Bulger deserves to be forgotten

James Alan Fox

August 14, 2013

One by one, the court clerk read aloud the verdicts on the multitude of charges against the former Boston mob boss, James Joseph Bulger, Jr. As expected, the 83-year-old defendant was found guilty of murder, extortion, racketeering, money laundering, drug trafficking and various weapons violations.

For us here in Massachusetts, it will certainly be a relief to have this protracted saga over and done. No more news reports about possible sightings of the long-time fugitive. No more police motorcades and helicopter escorts transporting Bulger from his local holding cell to court or some medical appointment. No more satellite trucks parked outside the federal courthouse soliciting opinions from experts and ordinary spectators alike about the notorious defendant. No more special treatment afforded this especially undeserving man.

Many folks locally were disappointed that the Bulger trial was not televised. Although some may have been denied the cathartic pleasure of closely watching the court proceedings, such minute-by-minute live coverage would only have broadened Bulger's stage. His profanity-laced outbursts toward witnesses and the bench could then have been heard around the world, not just inside the confines of the courtroom.

It is time to close this long and often painful chapter of Massachusetts history. Having lived in the Boston area for nearly all of my six decades, I welcome having the Bulger name drop from the city's collective consciousness and daily discourse. For many years, this corner of the globe was ruled by two brothers with contrasting spheres of influence. Bill Bulger served several terms as president of the Massachusetts Senate and then as president of the University of Massachusetts, while James terrorized the region as the much-feared kingpin of the notorious Winter Hill Gang.

Several top-selling books have been published chronicling James Bulger's lawlessness, and with the trial concluded, likely more will be forthcoming. It is useful and important for his dreadful crimes and despicable character to be exposed so as to dispel any notion of benevolence. I would prefer, however, that he was not constantly referred to by his nickname as if he were the good pal living next door.

While the written word does little to sensationalize Bulger's exploits, the line should be drawn with big-screen movies, at least two of which are planned. Hollywood already capitalized on the gangleader's life with the 2006 film The Departed, which featured Jack Nicholson as a Boston mob kingpin loosely based on Bulger's persona. The movie earned four Oscars and nearly $290 million in global ticket sales. At least, however, Bulger himself was not specifically named or portrayed in the fictional story.

Having some Hollywood luminary playing the role of the gangster now would only blur the critical distinction between fame and infamy. Few people today would know of Depression-era outlaws Bonnie and Clyde, for example, were it not for the romance-infused performances of Warren Beatty and Faye Dunaway. Bulger surely does not merit similar cinematic prominence, at least not now while the emotional scars of so many people impacted by his crime spree remain fresh.

The families of Bulger's victims are incensed, and rightly so. Not only has Bulger taken their loved one, but he has enjoyed the limelight as well. The excessive attention give an unremorseful crook adds insult to injury for these people.

Now that the verdict is in, all that remains is the sentencing hearing scheduled for November, when these families will have the opportunity in open court to describe the pain and suffering that James Bulger has caused them. The proceedings will then conclude when the judge formally orders Bulger to spend the rest of his days confined to a prison cell.

Given the federal jurisdiction over the case, Bulger will be shipped off to some far away location -- possibly the "supermax" facility in Florence, Colo. There he will remain hopefully in relative obscurity, that is, of course, until the day when the Boston newspapers print his obituary.

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 is the Lipman Family Professor of Criminology, Law and Public Policy at Northeastern University and co-author of The Will to Kill. He is a member of USA TODAY's Board of Contributors.