Anthony Santoro offers some thoughts to consider while the jury deliberates on the fate of Tsarnaev
A dozen years ago, in the fall of 2002, I was living in the Virginia DC suburbs, where I worked for a non-profit organization and had a part-time retail job to pay the rest of the bills. In October of that year, John Allen Muhammad and Lee Boyd Malvo terrorized the DC corridor. Over a three-week period, they shot thirteen people, ten fatally, in a spree that ranged from the Maryland DC suburbs down the Interstate 95 corridor to a bit north of Richmond, Virginia.
Most of my retail shifts were opening shifts, and I can remember the changes that management implemented as this was going on. We were told to park as close to the storefront as possible, to shorten the distance we had to walk into the building; usually we were told to park several spaces away and allow customers to have access to the closest spots. Opening managers also started spending as much time as possible near the front of the store, so that they could unlock, open, usher inside, close, and relock as swiftly as possible. Several times I was all but yanked inside by individuals far smaller than I.
We were frightened. It was frightening in those moments. It was easy enough to push aside most of the time, it was easy enough to allow reason to take over and know that in a region with millions of people sprawled out over who knew how many hundreds of square miles, the odds that we’d be next were infinitesimal. We knew that, but of course, people still had the “yeah, but the odds don’t matter if it’s you” conversations.
It was easy to be frightened when you were being told and shown that frightened is what you were supposed to be. When things change up in response to the situation, however reasonable and minor the changes, it becomes more difficult to ignore that situation. When you’re given specific signs to watch for, you start to see them. The snipers, we were told, were likely driving some sort of a white van. Law enforcement was looking for that white van, and so, so were we. One afternoon, during the 5.5-mile drive home, I started counting the white vans that I saw. Long before I got there, I lost count somewhere well north of one hundred.
What has stayed with me from those weeks was the question of threat perception, and how easy it can be for fear to amplify a threat such that you see it quite literally everywhere, as with the suddenly ubiquitous white van. When a perceived threat changes how you look at things, how you operate your day-to-day life, it can be difficult to erase it from your mind.
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On April 8, 2015, the jury in Dzhokhar Tsarnaev’s trial returned unanimous guilty verdicts on all thirty of the charges that he faced. Seventeen of these charges potentially carry the death penalty. For all of the pathos, for all of the emotion, there was very little surprise. Tsarnaev’s defense team had conceded his guilt at the beginning of the trial, or, more properly, at the beginning of the guilt phase of his capital murder trial: “He did it.” All along, they were laying the groundwork for the next phase, the more important phase, when they would attempt to build the case intended to spare their client the death penalty.
Tsarnaev’s lawyers and their counterparts, the federal prosecutors, have been caught up in a tension at the core of the American death penalty. According to Eighth Amendment case law as decided by the United States Supreme Court, capital defendants must fit a set of rationalized guidelines in order to be eligible for the death penalty, but they are also entitled to an individualized trial that considers whether this defendant is guilty of this particular crime. If the jury so finds, then the question for the sentencing phase is whether this defendant, who is legally guilty of these crimes, should be sentenced to death. At first blush, it appears that these two sets of requirements are at odds, and they can be, but they also work together to define a class of offenders—those accused of committing what society deems the worst offenses—and to differentiate among them to find those individuals who are the worst of the worst. The American death penalty, as it is currently practiced, is designed to select for these worst of the worst and to sentence them, and only them, to death.
It is impossible to dispute that the crime itself fits the latter category—indiscriminate mass murder, by any moral reckoning, is among the worst crimes imaginable. The question before the jury, then, rests on the second half: whether Dzhokhar Tsarnaev is among those worst of the worst who deserve to be executed. Tsarnaev’s defense team knows this, and knows that in order to save their client’s life, he has to be less than that, which is why it isn’t surprising that one of the aspects that garnered attention during the guilt phase was the defense’s assertions that Dzhokhar isn’t even the worst of the Tsarnaevs.
The sentencing phase of capital murder trials boils down to the creation of two different defendants, one deserving of death, the other deserving of mercy. Tsarnaev’s defense has followed a recognizable pattern in trying to make him less culpable than his brother, and thus more deserving of mercy. During the guilt phase it was assumed that Judy Clarke, Tsarnaev’s lead counsel, would, as the Los Angeles Times put it, “try to portray the 21-year-old as a confused college student from a broken home, a loner manipulated by his more radicalized older brother.” During the trial, Clarke brought out the “immature brain defense,” drawing attention to the accepted scientific conclusion that the human brain continues developing into the mid-20s. This “immature brain” would make Dzhokhar more susceptible to his older brother Tamerlan’s influence, just as Lee Boyd Malvo was deemed to be disproportionately susceptible to the influence of John Allen Muhammad. Clarke’s objective is to show the jury that Dzhokhar Tsarnaev is not like us, that he was incapable of making the kind of rational, adult decision that Tamerlan made, and that the jury must also make.
This is Clarke’s job, but in a way, we seem to be in step with her. Ever since the brothers were identified as suspects and Dzhokhar captured, their pictures have been everywhere. The most famous of these is undoubtedly the July 13, 2013, Rolling Stone cover of a boyish, somewhat rakish Dzhokhar. Although this is the most famous photo of Dzhokhar, the other stock photos of him used in news reporting, such as the 2013 FBI file photo that accompanies many stories about the trial, also show him as boyish. In most photos, Dzhokhar looks like an awkward teenaged boy, exactly what he was.
His brother, by contrast, could never be mistaken for a child. In every photo of Tamerlan that has surfaced in the wake of the bombing, he is clearly a grown man. This contrast is magnified by the evidence presented at trial, in which the defense successfully cast doubt on the extent of Dzhokhar’s participation in the preparations for the attack, showing that the radical material, the jihadist material, was more likely Tamerlan’s and that Tamerlan had made the purchases of the bomb’s components. The defense also established that although experts testified that it is common not to find fingerprints on bomb fragments, given the effect of temperature and pressure on prints, Tamerlan’s fingerprints were found on bomb fragments; Dzhokhar’s were not. All of this is meant to drive the jury, or just one juror, to doubt that Dzhokhar was not and could not have been as culpable as Tamerlan, though he was equally guilty.
His brother, by contrast, could never be mistaken for a child
The distinction is subtle but meaningful and has been central to other cases: Malvo’s attorneys convinced the jury that he wasn’t the worst of the snipers, thus sparing his life, and Clarke convinced a jury that Terry Nichols wasn’t the worst of the Oklahoma City Bombers, thus sparing his. It is meaningful because it is a sign that the defendant is not like us, that he is different enough from us that while we have warrant to punish him, we may be disinclined to feel that that warrant extends to taking his life. If this is the case, then Dzhokhar Tsarnaev will spend the rest of his life in a federal prison, confined to his cell for 23 hours of every day in what has been described as a “clean version of hell”—perhaps a circle Dante would have appreciated.
One of the more remarkable suggestions about how to make Tsarnaev’s life even more miserable in that Dantean hell came from a reader of the New York Post, who “hope[d] that Tsarnaev feels guilt over having run over and killed his own brother”—suggesting perhaps that this reader was unsure whether Tsarnaev were sufficiently morally competent to feel that guilt. He continued: “If I were his prison warden, I would make sure that every square inch of his prison cell’s four walls, floor and ceiling would permanently be covered with multiple, enlarged copies of the photo showing 8-year-old second grader Martin Richard holding his own ironic ‘No more hurting people’ poster.’” What better way for Tsarnaev to suffer than to be surrounded by the sweetly recriminatory visage of his youngest victim, gazing at him and judging him everywhere he turns?
This idea of the power relationship between Tsarnaev and the photographs of his victims differs from that put forward by the state over a year ago, in the lead up to the trial. Then, the state argued that Tsarnaev should be denied access to the photographs of his victims, because “showing autopsy photos is a second assault of the victims. Tsarnaev remains in a position of power, even though he is held powerless in a jail cell. Where once he took their lives, he now can gaze upon the victims in circumstances wholly beyond their control. They have been reduced to bodies, and those bodies reduced in some of the photos to their corporeal essences — they are nude, unclothed, un-covered, literally and figuratively laid bare. Unquestionably, showing Tsarnaev the photos constitutes further harm.”
Now, however, these photos may represent the power of the victims over Tsarnaev—if, that is, he is morally capable of feeling guilt, if not now, then later. Presumably, the Post reader would like for Richard’s pictures to torment Tsarnaev, if not now, then at some point. The desire for this form of guilt-driven torment has the potential to return the prison to its original purpose as “a house of repentance”—if, that is, Tsarnaev is indeed remorseful and can bring himself to repentance. This potential repentance also brings with it affirmation of our justice, affirmation that we are on the side of justice, that we are right and to be emulated and recognized as such.
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There are international implications to this case too. One is the lingering question of whether executing Tsarnaev will turn him into a martyr and into a propaganda and recruitment tool. And one of the more intriguing responses in the news is the essential blackout of coverage of the trial in Russia. Some Russian journalists have speculated this to be due to embarrassment over the fact that the Tsarnaev brothers were born in Russia, a striking but not altogether persuasive suggestion. More persuasive is the claim that Russia has blacked out coverage of the trial because the trial itself—the scrupulous attention to observing due process; the meticulous attention paid to each piece of evidence; the sharp, probing courtroom give-and-take during examination and cross-examination. All of this, these journalists argue, reflects badly on Russia’s criminal justice system by comparison.
The United States should want to be viewed by dissidents under autocratic regimes as a working alternative model, as a target for emulation. Americans should want the United States to be legitimately the subject of such admiration because it would signify that the country is living up to its ideals—or is close enough to preserve the ability of the essential myths about American liberty, fairness, and opportunity to continue to function. Yet as we have seen elsewhere of late, the ability of these myths to do this work, this essential work, is arguably diminishing. We should want that allure and those myths back, and if this trial is giving us a piece of them back, then we should aspire to take this piece and build from it.
Still. We have, for now, in this case, answered critics who feared that we were insufficiently secure in our democratic criminal justice system, that in order adequately to confront the threat posed by global terrorism, we would have to surrender this essential civic function—justice—to the military. In this case, we did not do so, and, given the debates extending back to 2001, this is no small achievement.
Where we went wrong, however, is in engaging Tsarnaev on his terms, rather than on ours. We stumbled into a trap of our own devising. American thinkers have long pondered the precise links between war and democracy, from Henry David Thoreau and the Mexican War, through Randolph Bourne and the First World War, and on through the remainder of the twentieth century, to name just two prominent intellectual critics of war and its deleterious effects on democracy.
Where we went wrong is in engaging Tsarnaev on his terms, rather than on ours
The question of whether a republic can long survive a state of perpetual conflict has historically been answered in the negative. The real question then is where the tipping point is, but that point is only visible, if ever, in hindsight. We can be reasonably confident that this trial is not that point, but there is a sign in this trial of something that is troubling and inimical to our democracy: We elected to treat Tsarnaev as an asymmetrical belligerent—as an “unlawful combatant,” in contemporary parlance. As prosecutor William Weinreb put it in his opening statement, “they felt they were soldiers… They were the mijahedeen, and they were bringing their battle to Boston.” Weinreb reiterated this during his closing statement during the sentencing phase of the trial, declaring that these killings “were political crimes, designed to punish the United States.” We have accepted him on his own terms, granting him more power over us than we should have. We granted him the power to define himself for and to us, rather than defining him ourselves.
This is a deceptively substantial concession. The criminal justice system is in large part a mechanism for defining—guilty, not guilty, procedure, due process, etc. To see the power of definition in this context, look no further than the distinction that was made on April 8, when Tsarnaev was redefined from “accused terrorist” to “convicted terrorist.” Had we treated him as a mass murderer rather than as a terrorist, the definitional change would still have taken place, but we would have retained power over Tsarnaev, rather than ceding that power to him. That is, by defining Tsarnaev as a terrorist, as an adjunct of the existential threat confronting us and bent on destroying us and our way of life, we made him that threat. We need not have.
How long can we continue to see the world around us in terms of this existential threat and not bring the temple down on our heads? Is it already too late? We have an executive branch that claims for itself the power to assassinate American citizens anywhere in the world, we have a sitting Supreme Court Justice who has argued that torture does not categorically violate the Eighth Amendment’s prohibition on cruel and unusual punishment, and we are seeing the societal effects of confrontations with increasingly militarized law enforcement organizations. But we are also seeing courts rule that the National Security Agency’s mass-collection of data was illegal, we are seeing congressional angst over whether and how to renew the Patriot Act, the piece of legislation that led to this data collection, and we are seeing the continuation of a national movement against the death penalty, with states like Nebraska pushing repeal bills forward and Pope Francis working to bring the Catholic Church’s influence to bear toward abolition. So to return to the question: What is Tsarnaev? A murderer, or a terrorist? And who are we, depending on how we answered the previous question?
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Plans are in the works for several films about the Boston bombing and its aftermath. One of these, Boston Strong, is set to be written by Joshua Zetumer, who is also writing the reboot of RoboCop and the screenplay for Gambit, a film set in Marvel Comics’s X-Men line. This does not mean that we should expect Boston Strong to be an action-adventure blockbuster, though, given the facts of the case, it may well have elements of that. It is, however, alerting that the writer tapped for this film is currently at work on two superhero movies. Superheroes, of course, have long been champions of “truth, justice, and the American way,” fighting on behalf of “the little guy” against rapacious corporations during the New Deal, fighting fascism abroad during World War II, and, of course, fending off global communism during the Cold War. They have also, however, been criticized as advocating fascist or proto-fascist solutions to problems confronting the legitimate democratic order and of undermining that order by acting outside of it and showing it to be incapable of dealing with these problems.
If Tsarnaev is a villain, then what are we?
There is a resolute honesty in this proceeding beyond what to all appearances is a scrupulously fair trial. The prosecution made the political decision to seek the death penalty and made the tactical decision to charge Tsarnaev with thirty separate crimes, seventeen of which permit the death penalty. The federal government made the decision to charge him as a terrorist, rather than as a murderer, even though they could have achieved a similar redundancy of capital charges had they treated Tsarnaev as a murderer. They ignored pleas from many victims, including the family of Martin Richard, the youngest victim of the bombing; Jennifer L. Lemmerman, the sister of Sean A. Collier, the MIT police officer murdered by the brothers in their flight; and Jessica Kensky and Patrick Downes, both of whom lost limbs in the attack to drop the death penalty and seek life imprisonment; they rebuffed attempts from Tsarnaev’s defense team to accept a guilty plea in exchange for a life sentence; they are unresponsive to polls showing that both Massachusetts and Boston residents reported diminishing support for a death sentence even as the trial was underway. The inescapable conclusion is that the state determined that we did not need the murderer; we needed the terrorist. We have had the trial, and we have a unanimous conviction on each of the thirty counts. Now we await the sentence and wait to see whether the jury was more receptive to these pleas.
Are we a nation that can be compelled to accept a declaration of war by an individual, that can be shown to be subject to that individual even, and especially, as it is exercising its power over that individual? Are we a nation that will continue looking for white vans, for the signs we are to understand as marking the sources of our fears? Or are we a nation capable of dealing with this kind of horrific violence not only as a law enforcement issue but also as simply horrific violence? Are we a nation capable of delegitimizing the political elements of this violence—without which it cannot be terrorism—and treating this crime as homicide, still terrible, still deplorable, but less capable of subjecting us to the fear of further violence?
No trial, no verdict, can fully answer these questions, but this sentence will be more suggestive than other sentences in capital cases. Whether we sentence a terrorist to death or a murderer to life in prison, the binary imposed by the prosecution, we will know what this jury takes itself and, by extension us, to be.
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Read Anthony Santoro’s earlier piece on the first anniversary of the bombings, If Not Him, then Whom? Boston Marathon Bomber Dzhokhar Tsarnaev and the Death Penalty