"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Monday, May 18, 2015

A Tale of Two Terrorists: Both Convicted, One Condemned to Die

D. Tsarnaev
Under the rules of “guided discretion”—the name given to the version of capital punishment that the Supreme Court’s 1976 decision in Gregg v. Georgia ruled constitutional—juries in capital murder cases are given the task of balancing and weighing aggravating and mitigating factors relating to the charged offense, as well as the defendant’s background and character, to determine who among those convicted defendants should be given a prison term and who should be condemned to die. The system is designed to be rational and fair and to minimize the impact of emotion and bias in sentencing. It’s also supposed to further the aims of retribution and deterrence of other would-be malefactors.

Except that the system isn’t rational; it isn’t fair; and no one except tough-talking politicians claims the death penalty has any significant deterrent effects.

Had Tsarnaev’s jury returned a verdict of life in prison, he would be on his way to perpetual obscurity at ADX. Instead, he’s looking at decades of appeals at public expense that will challenge rulings made by the trial judge on issues ranging from the denial of defense motions for a change of venue out of Boston to the way his jury was selected. Each of Tsarnaev’s jurors had been deemed during voir dire to be “death-qualified,” meaning that unlike the general Boston population, which is strongly opposed to capital punishment, the jurors were willing to impose it.

And even after his appeals are exhausted, a new set of lawyers are likely to pursue writs of habeas corpus on his behalf, calling into question the competence of tactical decisions made by his trial attorneys, or perhaps offering newly discovered mitigating evidence about his family history from Chechnya or Kyrgyzstan.

Through it all, Tsarnaev will remain in the limelight. The surviving victims of his crimes will find little closure as death penalty opponents track the progress of his appeals, rail against the barbarity of capital punishment and writers like Yours truly pound away on their keyboards to tell and retell his story.


Source: Truthdig, Bill Blum, May 16, 2015. Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam (“Prejudicial Error,” “The Last Appeal” and “The Face of Justice”) and is a contributing writer for California Lawyer magazine. 

Related article:
- In Boston Bombing Trial, Winners and Losers Are Hard to Tell Apart, Truthdig, Bill Blum, March 17, 2015

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