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Boston bomber sentence shows death penalty is always political


Dzhokhar Tsarnaev The lesson from the trials of the Boston Bomber and the Bali nine is that the death penalty is always political and macabre. Last week, Dzhokhar Tsarnaev, the Boston bomber was condemned to death.  

We Australians heard the news while carrying fresh memories of the Indonesian state executions of Andrew Chan and Myuran Sukumaran by firing squad.  Many of us have serious questions about the efficacy of the Indonesian legal system.  

The death penalty there applies not just to the most serious of offences.  The appeals process seems somewhat opaque.  The administrative procedures for determining the time of execution and for maximising media attention are capricious.  Engaging multiple firing squads after the stroke of midnight is macabre.  

The US experience indicates that no matter what the legal resources invested and no matter how robust the legal system, the death penalty is always a highly charged political reality marked by unavoidable, macabre aspects which pervert the legal system and undermine the legitimacy of state power over the individual.

Tsarnaev was not tried by twelve of his peers.  He was judged by a jury chosen from a distorted sample of the Massachusetts community.  The state of Massachusetts no longer imposes the death penalty for state criminal offences.

Most criminal offences are state criminal offences.  Tsarnaev was convicted of federal offences which can carry the death penalty.  Thus the court had to spend weeks finding a jury panel willing to impose the death penalty, chosen from a local community which has formally rejected the death penalty.  He was convicted to death by a jury of likeminded persons who qualified for jury selection precisely because they differed from their fellow Bostonians of whom only 15 per cent wanted him executed.

On 20 April, the US Supreme Court declined to intervene on Alabama death penalty cases even though there is clear evidence that the Alabama state judges (presumably with an eye to their re-election) have a propensity to override jury decisions that convicted murderers receive only life imprisonment.  

On 29 April 2015, the Court agreed to hear argument in the case of Glossip v Gross.  The court is required now to determine whether a three drug protocol used by states like Oklahoma is constitutional.  The first drug Midazolam is supposed to anaesthetise the convicted felon, while the second drug paralyses him (and it is usually a male, most probably a black male), and the third drug arrests the heart.  

Given the long running campaign against the death penalty, major drug companies are declining to make their routine anaesthetic drugs available for executions.  So the executing states have turned to Midazolam which causes anaesthesia but arguably does not maintain it.   There have now been 15 executions using Midazolam.  One execution was so botched that the prisoner was left writhing for two hours before he finally succumbed.  The argument which unfolded in the US Supreme Court was as gruesome and macabre as anything we have heard out of Java in recent weeks.  

Emotions were running so high on the split bench of the Supreme Court that Chief Justice Roberts felt compelled to allow counsel more than the allotted 30 minutes for oral argument.  He told counsel, ‘To an extent that’s unusual even in this Court, you have been listening rather than talking.  And so I am happy to give you an extra five minutes, if you’d like.  And hopefully we’ll have a chance to hear what you have to say.’  

Supreme Court judges are not used to having their Chief publicly telling them to shut up and listen.  Members of the court asked whether burning someone at the stake would be classified as cruel and unusual punishment or whether burning at the stake could be constitutional provided only that the convict were first anaesthetised.  Judges asked whether a gas chamber or a firing squad might be more appropriate than the three drug protocol.  When asked if a firing squad caused pain, counsel for the convicted felons replied, ‘We don’t know how, if the State chose to carry out an execution by firing squad, whether, in fact, it would cause rise to the level of unconstitutional pain and suffering under the Eighth amendment.’

Justice Scalia was not at all minded to consider the merits of the argument about the effects of the drug Midazolam because he thought the case was all part of a long term political campaign to delegitimise the death penalty.  He suggested to counsel:

I guess I would be more inclined to find that it was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug available. But the States have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the States cannot obtain those two other drugs.  And now you want to come before the Court and say, well, this third drug is not 100 per cent sure.  The reason it isn't 100 per cent sure is because the  abolitionists have rendered it impossible to get the 100 per cent sure drugs, and you think we should not view that as as  relevant to the decision that that  you're putting before us?

With all respect to His Honour, it is a medical/pharmaceutical question whether the third drug is 100 per cent sure or not.  The answer has nothing to do with whether other 100 per cent sure drugs are available.  

The lesson of recent weeks in Indonesia and the USA is that the death penalty is always political, macabre and undermining of the rule of law regardless of which legal system attempts to apply it consistent with legal principle.  That’s why we should all applaud the efforts of our federal politicians like Philip Ruddock from the government side and Chris Hayes from the opposition side who are challenging the use of the death penalty in all jurisdictions, especially the USA which holds itself out to the world as the exemplar of individual rights protected by constitutional tradition.

Frank BrennanFrank Brennan SJ, professor of law at Australian Catholic University, has just completed his term as Gasson professor at the Boston College Law School.

Topic tags: Frank Brennan, Dzhokhar Tsarnaev, Myuran Sukumaran, Andrew Chan, death penalty



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With no due respect to Scalia and Alito, (who likened abolitionists to engaging in guerrilla warfare against drug companies) it is not the abolitionist movement that made the 100% drugs unavailable, rather, it is Europe's distaste for their manufactured drugs made with the intent to help the ill being used to murder the healthy in the US..

As if abolitionists control the drug companies.

I grow more appalled, as an American conservative, by the conservatives on the SCOTUS and by the death penalty every day.

Some of the SCOTUS Justices grow continually out of touch with reality.

It's time the US abolish the DP and it's time to re-think lifetime appointments for the SCOTUS.

Lori | 19 May 2015  

For some, it seems, Tsarnaev personifies evil and needs eradication. That is anathema to those who believe that redemption is always possible. Those committed to the idea of "an eye for an eye and a tooth for a tooth" perhaps do not understand that violence tends to breed violence. While the State is entitled to execute those who transgress, how do you persuade citizens that they have no right to use violence to settle scores or eliminate what is perceived as evil?

Kim | 19 May 2015  

If the USA “holds itself out to the world as the exemplar of individual rights protected by constitutional tradition”, that certainly cannot apply to its Supreme Court which has been infamous for many dreadful decisions which failed to protect individual rights, including:
Dred Scott (1857) decided that people of African descent were not protected by the US Constitution, a decision that outraged anti-slavery Northern opinion while it emboldened pro-slavery Southern opinion, and ultimately led to the Civil War in which 620,000 were killed:
Plessy v Ferguson (1896) upheld racial discrimination by a 7:1 majority;
Hammer v Dagenhart (1918) ruled that Congress had no power to curb child labour;
Buck v Bell (1927) upheld by 8:1 the compulsory sterilization of the unfit including the intellectually disabled;
Griswold v Connecticut (1965) where the Court invented out of thin air a vague new Right of Privacy which was not in the Bill of Rights, and which led to Roe v Wade in 1973, allowing open slather abortion rights resulting in over 50 million unborn deaths.
A fair comment might be that the US Supreme Court has been individually responsible for the most deaths in the last 200 years.

Ross Howard | 19 May 2015  

With the juxtaposition of the Indonesian executions and the Boston execution (apparently irrevocable?), the Australian government silence on the latter is deafening.

john frawley | 19 May 2015  

How are Ruddock and Hayes challenging the death penalty in the USA and in particular, in this case? Frank Brennan has made it clear that Tsarnaev's trial was stitched up. This young man's trial and sentence demonstrate, once again, that power, not justice, is paramount in the USA's criminal justice system.

Anna | 19 May 2015  

Anna. The people he killed and maimed were really "stitched up"!

john frawley | 19 May 2015  

"Thus the court had to spend weeks finding a jury panel willing to impose the death penalty, chosen from a local community which has formally rejected the death penalty." Knowing nothing about the law and with no experience of courts, I am curious about how a court manages to achieve this. It seems to me to be a perversion of justice so perhaps Frank might like to explain it for us.

Paul | 20 May 2015  

The death penalty around the world is a legalised discriminative 'Government Program'. When the law metes out vengeance disguised as justice it shows the moral degradation of society. The death penalty system is applied arbitarily, capriciously and at random - it is a lethal lottery. Politics and political rivalry are more often the determining factors, the jurisdiction where the crime is committed, the public mood/response, the media circus surrounding the crime, and the political climate at the time of impending execution also determine who lives and who is legally killed. Countries that carry out judicial and extra-judicial executions do not kill all those sentenced to death, but ‘choose/select’ the offenders they want to execute. Almost never are executed offenders in the category of the 'worst-of-the-worst' offenders.

Dorina Lisson (ACADP) | 21 May 2015  

This article raises perennial issues. The Christian response is always to forgive, to seek reconciliation and heal damaged relationships and is in accord with Bacon's view that 'revenge is a kind of wild justice, that the more man's nature runs to, the more ought law to weed it out'. Revenge and retribution are relevant in this story: given a powerful gun culture in America, there would be some, if Dzhokhar was ever released, who would readily execute him in a vigilante manner. Interesting, too, how the clamour around the Indonesian executions is not reproduced in this case in Australia: the US is our ally and the right to bear arms is enshrined in their constitutional amendments. What is interesting about the Indonesian jail system, despite its many shortfalls, is the communal dimensions, visits and interactions that occur. There is something about our Australian jail systems, that maximises recidivism and does not promote rehabilitation. 'Each in his cell alone cries as the wind now cries' wrote Judith Wright about an old convict prison. Redemption and change is possible in the worst of cases; the human heart can change for the better. More so than political, it is a gospel call.

Peter | 22 May 2015  

Frank, I don't understand your paragraph about the bias of the jury. Surely the jury pool was randomly selected and the prosecution and defence were allowed an equal number of challenges. Or are you saying that the pool itself was selected for their bias? If so, what is the mechanism by which they do that?

Geoff Freeman | 22 May 2015  

Frank, best wishes. I am brutalised by the notion of execution, personally brutalised. Mine and the general public, surely.

Michael Foley | 02 June 2015  

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