The Betrayal of Capital Punishment

by Katharine Blake McFarland


Making an argument against capital punishment has always felt to me like a ridiculous exercise. Like making an argument against sticking forks into electrical sockets, leaving your baby alone at the mall, or eating spoiled meat. Its patent indefensibility has often left me at a loss for words. But speechlessness is not an effective line of reasoning, and neither is, “because it’s wrong!” Furthermore, many intelligent, thoughtful citizens believe the death penalty to be both morally and legally sound.

Since Attorney General Holder announced his decision to seek the death penalty for Dzhokhar Tsarnaev, I have engaged in a personal experiment: I have tried to imagine myself as someone who agrees with him. I have tried to believe that, in this case, the crime was so horrific that the State is warranted in killing him, should the trial get that far. That Dzhokhar deserves to die. That Justice compels it.

Partly, the experiment comes from a concern about the implications of loyalty. I grew up in Massachusetts. I learned to ride a bike in the quiet streets of Watertown, just blocks from where Tamerlan Tsarnaev was killed. Later, when my family moved to Cambridge, I started high school at Cambridge Rindge and Latin; I was there when Tamerlan was, and my brother was there with Dzhokhar. During my senior year, I acted as a T.A. and one of my students was Brendan Mess—hilarious and talented and a victim of the 2011 unsolved triple murder” that authorities pinned on Tamerlan. My two best friends from high school, Alice and Olivia,* now work as nurses in Boston. On April 15th, Alice waited at the finish line with her husband and family when the bombs went off. Olivia, an ER nurse, was working the night shift on Thursday when Tamerlan arrived in an ambulance, his body riddled with bullets; she was also there on Friday, when authorities brought in Dzhokhar. She had to care for them both.

Despite these instances of proximity, I don't mean to suggest that the Boston Marathon bombings were my tragedy. On April 15th, I lived far away and watched events unfold on the television. It was a horror, and though I have felt dismayed and enraged, I will never know the rage and dismay and terror of those who survived.

1883_Walker_map_BostonBut my childhood in Boston, and my allegiance to my loved ones there still navigating the vestiges of trauma, serve to complicate my knee-jerk disagreement with the Attorney General’s decision. I worry that, in this case, opposition to the death penalty signals disloyalty. I worry that my bleeding heart is a betrayal, a dilutent to the special elixir of solidarity, righteousness, anger and sorrow.

I’m not the only one experiencing this conflict. Most Massachusetts residents oppose capital punishment—the state itself abolished the death penalty in 1984—but there is a uneasy sense that, in this case, that opposition might also oppose “Boston Strong.” When asked if he supports the death penalty for Tsarnaev, Donald M. Burwick—a candidate for Massachusetts governor—responded:

I have no sympathy for the individual behind this horrific crime, but I agree with the Boston Bar Association: there is no place for the death penalty in our nation’s justice system.

In his recent Washington Post op-ed, Richard Cohen includes an entire paragraph akin to Burwick’s first clause:

It is, of course, required that I now state that Tsarnaev is evil. I suppose he is — evil being the word we use when we cannot comprehend the crime. He killed and he maimed, taking lives and ruining others for many years to come. There is no way he can ever make amends, and the truth is if he dies, he will not be missed — not by me, at any rate.

Though Cohen initially acknowledges the paragraph as a “requirement,” he nevertheless follows through. Even the federal government is considering the imperatives of loyalty and betrayal. Explaining their decision to seek the death penalty, federal prosecutors said Dzhokhar “betrayed his allegiance to the United States.”

And it seems likely that Attorney General Holder’s authorization of the sentence stems, at least in part, from a similar set of concerns—his loyalty to a Congress that pressed him on the issue before his swearing in; the risk of appearing soft on crime and disloyal to victims; the risk of irreparably invalidating the death penalty by refusing it in a case of terrorism; the risk of appearing a traitor to the United States himself by showing Dzhokar mercy. Despite his personal objections to the death penalty, he found that the “the nature of the conduct at issue and the resultant harm compel this decision.”

The Attorney General must apply the law as it stands, and the law says that the most heinous of crimes warrant execution. But it seems possible that Holder’s personal objections are not merely personal, but rather political, practical. Legitimate grounds for an alternative decision. If he opposes the death penalty because he believes it to be invalidated by human error and bias (or, as he said, “miscarriages of justice”), or because the machinery of execution remains cruel and unusual, or because its policy justifications (namely, deterrence) fall undeniably short—then all of these seem to be more than personal whims.

I have not spoken with the Attorney General (he did not call me for advice), but surely a complex web of political, legal and social forces informed his decision. To the extent he might have felt a tension—a conflict between his loyalty to the United States and his allegiance to a notion that justice should prevent racially-imbalanced, often inaccurate, irreversible State-sponsored killing—he is not alone. The conflict appears to be common (and it might inhere in the words themselves, as “loyalty” and “legality” share the same Latin root, legalis).

But the conflict also presents a false dichotomy. Though it may feel that we are asked to make a choice between the victim and the perpetrator, between being an American and being a bleeding heart—these stark choices underestimate the capacity of human nature. There is room in the human mind for more than one story or allegiance. The heart doesn’t a play a zero sum game.

My effort to agree with Holder’s decision was an exertion of solidarity. I saw the faces and heard the voices of my loved ones in Boston; I saw the victims of the attack who lost their limbs, the crowded hospital rooms, the first responders who, on the night of April 14th, washed blood off their hands and watched it fade and swirl down the drain. But in trying to support the death penalty for Dzhokhar, I have begun to hear a deeper, louder chorus of voices—a more urgent call—and have imagined a vaster sea of faces. They seem to pull me in the other direction. They seem to call humanity to a higher version of itself. The death penalty offers us a symbol of justice, but it’s a symbol that plays to our basest instincts. It enacts our primal desire for revenge. It mimics the actions of those we hold in contempt and therefore undermines who we strive to be. Supporting the death penalty for Dzhokhar isn’t helpful or loyal to the victims of the Boston Marathon bombings because it betrays all of humanity.

*Names have been changed.