Tsarnaev death expensive justice

James Alan Fox

May 19, 2015

We don't need to kill to make a point.

After 10 grueling weeks of testimony, with over 100 witnesses taking the stand and over 700 exhibits being entered into the record, the long-anticipated verdict is finally in: Dzhokhar Tsarnaev is to be executed for his part in murdering four victims (excluding his brother/accomplice) and injuring over 260 others.

In weighing the aggravating factors (the number of victims, including children, the murder of a police officer, and the terrorist motive) against the mitigating factors (the defendant's subservient role in the crimes, the science of brain development in youthful offenders and his troubled family history), the jury was unanimously convinced that the death penalty was the more appropriate sentence.

It may be that prosecutors and some of the victims are pleased, if not thrilled, with the outcome. For them, capital punishment is precisely designed for crimes like this.

But in the end, I wonder if the death sentence was worth all the time, effort, anguish and expense of the trial. Was reaching for the death penalty worth subjecting the 10 women and eight men, who were fulfilling their civic duty as jurors, to heart-wrenching testimony and disturbingly graphic exhibits that no doubt will impact them for years to come? We can add 18 more to the list of victims in this case.

The troubling fact is that none of this, neither the financial cost nor the emotional toll, was necessary. After all, the defense team, long before admitting their client's responsibility for the bombings on the very first day of trial, was willing to enter a guilty plea if the government agreed to take the death penalty off the table in favor of life without parole. Would that have been so bad?

Sure, critics would have complained about the high cost of housing and feeding Tsarnaev as a guest of the U.S. Bureau of Prisons. They failed to recognize that this expense is a drop in the justice system bucket compared with the millions upon millions of dollars spent on prosecuting him.

Moreover, the cost of keeping a convicted murderer behind bars, which for the high-security federal "supermax" facility has been estimated to be about $75,000 per year, is comprised mostly of fixed overhead costs of running the institution, such as salaries and utilities. Sustenance for Tsarnaev, his food and clothing, would have been a tiny fraction of that figure. Even the eventual cost of health care, should he live so long, would hardly have busted the federal budget.

Unfortunately, because of the sentencing outcome, we have not seen the last of Tsarnaev in terms of litigation and media attention. This type of long delay is precisely the reason why some of the victims, including the parents of 8-year-old Martin Richards who was killed in the blast, urged the prosecution to drop its bid for the death penalty.

There is little doubt that the defense team will vigorously pursue all avenues of appeal. They will likely challenge the verdict based on the amount of pre-trial publicity and the trial judge's refusal to transfer the proceedings outside of Massachusetts where the pool of potential jurors would have been less tainted by the news coverage. There would have been little incentive to appeal had the outcome been the lesser sentence of life without parole.

The government's decision to seek the death penalty in this case was controversial from the start. There was hardly a consensus among the bombing victims as well as the general public concerning the appropriate penalty. Despite this, and despite his own personal stance in opposition to capital punishment, then-Attorney General Eric Holder chose to seek the death penalty in order to send a strong message that the United States will not tolerate such atrocious acts of terror.

Arguably, a stronger message would have been sent had the outcome been life imprisonment: Not only does the United States not tolerate terrorism, but it does not need to kill in order to make the point. There is nothing about a life sentence without the possibility of parole that suggests otherwise.

James Alan Fox is the Lipman Professor of Criminology, Law, and Public Policy at Northeastern University and co-author of The Will to Kill: Making Sense of Senseless Murder. He also is a member of the USA TODAY's Board of Contributors..