Why Tsarnaev should not get the death penalty

James Alan Fox

April 8, 2015

BOSTON:  Despite great anticipation and intensive news media coverage, the trial of Dzhokhar Tsarnaev for his role in the 2013 Boston Marathon bombing has, up to this point, had as much suspense as a Law & Order rerun.

The guilty verdict on all 30 counts rendered by the jury of seven women and five men inside a packed federal courthouse here came as no surprise. Not even the defendant showed any emotion as each count was read aloud.

From the very start of the proceedings five weeks ago, the defense has conceded defeat in the guilt phase of the bifurcated capital murder trial. In her opening statement to the jury, defense counsel Judy Clarke admitted that Tsarnaev did indeed join his now-deceased older brother, Tamerlan, in detonating two explosions near the finish line of the storied foot race, killing three spectators, including an 8-year-old boy, and injuring more than 260.

Despite the defense's concession, the prosecution proceeded to call 92 witnesses to the stand, presenting in excruciating detail the pain and devastation caused by the Tsarnaev brothers as part of their self-styled jihadist attack on America. The purpose was to set the stage for the real challenge that lies ahead in the penalty phase, when the jury will be tasked with choosing between the death penalty and a sentence of life without parole eligibility.

I am certainly not alone in believing that the federal government should have saved time and great expense by negotiating a guilty plea in exchange for a life sentence, just as it had in the case against Unabomber Theodore Kaczynski. Besides, persuading the jury to recommend death for Tsarnaev, which requires a unanimous vote, is hardly the slam dunk that characterized the uncontested guilt portion of the trial.

Even though the jury pool was "death qualified," purged of anyone who would absolutely not be willing to vote to execute the defendant, it is still a tall order to persuade all 12 residents of liberal Massachusetts that capital punishment is the better option.

Notwithstanding the extreme horror of the marathon bombings and the terror-filled days before the massive manhunt came to an end, it is hard to argue that Dzhokhar Tsarnaev, 21, qualifies as "the worst of the worst," the criterion often used in deciding who shall be executed.

Virtually all the evidence points to the fact that the defendant was subordinate to his 26-year-old brother. It was Tamerlan who became radicalized, who purchased the bomb-making supplies, and who threatened the carjacking victim at gunpoint. Tamerlan died in a confrontation with law enforcement officers three nights after the bombings. It is a stretch to suggest that the brothers were truly equal partners. Were it not for the close brotherly bond and Tamerlan's influence, Dzhokhar might still be just a struggling college student content to smoke weed with his buddies in his dorm room.

At the time of the bombing on April 15, 2013, the defendant was only 19, less than two years above the age threshold when he'd have been exempted from the death penalty. Even though legally of age, he lacked the maturity to think and act independently of the older brother whom he revered. Of course, none of this absolves the defendant or suggests that he is not culpable for his crimes, only that his responsibility is sufficiently diminished so as not to warrant the supreme penalty of death.

If the government is indeed successful in persuading the jury to recommend death, it will fail to bring the kind of closure that many of the victims and their survivors are anticipating. Just the opposite might occur.

A sentence of death will likely transform Dzhokhar Tsarnaev, an amateur terrorist, into a martyr for all those here and abroad who hate America. Better that he drift off into the obscurity of some dark and distant prison cell without the continued news media focus that an execution would bring.

Life without parole is an outcome we can all live with.

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