I cannot stress enough how overjoyed I was at the quantity and quality of responses I received to my previous post about Dzhokhar Tsarnaev and what I observed at his trial. In addition to great reasoned and academic responses, I received a number of links to articles and videos to topics that bear relevance to this case, and I wanted to have time to discuss some of them in a dedicated space. It’s my hope this format will keep anything from becoming too buried in the comments section and keep the academic discussions flowing. Then, at the end of this post, I’ll talk a bit about my future plans for this blog.
1. Death Penalty Abolition in the United States
A prevailing sentiment I got from most of you was a desire to help Dzhokhar, but uncertainty as to how. I empathize with this: I too have been feeling overwhelmed by such a prospect. He has been convicted of terrorism charges at a time when public fervor against “terrorists” has reached critical mass; his sentence is the most severe one a human being can be given. Practically, at the current time I fear it would be difficult to garner widespread sympathy for his case in particular. It is much too recent and much too emotionally and politically charged. This doesn’t mean I’m going to stop writing about it or stop advocating a new and fair trial for him, but in terms of what can be done on the most short-term basis, I think we’re going to have to look more broadly. After a good deal of contemplation and discussion, I believe the first step in helping Dzhokhar is to abolish the federal death penalty.
The death penalty in the United States, particularly on the federal level, has already been on unsteady ground for many decades. I confess, however, that I am far from an expert on this topic. I never gave the death penalty too much thought before this case, when I felt to my very bones that Dzhokhar in particular didn’t deserve it. I was distressed from the moment that the government announced it was pursuing the death penalty for him, and since then kept an ear out about anything regarding the issue. I found John Oliver’s segment from 2014 on it enlightening. I also read about the shortage of drugs used to administer lethal injection, as manufacturers in both the European Union and the United States stopped selling to US prisons, citing a moral opposition to the death penalty. Then there’s the current moratorium on federal executions put forth by former attorney general Eric Holder, in the wake of the botched execution of Oklahoma inmate Clayton Lockett, whose “body twitched, his foot shook and he mumbled” and he “tried to rise and exhaled loudly,” according to witnesses. Reports showed he was not correctly administered the initial sedative meant to anesthetize the inmate, which is a problem because without it, the two remaining drugs can cause “agonizing suffocation and pain.” Only a few months later, Arizona botched the execution of Joseph Wood, who “repeatedly gasped for one hour and 40 minutes” during a procedure meant to last ten to fifteen minutes.
This alone was enough to make me think, long before Dzhokhar’s trial began, maybe this isn’t working. Maybe we as a country need to come up with a better, more humane way to punish our criminals, even the worst, most heinous ones. And as I have argued and will continue to argue on this blog, Dzhokhar is far from the worst and most heinous criminal our society can produce.
Thankfully, although I am not so well-versed in the legal and academic theory behind death penalty abolition, I am honored that this blog has gotten the attention of Margo Schulter, a long-time abolitionist. She has been kind enough to share her own scholarly articles on the subject. She has the chops that I lack, and has filled a lot of the gaps in my own knowledge. In her essay Correcting the Gregg Court’s Error of History: Humanity, Necessity, and the Eighth Amendment, Ms. Schulter outlines the conditions for which the death penalty was deemed constitutional in 1976, after a four-year moratorium, by the Supreme Court decision on Gregg v. Georgia:
(1) The death penalty must be restricted to the crime of murder – putting aside the question of certain extraordinary national security offenses such as treason or espionage – and further limited to specific categories of aggravated murder.
(2) Even for those convicted of these most serious murders, there must be a fully individualized and informed penalty determination in which a jury or trial judge must consider any aspect of a defendant’s personality, background, or life history which might call for a sentence of less than death, most typically today life without parole (LWOP).
Such conditions were certainly present in Dzhokhar’s trial. Seventeen of the thirty charges under which he was indicted carried the possibility of the death sentence. However, given that most of them carried the distinction of “conspiracy to commit” or “aiding and abetting,” I must conclude these fall under the category of the aforementioned “extraordinary national security offenses,” given the draconian nature of most post-9/11 terrorism laws. Additionally, in the penalty phase of the trial, it was made abundantly clear his options were limited: the only possible sentences were life without parole or death. At which point, “any aspect” of his “personality, background, or life history” was systematically ignored by the jury. They returned a verdict of death, regardless of weeks of testimony about his lack of violent history, cultural background which put him at the mercy of his volatile older brother Tamerlan, and endorsement from a Catholic nun that he had genuinely expressed remorse for his crimes and therefore was redeemable as a human being.
All of which begs the question, How could this happen?
Ms. Schulter dives into the history of the death penalty debate, citing scholars and justices dating back to the 18th century, when America was still in its infancy. According to William Eden, 1st Baron Auckland, who wrote “Principles of Penal Law,” inspiring many revolutionary American thinkers:
Nothing, however, but the evident result of absolute necessity, can authorize the destruction of mankind by the hand of man. … The infliction of Death is therefore not to be considered in any instance, as a mode of punishment, but merely as our last melancholly resource in the extermination of those from society, whose continuance among their fellow-citizens is become inconsistent with the public safety.
It is this question of “absolute necessity” that has been bandied about ever since, which makes me wonder: where do we draw the line? What is the most unforgivable offense, which indicates a person cannot be allowed to continue breathing, that even the slimmest possibility of his eventual release may endanger the public? I don’t believe a 19-year-old with no prior offenses, no backing by a violent organization, and no true evidence of radicalization fits that bill. And even if I did, I would concede that the nature of his crimes and his age at the time of committing them leave a lot of wiggle room. There is evidence that radicalized individuals can be de-radicalized, much like cult de-programming, and I think anyone who has lived past adolescence can look back at their teen years and cringingly admit much of their ideology has changed since then. Cutting off someone’s life for one mistake made at 19 seems awfully extreme and, in accordance with Eden’s theory, not absolutely necessary – but that is precisely what happened to Dzhokhar. The jury only invoked death on six of the seventeen capital counts, the ones related to the placing of the bomb that resulted in the deaths of Martin Richard and Lingzi Lu. Therefore, it was their opinion that a single action overrode a lifetime of mitigating factors.
How a jury could come to this sort of conclusion returns us to the inherent unfairness of impaneling a death-qualified jury, particularly in a place like Massachusetts, which has outlawed the death penalty on the state level. I touched upon this in my previous post, but I think it bears revisiting, particularly with more insight from an expert on the topic. In an article linked by reader Tychesd, defense attorney and death penalty opponent David Dow explains the process of selecting a jury full of those who are death-qualified:
Imagine a five-point scale: One describes a person who is categorically opposed to the death penalty (someone like Sister Helen Prejean, if you need an example). Five describes someone who believes in executing anyone who commits murder, no exceptions whatsoever. Three is perfectly in the middle. Two is someone with reservations against the death penalty. Four is someone who leans in favor.
What the Supreme Court in Witherspoon should have said is that the prosecutor is allowed to get rid of anyone who is a 1, and the defense is allowed to get rid of anyone who is a 5, and the jury will therefore comprise people who are 2, 3, or 4 on the moral spectrum. But all you need to do to learn whether a potential juror lies at one extreme or the other is to ask two simple questions to the entire group of potential jurors: First, is there anyone here who is absolutely, positively so opposed to capital punishment that you could never, under any circumstances, vote to impose it, even against Adolph Hitler or Osama bin Laden? Second, is there anyone here who believes that anyone convicted of murder should automatically be sentenced to death?
Any potential juror who raises his or her hand in response to either question is dismissed. Anyone else may sit on the jury.
But that is not what happens. Instead, jurors are examined at great length about the subtleties of their views. This individualized questioning takes a fair amount of time, which is why it takes weeks or months to pick a jury in even the most mundane death penalty case. In Tsarnaev’s case, jury selection began in early January, and opening arguments in the trial did not occur until March 4th. What happened during that time was that lawyers tried to figure out exactly how a potential juror’s general attitude toward capital punishment would play out in real life.
As one might imagine, it is exceedingly rare for anyone in the United States to be either a 1 or a 5 on our scale—which means that virtually no potential juror is what is known as Witherspoon excludable. Unfortunately for capital defendants, the process of learning whether someone is Witherspoon excludable also allows prosecutors to identify the jurors who identify themselves as 2 or 3 on the moral spectrum, and prosecutors may then use their peremptory challenges—a challenge that requires no explanation or justification—to get rid of them.
The one point here that I disagree with – and Ms. Schulter stated so as well in a comment to my previous post – is that it is “exceedingly rare” for anyone to be a 1 on the scale, like Sister Helen Prejean. In fact, in Massachusetts, 85% of the population consider themselves to be against the death penalty on principle alone. This means that the pool from which the court pulled its jurors in Dzhokhar’s case were already representative of a mere 15% of society, a percentage that Dr. Dow himself describes as “a tool prosecutors use to construct exactly the type of jury the Supreme Court condemned: one uncommonly disposed to death.”
To be perfectly honest, if I were to measure myself on the scale set forth by Dr. Dow, I would probably be more of a 2 than a 1, in a purely theoretical sense. It is a difficult question to wrestle with, what depraved and heinous misdeeds a person would have to commit, and commit them in what way, with what prevailing attitude, in order to warrant a death sentence. But this not a purely theoretical issue. When I think of my feelings about Dzhokhar, which is a deep, empathic grief I live with day-to-day – for him, his situation, and everyone who knows and loves him – I must conclude that it is unlikely there is anyone who has ever been condemned to die who did not have at least one person who felt similarly about him or her. Who am I to decide that anyone, regardless of their actions or character, is unworthy of such love, and that killing them won’t leave yet another horrific void in the lives of those left behind? I combine that with the evidence that on an applied legal level, the system is broken and results in the death penalty to be what Furman v. Georgia, the Supreme Court ruling that halted the death penalty in 1972, called “so wantonly and so freakishly imposed.” It is this broken system that allows for serial killers such as Gary Ridgway, the Green River Killer, who has 49 confirmed victims and was active over a period of twenty years, to be serving life sentences, while Dzhokhar faces death for putting a backpack by a tree on one very awful day of his young life. With all this in mind, I cannot in good conscience support the death penalty for anyone, regardless of whether or not it is “deserved.”
It is my hope that if you’re reading this, and if you would like to help Dzhokhar, you will also come to the same conclusion. If the federal death penalty is abolished, by the time Dzhokhar’s appeals are resolved, his life will already have been spared. Then, if he receives a new trial – which I believe he deserves – already the stakes will be lower. Perhaps where will be room to take a guilty plea, as many of Judy Clarke’s clients have before him, or have his sentence commuted, which will allow for his eventual release. (I know at this current time that the charges under which he’s been convicted don’t have this type of nuance. As written, a sentence is either life without release or death. The lack of degrees in these laws, and their subsequent unconstitutionality by removing the possibility of letting a defendant’s punishment fit his crime, is a subject for another post. But hey, gotta think on the bright side. We’re talking long term goals here.)
This leaves the question of what exactly can we can do about it right now. Luckily, legwork has already been done on this by Tychesd, and it’s worth repeating here:
I called the Death Penalty Information Center this morning to ask them what actions COULD be taken by the public in a case like this. She suggested I write a letter to President Obama asking for clemency. That was on my agenda. I also mentioned to her that I plan to write to Pope Francis. He has spoken out on the death penalty in the recent past, as well as have other recent Popes. And, he will be visiting the U.S. in September. He will be making an address to Congress, and I’m sure he will be talking with the President. In fact, if I could recommend anything for people to do at this time, it would be to write letters to President Obama and the Pope. I can provide addresses. I think it’s also good to write or call your Members of Congress. They may not be inclined to have any feelings of mercy for Jahar, as he’s a “terrorist” and all. But, they do listen to their constituents.
As I had mentioned the Pope, the lady at the Death Penalty Information Center also mentioned the Catholic Mobilizing Network, a group that does work on the death penalty. There is also the Quakers – or the Society of Friends, as they also are called. They are doing work on prison reform and punishment issues.
I think these are excellent resources and encourage everyone to consider them. Additionally, I found the ACLU website with more information regarding capital punishment and supporting abolition. It also includes a statement from the ACLU of Massachusetts stating that they do not condone the death sentence in Dzhokhar’s case either. Finally, I think supporting Sister Helen Prejean’s organization Ministry Against the Death Penalty is another good starting place. I hope at some point those of us who are concerned about Dzhokhar’s case in particular might be able to get her support, as she is already directly involved, having counseled him and testified on his behalf.
I also welcome with open arms other suggestions of this nature, and updates on your own efforts.
2. The Concept of the “Accidental Terrorist”
The other subject I would like to tackle in this response post is a case that was brought to my attention by a kind and insightful reader, Richard Demma. When I viewed the recent documentary on Omar Khadr called “Out of the Shadows” (I was unable to view it at this address due to what I suspect is regional limitations, but I was able to find it streaming here and excerpts are also here), I couldn’t ignore the similarities to Dzhokhar’s case. Both were young at the time of their crimes – Omar was fifteen, four years younger than Dzhokhar, in fact. Both were gravely injured when captured, subjected to questionable interrogation, and are victims of a phenomenon I’m calling the “accidental terrorist.”
Omar’s story does differ in a lot of ways, of course. He was apprehended in Afghanistan after a firefight with American troops in 2002, and detained in Guantanamo Bay for eight years before he was given a trial. He endured torture that Dzhokhar has mercifully escaped (unless perhaps you, like the United Nations, classify long term solitary confinement as torture – but that’s yet another topic for another time), and was charged with war crimes, not domestic terrorism. But there is a common thread here: a young Muslim male with ties to the West commits a crime, is branded a terrorist and therefore gets subjected to worse treatment than he would have received by the American government otherwise. In Omar’s case, he admits to throwing a hand grenade at American troops in the midst of a siege “to scare them off,” which caused the death of a soldier. (Interestingly, eye witness accounts of other soldiers there challenge the validity of Omar’s own memories and suggest he may not have thrown the grenade at all.) He was at an Al-Qaeda safe house because his father had sent him to be a translator for insurgents, as he spoke three languages. Likewise, in Dzhokhar’s case, he acted because of what was, at the very least, “influence” and “admiration” of his brother, and what I have argued was fear due to Tamerlan’s physical prowess and mental instability.
What I find fascinating here is that we have two cases of crimes with very unclear motives. In Omar’s, he was in the middle of a firefight and could have been acting, quite reasonably, in self-defense, if it even happened that way at all. In Dzhokhar’s, he was never in control of the situation, and feasibly could have acted under duress, as well as self-defense later, when he threw explosives at police officers shooting at him – who numbered as many as nineteen by the time he fled the scene, a recently published report claimed. But because they were associated with radicals, scant evidence (such as videos of Omar helping to bury IEDs and Dzhokhar’s confused boat note) could be construed as irrefutable proof of their commitment to violence against America.
Which brings me back to the idea of the “accidental terrorist.” In terrorism theory, the act of terrorism is very deliberate. Scholar Alex P. Schmid defines terrorism primarily as such (emphasis mine):
Terrorism refers, on the one hand, to a doctrine about the presumed effectiveness of a special form or tactic of fear-generating, coercive political violence and, on the other hand, to a conspiratorial practice of calculated, demonstrative, direct violent action without legal or moral restraints, targeting mainly civilians and non-combatants, performed for its propagandistic and psychological effects on various audiences and conflict parties;
There are still debates among academics about the true definition of terrorism, but even the differing theories tend to agree on a few common factors, as stated above: terrorism needs to be politically motivated, and it generally needs to be against targets who are symbolic – that is, as Schmid states, “mainly civilians and non-combatants,” in order to send a message to the “real” targets, usually the ruling government of said attacked body. Therefore, it is reasonable to say anyone who commits these acts in an able-bodied and willing manner is a terrorist.
With this in mind, let’s turn back to Omar Khadr and Dzhokhar Tsarnaev. In Omar’s case, this definition already eliminates him from the terrorist pool – he was fighting against combatants, American soldiers who had attacked the compound in which he resided. Also, he himself contends he was acting in self-defense, not because he specifically wanted to hurt and kill Americans, so the motive doesn’t match either. In Dzhokhar’s case, things get trickier, but bear with me. Certainly attacking a public event full of unarmed civilians fits the definition of terrorism, but there is still the question of motive. In my last post, I wrote about the psychology of radicalization and how it is unlikely Dzhokhar was truly radicalized the way his brother Tamerlan was. This is a thread I will pick up in more detail in a future post, but for now let us assume that Dzhokhar was not radicalized and therefore was not acting because he believed in the jihadist ideals that were fueling his brother. Rather, he participated in the bombing out of familial obligation and fear of what Tamerlan might do to him if he did not comply. Does this make him a terrorist?
I argue that the answer is “no,” because the needed political motivation is absent. This doesn’t erase the crime, but it changes the nature of it from terrorism to something else – perhaps aggravated assault or homicide. Such charges carry much different sentences, and have the nuances the terrorism charges lack. According to Attorney Dad, homicide, by statute, has several degrees, each one allowing more lenient sentences depending on the circumstances under which it was committed, such as passion based on adequate provocation or gross recklessness. Acting under duress of someone bigger, stronger, and scarier than you may, depending on all of the facts, constitute a valid defense.
My point is that the charges brought against Omar and Dzhokhar have been heightened in their severity due to post-9/11 laws regarding terrorism. Moreover, distinguishing an actual terrorist becomes difficult when policy-makers and law enforcement don’t know the specific criteria with which to identify one – and terrorism scholars readily admit there isn’t a lot of communication between them and such governing bodies. This means governments are taking shots in the dark about this kind of thing. It also means they become prone to generalizations, which are dangerous. Because when you take the political motivation away from people like Omar and Dzhokhar, what we are left with are not highly trained dangerous operatives of extremist organizations, but Muslims committing crimes. And if America has tailored laws to punish Muslims more severely for committing crimes than other people, then we have a big problem.
There is still hope, however. Omar’s case has been appealed in the US courts and he is currently out on bail as of last month, living with his lawyer, Dennis Edney. On June 12, the US Supreme Court ruled to overturn war crime convictions of another Guantanamo detainee, Ali Hamza al-Bahlul, on grounds that his offenses were not considered war crimes at the time he supposedly committed them. This is the same argument being made in Omar’s appeal, and his lawyers are optimistic that this will overturn his convictions as well. It’s taken a long time – almost thirteen years of incarceration in often morally appalling conditions – but the wrongs that have befallen Omar Khadr seem as though they are in the process of being righted. It’s a testament to his own strength as a person that he is not bitter or angry about his ordeal. In the “Out of the Shadows” interview, he states, “I’ve come to know myself because of this experience. Sometimes you have to fall to appreciate standing upright.”
I pray that one day Dzhokhar will be able to speak similarly, after serving a sentence that fits his transgressions, not the current one unfairly meted to him after he was unable to bring an actual defense.
3. What’s Next for This Blog?
That’s an excellent question. I’ve been thinking a lot about this myself. I have plenty more topics I wish to cover, about Dzhokhar’s case and the larger implications they have for America and criminal justice in general. I absolutely will continue writing about him and advocating the reasons why he deserves a new trial. I am immensely grateful for all the people who have been reading this blog and contributing to the intelligent discussions about what can be done for Dzhokhar and others in similar situations. To name a few topics, I plan to cover the Special Administrative Measures and why they were unfairly applied to him, a more in-depth look at why I believe the evidence presented against him does not prove he was radicalized (even his boat note), and the anti-Muslim prejudice present in court during the trial. I’m working on the research portions of these topics currently, so I encourage you to follow this blog for email updates so you’ll know when they go up. I also welcome more discussions, links to relevant cases, and suggestions for more topics you would like to see me cover. Additionally, I’ve handed over the legal documents I’ve collected from Dzhokhar’s case to Attorney Dad, so I’m looking forward to getting more legal-based opinions about the court proceedings I can discuss.
To wrap up, there are a couple of quotes I’d like to share. The first is from an attorney named Susan Simpson. If you are familiar with the podcast Serial that took the world by storm last fall, you may recall that it was a true crime story about the possible wrongful conviction of Adnan Syed, who is currently serving a life sentence for killing his ex-girlfriend, Hae Min Lee. Simpson became involved after hearing the podcast, dedicating herself to re-examining the case to find anything that might prove Adnan’s innocence, and is now working closely with advocates for Adnan and his lawyers. She, along with two other attorneys, have their own podcast called Undisclosed: The State v. Adnan Syed. In it, they have uncovered evidence of police misconduct by the Baltimore police, who have already been subject to wrongful conviction suits, that may have led to Adnan’s false conviction as well. In a recent interview by Audioboom, Simpson was asked what she would do if she learned Adnan really was guilty after all. In response, she said:
If he was actually guilty, I think the worst thing that could happen is the message to get out that it’s okay for cops to do this, it’s okay for detectives to bend the rules to get a conviction, because the guy was guilty anyway. No, it’s not. There is no harmless railroading of the case. In that respect I think it would be horrible if it came out that, oh, detectives cheated essentially but you know, we can find out now that it’s okay they cheated because this guy was guilty. … These detectives were involved in convicting innocent people of murder. Even if Adnan was guilty, there are others out there I’m sure who they have falsely convicted and no one knows their cases, no one’s heard from them, and whatever Adnan’s case ends up being, this should not impact their chances to be heard and for justice to finally get done.
I identify strongly with Simpson’s stance here. I know there are a number of people reading this blog who question Dzhokhar’s guilt on a larger level than I do – I have and will continue to advocate that he participated in the crimes for which he’s been convicted, but unwillingly due to duress. However, as Susan Simpson eloquently points out, whether someone actually did commit a crime does not excuse the misconduct of those trying to convict him of it. Because if the process is unfair, yeah, maybe we do get the guilty guy sometimes… but we will undoubtedly get innocent ones too. That’s not the kind of justice system I believe in, whether the crime is domestic murder, like in Adnan’s case, or one related to national security, like Dzhokhar’s. Everyone has the right to due process, and to serve a sentence that fits their crimes. Any abuse of those basic rights is wrong and needs to be fixed as soon as possible, regardless of the moral implications of the crimes the defendant may or may not have committed.
Finally, I want to leave with a quote from Dzhokhar himself, brought to my attention by Richard Demma. I admit that over the last two years, I have been wrestling with uncertainty about the appropriateness of writing about Dzhokhar and what happened to him. I have often felt as though I’m the only one who remembers that he is still a breathing human being with thoughts, opinions and feelings. And I’m no journalist; I’ve never written about real people before, let alone a person I could have known had our social circles nudged us just a little closer together. Even the exercise of trying to fictionalize his story for my book series gave me pause. Unfortunately, due to the SAMs, I am unable to write him and ask permission. This maddening reality has frustrated me for quite some time now. However – and as far as I can tell, this is legitimate – back in 2011, shortly before starting his first semester, Dzhokhar left a comment on a UMass Dartmouth reading project blog, discussing the situation of the wrongful convictions of the West Memphis Three. This case, which happened during the Satanism scare in the 1990s, eerily echoes the hysteria over Islamic terrorism present today that turned public opinion so vehemently against Dzhokhar. In response to the piece, he wrote:
In this case it would have been hard to protect or defend these young boys if the whole town exclaimed in happiness at the arrest. Also, to go against the authorities isn’t the easiest thing to do. Don’t get me wrong though, I am appalled at the situation but I think that the town was scared and desperate to blame someone. It’s because of stories like this and such occurrences that make a positive change in this world. I’m pretty sure there won’t be anymore similar tales like this. In any case, if they do, people won’t stand quiet, i hope.
This, I think, is the closest to permission from him that I’m going to get at the current time. And so, this is my promise, to Dzhokhar and to you: I won’t stand quiet. Not anymore. Not ever. Not until the wrongs that have befallen him and others like him are righted.
Thanks again for all your support, and stay tuned.