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Boston bombing suspect's fate

James Alan Fox

July 10, 2013


Boston Marathon bombing suspect Dzhokhar Tsarnaev is scheduled to appear in federal court today for his arraignment, and some victims and their families are expected to attend. When the 30-count indictment against him was announced last month, U.S. Attorney Carmen Ortiz indicated that the 19-year-old defendant, if convicted of murdering three spectators during the race and an MIT police officer days later, would face life in prison or the death penalty. Consistent with Justice Department procedure, Ortiz would consult with the victims' families before making a recommendation of whether the federal government should seek to execute Tsarnaev.

Hopefully, this stage of the decision-making process is more about political correctness than public policy. It is certainly appropriate for the victims to be kept informed about important developments in the case. However, the preferences of victims should not guide either prosecutorial strategy or sentencing decisions.

Conflicting views

Without diminishing our sympathy for those killed or maimed, it shouldn't matter what the victims and their families desire for punishment. Suppose, hypothetically, that one offender slays a victim whose family supports the death penalty, another offender kills someone whose family is opposed, and still another offender takes the life of someone who is socially isolated from friends and family. Despite the differences, these three crimes should be punished the same.

Since the 1980s, it has become standard practice for courts to permit input from victims before imposing sentence. These victim impact statements do serve some important functions: They provide victims the cathartic opportunity to describe in open court their pain and loss; they force the defendant to confront the full gravity of the crime; and, particularly in murder trials, they help to humanize the victim, who otherwise is present in the courtroom in name only.

Besides these benefits, the prosecutors have also used victim statements as a way to sway jurors. In the trial of Timothy McVeigh, for example, families of the victims were not in agreement concerning whether the Oklahoma City bomber should be put to death. Because impact statements were part of the government's case, federal prosecutors allowed only family members who wanted McVeigh to be executed to take the stand, denying death penalty opponents the same chance.

Undue influence

A recent experiment by Raymond Paternoster and Jerome Deise of the University of Maryland confirms the powerful effect that victim impact statements can have on jury recommendations and sentencing decisions. In this study, citizens who had been selected for jury service were shown the penalty phase of a capital murder trial by video and then were asked their opinion concerning the appropriate penalty, be it a sentence of life imprisonment, life without parole eligibility, or death. One group of jurors was shown courtroom arguments that included victim impact statements while the other group of jurors viewed the penalty hearing with the victim testimony removed.

Not surprising, seeing victims describe their pain in an appeal for a harsh sentence, even by video, had significant effect on the experimental subjects. The jurors who were shown the impact statements indicated far more sympathy for the victim and hostility for the offender. More important, these jurors were significantly more likely to choose the death penalty as the just sentence.

The views and opinions of victims and their families, as well as their ability to influence the jury, should not be relevant in determining the appropriate penalty for a crime. It should not matter whether there are family members who wish to speak before sentencing. Nor should it matter whether those describing the impact the crime has had on them are especially articulate and convincing.

In several challenges, the Supreme Court has grappled with the constitutionality of victim impact evidence. In 1987, the high court narrowly ruled against impact testimony as being arbitrary and irrelevant to sentencing. But only four years later, following a change to the court's composition and in the midst of a historic crime wave, the court reversed itself, upholding the practice.

At the end of the day, or more accurately, the end of the trial, victims and their families should indeed have the opportunity to address the court. This should occur, however, only after the sentence has been determined. In that way, equal treatment for the defendant can be preserved even while victims are given a voice.


James Alan Fox, the Lipman Professor of Criminology, Law and Public Policy at Northeastern University, is a member of USA TODAY's Board of Contributors.