Death Penalty Abolition, Accidental Terrorists, and What’s Next

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.

This infographic depicts the kind of company America keeps in being one of the countries that still employs capital punishment.

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.

I was surprised to learn the death penalty debate dates back to when men still dressed like this.

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.

Omar Khadr, who was imprisoned at Guantanamo at the age of 15, was released on bail last month in Canada and is currently living with his lawyer, Dennis Edney, at right.

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.

IMG_0811
What my desk has looked like lately, featuring the legal documents from Dzhokhar’s case that Attorney Dad has graciously agreed to look over for me.

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.

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52 thoughts on “Death Penalty Abolition, Accidental Terrorists, and What’s Next

  1. Thank you so much, Heather, for your new commentary on the death penalty and Dzhokhar Tsarnaev, and for the opportunity to participate in these threads.

    Maybe this is a place to get into some legal specifics of how, as you discuss, mitigation was disregard in Dzhokhar’s case, so that he received, in effect, a mandatory death penalty for “terrorism” that is unconstitutional even under the current state of the law.

    As the jury penalty verdict forms reveals, three jurors found that “Dzhokhar Tsarnaev would not have committed the crimes but for his older brother Tamerlan.”

    In Lockett v. Ohio, 438 U.S. 586, 607 (1978) — here I’m giving citations for you or your dad or anyone reading this who might want to check them out — the Supreme Court of the United States found unconstitutional a 1975 Ohio death penalty statute that didn’t permit sufficient consideration of mitigation circumstances in capital cases. Interestingly, one of the three mitigating factors was the following:

    “It is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation.”

    If this mitigating circumstance were found, or one of the other two — that the victim had induced or facilitated the offense, or that it was “primarily the product of the offender’s psychosis or mental deficiency” — then the death penalty was “precluded,” 438 U.S. at 612-613.

    The Lockett Court famously held that a capital defendant must be free, in the penalty phase of a capital case, to present any fact relating to the circumstances of the crime itself, or the defendant’s character and background, that might call for a sentence of less than death, 438 U.S. at 604-605.

    As Justice Marshall remarked in his concurring opinion: “The Ohio statute with its blunderbuss, virtually mandatory approach to imposition of the death penalty for certain crimes, wholly fails to recognize the unique individuality of every criminal defendant who comes before its courts.” Id. at 620-621.

    Yet even under this “blunderbuss” statute, the three jurors who found that Dzhokhar Tsarnaev “would not have committed the crimes but for his older brother Tamerlan” might well have returned a verdict of life.

    As you have pointed out in the previous thread, there is evidence pointing to duress or coercion, if I am correct, in a scene where Tamerlan and Dzhokhar are at a gym, and Tamerlan threatens his younger brother with some object, or even pokes him in the face with it. That, plus the traditional deference expected in Chechen culture of a younger brother, would underscore the conclusion of the three jurors.

    The Ohio statute, by the way, was very much the “blunderbuss” that Justice Marshall describes. Sandra Lockett was an 18-year-old African-American woman sentenced to death for driving the getaway car in a robbery where her codefendants robbed and killed a pawnshop operator who had unexpectedly grabbed their gun in the ensuing struggle. Such a random death sentence on a young woman who had never intended to kill anyone highlighted the arbitrariness of the death penalty.

    However, even under that statute, Dzhokhar Tsarnaev might have gotten a measure of justice. Under the Federal Death Penalty of 1994, administered so that the prosecutors were free to invite the jury to consider the influence (at least) of Dzhokhar’s older brother as a “weightless” mitigating factor — along with various others — a death sentence that might have been precluded under the old Ohio statute became the reality.

    In approaching these legal points, I’ll try to stick to one for each comment, because they can get intricate. And I totally agree with you that abolishing the federal death penalty may be the best strategy of all for getting some justice for Dzhnkhar.

  2. another great post!! I believe the only way, not only to keep the innocent from the death penalty, but also to keep the guilty from the death penalty, is to abolish it completely. No human being has the right to take the life of another other than in dire self defense. Even the guilty should be treated with compassion, mercy, support and rehabilitation with hope of someday being released. LWOP is very much like the death penalty in that there is no hope of a real life or freedom at all. The US gov and everyone should take a look at the justice system in Finland. It’s the most decent, caring, most humane system of rehabilitating all criminals, in the world. It’s like day and night compared to the US.

    1. Forgive the ridiculous lateness to this comment, but your mention of the justice system in Finland reminded me of an article I had read awhile back on prisons in the Scandinavian countries and it took me some time to track it down again.

      Here it is: http://www.theatlantic.com/international/archive/2013/09/why-scandinavian-prisons-are-superior/279949/

      Definitely eye-opening, especially for me, coming from American-based assumptions on prison systems. Another related article I came across is also interesting, discussing the differences between retributive justice (America) and restorative justice (Norway): http://www.theatlantic.com/international/archive/2012/08/a-different-justice-why-anders-breivik-only-got-21-years-for-killing-77-people/261532/

      Statistically speaking, it looks like restorative justice is way, way better at reducing crime.

  3. Please forgive me for commenting again before more people have joined in, but the pronouncement of the death penalty against Dzhokhar Tsarnaev confirms the demonization addressed in these threads. Thank you, Heather, for providing us with a first-person view of the trial, and also a sense of community in our resistance.

    When Judge O’Toole said, as part of his sentencing statement, that no one would remember that Dzhokhar Tsarnaev is loved by his friends and family, the judge was joining in a false consensus to disregard mitigation for the sake of blind vengeance. Both the witnesses who came to court and testified about mitigation, and those of us coming together here to affirm that mitigation, are well able to declare that this death sentence is based on an untruth.

    Dzhokhar’s statement of apology and repentance to the victims which he gave today may also raise a legal question I would like very briefly to touch on: the question of a right to allocution before the jury during the penalty phase without cross-examination.

    According to Federal Rules of Criminal Procedure, Rule 32, a criminal defendant in federal court has a right of allocution to the sentencer: that is, to address the sentencing authority and express remorse or offer any reasons in favor of a more merciful sentence. Generally, it is the trial judge who determines sentence, so that allocution traditionally occurs before the judge.

    A critical difference between this process of allocution before sentence, and usual testimony in court, is that a defendant who decides to testify is subject to cross-examination by prosecutions, which can often be devastating. However, allocution gives a defendant an opportunity to address the court and express remorse, for example, without the threat of cross-examination.

    In a federal capital trial, one critical aspect of the allocution process is changed. While it is still the trial judge, here Judge O’Toole, who actually imposes formal sentence, it is the jury who decide the sentence, and alone can act on a statement of remorse, for example, by choosing life without parole rather than death.

    Thus a basic question: in the special situation of a federal death penalty trial, where it is the jury who decide the sentence, is there a right to allocute to the jury, when it can make a difference — rather than, as today, to the trial judge, who must follow a jury verdict of death?

    Here it could be relevant to know: at any point in the proceedings leading up to the jury’s penalty verdict, did Dzhokhar’s attorneys seek for him the right to allocute before the jury and express his remorse, as he did today to the victims and Judge O’Toole?

    If so, the issue would be preserved for review on appeal by the federal First Circuit. It’s easy to imagine that Dzhokhar might have wanted to allocute before the jury — but, if denied this right, was deterred from testifying during the penalty phase by the murderous cross-examination that would have followed.

    There might have been ways around this, like having Dzhokhar write a statement of remorse that his attorneys could then have read to the jury, maybe as support for Sister Helen Prejean’s testimony.

    However, the right to allocution before the jury could be an important issue on appeal if it was preserved during the trial.

    So far, federal circuits that have addressed this issue have held that there is no right to allocution, although judges certainly have discretion to permit it. However, the Federal District of Hawai`i (an abolitionist State like Massachusetts) has held that Rule 32 must, applying common sense, be interpreted to provide a right to allocute before the jury in capital cases, where the jury decides the sentence of death or life without parole.

    Again, Heather and all, thank you so much for being here at this sad hour as the struggle continues.

    1. Hi Margo,

      I apologize for not responding to your previous comment sooner, but I’ve been busy working on some stuff in the background. However, given this insightful comment in the light of today’s sentencing hearing, I wanted to address it as soon as possible.

      Maybe this is just because at heart I am both a writer as well as a teacher, but I thought Dzhokhar’s statement was both beautiful and beautifully written. If he wrote all that unaided, I think it speaks volumes about his intelligence, character and the maturity he has undoubtedly achieved in two years’ time. It’s certainly a far cry from the barely comprehensible note he wrote on the walls of the boat before his capture. This ties back into your point about a criminal defendant’s allocution before a trial judge versus one before a jury in a capital case. Since the imposition of the death penalty hinged upon the idea that he did not express any remorse for his crimes and can never be redeemed, I hope the jury thought long and hard today about the sentence they returned, given his statements. I hope there was more than one uncomfortable person in the gallery as the judge sentenced this eloquent young man to die.

      Of all the testimony I witnessed during the penalty phase, one that sticks in my head is that of Becki Norris, who was Dzhokhar’s eighth grade math teacher and student advisor. She expressed genuine sorrow that she lost him as a student when his mother pulled him from the charter school in ninth grade, because she thought with his intelligence he could go very far – and in fact, upon running into him when he was in high school and he admitted to her he had a D in Chemistry, she exclaimed, “Dzhokhar! You’re better than that!”

      This statement has echoed through my head ever since when I consider this case. The illogical sentiments in the boat note? “Dzhokhar! You’re better than that!” The footage of him glumly following Tamerlan down Boylston Street? “Dzhokhar, you’re better than that.” Listening to assertion after trumped up assertion about the evilness of his character by the prosecution? “He’s better than that, and you aren’t giving him a chance to show it.”

      Today, at the very least, I think the world finally heard from the real Dzhokhar Tsarnaev – the one described by all those character witnesses, the one who is better than the actions that have now defined him. And lo and behold, he isn’t a monster who’s hiding under all of our beds. That Dzhokhar Tsarnaev, who was finally given a voice, doesn’t deserve to die.

      And, despite Judge O’Toole’s statements, I’m never going to forget the goodness in him. And I’m never going to stop advocating that we take a real hard look at cases like his, and realize that if we want to define ourselves as a superior first world nation, we will go a lot farther with mercy than with the cruelty we showed to him.

      Today, I’m proud of Dzhokhar. I hope one day I can tell him that. I hope he continues to grow and develop in prison, and one day he has the chance to live some of his life outside it. I agree with him, that God does not give us more than we can bear. That’s not chiefly a Muslim sentiment by any means. If there was no hope for him, he would already be dead.

      And I’m going to continue to do everything in my power to make sure he – and by extension, everyone like him – live.

  4. What a sad day. I agree with you Heather – his speech was eloquent and made me cry. I don’t see how anyone could not think he was sincere.
    In response to your article above. I agree that getting the DP abolished and Jahar off death row is of upmost importance. However it seems to me that getting the SAMS lifted is paramount if he is going to retain any form of sanity until a retrial and hopefully subsequent sentence of LWOP, or repeal of the DP. He’s been in solitary, but he’s also probably had visits with lawyers, family (sisters) and then in the last 6 months spending days in court. The future at Terre Haute will be bleak and true solitary worse than any he’s known.

    1. I’m definitely with you there, Kay. I don’t think I’ve cried this hard since about a week after the bombing, the day I learned Dzhokhar was unarmed in the boat when they apprehended him. (I always consider this an odd moment in my life – despite living through the trauma of the bombing and the ensuing aftermath, this was the first time I cried about any of it, and I was so confused because my tears were for the person who did it. Perhaps even then I sensed there was more to the story, and the tragedy was more all-encompassing than anyone wanted to admit.) I haven’t bothered to read much else in the media besides his own statements, but I’m sure those staunchly unwilling to see the nuances in this case will make their usual weak arguments. I saw mention that prosecutor Weinreb said something about Dzhokhar not mentioning anything about denouncing terrorism. To that I say perhaps that is because he doesn’t view his crimes as terrorism, but rather a huge and horrible mistake that caused unreasonable pain and suffering. I would certainly agree with him there.

      I also agree that the removal of the SAMs is an important goal, and one that should be looked at for achievement in the shorter term than a longer one, for the sake of Dzhokhar’s mental health as well as more academic endeavors. It frightens me deeply that SAMs have a silencing effect on those they are imposed on, and removes the possibility for their side to ever be told, even after years of reflection and absolution. How are we to learn if such people are capable of redemption if we don’t give them that chance to be heard? I admire Dzhokhar for taking the risk of doing it now, even though it might affect his chances on appeal. (However, Attorney Dad did note he didn’t say anything that legally hurt him, so at least there’s that.) I myself was nervous that if he spoke he might have inadvertently said something detrimental, but instead I think he bravely told the truth and, I hope, put to rest a lot of baseless speculation about his motives and politics. If anything, this can only help him on appeal.

      As for Terra Haute, I’m certain federal death row won’t be a picnic, but I’m actually relieved he won’t be going to ADX. Between the research I’ve done and the testimony I’ve heard, my opinion is that entire facility is inhumane and should be shut down as soon as possible. (There are human rights lawsuits filed against it as we speak.) There’s also the fact that he would have been placed among some actual dangerous terrorists. Despite all the testimony that inmates are kept in solitary and their conversations constantly monitored, I didn’t relish the possibility that such an environment might foster more radicalization than it deterred. I’m also sure his lawyers will continue to visit as the appeals process moves forward, so even with the SAMs in place, he won’t be completely alone – and they do seem to be honestly fond of each other.

      On the whole, I think those of us who have come together here because we care about Dzhokhar should be proud of him today. He showed humanity and compassion in the face of great adversity, and genuinely sought penance for the wrongs he’s caused. From what I can see, he’s less the boy who miserably hid from capture and more a young man who stands to accept responsibility for his actions. That’s a huge step on the road to redemption, and I can only pray he continues on that path until the day he is able to rejoin society, however far off that may be.

  5. Hi Heather, about today’s statements and Jahar’s apology. I am glad he had courage enough to stand up in front of a packed room after everything he’s gone through especially the impact statements and berating. I’m incredibly proud he took the higher road and asked for mercy and forgiveness and also admitted guilt. I can’t think of many people who have done this and at his young age. It’s very mature and brave. I think about the lack of support he’s had inside that court room other than his attorneys. Who could survive the emotional roller coaster of a painful trail like this without your family to be by your side. They growing up and cold reality of the situation is enough to break even the toughest people. He has been quiet for two years, very compliant and patient. The expectations placed on him during this time is unreal. I give him credit for staying strong and copping however he did it. This young man deserves more and this isn’t the way his story ends. Please see http://cognoscenti.wbur.org/2015/06/24/dzhokhar-tsarnaev-remorse-amee-latour it’s a great article that focuses on the importance of his remorse. I love that you gave us this blog because yours and everyone less voice here has been a blessing in many ways. Today I cried once again for this kid I don’t even know but who I feel made a dire mistake that altered his life. I’m sure he feels horrible and she he goes back to his cell and faces the coldness of being alone probably forever, it has to hit him hard on a soul level. We all deserve second chances and if we end up someplace without a second chance, at the very least let there be some hope in the horizon. Let them release the SAMS, grant a new trial and take the DP out of the equation. My prayer for Jahar is to get through his days with some peace instead of sadness and guilt. Hopefully he can write and talk about his life with some positive reflections. Bottom line is he is still deserving.

    1. Thank you so much for your kind words and that great article link. I absolutely agree with Amee LaTour – Dzhokhar’s story has been biased and unfair from the start, which is what made me come forward and offer a different perspective in the first place. It’s this story, what I believe to be the real story, one tinged with a tragic lack of choices and regret, that I will keep telling as many ways as I can, to as many people as I can. I hope with the help of compassionate readers like you, that over time this is the narrative people will come to know and accept about Dzhokhar, not the hysterical rush to judgment that occurred in the days leading up to yesterday, when he wasn’t able to speak up for himself.

      While right now certain people doubt the sincerety of Dzhokhar’s words, I think ultimately it’s Judge O’Toole’s that are going to ring hollow in the halls of history: he loftily quoted an opera, claiming that like Shakespeare’s Iago, Dzhokhar worships “a cruel god.” Unfortunately, that must have been something he’d prepared before Dzhokhar spoke, because there was nothing in Dzhokhar’s statement that sounded vaguely radical to me. He’s clearly had plenty of time to study the Koran and get his views about Islam straight, if they were ever truly skewed at all. As a result, O’Toole’s assertion about Dzhokhar’s cruel god misses the mark, and aims rather cringingly at Islam itself. I hope such an unfair statement will get picked up by a vigorous appellate lawyer somewhere down the line, to help build the case for a biased venue.

  6. Heather,
    Interesting article at http://www.democracynow.org/2015/5/18/death_penalty_for_dzhokhar_tsarnaev_in

    which mentions deep into it, the seemly deliberate move by the judge in failing to inform the jury of what would happen if the vote for DP was not unanimous.

    Also, from the WBUR website, http://radioboston.wbur.org/2015/06/24/dzhokhar-tsarnaev-speaks Podcast debate where It’s mentioned that Jahar was apparently willing to help the government learn how jihadists are converted in exchange for LWOP with no appeals in addition to pleading guilty and offering a letter of apology, last year. First I’ve heard of that. Seems like an offer the government should have taken him up on.

    Could this get any more emotional – now they’ve spirited him off to Florence overnight with no chances of goodbyes to his family.

    1. I agree, that Democracy Now! coverage is great, and illustrates how legal experts are visibly appalled at the trial proceedings. Attorney Dad and I have discussed the point about the instruction the judge failed to give to the jury, and he says if that is truly the law and not up to the judge’s discretion to include it, that alone is misconduct that can result in the overturning of the entire sentence.

      Also, I’d heard that there had been plea negotiations but the government never came down from the inclusion of the death penalty, even with a guilty plea, so I’m not surprised to hear other conditions were bandied about as well. It really seems like the government wanted to make an example with this case, which was what I’d feared from the start. If Dzhokhar truly offered to help with understanding jihadist ideology, to me that’s more evidence he was either never actually radicalized or at least didn’t stay that way for long. But it seems the government doesn’t want it to get out that terrorists can be rehabilitated, despite psychological studies that indicate deradicalization works, and former terrorists like the founder of the Quilliam Foundation, Maajid Nawaz, are living proof it’s possible. Dzhokhar could have been an asset to us, but alas. At least this way he has his full array of appeals available to him, as is his right as an American citizen, and if we keep working to illuminate the problems in his case, hopefully a lot more can be accomplished in the long run than if he’d bargained them away.

      And I agree that the transfer to Colorado was alarmingly fast, but at least as far as I can tell he’s in protective custody at the high security facility at Florence, not ADX. That’s probably the best case scenario at the current time – he’ll be safer than on death row, they don’t have the resources the execute him, and he’s not in ADX with actual terrorists and barbaric conditions. Maybe it’s a sad day when facts like this allow me to sleep better at night, but at this point I’ll have to take what I can get.

  7. Wow! Heather, so much to say! First, I cannot believe how much you and I are in sync on our feelings about Jahar. You stated:

    “When I think of my feelings about Dzhokhar, which is a deep, empathic grief I live with day-to-day…”

    I can’t believe you said that! It describes so well how I feel, and my feelings toward him also started forming during his attempted escape and capture in the boat. While he was on the run, I REALLY wanted him to be found alive, so we could learn the reasons for the bombing. But after the discovery in the boat, I started to become emotionally connected to this kid in such a way that I now can cry about him at the drop of a hat. I have cried so much about him. I’m wondering if there is something in the backgrounds of the people who do feel this empathy toward him that is creating these strong feelings. I question it a lot about myself. I am not a young woman. I am Judy Clarke’s age, so this is not a crush or a romantic feeling. It’s a strong identification.

    1. Ahh, it is great to hear from you again! You always give such beautiful and informed commentary. I had missed you. 🙂

      First, I’m amazed (and relieved!) we apparently feel the same way about Dzhokhar. I imagine it must be similar to how the people who did know him must feel, which is partially why I decided I had to speak out about the case. I think those who knew him have had to keep their grief hidden because of the hostility regarding the crimes, which is hardly fair – they lost someone too. There seems to be a prevailing attitude that because he was involved he is therefore evil and the feelings everyone had about him beforehand are invalid… which is simply not how the spectrum of human emotion works.

      Also, I am admittedly fascinated by the gambit of people who do feel this way about him and wonder what connects us. I’m much closer in age to Dzhokhar than Judy Clarke, that’s for sure. (I’m 30 next month; his birthday and mine are actually quite close together.) I struggled long term figuring out why I felt the way I do about him, too. The best I can figure is that we must share a variety of overlapping or similar life experiences. It wasn’t that long ago that I was a teenager in Boston myself, and I know Cambridge very well. That always made it very easy for me to imagine myself in his position, and I have often been baffled by assertions about him that I just know first-hand aren’t likely to have come across his periphery. Most of that was just cosmic luck, though. I think overall those who are really struck by Dzhokhar’s story have a deep capacity for empathy and compassion, and care about the truth over an easy narrative and assurance that we “got the bad guy.” I have to admit I kept waiting for his story to fade into the background for me, that eventually I would learn the truth and have to shake my head and move on. But the opposite happened – the truth I uncovered no one was saying, and I realized I owe it to him to say it myself, and keep saying it until enough people take notice.

      PS – in case you didn’t see Kay’s comment below, is it okay if I email you to share her email address with you? I have them all on record thanks to WordPress, but I want to make sure it’s all right to contact you this way. Thanks!

  8. I loved Jahar’s statements in court. It was pretty religious, but I found it appropriate. And, it did show a lot of maturity.

    Judge O’Toole’s comments were completely uncalled for. He may have thought he was being eloquent and taking the high road by quoting Shakespeare and Verdi, but his statement before sentencing was mean and petty – and showed exactly how biased against Jahar he has been from the beginning.

    I’m wondering if people in the court room felt after Jahar’s statement that O’Toole’s seemed out of place or not appropriate. Some people really thought he was profound – God help us!! But people I followed on Twitter said the court room was “stunned” after Jahar spoke. Denise Richard supposedly sighed heavily and dropped her head back.

    1. I wasn’t sure he was going to speak at all, honestly – but now I wish I’d been there to hear it. I really do think his statement showed intelligence, growth and talent (I’m an English prof with a writing background, these are the things I notice). It appears that he can probably write well on a lot of subjects – which again makes me think his boat note wasn’t written while in a coherent mind. It’s barely intelligible mush compared to the reasoning he demonstrated in the courtroom statement. I’m planning to compare the two in more detail in my next post, so more on that later. But yes, I always knew he had to be smarter than he was being given credit for, and his statement gave me a much-needed sense of vindication.

      Also, yes, I thought Judge O’Toole’s statements missed the mark on every note, especially since they followed Dzhokhar’s. I’m not surprised that the courtroom was stunned after he spoke. Two years of putting words in his mouth when he wasn’t allowed to respond, and then he comes out with something that completely contradicts the narrative that was packaged and fed to everyone about him. I’ve noticed the general media reaction has tended to only be doubting its sincerity, since there’s really nothing else to attack about it. No one has even dared claim he showed radicalism, despite the religious references.

      And a note on that: I didn’t find their inclusion surprising, given what he’s been through. It’s common that people get more religious in prison, and his life has been on the line this whole time – that’s bound to make a person examine his spirituality. Not to mention one of the only people he’s had contact with aside from his legal team was a Catholic nun, who testified she gave him religious counseling. So such things and how he can use them to atone has likely been on his mind a lot. However, what I find the most interesting – and perhaps this could even help in the appeals process – is that to my knowledge, every Islamic reference seemed moderate and reasoned to me, completely in line with the true interpretation of Islam, not the jihadist bent he’s been accused of following. The fact that even afterward Judge O’Toole told him he worships “a cruel god” reflects poorly on the judge, not Dzhokhar. Attorney Dad agrees with me that this can probably be used in the appeals to illustrate the bias (not to mention willful ignorance) that was present in the venue. I really do think Dzhokhar walked away with the most dignity from that hearing, despite being the one in handcuffs. Small victory, I know, but I’ll live off those for now.

      1. Carmen Ortiz keeps asserting that none of this is about Islam. She keeps insisting that the real Islam is not violent and that Jahar follows a distorted version of Islam. She and O’Toole kept insisting that Jahar was holding the jihadist view. I guess she doesn’t want to be accused of being anti-Islam. She must think if she says “Islam is peaceful” often enough times, that means she and the government are not treating Muslims differently than they treat others.

      2. To turn to another Shakespeare reference, methinks they do protest too much.

        Also, great! I’ll be in touch soon by email.

  9. I’m writing several posts because there is so much to talk about.

    I finished my letter to the Pope and mailed it last week. In it, I asked that he intercede on behalf of Dzhokhar Tsarnaev and laid out why I thought he deserved mercy. I forgot to mention the volunteer work Jahar did for the special ed kids though. My request was part of a broader idea that he speak about abolishing the death penalty in the U.S. when he comes here in September. I mentioned life without parole as well and the complete negation of hope that it creates. I held up Norway as the model for how the rest of the world should treat criminals.

    My next letter is to President Obama. I think most of the laws around terrorism were enacted under Bill Clinton. I hope his wife doesn’t take that hardcore a stand!! I know that, as a woman, she probably is going to have to talk tough on terrorism and national security, but I hope she doesn’t act that way.

    My immediate goal also is to work to abolish the death penalty. Like you, that makes the most sense, and will have the most effect. I did sign up to receive notifications from the Catholic Mobilizing Network. They are interested in abolishing the death penalty and in “restorative justice.”

    Your point about the lack of degrees in murder charges connected to terrorism is also good. I remember thinking (naively) that maybe Jahar would be charged with second degree murder. That way, he could someday get out of prison. And, like you, that is my long-term goal – for Dzhokhar to eventually be released from prison. I don’t know how that will happen, and it seems like a dumb hope at this point, but it’s what I’m after.

    The prosecution (Carmen Ortiz and William Weinreb) and law enforcement types complained that Dzhokhar’s apology didn’t contain any renunciation of his acts. They say that he was sorry for the collateral damage but not for the goal itself. One legal blogger (Ann Althouse) compared Jahar’s lack of renunciation of terrorism to Dylann Roof’s statement that he felt bad about killing those people after they had been so nice to him – but he had to do it. It didn’t even occur to me while I was following Jahar’s statement on Twitter that he didn’t renounce terrorism. Maybe he didn’t renounce terrorism because he’s not a terrorist! But this clearly is what the government wants him to do. Would it change anything about his sentence if he did do that??

    I want to get back to this idea of restorative justice. This is the goal of the Catholic Mobilizing Network and it’s a theme that ran through the statements of three different people commenting after the hearing. First, there was the victim, Mikey Bogard, who gave an impact statement in court and was interviewed after the hearing. He said he forgave Jahar. He said he believed in 2nd chances. He also said he made eye contact with Jahar and that he felt as though he was looking at a boy, not a criminal.

    Next was Dic Donohue, the police officer who was shot during the Watertown shoot-out and almost died. I had seen him videotaped a while back saying that his faith caused him to want to forgive Jahar – something like that. He’s Catholic. He gave an impact statement in court and said he thought Jahar was guilty of treason! But after the apology, he tweeted that what Jahar said was “a step in the right direction.” Even Ed Fucarile, who was extremely condemning in his impact statement in court had an interesting tweet. He said, “He should have said that a long time ago.” This makes me think that maybe Uncle Ruslan was right. Jahar should have gotten on his knees and begged for forgiveness, and these people wouldn’t have been as angry. I don’t know, but this gets to the third person.

    Kay posted above a link to the radio show from WBUR that was broadcast after the hearing. It’s about 45 minutes long. There were two WBUR interviewers, along with David Boeri, who was at the courthouse. There was former judge Nancy Gertner, a former prosecutor (can’t remember his name), David Hoose (criminal defense attorney) and a Presbyterian minister. I highly recommend listening to this program. They allowed people to call in. One of the callers was a guy who called himself Larry. I don’t know if that’s his real name. He actually spoke about restorative justice and that was what he hoped for in this case. He knew Jahar. He teaches at Cambridge Rindge and Latin School. He said he was also good friends with a couple of amputee victims. He said they have suffered mightily. You have to listen to what he says. People like him and his own hope for restorative justice may indicate one path that we can take, Heather, to reach our ultimate goal of Jahar’s eventual release from prison. I hope people don’t discount everything I’ve said because I want Jahar to someday be released from prison. But, I too am of the opinion that Jahar should not be punished his entire life for this one terrible, tragic mistake that he made at 19 years old. David Hoose in that same radio program said that Jahar is so young that he may just now be coming to grips with what he did.

    But the first goal is to work on getting the death penalty abolished at the federal level.

  10. Heather,

    Please give tychesd my email address. We are approx. the same age and it would be nice correspond with another female who feels as I do. She expresses my own feelings on many matters but in a much better way than I could.

  11. Today, Justices Breyer and Ginsburg joined in a very important dissent in a lethal injection case, Glossip v. Gross, about wanting to revisit the constitutionality of the death penalty generally.

    As you might guess, I’m really focused on that, and also the question about a unanimous jury that you and your dad are raising. Because I want to focus here more on Dzhokhar rather than legal details, would some e-mail networking help on the latter? More generally, Heather, you have permission to share my e-mail whenever it might seem helpful.

    Now for one of the most disturbing aspects of trial and sentencing that you eloquently challenge: the tendency to turn guesses, fears, or fictional scenarios about Dzhokhar into “facts” that supposedly justify killing him. Judge O’Toole’s claim that he did not consider children to be “innocent,” earlier made by the prosecutors if I’m correct, is one example of this practice of death by creative fiction.

    Even the boat note contradicts the claim by prosecutors, if I recall, as well as Judge O’Toole, that Dzhokhar didn’t consider children to be “innocent.” The boat note specifically states that “I don’t like killing innocent people it is forbidden in Islam…” He argues there, if the note is authentic, that such killing is “allowed” because of some extraordinary circumstance — but not that the victims, including Martin Richards, were not innocent.

    This is not in any way to defend or excuse the Boston bombings, only to say that those who commit terrorist or war crimes against innocents don’t necessarily view the victims as “guilty.” For example, the aviators of the RAF who carried out nighttime bombings of German cities around 1942, where the object was to destroy residential neighborhoods, must have known that they were killing innocent children — but did not necessarily consider those infants and children responsible for the policies of the Third Reich.

    Another grim example would be the Algerian revolutionary who explained: “We put bombs in supermarkets because we don’t have an air force to bomb Paris.” Strategic bombing is immoral whether indulged in by terrorists on the ground with improvised explosive devices or armed forces with the benefit of government sanction and more sophisticated delivery systems than backpacks.

    To what degree Dzhokhar had really embraced the philosophy of strategic bombing, and to what degree he was following his brother (however voluntarily or otherwise) and then in the boat note trying to make some sense of things while preparing for death (and indeed he may have been bleeding out until arrested), remains an open question.

    But the idea that he was specifically targeting children, and considered them other than “innocent,” is either conjecture or creative fiction.

    Your explanation of his state of mind during those last minutes leading up to the bombing as a time for him of confusion, doubt, and finally following his brother’s instructions, makes to me a lot more sense than Judge O’Toole scenario, which maybe he came to believe as a way to make the duty of imposing a death sentence less difficult for himself.

    Justices Breyer and Ginsburg talk in their dissent about high-profile or sensational murder cases likely to result in a death penalty trial may also be subject to a heightened risk of error because of public emotion and the impact on the factfinding process.

    Here, that error especially infected the penalty phase, and Judge O’Toole incorporated it into his performance when imposing an inhuman sentence.

    Justices Breyer and Ginsburg want to reexamine the entire death penalty question, and consider it highly likely that the Eighth Amendment forbids this punishment as cruel and unusual. Thank you, for Healher, for writing about the many injustices in Dzhokhar’s case as an example of why he has human value, and why the death penalty must be abolished.

    1. Really good comments, Margo. I read a very good article about the decision today by Noah Feldman that emphasizes the Breyer dissent http://www.bloombergview.com/articles/2015-06-29/death-penalty-survives-for-now. I am encouraged by his article. He mentions that death penalty opponents probably should try to make sure Hillary is elected in the event Kennedy and/or Scalia retire. But, my guess is that Ginsberg would be the next one to retire. But, there, I guess we would want a liberal replacement to maintain the balance.

      Judge O’Toole was awful. Someone I follow on Twitter, who lives in the Boston area, said that O’Toole is highly respected. By whom?? Now there is a liberal appointee that really disappoints. He was appointed by Clinton.

      Margo says: “Your explanation of his state of mind during those last minutes leading up to the bombing as a time for him of confusion, doubt, and finally following his brother’s instructions, makes to me a lot more sense than Judge O’Toole scenario…”

      I don’t know if you have all seen the video of Jahar standing near the tree in front of the Forum restaurant from the rear. Much was made of whether you can actually see him put the pack down. But what I found interesting was first, how fluid the situation was, as far as people walking by him while he was standing there for those “four minutes.” Second, he constantly is turning his head looking around. He’s not looking at Martin Richard or anyone in particular. Maybe he noticed there were kids around, but I think he was extremely nervous and focused on his task, which likely was figured out in advance – “go stand by the tree in front of the Forum Restaurant and wait.”

      People said that Jahar was smirking – or even smiling – while he was standing at the Marathon. I don’t know what they’re talking about, because every picture I have seen of Jahar standing at the Marathon, he looks like he doesn’t want to be there.

      I’m hoping that Jahar comes to the same conclusion (maybe he already has) that the author of the book, “How To Make A Bomb In the Kitchen of Your Mom,” Michael Powell came to – that it isn’t logical that violence can be used to prevent violence. He renounced the tactic, but it took him a while to figure it out. http://www.theguardian.com/commentisfree/2013/dec/19/anarchist-cookbook-author-william-powell-out-of-print

      1. I’ve heard Judge O’Toole is respected, too, but honestly, I got that from the media and they’ve been so wrong about so much I didn’t want to believe it without seeing for myself. I admit he’s the only judge of any kind I’ve observed at length, so I don’t have a good point of comparison, and I’m hesitant to publicly criticize because I don’t have a law background myself. However, I cannot tell you how many times I observed him look flustered or confused, speak in an uncertain manner in response to the attorneys, or even be bullied into a ruling by a pushy prosecution lawyer. I’ve asked my father several times about such behavior, and while he said attorneys do tend to argue their sides once an objection is put in and the judge listens before responding, a lot of O’Toole’s behavior makes it sound like he was out of his depth. I lost faith very quickly that the ship was being steered by a steadfast captain, so to speak. There’s also the fact that he was the presiding judge on the Tarek Mehanna case in 2011, and sentenced Mehanna to 17.5 years in prison for what amounted to a trip spent wandering around Yemen and translating Al-Qaeda brochures on the internet. I went to a Boston Bar Association talk about the appeals in Mehanna’s case, and I remember thinking that seemed like an awfully steep sentence for a lot of ambiguous and ultimately innocuous actions. (Granted, Mehanna apparently has also stated that he loves Osama bin Laden like a father, so I can’t imagine sentiments like that helped.)

        Also, yes, I’ve watched the exhibit of Dzhokhar placing the bomb at length, and even shown it to my father so we could analyze it together. I found it shockingly different from the many descriptions I’d heard of it from the media. The media reported that he appeared “calm” and walked serenely from the scene while everyone else was in a panic. I was stunned when I saw the whole thing for myself.

        I work very close to the bomb sites, and I cannot tell you how many times I’ve walked up and down that block since, trying to piece it all together. You make an excellent point about how fluid the flow of pedestrian traffic is in the footage, and I can tell you why that is: the foot path right at that point was extremely narrow. There was a wrought iron fence jutting out that formed the patio of the Forum restaurant (it has since been removed as the restaurant has closed), essentially forcing anyone trying to walk between it and the tree into single-file formation. There’s simply no room to generate a large standing crowd at that point. If the aim was for mass casualties – and there was testimony that Inspire Magazine specifically said a tightly packed crowd was needed for such – Dzhokhar picked the absolute worst spot for blocks. This bothered the hell out of me for two years, until I stopped believing he was a willing participant in the bombing. It makes far more sense he picked the base of a tree at this point in the sidewalk to minimize damage, not maximize it.

        Also, the footage shows him being anything but calm. Although the prosecution claimed he maniacally hovered behind the Richard children for minutes, he actually is looking in every which direction in what seems to be a panic. I sincerely doubt he ever registered there were kids nearby and was instead frantically looking around to see if there were any cops… or maybe someone he knew who could get him out of the situation. (Perhaps this might explain why he made no real effort to hide his appearance, unlike Tamerlan. Maybe he wanted to be found? Speculation, I know, but these are the things I wonder about.)

        And about the smirk he may or may not have been sporting – on an interesting cultural note, in Russia, smiles have completely different connotations to them than in America (a good explanation is here: http://understandrussia.com/russians-dont-smile/). Dzhokhar himself mentions this on his Twitter – that true smiles are in the eyes, which is a very Russian axiom. Also, as the blog above describes, the “Russian smile” for pictures tends to be almost imperceptible, just the vague upturning of the corner of the mouth, and it’s not meant to be a true display of emotion. I’ve noticed there are several photos of Dzhokhar with such an expression, and I can see how a few shots of him at the Marathon might look similar. So while American onlookers may construe such an expression as a self-satisfied smirk, it could have actually been a carefully constructed neutral expression to hide fear or panic. That’s the best explanation I can think of for why some might have thought he looked pleasant or happy in such photos, although I agree with you – based on overall body language he seems to me like he wishes he could be anywhere else. My father even commented, “He looks overwhelmed and lost.” He also said a psychologist specializing in body language could have testified to this, but who knows why none did – lack of time, money, or the inability to bring the duress defense, perhaps. Why bother arguing he didn’t want to be there if the jury wasn’t going to believe it anyway?

      2. To me, it looked like he picked the tree to try to hide the pack or prevent someone from spotting it immediately or walking into it. He appeared to be trying to guard or protect it from getting kicked or something. He definitely was glued to that tree. Maybe subconsciously he wanted to limit damage, but I wonder if he even knew how much damage would occur – unless they did test one out in advance. They probably picked the tree as the spot in advance. I don’t recall where Tam’s pack was placed – near a tree or a trash can, or what.

      3. The first bomb site is right at the Marathon finish line, on the sidewalk. There’s no real landmark there. It’s just a very wide walkway. I saw a photo during the penalty phase that I haven’t seen released to the public, but it showed Tamerlan in the middle of a crowd about eight or nine people deep there. That particular target always seemed far more deliberate to me, given the potential for a standing crowd. The second site almost more like an afterthought, as if Tamerlan had said, “Just go put it somewhere” and Dzhokhar picked a strategically terrible spot, although whether that was deliberate or just panicked negligence I just don’t know. This was before I even realized Dzhokhar had actually put it at the base of a tree, not by anyone’s feet. I suppose at this point it’s all just speculation how intentional it was or whether the site was picked by either brother, but it did always bother me when I walked the block, the difference between the two.

    2. Hi Margo –

      Thank you so much for bringing my attention to the Glossip v. Gloss decision. I just pulled up a New York Times article about it (http://www.nytimes.com/2015/06/30/us/supreme-court-execution-drug.html) and apprecated this line as quoted from Breyer: “Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” I’ll take that as a step in the right direction!

      Also, I’d be happy to share your email address to anyone who may want it. I’ve been toying with setting up some kind of mailing list, or at least a page of contact info/resources for those looking to get more involved. I’d be glad to add your email to such a resource page, if you’d like.

      In regards to the fictitious narrative put forth by the prosecution and Judge O’Toole to justify killing Dzhokhar, you must be clairvoyant, because I was just discussing this very thing with my father tonight. I was trying to describe to him how frustrated I get on a very deep level with the prosecution’s theory of the case, that Dzhokhar must have been a glib volunteer in the jihadist movement, who intentionally sought out children to kill and then went home to drink milk and laugh about it. Such a scenario is so outlandish it maddens me that it must have seemed believable to the jury somehow. Your examples from the Third Reich and the Algerian terrorist are excellent, and I hope to add a little more insight.

      I have been fascinated by the psychology of radicalization since I started studying terrorism theory in earnest (thanks to my need to make sense of the Marathon bombings), and I’m sure that was fairly obvious in my last post, when I broke down the mechanisms to radicalization and how it applied to both Tsarnaev brothers. I’m planning my next post to focus more closely on radicalization and how I don’t think there was enough entered into evidence to prove Dzhokhar ever truly was radicalized, so I won’t say too much here. However, I’d like to talk a bit about what I know about how radicalized individuals think, and how even that doesn’t fit the prosecution or O’Toole’s narratives. An important thing to note is that those who are radicalized to the point of committing violence – willingly, without anyone coercing or threatening them – have followed a path which has led them to believe that violence is the only way to achieve their goals. Often terrorism is linked with political activism; the actors feel as though all other methods have failed them, and so violence is the only way to get anyone to listen. They acknowledge their tactics are barbaric, but have decided the end justifies the means. As you said, even Dzhokhar’s boat note indicates this – he did not condemn the victims as deserving of what they got, but agreed they were innocent targets. There’s a misplaced sense of nobility in such thoughts, that something terrible has to be done for the greater good. Similar difficult choices have been made by people in wartime that have gotten them lauded as heroes. The problem is that when terrorism is committed, especially lone wolf terrorism, the war might only exist in the perpetrators’ minds.

      Regardless of how radicalized Dzhokhar may or may not have been, this is what made the prosecution’s assertion that he specifically sought out children to kill and maim like some sort of mustachioed villain so preposterous to me. That’s just not how the psychology involved works. Radicalization doesn’t turn you into a grinning psychopath… but it sure is easier to think a grinning psychopath deserves death than a confused, intimidated, tragically well-intentioned 19-year-old boy.

  12. I don’t know where to put things about appeals of this case. Should we put things in the most recent entry, even though this is mainly about working to abolish the death penalty?

    This is about appeals. I was reading a commenter on the Tumblr page of Patsy’s Vodka (she has a large following, has followed the case from early on, seems like a reasonable person, and is very knowledgeable) who seemed to be knowledgeable about criminal legal matters. This person felt that an appeal of this case had slim chances of success, that the prosecution presented their case cleanly, that they withheld the hospital confession because of the strength of their case, that the trial judge has significant discretion in allowing a change of venue. This person feels that Jahar’s best bet is a 5th vote on the Supreme Court to abolish the death penalty. Unfortunately, I was reading some things today that indicated that this wouldn’t be happening anytime soon, despite Breyer’s strong dissent. I will post their arguments. But, I wanted to post the mandamus ruling from the First Circuit Court of Appeals on the change of venue motion. Obviously, the defense lost, but the dissent by Judge Torruella was very strong. Here is the document: http://media.ca1.uscourts.gov/pdf.opinions/15-1170P-01A.pdf

    1. I welcome any and all new insight, regardless of the topic of my original post. I think replying to the most recent entry gives it the best chance of being seen by a variety of readers, so that’s fine with me. 🙂

      I tend to disagree that the appeals in this case don’t have a good chance. At this point I’ve consulted a good number of lawyers – my father being the main one, obviously, but there were others present watching the trial whom I had a chance to speak to – and between them and the commentary I’ve seen from law professors, the ACLU, and others, there is a prevailing sense of outrage about how this whole trial was conducted. I have a feeling, just based on such a reaction, there’s going to be legal scholars and others well-known in the field jumping on this for years, because anyone with a legal background knows it was such a slap in the face of our justice system. I suspect, as well, that Dzhokhar’s lawyers were prepared for this outcome, and banked a lot on the appeals, because that’s really the opportunity for the imbalances in the system to right themselves. I’m going to venture he knows that himself, or at least I hope he does. All is far from lost. This is where the fight really begins.

      I’m eager to look over the document of Judge Torruella’s dissent, but I’m running short on time this morning, so I’ll have to get back to it later. For now, though, I wanted to share a surprising voice of reason from the Boston Globe: http://www.bostonglobe.com/opinion/2015/06/30/will-ever-know-why-dzhokhar-tsarnaev-spoke-end/TLF4CL3QdIQImqcGSKiNaL/story.html. Unsurprisingly, the essay is from a former federal judge and Harvard law professor, and touches upon the point Margo made about allocution, which I thought was interesting. It also mentions the SAMs and brings up a point that has frightened me for ages – that the SAMs silence the voice of anyone under them, so that the public may never know the truth about them. If Dzhokhar had wanted to issue a letter of apology and work for the government as early as 2013, the whole remorseless terrorist persona is completely moot. And yet the government suppressed this and pushed forward, with nary a scrap of actual evidence, all to rush to the inevitable sentence of death.

  13. Dear Heather,

    First, my greetings to Richard Demma and all on the 600th anniversary of the execution by burning of Jan Hus, martyr of Bohemia. Since there seem not to have been comments for a few days, I thought I’d join you in saying that there are very substantial claims that Dzhokhar and his appellate attorneys have for the First Circuit. By the way, I’m not sure when his appellate counsel will be appointed, or whether this may have already happened.

    On the change of venue, I’ll very quickly note that in order for the First Circuit to have granted this before the trial, they would have had to find that Judge O’Toole had abused his discretion in denying it, an extraordinary remedy. On appeal, the standard will be less demanding, and I find it difficult to imagine a case more clearly illustrating how a community so directly affected by the crimes and the police measures during the search for Dzhokhar, and then saturated with pretrial publicity, might not be an impartial venue for a capital trial.

    A very serious issue is Judge O’Toole’s refusal to the let the defense tell its story as it sought by using the guilt phase to develop evidence of Tamerlan’s dominant leadership role and Dzhokhar’s role as follower. This was prejudicial because of the known reality that the theoretical separation between guilt and penalty phases is in the real world not so effective. Jurors while hearing the guilt phase, and while deliberating on questions of guilt or innocence at the end of this first phase, are forming and testing stories of the crime that also shape their impressions of a defendant: what kind of person is Dzhokhar, and does he deserve to die?

    Studies by groups such as the Capital Jury Project, including interviews with jurors who served in capital cases and returned verdicts of death or life, show that the stories of the crime and impressions of the defendant formed in the guilt phase have great power in shaping penalty deliberations, and are hard to shake. The defense team of Judy Clarke, Miriam Conrad, David Bruck, and others were obviously aware of this reality, and moved proactively to highlight Dzhokhar’s subordinate role — except that Judge O’Toole prevented them from doing so in a timely way.

    While I’m not sure if this point was objected to and preserved by the defense, the prosecution argument in the penalty phase that political violence is a “mature” crime showing that Dzhokhar was somehow more adult than his 19 years at the time of the bombings indicated seems to me highly fallacious and prejudicial. Many military and paramilitary organizations recruit adolescents at the age of 18, who may become involved in all kinds of sophisticated operations. This should not in any way weaken the mitigating force of Dzhokhar’s age of 19, as compared with the minimum age of 18 to be eligible for the death penalty. His susceptibility to his older brother’s influence, of course, is also powerfully mitigating.

    One argument by the prosecution seems to me especially prejudicial; I recall that the defense objected to various prosecution statements during the closing arguments at the end of the penalty phase, but am not sure about this one. A prosecutor argued that LWOP would be the “minimum” sentence. Literally, that was correct: LWOP and death are in fact the only two penalty verdicts that the jury could return, either amounting to death in prison. And the prosecutor could have legitimately pointed out that the law considers LWOP to be the more merciful verdict rather than the harsher one, an issue on which people sometimes disagree.

    However, calling LWOP the “minimum” sentence was an exercise in what I call “trick optics.” The phrase “minimum sentence” in the U.S.A. tends to suggest unusual leniency, like a sentence of probation or a brief jail term for an episode of driving while intoxicated where someone was seriously injured or killed. In contrast, LWOP is anything but “lenient,” especially when imposed on a young person like Dzhokhar and served in a supermax institution like ADX Florence — under SAMs, no less!

    What the prosecution was doing was skewing the jury’s moral sense of balance by making LWOP sound unusually merciful, and death as the normal result — so that, if they spared Dzhokhar’s life, they would be going out of their way to be extra lenient for the worst crime their community had suffered. And, knowing that this was a death-qualified jury rather than a fair cross-section of abolitionist Boston, the prosecution could take advantage of the known tendency of such jurors to defer to and by swayed by the voice of governmental authority.

    Here I’ve tried to focus on some issues for appeal about which I may not have already written extensively. Last but not least, of course, there’s the issue of whether the death penalty is itself unconstitutional, as raised last week in the dissent of Justices Breyer and Ginsburg in Glossip v. Gross. While the First Circuit itself generally must follow Supreme Court precedent that the death penalty in itself is constitutional, although its judges might discuss reasons why that precedent could or should change, ultimately a Supreme Court decision banning the death penalty could be one way to save Dzhokhar’s life.

    Again, Heather, thank you for an outstanding effort both in sharing your experience of the trial and in building community.

    1. Hi Margo,

      Sorry about the delayed response. July always seems to be a busier month for me than I think it will be. Rest assured I am still researching this case and I hope to have a new post up by the end of the month, focusing more on the psychology of radicalization and how I don’t believe the prosecution proved with available evidence that Dzhokhar was in fact radicalized.

      To respond to your first question, I’m not yet sure if Dzhokhar’s legal team will be switching too much on the appellate level. The document filed for the first motion to appeal still had the signatures of his current legal team, and I know there had been mention during the trial itself that the Boston public defender’s appellate specialist (whose name I want to say is something like Judith Mintzer, but because for some reason the office’s website is down currently, I can’t confirm that), was already present with defense counsel. Time can only tell at this point.

      As for the appeal going to the First Circuit, Attorney Dad as well as the spectating lawyers I had a chance to speak to at the trial think the First Circuit isn’t going to want to touch this case with a ten foot pole and will want to pass it on to a higher court. However, I agree that the argument for a change of venue is indeed among the best grounds, and that it will now be easier to show Judge O’Toole abused discretion by allowing the trial to stay in Boston. I read one of his opinions on the denial of the venue change and he did mention that one of the criteria for determining whether a venue change is warranted is to examine the jury verdict after the fact to weigh whether they came to a fair and impartial decision. Considering how things went, I would say the appellate attorneys have plenty to work with there.

      I also agree that the ruling to prevent the mention of Tamerlan by the defense in the guilt phase was undoubtedly the biggest blow to the defense overall. I’ve asked Attorney Dad about it several times, because to me it seemed an almost arbitrary ruling: how could the judge not know the crux of their defense rested on the influence of Tamerlan? My father has said the judge may have thought it irrelevant, but considering the details of the case I find this hard to believe. If the judge did know Tamerlan’s importance to the defense, and ruled against using him anyway, it gives me the unpleasant implication that the judge was already anticipating the guilty verdicts and wanted to speed things along to the penalty phase. The media certainly supported this idea – I read over and over about how things wouldn’t “really matter” until the penalty phase. But that, at the heart of it, is presuming guilt, not presuming innocence, and is already an indication of how biased a venue the entire Boston area was.

      The prosecution frustrated and angered me so many times during the penalty phase with fallacious arguments, I can’t even count them all – so I certainly agree that their assertions over the “maturity” of a crime like the bombing are weak and unsubstantiated. I grew terribly annoyed during their cross-examination of Dr. Jay Guidd, who clearly spelled out the science involved in a maturing adolescent brain and testified that on average the centers involved in impulse control and weighing long term consequences don’t mature until age 25. He very specifically said 19 is usually “right in the middle” of the adolescence of the brain, and I’m pretty sure anyone who knows a 19-year-old or remembers being one (I sure do) can agree with that. The prosecution’s cross tried to claim that individuals can sometimes mature at a faster rate, and Dr. Guidd agreed – but the indicator of that tends to be the behavior of said individual. The prosecution seemed to take this as a win, which was around the time I wanted to stand up and say, “Has ANYTHING we’ve heard about Dzhokhar doing so far indicate to you he was making informed, mature decisions?” Partying, smoking and selling pot, constantly ordering from Domino’s, cruising around town with friends, getting terrible grades… it doesn’t take a psychologist to recognize immature adolescent behavior.

      Interestingly, though. the prosecution could flop on its own characterization of Dzhokhar when it suited them. All the aforementioned traits were ignored when they wanted to depict him as cold, calculating, and aware of the consequences of his actions. The prosecution brought them up again when they wanted to undermine the defense’s attempts to humanize him or explain why he might not be able to stand up to his brother. I recall in the guilt phase they tried to assert he had quit smoking pot as evidence of his “radicalization” (although the texts entered into evidence stated he wasn’t smoking because Tamerlan was on him about it, not because of religious obligations). Yet in the penalty phase they tried to shoehorn in his pot dealing as evidence of bad character. I find it extremely hard to believe he was still selling the product without sampling it, and none of the character witnesses testified that there was a marked change in any of his habits. Also, to her credit, the witness who was crossed about the pot dealing didn’t even try to hide her clear disdain for the prosecutor and his line of questioning. You could hear it in her voice, as if she wanted to say, “Yeah, he sold some pot, so what?” I think that just goes to show the disjointed and inconsistent characterization the prosecution tried to build of Dzhokhar, and how, if examined at any length at all, it falls apart. The witnesses testifying for him repeatedly didn’t seem to buy it either. I find it unfortunate that such things don’t make it into court transcripts, because they spoke more truthfully to me over hours of pointless arguing about why he may have spent a split second flipping off a camera in lockup. If every person who knew him and knew him well can’t believe the prosecution’s theory of the case, then I can’t believe it either. An otherwise clueless teenager just can’t be so devious as to have deceived everyone who ever knew him.

      I do also remember clearly the prosecution stating in the closing arguments: “The ONLY sentence you can return is death,” as if, I agree, LWOP in ADX would be a walk in the park. This was further colored by how that morning I happened to be in the elevator with the prosecutor who made the closing arguments before court was in session. As the doors were closing, he spotted someone he knew outside and said hello. She said, “Hey, you ready?” and he cheerfully said, “Yeah, let’s go!” as if getting 21-year-olds sentenced to death was a jaunty pastime of his. Needless to say, it left a bad taste in my mouth.

      Once again, I’m consistently honored by the scholarship and expertise you bring to this blog. Thank you so much for engaging me on this topic. I promise to return soon with another post.

      1. Heather and Margo, you two write so well as do the others who post on this site. I’m overwhelmed with lots of different emotions each time I read another comment. Thanks for your compassion and knowledge to this case. It’s always enlightening. I wanted to mention a couple points, one on the comment of political violence and Jahar’s “maturity”. There’s no way he had the mental and emotional rational of an adult at 19. I’m sorry, but like you mentioned Heather, anyone who knows someone this age, knows how unpredictable and changing this stage of life is. I know my 19 yr old son changes his views and ideas a lot. I can’t imagine taking him seriously until he’s reached another few years of emotional growth and awareness. This is a young person who is still developing his ideas, morals, etc., like any other teenager! It goes without question that Jahar was fully conscious in the natural sense, that he even understood fully what he and his brother were planning to do. At his age, things can’t be processed wisely. The mental experience isn’t there. Second, Margo mentioned how the prosecution easentially used trickery in their closing to the jury about LWOP vs DP. This to me is so disgusting and cruel in it makes me sick, but then I remember how vicious the gov attorney’s were to get their DP verdict. It’s a sad story but one that can still change. I’m hopeful that God will have last say for Jahar. I hope the appeals turn in his favor and we find out more during this next trial. It’s an incredible journey for him and all those involved.

    1. Thanks so much for posting this! That’s excellent news and a step in the right direction. I’m really glad Obama is publicly addressing prison reform. It’s a huge, multi-faceted issue that goes far beyond the small corner of it I’ve been focusing on in this blog. Fingers crossed for wider repercussions as time goes on.

  14. Also, for those reading, I thought I should address the recent announcement that the state’s attorney in Massachusetts wants to prosecute Dzhokhar on state charges. As crazy as it sounds, it’s Attorney Dad’s opinion that this is actually a good sign. According to him, it indicates “the Boston Prosecutor’s Office is seriously afraid that the whole conviction will be overturned on Appeal,” and they want to file their intent to prosecute before they run into speedy trial issues. It’s likely this will be frozen by the court while the federal appeals are pending, which as we already know, is going to be a very lengthy process.

    It’s unclear whether this will ever get to trial, but my father pointed out that a state prosecution would mean transferring Dzhokhar back to Massachusetts, paying for another trial, and perhaps even removing the SAMs so that he could assist in his own defense, based on the argument that on the state level, the charges aren’t terrorism-related. I suspect the government will probably think it’s a larger hassle than it’s worth, but in my father’s words, “Let’s see what happens but in no way can this make things worse for Jahar.”

  15. They have moved Jahar from the Florence High Security prison to Florence ADMX – the dreaded Supermax, where the other bombers are. If he’s going to be doing appeals, why move him so far away from the 1st Circuit? Why wouldn’t they transfer him to Marion or even Terre Haute, which both have supermax-type housing? They will explain it as his particular security needs. And, the Supermax IS where Timothy McVeigh went during his appeals – but, he was tried in Colorado. I don’t get it.

  16. You all may have heard that Judy Clarke recently was given an award by the 9th Circuit Court of Appeals in San Diego, which is where her office is located. Here is an article that describes the award and the circumstances: http://www.sandiegouniontribune.com/news/2015/jul/02/judy-clarke-9th-circuit-award-death-penalty/

    Here is an article that contains some of what Judy said when she accepted the award: http://www.sandiegouniontribune.com/news/2015/jul/13/boston-bomber-lawyer-judy-clarke-award/

    1. Hi Kay,

      Good to hear from you. I apologize for my silence and appreciate your concern. This past month has been very busy for me. However, I’m working on my next post and I hope to have it up soon; I’m shooting for sometime this week. I’m diving back into the nitty gritty of Dzhokhar’s case, so there’s a lot of documents to sift through. Not to mention the on-the-fly legal education I’m getting – I have so many questions that have brought me back to statutes and standards of law that will lay the foundation for future posts, and I want to make sure I understand them correctly before I report them.

      Thanks again for all your support and keep checking back!

  17. Heather, this is just to say thank you for the most insightful coverage of the Tsarnaev trial I have seen, and to say that I’m looking forward to your next post. This is a wonderful community.

    1. Hi Margo,

      Thank you so much for your continued presence here. Your compliments mean the world to me, and I’m glad I’ve been able to shed light on this case. I’ve long considered it a tragically misunderstood situation, and I will continue writing about it as long as I need to. Stay tuned.

  18. Another short update –

    My apologies; I’m apparently worse at gauging my own update schedule than I thought. A new post is still incoming soon, I promise. In the mean time, for those of you who have HBO and might have missed it: Sister Helen Prejean, who testified on Dzhokhar’s behalf, appeared on the most recent episode of Real Time with Bill Maher. She had a lot of great things to say about the current state of the death penalty abolition fight in America. Also, interestingly, Bill Maher did specifically ask about Dzhokhar, and she rather tactfully avoided saying anything about him. This makes me suspect she may still be directly involved with his case and the appeals process and isn’t allowed to talk about it. Attorney Dad agreed this is likely true. Regardless, it’s definitely worth watching. I didn’t see a clip up on Youtube, but if they do put one up, I’ll link it here.

    Thanks to everyone still checking in, and stay tuned – I’ll have my new post up soon. Hopefully it will be as illuminating for you to read as it has been for me to research and write.

      1. Hi Kay,

        Thank you so much for sharing this. I hadn’t actually seen this before. This is the web-based extra segment that Bill Maher puts out after his show, and I hadn’t known Sister Helen was sticking around for that. That is some great commentary on the state of the US prison system in general, which I am a huge advocate of reforming on many levels, not just in relation to the issues raised in Dzhokhar’s case.

        The segment featured on the show featured a one-on-one interview between Sister Helen and Bill, in which they talked specifically about death penalty abolition and her new book, which discusses her work and how there is proof America has executed prisoners who were in fact innocent. (To my knowledge, there has not yet been official acknowledgment by the government that this has happened, probably for obvious reasons.) In response to a discussion of that, Bill asked something to the effect of “But what about the cases where we know they did it, like Tsarnaev?” That was when Sister Helen became very careful about her answer, and tactfully changed subjects. I suspect this was because not only is the answer very complicated, but because her specific knowledge of the case probably shouldn’t be broadcast to the public, especially if she’s still involved with the appeal process.

        Unfortunately, I still can’t find a clip of this interview. HBO seems to be good at keeping its content out of the hands of Youtube pirates. 😉

  19. And another short update, but a significant one:

    Yesterday Dzhokhar’s lawyers filed a memorandum in support of the motion to appeal, asking to overturn the conviction and sentence. I haven’t had a chance to read the whole document yet, but it’s on my to-do list. The court document can be found here: http://ftpcontent2.worldnow.com/whdh/pdf/150817-Tsarnaev-new-trial-judgement.pdf

    Although, looking over it, there is a portion in the middle that is redacted. I’m not sure why that is. If I find an unredacted document, I’ll post it.

    Thanks again. More soon!

    1. Dear Heather,

      Thank you so much for posting a link to this filing, about which I have a few comments and a possible idea about action regarding an amicus brief to the First Circuit on some historical aspects of the death penalty issue raised at the end of the filing in view of the dissents in _Glossip_.

      First, I gather than the redactions are to protect the confidentiality of jurors in the Tsarnaev case whose social media accounts were evidently reproduced in relevant part to demonstrate how pervasive the publicity about the Marathon bombings was during both phases of the trial. This is a vital part of the argument that all the connections the jurors had through their families and friends and web contacts, even in the middle of the trial, reinforced the general community focus on the events of 2013, something that centered especially around the second anniversary of the bombings (April 15) and then the 2015 Marathon a day before the beginning of the penalty phase, if I’m correct.

      There are also some interesting technical claims regarding whether some of the counts actually involve “the use of violent force” under current constitutional law, an issue to be decided not by how Dzhokhar Tsarnaev is alleged to have committed these crimes, but by the nature of the crimes themselves in “ordinary” cases. For example, it is argued that, under federal law, carjacking does not necessarily involve the use of “violent force,” since it might be accomplished by intimidation without any use or threat of injurious force. Also, it’s argued that the number of such counts and allegations may have prejudiced the jury toward a death verdict in the penalty phase.

      However, my special attention was caught by the concluding portion of the brief focusing on the dissent in _Glossip_ by Justices Breyer and Ginsburg, and asking Judge O’Toole (and any appellate courts that review the case, I expect) to reconsider the view that the death penalty is constitutional under established precedent, i.e. _Gregg v. Georgia_ (1976). Only the Supreme Court itself, of course, can ultimately overrule that case, as Justices Breyer and Ginsburg found this June was very likely appropriate.

      Since we agree that a challenge to the federal death penalty itself seems one of the most hopeful lines of defense, what occurs to me is the idea of an amicus brief to the First Circuit which could cover some territory that Dzhokhar’s defense team might not be focused on, and thus supplement rather than duplicate their efforts.

      The 18th-century doctrine that only “absolute necessity” can justify the death penalty, having the weight of very widespread support during the Founding Era and around the time when the Eighth Amendment itself was ratified (1791), provides a principled basis for questioning the assumption in _Gregg_ that as long as the death penalty arguably serves some legitimate penological purpose, the courts should defer to Congress (and the state legislatures). That in itself could radically change the Eighth Amendment equation.

      The second point of focus might be that the same administrative problems and issues of arbitrary discretion that plague the death penalty today were already in evidence in the 1780’s and 1790’s, with the process as early as 1793 called a “lottery of death.” Developments such as jury death qualification starting in the 1820’s in Pennsylvania, and also jury discretion to return a life verdict in capital murder cases starting in Tennessee in 1838, if I’m correct, reflected resistance to executions and the unpredictable nature of the penalty that even back then tended to attenuate any alleged deterrent benefit — as was argued at the time.

      I do think it’s very likely that the First Circuit will hear the case, since it’s very rare for the Supreme Court to preempt the federal circuit courts in federal capital cases; but some briefing on historical aspects of the Eighth Amendment and the death penalty in the First Circuit might set a good foundation for the challenge that Justices Breyer and Ginsburg invite (if it hasn’t already happened in some other case).

      By the way, if there is some other case that comes before the Supreme Court, then winning that one (where the same historical materials and arguments in an amicus could play a role) could be Dzhokhar’s best defense against the death penalty — leaving the other issues to be addressed in the future.

      In these or other courts, generally, only a qualified attorney before the relevant court can file an amicus brief, adopting drafts if appropriate by laypeople like myself. That’s a whole other story, but it’s the kind of effort that could help.

      Please forgive me for writing at this length, but maybe it’s best to be timely and invite dialogue on any points of interest.

      1. Hi Margo,

        Great to hear from you. I always welcome your wonderful and learned discourse. I’d like to address two points you raise separately.

        1) Regarding the motion itself (and its redactions):

        I agree with you that the defense raises many valid points, particularly about widespread notoriety of the case. I can personally attest to the citywide acknowledgment in Boston around the anniversary of April 15th. I even took photos of two incidents the defense mentions in their memo: the banners outside the courthouse advertising the 2015 Marathon, which, since the bombings, have sported mottos meant to point to the city’s resilience; this year’s included “There’s only one” and “Nobody runs like Boston” (image here: https://heatherfrizzell.files.wordpress.com/2015/08/img_0757.jpg), and the massive “Boston Strong” banner on Atlantic Ave that yes, I can attest was plainly visible from the hall outside the courtroom (image here: https://heatherfrizzell.files.wordpress.com/2015/08/img_0759.jpg). There are also year long reminders: for example, I believe all MBTA buses still sport a sticker on their windows of a blue and yellow flag with “Boston Strong” on it, and t-shirts with the same saying are always sold at vendors in public places, like train stations. So while I agree the timing to start the penalty phase the day after the 2015 Marathon could not have been worse, if the jury had to rely on public transit as the defense asserts, it’s likely they would have run into reminders like this regardless. Not so if the venue had been moved to a different location.

        I also forwarded the document to my father, and he found the redacted portions particularly strange, as they happen very rarely in a memo of this kind. I also thought of the possibility that this was to protect juror identities, as they have not let been released by the judge. My father suspects it may be more than this, however – he pointed out that 11+ pages of a 39-page document would be a lot of juror misconduct, and perhaps the court may have redacted other sections pertaining to alleged prosecutorial or judicial misconduct. It is impossible to know for sure, of course, but the possibility was interesting, as I think allegations to that effect would have merit.

        My father also had a comment on the charges that have been deemed constitutionally vague by a recent Supreme Court decision. I’ll quote him on it because he knows the legal nuances better than I do:

        >> On Page 27 the defense starts to discuss the real law and applies the ruling in “JOHNSON v. UNITED STATES” which was just decided on June 25 of this year. I have not read the “JOHNSON” decision itself so I am relying only on what is contained in this memo but if correct, the Statute (924 (c)(3)(B)) comprising 15 of the total counts upon which Jahar was convicted is unconstitutionally vague and thus invalid. All 15 convictions must be vacated. I want to see what the prosecution argues in its Memo in Opposition to the Motion but Jahar may have caught a huge break here. I doubt the trial court will grant this motion for several reasons but I think there is a chance that this can be won on appeal.<<

        I find this rather encouraging, to say the least.

        2) About the filing of an amicus brief:

        I’ve been discussing this possibility with my father and he thinks it could be a marvelous idea. I agree; particularly with your scholarly background into the history of the death penalty abolition debate, it may be a helpful supplement to the defense’s appeal efforts. However, since I’m not a lawyer, I’m very sketchy on the details of such. My father had some suggestions that I thought I should share.

        First, it would be wise to get in contact with whatever appellate lawyer is in charge of Dzhokhar’s case, probably at the Boston Public Defender’s office. At the moment, the lawyers listed on the memos are his regular defense team, but they are still working at the trial level and I’m not sure if that will be switching once they are at the appellate level. Regardless, he pointed out that it would be prudent to get permission from them to file something in parallel to their efforts, because the last thing we’d want to do is unintentionally undermine them and make things worse for Dzhokhar.

        Also, a lawyer would be needed in order to file the necessary paperwork. Unfortunately, my father is not licensed to practice in Massachusetts, so he is not eligible to do it. However, he thinks having the backing of an established organization, like the ALCU of Massachusetts or Sister Helen Prejean’s organization, could be a way in. I’m not sure how either handles inquiries of such, but it could be something to look into. Perhaps you know of other abolitionist organizations that might have resources of this type?

        Just some preliminary thoughts on this. If it could help Dzhokhar and/or the effort for death penalty abolition in any way, I’m all for it.

  20. It’s been a while since I posted. I saw the Bill Maher show where Sister Prejean was a guest. I saw his interview of her and his asking about Dzhokhar. This is not the first time that Bill has mentioned DT. He backs the death penalty in certain cases, and this is one of them. But, I think that Sister Prejean may have gotten to him.

    It’s possible that it was posted here, but I wanted to post the link to the Glossip decision. Justice Breyer’s dissent is the place to go for instructions on how to proceed to challenge the death penalty on Constitutional grounds. I think it would have to be just the right case, but maybe not. The best bet in this case is Breyer’s second “Constitutional defect” – arbitrariness in application. Certainly the crime is serious enough, but Dzhokhar is nowhere near the worst of the worst. In fact, I would bet that if you talked to his jailers – the people who have been responsible for guarding him, taking care of him, etc., they would probably tell you that he doesn’t even belong in prison.

    http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf

    Breyer’s dissent starts on Page 51.

    I will now flip over to the new Heather topic.

    1. Dear Heather,

      Very briefly, I totally agree that any amicus brief should have the consent and approval of whoever are Jahar’s appellate attorneys. You raise a good question of whether it might be timely to seek to contact his present defense team, or possibly wait until the appeal is filed in the First Circuit, possibly with new attorneys involved.

      But my experience has been always having the knowledge and consent of a client’s legal team, as well as, of course, proper counsel to file the amicus brief in the relevant forum. With a 1984 case in the Supreme Court of the United States, the Florida Conference of Catholic Bishops was interestingly one of the participants, so Sister Helem Prejean, as you suggest, could be a very helpful person to ask.

      Please let me quickly also agree with you, tychesd, that arbitrary application is a very important claim either specifically for Dzhokhar, or as part of the more general challenge to the death penalty that Justices Breyer and Ginsburg have outlined. As Heather has discussed and engaged us in discussing at some length, all kinds of mitigation were disregarded, which is relevant both as a reason to overturn his particular death sentence, and as a reason to find the whole death penalty system unconstitutional.

      Indeed we agree that the overall arbitrariness and unfairness of the system is today, as it was in 1972 when Furman v. Georgia overturned all existing state and federal death penalty statues, critically important.

      Often amicus briefs serve to supplement such centrally important arguments with others, including historical material that can lend deeper perspectives and also draw connections with social conflicts and values at the time that the Bill of Rights was ratified.

      In some ways, this is a counter to the arguments of Justice Scalia, for example, who will gleefully assert that the Constitution approves the death penalty, and that any questioning of the constitutionality of executions must therefore merely reflect the personal beliefs of 21st-century judges rather than legitimate Eighth Amendment issues. Showing that in fact lots of Founders around 1791 had serious doubts about the death penalty, and more specifically found it justifiable only if “absolutely necessary,” gives the Court another point of view, grounded in the actual history. It’s absolutely no substitute for exactly the development of case around 21st-century realities of arbitrariness and excessiveness that we see in Dzhokhar’s case and so many others; but it can complement that case and place it on yet firmer historical ground.

      Now I’ll too move to the new thread, with many thanks for the dialogue that continues here.

      1. Hi Margo,

        Thanks as always for your contributions to this blog.

        My father wanted me to pass a few questions onto you in regards to concepts that may help in the filing of the amicus brief. I’m going to quote him here:

        >>1) Have you read the legislative debate in the congress regarding the wording and passage of the 8th Amendment or do you have access to it? This is where you will get the true intent of the lawmakers. What did they want this law to do? It was extremely important in that they amended the Constitution in order to accomplish it.

        2) Do you have any knowledge of the difference in effectiveness of death v. life in prison regarding the concepts of General Deterrent Value and Specific Deterrent Value?

        3) Justice Breyer also noted, rather elaborately, that capital punishment is rapidly becoming “Unusual Punishment” throughout the 50 states. This is the first time that I know of that a Justice has made this separation and pursued it as possible ground for finally banning it. Have you seen this before and do you have any info on it?<<

        If this is a discussion that is better served in private, I would be happy to email you about it – I believe I have your address on record. (And actually I did send an inquiry to that address a few weeks ago but I'm not sure you got it.) Needless to say, my father and I are very interested in the idea of filing the amicus brief and definitely want to keep this conversation going.

        I will respond to your insightful comments on my new post soon. Thanks again for everything. I am honored by your continued presence here and I hope our combined efforts will yield positive results, not just for Dzhokhar but others in similar situations.

  21. Just a small admin note: I will be posting new relevant information to the comments of my latest post, so I encourage anyone following this thread to check there for updates. Thanks again for being such intelligent and engaging readers!

    1. Dear Heather,

      First, please let me apologize for the technical problem that sometimes I need to whitelist an e-mail address in order to get mail from it. It’s unpredictable whether an e-mail will get through otherwise, and I don’t seem to get any messages as suspected spam when I try my ISP’s anti-spam program. So if there’s some way of your getting me an e-mail address I can whitelist — and you could leave a personal message on my Facebook account — then I’d whitelist it. I’d very much welcome private discussions with you and/or your dad.

      Now for your questions, where I’ll try to be concise (believe it or not!). They’re all very, very, relevant indeed.

      (1) Absolutely I’ve read the brief but indeed critically important debate of August 17, 1789 in the First Congress. Representative Samuel Livermore of New Hampshire, who considered what became the Eighth Amendment needless at best, makes what I consider a powerful case for its unconstitutionality in the 21st century! To sum it up, he says that it is sometimes necessary to hang a prisoner, and that some villains deserve the pillory and maybe having their ears cropped also — but these things are indeed “cruel.” If there were a better way of curbing vice, he would be all for the legislature adopting it — but until we have some confidence that this will be done, language like that of the proposed amendment shouldn’t stand in the way of necessary laws. As it happens, that was the year before the first modern penitentiary opened in Philadelphia in 1790, which we know 225 years later is that less violent method of handling criminals that Livermore was looking for. So even Livermore, who opposed the amendment, talked in terms of “necessity,” and considered hanging itself as “cruel.” The real lesson is that “necessity” looks different when you actually have modern prisons in place, not to speak of a modern police force, etc. I deal with Livermore in my “Back to the Future” paper, and of course we can discuss this more via e-mail.

      (2) On general deterrence, there’s been strong evidence for at least 50-60 years that there’s little if any detectible difference between jurisdictions with the death penalty and those with life imprisonment; Thorsten Sellin and his colleagues did classic studies during the 1950’s and 1960’s, and in 2012, if I’m right, the National Academy of Sciences released a report that it’s impossible to say whether there’s any significant effect — and, if so, in which direction! We know neither the size of the effect — nor, yet more importantly, the sign or the direction of any effect (do death statutes, sentences, or executions tend to deter or to promote more murders in various ways?). Since it’s possible to rig up all kinds of multiple regression algorithms and come up with almost any result in theory, the sanity check is to go back to Thorsten Sellin’s classic approach and compare rates in similar jurisdictions, or even the same jurisdiction pre-abolition and post-abolition. The conclusion is that lots of variables over which we have some control seem more important.

      On “specific deterrence,” I’ll quickly suggest that we mean incapacitation — the idea that “no executed prisoner has ever been known to commit another violent crime.” Strictly speaking, specific deterrence means when a prisoner is punished and thereby dissuaded from commiting future crimes — not just from the threat of an unpleasant consequence, which any member of the general public might feel, but from the actual experience of that consequence (e.g., “Now that I’ve been ticketed and fined $20, I’ll be more careful about that No Parking sign”). That doesn’t apply to an executed defendant, but incapacitation does. Here the main point is that life without parole in a modern prison with a good classification system can incapacitate just about as effectively as the death penalty, and especially a supermax facility. One indication of this in the real world is that States that haven’t had the death penalty for a century or more for any offense — including prison killings, by life-term prisoners or others — don’t generally have higher prison murder rates than States with the death penalty for such murders. There were studies on this back in the 1960’s, and advances in prison safety likely make it even more so now.

      (3) The Unusual argument — and some jurists debate whether “Unusual” and “Cruel” are really two different things or a bit of legal stylishness (like “last will and testament”) — is at the heart of Justice Stewart’s concurring opinion in _Furman v. Georgia_ (1972), where he compares a murderer actually being executed to being struck by lightning. (Given the use of the electric chair back then in a number of States, it was a rather graphic metaphor.) I think that Justices Breyer and Ginsburg are making a very powerful connection with _Furman_, sort of _Furman: The Sequel_, and the same arguments that held 43 years ago hold today! Justice Kagan in _Miller v. Alabama_ (2012) in passing makes the same point in a case about juvenile LWOP: although the death penalty is available for adult offenders, in reality almost all adults guilty of these capital crimes actually get LWOP, exactly what these teenagers got. I don’t know if she had _Furman_ and death penalty challenges in mind at that moment, but she sure wrote in a way to make anyone so inclined draw a connection with the _Furman_ case.

      Again, if you send me a personal message on Facebook with your e-mail address or addresses that you’ll be using to contact me, then I can whitelist them to facilitate this discussion.

      1. Hi Margo – Just dropping a quick note to let you know I have sent you a facebook message per your request. It should be in your “Other” message folder, according to Facebook anyway. 😉

        I will keep further discussion on this topic for the email, but I am looking forward to speaking more about it. Thank you so much!

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