very serious risk that an innocent may be wrongfully convicted all weigh against the application of the death penalty. Moreover, wouldn’t it be far more fitting to have an individual, who has committed such a serious crime as Tsarnaev did, be subjected to 50 plus years of the harshest and most restrictive confinement the Commonwealth has to offer, opposed to being put “to sleep” by lethal injection? All these questions are now being debated as Tsarnaev awaits his death.