Criminally Yours: The Death Penalty For Dzhokhar Tsarnaev

It just goes to show how little juries can be predicted.

I would have laid heavy odds that the Tsarnaev jury would have found against the death penalty. After all, life imprisonment is far from a cakewalk. First, it means just that — you come out feet first in a box. Tsarnaev would have likely been designated to the Administrative Maximum Facility (ADX) Florence, known as the Supermax, an underground facility in Colorado where he’d have been subjected to lockdown 23 out of 24 hours. Every bit of the furniture in the 12 by 7 ft. cells — bed, desk, stool, and shelves — are made of poured cement. The toilet itself serves as a three-for-one — sink, toilet, and water fountain.

There’s no contact with human beings for at least three years. Even the food is slipped through a slit in the door, so you don’t even see a guard. The only view of the outside is through a four-inch-wide window. The place is built for disorientation. In the unlikely event any person were to escape his cell, he’d have no idea which direction, in the series of camera-monitored corridors and links, was the way out. The Supermax has been referred to by an ex-warden as “a cleaner version of Hell.”

If that’s not enough to satisfy the public’s need for safety and the human need for retribution, then we live in a distorted world. Some might argue that the death penalty is actually a kinder sentence over the Kafkaesque-existence of ADX Florence.

I would have bet, based on the quality of the defense team, the age of the defendant, and the general anti-death stance of many in Massachusetts, that the jury would not have voted for death.

I went to law school in Massachusetts and lived there many years. I feel I know it well. Yet because the selected jury, by its very nature, must not be per se against the death penalty, many argue the panel cannot be fair and that the verdict, from the beginning, was slanted toward death.

A couple of things surprised me about the case. The jury deliberation on the death phase was relatively short. Considering that the trial lasted several months and the sentencing presentation several additional weeks, the death deliberation lasted only 14 hours. There was little disagreement.

Next, I was surprised Tsarnaev didn’t take the stand in his own defense. Generally, in a case like this, the surest way to make a jury have any kind of sympathy for your client, no matter how unlikely that is, would have been to let them see and hear him. Was there nothing he could have said to help his case, to make himself seem more human? Would it simply have been cumulative, he would have added nothing new? (I doubt this, since nothing can mirror a defendant’s own voice). Or perhaps he simply refused.

It’s clear from scientific studies that the brain of a young man is not the same as an adult’s. The Supreme Court itself has recognized that “youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” (Johnson v. Texas citing Eddings v. Oklahoma.)

A youthful brain is an unformed brain. The connections between choices and consequences are less well drawn. The ability to withstand the pressure of one’s peers, to put things into context, to have a long-term vision are nonexistent among many young people.

It’s clear that this young man was heavily influenced by his radical brother. He came from a volatile household with a mentally ill father and, but for these negative influences, led an otherwise normal teenager’s life. He went to a good high school, started college, got stoned, had a few part-time jobs, roommates at UMass Dartmouth, and a brother who held sway over him.

How could the jury believe that a person so young could be so unredeemable? That the only satisfactory conclusion to his heinous acts would be his own death?

And, of course, the case is not really over. The appeal will go on for years and years. The obvious issues, like why the venue wasn’t changed, will be vetted again.

According to Amnesty International, the United States is only one of nine countries that carried out executions each year between 2009 and 2013. It’s right behind China, Iran, Saudi Arabia, and Iraq in number.

Many note that at least our executions come through “rule of law.” They’re not secret; they’re not done against unnamed masses. They’re accounted for. That’s something to be thankful for.

But there’s no proof that the death penalty has a deterrent effect on future crime, whether it be terrorism or run-of-the-mill murder.

Even though it is clear Tsarnaev was guilty of his crime, that’s not the case for many on death row.

And still there’s the matter of his age — only 19 when this happened. I know that his youth doesn’t give the people maimed in the bombing or families of the dead any comfort, but even some of those families thought life in prison would be sufficient.

While nothing will ever make those families whole, killing Tsarnaev is only acknowledging the basest human instinct for vengeance. To say someone that young could never be helped, could never grow to understand the wrong he committed or express the remorse he failed to verbalize at his trial, is the most cynical statement of all.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.