Comment Of The Day: “The Supreme Court Reinstated The Death Sentence Of Boston Marathon Bomber Dzhokhar Tsarnaev. Good.”

Certain themes and issues are certain to recur on an ethics blog and never be resolved. Among them are abortion, “hate speech,” illegal immigration, reparations for slavery, drug legalization, gun control, war (HUH! What is is good for?], climate change and capital punishment. From the captain’s chair at Ethics Alarms, some of these seem more difficult than others. Capital punishment is not among them. [Above is the sensational and illegal photo in 1925 of the first woman ever sent to the electric chair as the switch was pulled. Ruth Snyder, a housewife from Queens, New York, took a lover and recruited him in a plot that ended with her husband’s brutal death; a reporter had a secret camera device strapped to his leg. Her story was the basis of many fictionalized versions, including the classic film noirs “Double Indemnity” and “The Postman Always Rings Twice” and the brilliant expressionist stage drama “Machinal” by Sophy Treadwell.]

The recent SCOTUS decision restoring the death penalty sentence to Boston Marathon bomber Dzhokhar Tsarnaev (where it belongs) once again raised this issue, which has been taken up hear often. In Steve-O-in-NJ’s Comment of the Day on that post, he provides fodder for debate within the debate: as he delicately puts it, “how high should the bar be set before someone fries?” Steve offers his top 20.

I’ll play: I believe non-lethal crimes that ruin lives to the magnitude that Bernie Madoff did with his Ponzi scheme ethically support a death sentence. Last week the late investing whiz’s sister and her husband were found dead in an apparent murder-suicide that was probably another consequence of his crime.

Here is Steve-O’s Comment of the  Day on “The Supreme Court Reinstated The Death Sentence Of Boston Marathon Bomber Dzhokhar Tsarnaev. Good.”


I read the Bucklew case, where the SCOTUS decided, quite sensibly, that there is no right to a painless execution. What stuck out to me is the penultimate paragraph in Breyer’s dissent, in which he states that as we move forward there may be no constitutional way to implement the death penalty. That, I submit, is one more reason we needed to either get that sixth conservative justice on the Court or get Breyer out of there.

Breyer already came within one step of saying the death penalty should be outlawed in a 2015 dissent in which only Justice Ginsburg joined (surprise surprise!) and which got a pretty severe smackdown from Justice Scalia.

There is something fundamentally wrong with a way of thinking that worries so much about the pain, humiliation, or other bad consequence suffered by a murderer and thinks almost not at all about his victim. It’s that kind of thinking that kept Peter Sutcliffe (the Yorkshire Ripper) sitting in a UK prison on the taxpayers’ dime, Fowzi Nejad (the only terrorist to survive Operation Nimrod) living in London on the public dole (because if they sent him back to Iran he’d be beheaded), and means Michael Adebowale (who participated in what I can only describe as the assassination of Drummer Lee Rigby, for no reason other than he was a soldier) will see the parole board in 45 years. It’s also that kind of thinking that enabled Charles Manson to dodge death until the ripe old age of 83, would have spared “Tookie” Howser who murdered immigrants from Taiwan and called them “Buddhaheads,” and would have kept William Spengler (the West Webster shooter, who wrote that, “I still have to get ready to see how much of the neighborhood I can burn down, and do what I like doing best, killing people,” before setting a fire and ambushing the responding firemen, killing two of them) alive, perhaps to be paroled a second time (he had already been imprisoned for 18 years after killing his grandmother with a hammer, had he not saved the authorities the trouble by killing himself).

Frankly, I don’t think this thinking even represents respect for the system, misguided compassion, or the overwhelming fear that someone innocent will suffer the one punishment that can’t be undone nor compensated for. All too often abolition is couched in terms of moral absolutes based on following the group (the U.S. is one of a very few industrialized nations to retain the penalty), irrelevance that sounds relevant (too many blacks get executed) or just plain lazy thinking (all the hip, cool, or educated people are against it).

Just out of curiosity, how high should the bar be set before someone fries? I can probably name at least 20 circumstances that would be appropriate:

1. Killing a cop, corrections officer, fireman, or EMT in the discharge of their duties. (obviously)

2. Killing on contract (murder for hire).

3. Killing while committing another violent offense (robbery, rape, etc.)

4. Killing while in furtherance of the goals of a nation whose interests are adverse to ours. (Homicidal traitors are the worst)

5. Killing someone because of a protected characteristic (race, religion, gender, orientation).

6. Killing someone because of employment status (no targeting off-duty cops, prosecutors, members of the military, or veterans).

7. Killing through use of a means designed to cause mass casualty (even if no mass casualty results).

8. Killing more than one person in one incident.

9. Killing a witness to a crime. (No killing someone for simply being in the wrong place at the wrong time and seeing the wrong thing).

10. Killing someone for difference of political opinions (no targeting prominent liberals or conservatives simply because they are, no attacking someone and trying to kill him for wearing a MAGA hat).

11. Thrill killing (If you kill someone just to see him die, you die too).

12. Killing during the committal of a war atrocity (we must police our own).

13. Killing by torture (including torturing someone and death resulting, even if you didn’t intend to kill him).

14. Killing during an act of mutiny (we want to discourage the military and paramilitary turning on their superiors).

15. Killing an elected official. (some overlap with #10, but different enough to merit a separate designation)

16. Killing a newborn. (we want to discourage “prom moms” from killing their children and dumping them in the trash: it’s an outrage that Amy Grossberg is walking around free).

17. Killing a child. (we don’t need any more James Bulgers killed, thank you very much)

18. Killing during an incident of bullying (we want to discourage bullying or practical joking that could end in death).

19. Treason.

20. Espionage.


I know [Ethics Alarms commmenters] Luke G and Still Spartan are strong death penalty opponents. However, I haven’t heard anything from either of them that I haven’t already heard from others and dismissed. Yes, I’ve heard the comparison to abortion, but I just don’t buy it, the two circumstances are nothing alike. I also have heard a few people from where I went undergraduate who were Catholic Worker types talk about the ethic of the seamless garment, after the fact that Christ’s tunic had no seam and therefore could not be divided, leading to the Roman soldiers throwing dice to see who would get it. The idea is that there should never be war, there should never be euthanasia, there should never be abortion, and there should never be capital punishment: always choose life. Well, it sounds nice, but in the end it’s idealism and magical thinking. A lot of these idealists are wonderful people who’d give you their last crust, but that doesn’t mean they’re right.

4 thoughts on “Comment Of The Day: “The Supreme Court Reinstated The Death Sentence Of Boston Marathon Bomber Dzhokhar Tsarnaev. Good.”

  1. Thanks, and I’m inclined to agree with you on principle. What Madoff did was essentially an act of economic terrorism. However, drafting a statute to properly cover that circumstance that would pass constitutional muster might take time. I might also extend it to government corruption that results in the destruction of lives as well. Those entrusted with power or influence who abuse that power and influence to destroy the lives of others should pay with their own. That is probably an even tougher statute to draft, though, and I really don’t want to make political prosecutions the norm in this country or have officials afraid for their lives every time they have to make tough calls, so maybe we might want to put off coming up with a statute like that until and if the political temperature comes down a bit.

    I know there are a lot of folks out there who’d love to see a lot of elected officials put in jail or executed because they don’t agree with the decisions they made or just because they hate them that much. That’s some of what you touched on in your earlier post about excessive passion in legal academia now. A lot are now beyond the reach of justice in this world, but there are still folks who say that George W. Bush and Donald Trump should both be either in jail or facing execution (many of them otherwise solidly opposed to the death penalty, even for bin Laden, but willing to make an exception for those two guys) for their conduct in office. and that some of the current crop of GOP governors should be prosecuted for their handling of COVID. I also wonder how many of those who talk like that are just unsatisfied victims of bullying seeing a chance to get their own back.

  2. Not sure I agree with giving Bernie Madoff the death penalty, but Ernie from Sesame Street does!

    But seriously, my issue with attaching death to financial crimes is that money can be restored, whereas lives cannot.

    • That’s a valid distinction, though if the missing money causes foreclosures, bankruptcy, and mental and emotional breakdowns, those are not so easily fixed. Madoff destroyed many charitable foundations, setting off destructive chain reactions all over society. Three deaths in his own family are traceable to his crimes. Who know how many others there have been?

  3. Here is another example of an offense that should be punished by execution.

    4. KABOOM! I don’t understand this story at ALL. An African-American man, a registered guest at a DoubleTree hotel in Portland, Oregon, was told to leave by hotel officials while he was sitting in the lobby making a phone call, reports the CBS affiliate there, KOIN-TV. Jermaine Massey was talking to his mother, who called him. The episode was captured on his cell phone; the hotel has apologized; the staff responsible has been placed on leave. Massey’s lawyer is calling his “offense” talking to his mother on a cell phone while black. Massey was not intoxicated, or shouting. This isn’t a case like the Starbuck’s mess in Philadelphia, where the staff involved was at least following store policy. If Massey was registered and had a key card, how could this happen?

    In the comments section, I called for the death penalty, and I have not changed my mind.

    Here is a fun fact. Under the Park doctrine, corporate officers can be liable for crimes even absent intent or proof of knowledge of the criminal acts.

    This means that, had racial discrimination in public accommodations had been a capital offense, under the Park doctrine,. the owner of doubletree Hotel could have been sentenced to death for the crime, despite any lack of personal knowledge or intent!

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