On Friday, Irish voters will go to the polls to decide (I presume among other things) whether to extend the liberty to enter in civil marriage to same-sex couples. (See "Gay marriage vote marks a quiet revolution in Ireland," Reuters (19 May 2015), at: http://www.reuters.com/article/2015/05/19/ireland-gaymarriage-history-idUSL5N0Y93MD20150519). If it succeeds in doing so, it will be the first country to enact same-sex marriage liberties by democratic referendum. In this regard, I am hopeful that Irish voters will approve this referendum by a two-to-one margin, as currently predicted. Likewise, I think there is a clear lesson here about how to pursue a humanistic, progressive agenda, with respect to the removal of sectarian moralistic prohibitions on sexuality and relationships, in full conformity with maintenance of the sovereign right of citizens to determine issues of such relevance in self-government as the definition of marriage. That is to say, I continue to wish that we had gone about the extension of marriage by democratic means in the U.S. rather than pursuing these ends by means of adjudication and juridical fiat.
Having said this, this change in Ireland's direction with regard to officially sanctioned morality seems to portend important consequences for the Roman Catholic Church in Ireland. If two to three decades ago the Irish government operated in full conformity with a wide range of Catholic moral teaching, then today, as a result of certain internal matters and criminal abuses by Catholic ecclesiastical officials, the Church has largely alienated a broad spectrum of the Irish polity. To some degree, such developments are a good thing, to the extent that a weakening of the Catholic Church catapults Irish social policies into the Twenty-first century. On the other hand, I have to confess a degree of ignorance on the particular inbeddedness of the Church within the particular institutions of everyday life in Ireland. My own impressions are shaped, on the one hand, by the lingering influence of the Catholic Church as a major administrator of charitable donations supporting numerous humanitarian social agendas in Massachusetts, and, on the other hand, by my understanding of the historical collapse of Roman Catholic dominance in the adminstration of social policy in Québec, a pattern starting with the election of the Liberal Lesage government in the 1950s. At present, Catholicism remains significantly in a state of retreat in Québec. In Western Massachusetts, the onset of the clergy sexual abuse scandals in the 1990s, coupled with a fiscal restructuring of the dioceses of Massachusetts, with the closure or merger of a vast array of old, ethnically-demarcated parish communities, seems to portend a major retraction of the influence of Roman Catholicism and, perhaps, a major decline in the number of Massachusetts residents who identify themselves as Catholics. Insofar as I enjoy a jaded history with Roman Catholicism, I would express a certain degree of sadness that the Church is having such a difficult time accomodating itself to the changing attitudes of the faithful in so many areas where it had held out for so long against the forces of modernity/modernism. In these terms, the sort of decline in the influence of Catholicism in Ireland indicated by the impending success of marriage equality may hold broader negative social implications for Ireland that the larger polity will have to address (i.e. assuming that the Church is still broadly invested in a range of social/charitable undertaking, serving diverse needs). Conversely, it is suggestive of the necessity of larger, humanistic changes in moral teachings by the Roman Catholic Church as a whole, the sorts of changes that might be starting under the leadership of Francis I. We can all be hopeful!
Tuesday, May 19, 2015
Why it was a mistake to sentence Dzhokhar Tsarnaev to Death
I just wanted to convey a few quick reflections on the sentencing of Dzhokhar Tsarnaev, the remaining convicted Boston Marathon bomber, to death. Firstly, the Boston Marathon bombing remains a tragedy for the Commonwealth of Massachusetts, one which we will remember for some time to come and which we still may be justified in continuing to ask why we should have been targeted for the retribution of crimes against Muslims by two Chechen brothers to whom we extended welcome arms as migrants looking for a place of peace from a homeland wrongly and savagely scarred by war. In its generalities, the Boston Marathon bombing was a crime against all Americans and, by virtue of the federal criminal code regarding the use of particular forms of ordnance to inflict mass casualties, a federal jurisdictional question rightly subject to adjudication within federal courts by federal prosecutors. In its particularities, however, it remains a crime against the people of Boston and, in this manner, under the General Laws of Massachusetts, a criminal offense against the citizens of this Commonwealth, a factor that continues to stand out in my mind.
In regard to both phases of the federal trial against Tsarnaev, I cannot fault either federal prosecutors or Tsarnaev's defense attorneys for execution of their duties. In view of witness testimony, video-taped evidence, and the extended drama of the manhunt against Tsarnaev and his brother, Tamerlin, there was little hope that Tsarnaev was going to be acquitted of utilizing homemade bombs to kill and wound multiple individuals at the finish line of the Marathon in 2013 and murdering an MIT campus police officer while attempting to allude apprehension by Boston area and state police. The defense conceded as much and waited for the penalty phase to make its case in favor of life imprisonment. In the penalty phase, prosecutors effectively made the case that Tsarnaev both lacked remorse for his actions and that he had, in fact, been thoroughly radicalized as a militant Salafist fighting to avenge the bloodshed of tens of thousands of Muslims at the hands of the U.S. military, its surrogates, and U.S. allies. As well conceived as the defense's planned case against the death penalty had been, anchored on the notion that Tsarnaev's brother Tamerlin had been both the mastermind of the bombing and the overarching influence over the actions of Dzhokhar for whom a thorough indoctrination in militant Salafism had not occurred, the image of Tsarnaev placing his bomb in close vicinity of Martin Richard, a nine-year old torn apart by the bomb in front of his parents, was probably adequate to convince members of the jury that Tsarnaev's inhumanity was a sufficient rationale to inflict the death penalty.
This post seeks to offer a short list of reasons why I think this decision was a mistake. For the sake of brevity, I will not elaborate on these at the present time, although I may do so in the future.
1. As a practical matter, given mandatory appellate review of Tsarnaev's sentence, the administration of justice against Tsarnaev will be delayed, perhaps by as many of fifteen years or more.
2. The appellate review process will both compel victims of the Marathon to relive the experiences of their personal tragedies and offer to Tsarnaev the opportunity to voice the radical Salafist views, that federal prosecutors have attributed to him, before a global audience. (Oddly, one would have supposed that these views might have been voiced in the course of his trial if Tsarnaev had really been a true believer!)
3. In the many years until he is executed, Tsarnaev will enjoy all of the privileges of a prisoners in the federal system that prosecutors insisted he should be denied with a penalty of death - he will enjoy at least a few hours of television a week, he will enjoy periodic visiting privileges with family, he will be able to keep in contact with family and friends by other means, he will enjoy other entertainment or educational privileges open to federal prisoners under maximum security whether on or off of death row.
4. Fiscally, the costs of the appellate review process, including fees for attorneys and investigators and the temporal expense of undertaking hearings and review of evidence by jurists in lieu of other case work in federal dockets, will easily outweigh the expenses of keeping Tsarnaev alive in a solitary, individual cell at the federal super-maximum security facility at Florence, Colorado until his time of death from natural causes.
5. Even before his eventual execution by federal authorities, Tsarnaev may become a rallying-cry for Salafists around the world. In particular, for Chechens and Dagestanis, both back home in the Russian Federation and within immigrant communities inside the U.S. and in other Western states, the impending execution of a countryman and brother in the faith may be adequate to radicalize many individuals unsatisfied by their evident conditions of life and seeking to discover an enemy (other than Putin, United Russia, and millions of Russian Orthodox nationalist-imperialists who have done everything in their power to declare Muslims in the North Caucasus their enemies) on whom to blame their circumstances. When Tsarnaev finally dies in the hands of American executioners, we will give millions of Salafists in many countries yet another martyr. Emphatically, we need to be more perceptive on the enemies we continue to make!
6. Following a line from an entirely valid argument by Tsarnaev's defense attorneys in the penalty phase, the prospective conditions of a life sentence without parole within the federal super-maximum facility at Florence, Colorado, spent under conditions approximating permanent solitary confinement described by numerous critics of federal criminal justice policies as psychological torture, might have constituted a more harsh sentence for Tsarnaev than the one that he will eventually, after many years of appeals, receive at the hands of federal executioners. Once Tsarnaev has exhausted his appeals, his suffering within the various boundaries of the federal criminal justice system will be over - had he been sentenced to life without parole, he could have been thrown into a small cell, in virtual solitary confinement, for the rest of his long, prospective natural life, utterly forgotten and foresaken by the world.
7. The crimes committed by Tsarnaev were, in their particularities, crimes committed against the Commonwealth of Massachusetts - he is alleged to have committed multiple acts of murder in Massachusetts, crimes against the laws of Massachusetts for which he has yet to be tried. A preemptive determination of guilt for violation of federal laws by Tsarnaev should not exonerate Tsarnaev for facing justice before the Commonwealth within our system of criminal justice for the crimes he may have committed against the citizens of our Commonwealth. However, by virtue of the federal criminal justice process and, in particular, Tsarnaev's death sentence within the federal system, the Commonwealth may be denied its ability, if not to determine Tsarnaev's guilt, then to subsequently exact justice from Tsarnaev.
8. Tsarnaev was sentenced to death in the federal criminal justice system at a courthouse in Massachusetts and with jurors who were citizens of the Commonwealth of Massachusetts, a state in which capital punishment does not exist as a punishment within our criminal justice system. An innate contradiction exists in the willingness of our citizens to sanction punishments in the federal criminal justice system, on our soil, that apparently controvert our values concerning the dignity of human life and the purposes of the criminal justice process - it may be impossible to rehabilitate Tsarnaev, but the conversion of the criminal justice process from a means to manage and/or isolate individuals liable to damage peace and good order to a means for enacting public revenge for the commission of particular acts is inconsistent with the philosophy embodied in the criminal justice process of Massachusetts.
9. The trial and sentencing to death of individuals at federal courts in Massachusetts raises Constitutional questions with regard to the jurisdiction of the federal criminal justice system, the authority of Congress to specifically prohibit and assign criminal penalties for certain acts damaging to the U.S. Constitution, the federal government, and the security of the U.S., and the authority of the state government of the Commonwealth of Massachusetts to prosecute offenses to our criminal statutes, consistent with our sovereign authority to maintain peace, good order, and justice within our boundaries. In these terms, the sentencing of Tsarnaev to death in Massachusetts demands that citizens of this Commonwealth need to debate certain fundamental questions concerning criminal justice in Massachusetts. Namely, what should the criminal justice process seek to accomplish, especially in cases involving physical violence? Consistent with our theories regarding the ultimate purposes for criminal justice, should we re-authorize capital punishment in certain cases? How should the Commonwealth and its citizens confront the federal criminal justice process in a manner consistent with the embodied federalism of the U.S. Constitution? Is it reasonable, under the U.S. Constitution's Article I powers, for Congress to enact laws and authorize penalties contravening those permitted within individual states for particular circumstances like the use of "weapons of mass destruction?" (I do not presume to have the answer to any of these questions, but I think that we are not sufficiently exercising our capacities as U.S. citizens and citizens of the Commonwealth of Massachusetts to ask them.)
In regard to both phases of the federal trial against Tsarnaev, I cannot fault either federal prosecutors or Tsarnaev's defense attorneys for execution of their duties. In view of witness testimony, video-taped evidence, and the extended drama of the manhunt against Tsarnaev and his brother, Tamerlin, there was little hope that Tsarnaev was going to be acquitted of utilizing homemade bombs to kill and wound multiple individuals at the finish line of the Marathon in 2013 and murdering an MIT campus police officer while attempting to allude apprehension by Boston area and state police. The defense conceded as much and waited for the penalty phase to make its case in favor of life imprisonment. In the penalty phase, prosecutors effectively made the case that Tsarnaev both lacked remorse for his actions and that he had, in fact, been thoroughly radicalized as a militant Salafist fighting to avenge the bloodshed of tens of thousands of Muslims at the hands of the U.S. military, its surrogates, and U.S. allies. As well conceived as the defense's planned case against the death penalty had been, anchored on the notion that Tsarnaev's brother Tamerlin had been both the mastermind of the bombing and the overarching influence over the actions of Dzhokhar for whom a thorough indoctrination in militant Salafism had not occurred, the image of Tsarnaev placing his bomb in close vicinity of Martin Richard, a nine-year old torn apart by the bomb in front of his parents, was probably adequate to convince members of the jury that Tsarnaev's inhumanity was a sufficient rationale to inflict the death penalty.
This post seeks to offer a short list of reasons why I think this decision was a mistake. For the sake of brevity, I will not elaborate on these at the present time, although I may do so in the future.
1. As a practical matter, given mandatory appellate review of Tsarnaev's sentence, the administration of justice against Tsarnaev will be delayed, perhaps by as many of fifteen years or more.
2. The appellate review process will both compel victims of the Marathon to relive the experiences of their personal tragedies and offer to Tsarnaev the opportunity to voice the radical Salafist views, that federal prosecutors have attributed to him, before a global audience. (Oddly, one would have supposed that these views might have been voiced in the course of his trial if Tsarnaev had really been a true believer!)
3. In the many years until he is executed, Tsarnaev will enjoy all of the privileges of a prisoners in the federal system that prosecutors insisted he should be denied with a penalty of death - he will enjoy at least a few hours of television a week, he will enjoy periodic visiting privileges with family, he will be able to keep in contact with family and friends by other means, he will enjoy other entertainment or educational privileges open to federal prisoners under maximum security whether on or off of death row.
4. Fiscally, the costs of the appellate review process, including fees for attorneys and investigators and the temporal expense of undertaking hearings and review of evidence by jurists in lieu of other case work in federal dockets, will easily outweigh the expenses of keeping Tsarnaev alive in a solitary, individual cell at the federal super-maximum security facility at Florence, Colorado until his time of death from natural causes.
5. Even before his eventual execution by federal authorities, Tsarnaev may become a rallying-cry for Salafists around the world. In particular, for Chechens and Dagestanis, both back home in the Russian Federation and within immigrant communities inside the U.S. and in other Western states, the impending execution of a countryman and brother in the faith may be adequate to radicalize many individuals unsatisfied by their evident conditions of life and seeking to discover an enemy (other than Putin, United Russia, and millions of Russian Orthodox nationalist-imperialists who have done everything in their power to declare Muslims in the North Caucasus their enemies) on whom to blame their circumstances. When Tsarnaev finally dies in the hands of American executioners, we will give millions of Salafists in many countries yet another martyr. Emphatically, we need to be more perceptive on the enemies we continue to make!
6. Following a line from an entirely valid argument by Tsarnaev's defense attorneys in the penalty phase, the prospective conditions of a life sentence without parole within the federal super-maximum facility at Florence, Colorado, spent under conditions approximating permanent solitary confinement described by numerous critics of federal criminal justice policies as psychological torture, might have constituted a more harsh sentence for Tsarnaev than the one that he will eventually, after many years of appeals, receive at the hands of federal executioners. Once Tsarnaev has exhausted his appeals, his suffering within the various boundaries of the federal criminal justice system will be over - had he been sentenced to life without parole, he could have been thrown into a small cell, in virtual solitary confinement, for the rest of his long, prospective natural life, utterly forgotten and foresaken by the world.
7. The crimes committed by Tsarnaev were, in their particularities, crimes committed against the Commonwealth of Massachusetts - he is alleged to have committed multiple acts of murder in Massachusetts, crimes against the laws of Massachusetts for which he has yet to be tried. A preemptive determination of guilt for violation of federal laws by Tsarnaev should not exonerate Tsarnaev for facing justice before the Commonwealth within our system of criminal justice for the crimes he may have committed against the citizens of our Commonwealth. However, by virtue of the federal criminal justice process and, in particular, Tsarnaev's death sentence within the federal system, the Commonwealth may be denied its ability, if not to determine Tsarnaev's guilt, then to subsequently exact justice from Tsarnaev.
8. Tsarnaev was sentenced to death in the federal criminal justice system at a courthouse in Massachusetts and with jurors who were citizens of the Commonwealth of Massachusetts, a state in which capital punishment does not exist as a punishment within our criminal justice system. An innate contradiction exists in the willingness of our citizens to sanction punishments in the federal criminal justice system, on our soil, that apparently controvert our values concerning the dignity of human life and the purposes of the criminal justice process - it may be impossible to rehabilitate Tsarnaev, but the conversion of the criminal justice process from a means to manage and/or isolate individuals liable to damage peace and good order to a means for enacting public revenge for the commission of particular acts is inconsistent with the philosophy embodied in the criminal justice process of Massachusetts.
9. The trial and sentencing to death of individuals at federal courts in Massachusetts raises Constitutional questions with regard to the jurisdiction of the federal criminal justice system, the authority of Congress to specifically prohibit and assign criminal penalties for certain acts damaging to the U.S. Constitution, the federal government, and the security of the U.S., and the authority of the state government of the Commonwealth of Massachusetts to prosecute offenses to our criminal statutes, consistent with our sovereign authority to maintain peace, good order, and justice within our boundaries. In these terms, the sentencing of Tsarnaev to death in Massachusetts demands that citizens of this Commonwealth need to debate certain fundamental questions concerning criminal justice in Massachusetts. Namely, what should the criminal justice process seek to accomplish, especially in cases involving physical violence? Consistent with our theories regarding the ultimate purposes for criminal justice, should we re-authorize capital punishment in certain cases? How should the Commonwealth and its citizens confront the federal criminal justice process in a manner consistent with the embodied federalism of the U.S. Constitution? Is it reasonable, under the U.S. Constitution's Article I powers, for Congress to enact laws and authorize penalties contravening those permitted within individual states for particular circumstances like the use of "weapons of mass destruction?" (I do not presume to have the answer to any of these questions, but I think that we are not sufficiently exercising our capacities as U.S. citizens and citizens of the Commonwealth of Massachusetts to ask them.)
Subscribe to:
Posts (Atom)