Tsarnaev’s Irrelevant Finger And The End Of Capital Punishment

dzhokhar-tsarnaev finger

I’ve stated here several times that I am in favor of the death penalty when it can be shown beyond any doubt whatsoever that an individual committed a horrific, cruel, unequivocally inexcusable murder or murders, preferably murders. One of the two Boston Marathon bombers, Dzhokhar Tsarnaev, the surviving one, clearly qualifies. Unfortunately, the public, the law and the legal profession are too confused to bring integrity to capital punishment, and I think, because of that, it can never be sufficiently fair and coherent to be ethical.

For example, the use of the ultimate penalty is too dependent on moral luck. The law dictates that there is no difference between an attempted crime and a successful one, yet judges and juries refuse to see it that way. John Hinckley’s crime was complete the second he fired shots at Ronald Reagan; the fact that the President survived was moral luck. Yet if Hinckley had succeeded in killing Reagan, nobody would be advocating that he be released, as it looks as if he may be soon. No one has ever been executed for an attempted horrendous mass murder, but logically, this should not be the case. The death penalty isn’t vengeance; it’s based on a fair and reliable conclusion that a citizen, by his or her actions, has declared himself uncivilized, dangerous, and unworthy of even the minimal societal support required for imprisonment. The uncivilized, wonton, murderous act is the same whether the bullets hit their mark or not. Society makes a statement that it cares deeply and sincerely about the sanctity of human life, and that those who do not are not welcome.

Meanwhile, moral luck sometimes gets people executed when their acts themselves weren’t execution-worthy, as in felony murder. As I wrote here, I like the felony murder rule, but I don’t like it when the penalty is death. Capital punishment should not be a matter of moral luck.

Neither should it be a matter of a raised index finger.

It is inconceivable to me that prosecutors would introduce the video of Dzhokhar Tsarnaev flipping the bird at the camera as part of the argument for executing him, or that the judge would allow it. Yet that’s what happened. “This is Dzhokhar Tsarnaev — unconcerned, unrepentant and unchanged,” federal prosecutor Nadine Pellegrini told jurors who will decide if the 21-year-old former college student will live or die.

Wait, I thought he blew up people in 2013, not flip them off. How does this gesture prove he’s unconcerned, unrepentant and unchanged? It might be proof that he’s young, angry, gross, or Bill Maher…


…or doing a Bill Maher homage, but “unrepentent?” That’s reading a lot into a gesture I made to a jerk who cut me off on Rt. 50 just this morning.

And who cares how repentant he is? He blew people’s limbs off and killed others: I don’t think it should matter one bit if he seems “repentant”  later. He did what he did, and what he did should be plenty to forfeit his life. What he does afterwards, good or bad, shouldn’t matter.

But it does. The arguments for and against the death penalty are all flawed and inconsistent, intellectually dishonest, or just plain dumb. When it gets to the point that prosecutors use a playground gesture of contempt  to convince a jury to execute a vicious terrorist who has no defense at all—“All right, if you won’t kill him because he blew up all these innocent people, think about this—he’s rude!“—capital punishment has jumped the ethics shark.

It’s hopeless. I’m out.

41 thoughts on “Tsarnaev’s Irrelevant Finger And The End Of Capital Punishment

  1. At the risk of getting Jack Marshallized, I’m going to wade in here. I used to be in favor of the death penalty but I don’t think I have been for quite a while. My Crim Law professor spent most of his time nurturing our doubts about the efficacy of capital punishment. That was years and years ago and I don’t even remember most of the arguments for and against. But along the lines of guidance such as the Golden Rule, I think the dispositive argument against capital punishment is, simply, as my mother used to tell me, “Two wrongs don’t make a right, Billy.”

    • Yup, that’s one of the arguments that doesn’t make sense (it’s circular, you knmow, since it assumes the conclusion under debate.) Who says killing a monster is “wrong”? Bin Laden, Hitler, Ed Gein? The argument that letting them live is the second wrong is just as intrinsically valid

  2. Two wrongs don’t make a right – especially when the second wrong is a social species’ permission of an irredeemably selfish specimen to continue living and preying upon his own species via fatal acts of anti-sociality.

      • Nope, my father worked in the state DOC, killing a correctional officer, or one of the many who have contact with inmates would merit what? Another life sentence without parole. One who kills can really rack them up.

        Also, who are we to take a life? For those who believe in a creator, we are ‘playing God’. The conundrum continues. Add in Aaron Hernandez, who can only receive multiple life sentences, killed due to minor slights. Why life for him, death for this killer?

        My father did come to the conclusion life inside is probably worse, though he shed no tears when Bundy was executed. Likewise, I once saw Danny Rollings, face to face in the local Courthouse……..doubted at the moment he should be executed, he was so drugged up he looked like a zombie.

        • I lost my respect for the anti-death-penalty position with Mario Cuomo’s fight to keep Thomas Grasso, under sentence of death in Oklahoma, in NY to serve out his life sentence there. He had a chance to get this guy off the taxpayer gravy train and decided to fight another state to prove his point. We got it, Mario, you were against C/P to such a point you’d rather pay for the upkeep of a murderer with tax money than get rid of him. It was part of the reason he didn’t get a 4th term, and one of George Pataki’s first official acts was to sign the extradition papers to send Grasso to Oklahoma, where he was promptly fried. I’d go a step farther if I were an incoming governor who was resuming executions, and send the pen I used to sign the death warrant to the family of the victim, with a note that “hopefully this will bring you some closure.”

  3. Nope. I think this was done as yet another “aggravating factor” to convince the jury to fry him. The idea is that not only did he commit multiple murders, but he’s defiant and shows no remorse. He isn’t Karla Tucker, who found religion in prison. He isn’t Tookie Wilson, who wrote a children’s book, as though that changed the fact that he killed people from Taiwan and referred to them as “Buddhaheads.”. He committed these crimes and he’s proud of it. Still, since only a jury can impose the penalty, and the vote must be unanimous, the prosecutor has to use every arrow in his quiver to convince even the most die- hard person on that jury not to be the lone holdout. The prosecutors here were just doing their job, and murderers and drug kingpins shouldn’t have their sentences commuted because of that.

    • Which is utter nonsense. A legal gesture without context is an “aggravating factor” justifying execution? I don’t comprehend how anyone can seriously argue such a thing. If I were on the jury and ready to vote for death, this would change my mind. The State is incompetent, and doesn’t know what it wants or why.

      • The gesture isn’t the aggravation. The defiance it communicates is, on top of what the guy did. He’s not only a murderer, he’s proud of it. Get the frying pan ready.

        • Again, that gesture communicates that because of confirmation bias in the mind of the beholder. He could be saying, “Fuck having a camera in my cell 24/7! You didn’t do this to the Bird Man of Alacatraz!”

          I would be. I don’t see how he feels about the act now has any relevance at all. I don’t care if he has founded a religion of peace and light, cured cancer and cut off his pinky to punish himself. He was either worthy of execution or not the second the bomb went off. Nothing that has occurred or not occurred since matters.

          Let me be clear, if I wasn’t: he still deserves to die. But society is too incompetent and silly to deserve the authority to kill him.

    • Somehow I suspect that an equally eloquently written piece finalizing the notion that capital punishment is undeniably correct, you wouldn’t have made this comment…

      • You’re undoubtedly right.

        And if you can show me an “equally eloquently written piece finalizing the notion that capital punishment is undeniably correct,” I’ll eat my words. But meanwhile I haven’t seen unicorns, and I haven’t seen such a piece.

          • Do you count Jack’s own current post, where he concludes, “It’s hopeless; I’m out”?

            And have you yet found time to watch that TED Talk about differing perspectives on values? I’m telling you, it may shed light on claims that we are each inclined to make about the other’s “uncontrollable bias.” It’s true.

              • Texagg, I believe you are the uncontested winner of the zero-content, all-insults-all-the-time contest to take over Triumph the Insult Dog’s role. Do you ever make a content-based comment?

                • Then face me instead, Charles. This guy deserves to fry, under the law and under almost any morality. It isn’t fair to blame society for using the tools it itself has created. Now, if you want to talk about changing the sentencing procedures to eliminate this circus, that’s something we can discuss.

                  • I’ll use the “citation of authority” argument here, and quote Jack Marshall:

                    “The law and the legal profession are too confused to bring integrity to capital punishment, and I think, because of that, it can never be sufficiently fair and coherent to be ethical.”

                    The problem with calling this “just a procedures” issue is that there’s no recourse for the dead guy. Death is pretty final. It’s hard to separate procedures from substance in that case.

                    But, I’ll just leave it at what Jack said. Go argue with him, he’s more eloquent on the subject than I am.

                    • Erm… He deserves to die…

                      Justice in this case, will not have failed if he is executed…

                      It’s still not an argument against the Death Penalty, but rather how it is determined…

    • I do think this represents an overreaction to one event, sorry Jack, in this case the prosecutors using this video to throw everything including the kitchen sink at the jury. I don’t think a zealous prosecution team using everything they have to sway a jury means the whole death penalty system is flawed. It MIGHT mean the penalty shouldn’t be imposed here, but that’s what the First Circuit and the SCOTUS are for. As long as juries impose the penalty, shenanigans like this will be used to tug at their heartstrings. Maybe it would be better if that final penalty were in the hands of a judge, less likely to be swayed by emotion or game-playing, but that’s a separate, and more measured discussion. To pronounce all society incompetent for the tools it has at its disposal isn’t really fair.

  4. A few weeks ago, I told my brother that I think I’ve come around on capital punishment. I told him that I support a death penalty, but not necessarily OUR death penalty. He was surprised, because he’d come to the same conclusion some time ago.

    I still believe Tsarnaev definitely deserves to be executed by the state, but to me, when you build a bomb and kill random people with it, it doesn’t bother me whether or not you are sorry you did it. The only relevant factor should be whether execution would be an appropriate punishment for the crime for which he’s been convicted.

    It’s the same attitude I have when people say something like, “Let’s not execute him; let him live with what he did!” This would suggest we choose the sentence specifically on which sentence would cause the prisoner more suffering, which shouldn’t be the case. There’s part of me that would enjoy the idea of Tsarnaev living the next sixty years in jail, watching all his fantasies of a new religious world order fail to occur, but that’s not what we should base the justice system on.

    There are so many issues where people will make bad or fallacious arguments to support something just to make certain a certain goal gets accomplished, whether or not they recognize them as bad arguments. I believe we should get the toolbox of arguments and logic and reason ready and rust-free so we can tackle whatever issue comes along properly and soberly.

  5. There are only three good reasons for the death penalty, and its efficacy isn’t one of them. If, by efficacy, you mean it’s a deterrent. It isn’t, and it wasn’t and it won’t ever be. Most criminals are certain that, all evidence to the contrary, they’re too smart to get caught, or, in the case of some murders, they got caught up in the passion of the moment and made a mistake, but then, these aren’t usually capital cases, either.

    FIRST GOOD REASON: There is something so heinous about the crime that the perpetrator needs to be taken from the gene pool, lest a propensity for committing this kind of act be passed on.

    SECOND GOOD REASON: There is something so heinous about the crime that leads us to believe that the perpetrator has and possibly never had the capability of living around other people in any environment without being a danger to them.

    THIRD GOOD REASON: There is something so heinous about the crime that the only way that people close to the victim(s) can get closure is by destroying the perpetrator. I’m sure that this is going to sound a lot like vengeance to some, if not many, but it really isn’t.

    Notice that there is no argument, here, about cost. I really don’t care how much it costs to keep someone in prison for life versus executing him or her. The common thread in all of these good reasons is the nature of the crime and how it relates to the perpetrator. Shooting the finger at a camera will never be a good reason to execute someone. Setting off several bombs in a crowd more than justifies it. Think about it.

  6. In the case of John Hinckley Jr., I might point out that he DID kill a police officer in his assassination attempt on President Reagan. Since then, Brady has also died, his head wound being a factor in his death. Hinckley should have swung long ago for both murder and attempted murder.

    • I don’t believe Hinckley killed anyone, not outright, during his shooting of Reagan. He severely wounded several. I will double-check that…

      • I forget the police officer’s name, I’m sorry to say. He died. Jim Brady eventually died after a long period of disability brought on by his head wound. Both President Reagan and a young Secret Service agent were wounded, but recovered. Reagan’s wound came closer to being fatal than most people realize.

  7. So, they DID get around to frying him. Do you think the question of him flipping the bird is grounds for appeal?

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