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April 30, 2013

"The Boston Bomber Should Face The Possibility Of The Death Penalty"

The title of this post is the headline of this notable new op-ed published today in Forbes and authored by (frequent SL&P blog commentor) William Otis.  Here are excerpts from this piece:

Dzhokhar Tsarnaev and his brother murdered three people at the Boston Marathon, and grossly mutilated dozens more.  The brother was killed in a shootout with police.  The question is what justice Dzhokhar should face.  The answer, as the Justice Department apparently understands, is a jury empowered to consider the death penalty....

Wanting justice is not wanting vengeance.  It is for this reason that our most honored Presidents — Washington, Lincoln and FDR — not only supported but used the death penalty. President Obama supports it.  At least three-fifths of Americans likewise support it.  Liberal New York Sen. Chuck Schumer says he supports it for the Boston killer.  This is not because these people are bloodthirsty or revenge-driven.  It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes.

But that’s not the end of it.  Contrary to a typical abolitionist claim, the death penalty is a deterrent, as the majority of scholarly studies has found.  Anecdotal evidence tells us the same thing; California Sen. Diane Feinstein once recounted the story of a robber who left his gun at home for fear that, if he used it, he could face a death sentence....

While the are some cases in which a reasonable person could think we’ve got the wrong guy, this is not one of them.  There is simply no sane account in which Dzhokhar Tsarnaev didn’t do it.

Some have voiced racial objections to the death penalty.... But that has no bearing in this case in any event, since neither Tsarnaev nor his victims is a member of a race that has historically suffered discrimination.  The legacy of Jim Crow simply does not exist in this case.

The central reason to keep the death penalty available is graphically illustrated here.   The crime was unbelievably sinister, cruel and sadistic; the victims, including an eight year-old, numerous; the perpetrator unrepentant; and his guilt not open to question by any reasonable person.  A society without the moral confidence to use the ultimate punishment in such a case has all but announced that it has no moral confidence at all.

To say that the jury should be empowered to consider the death penalty for Tsarnaev is not necessarily to say it should be imposed.  There may be mitigating circumstances, not presently in sight, that would warrant a lesser sentence.  It is the genius of the jury system that it takes cases one at a time.  But it is for exactly that same reason that we should not take the death penalty off the table in advance, before all the facts -- possibly mitigating, and possibly even more damning -- are known.

Though not explicitly stated by Bill Otis in this Forbes commentary, I perceive an implicit suggestion here that it would only be proper in this case for a federal jury after a transparent in-court sentencing hearing, and not for a federal prosecutor via an unexplained back-room plea deal, to decide what the proper punishment for Dzhokhar Tsarnaev.  And via this post at Crime & Consequences, titled "No Quick and Dirty Deals," Bill Otis makes a bit more explicit why he thinks it would, at least right now, be inappropriate for prosecutors "to take capital punishment off the table in exchange for Tsarnaev's cooperation."  Bill concludes his C&C post this way: "In this high stakes showdown, give no deals to this devil and let a jury do what the Framers designed it to do."

For a host of reasons, I largely agree with Bill in this instance that the final punishment for Dzhokhar Tsarnaev should ultimately be decided by a jury (or a judge). My principal reason for this view in this is because I believe all sentencing decision-making should be as deliberative, open and transparent as possible, and that final sentencing outcomes should result from adjudicative judgements made by neutral judicial-branch actors rather than via opaque bargains and unreviewable policy decisions made by executive branch officials.

While I am pleased that, in this "high-stakes" setting, Bill Otis sees the value of judicial branch actors having ultimate sentencing authority, I am disappointed and somewhat confused why he has a different view when prison sentences are at issue. Specifically, in long comment exchange to a post about reform of federal mandatory minimums, Bill expressed great concerns about letting judges select final sentencing outcomes on the record according to federal sentencing law rather than letting prosecutors make this decision behind closed doors based on their charging and bargaining instincts.  

Dare I suggest it is only because Bill Otis likes the potential outcome of judicial-branch sentencing (rather than executive branch sentencing) in the Tsarnaev case that he now is keen to assert that prosecutors should not take a particular sentencing option off the table?  (For the record, I think it is fine for Bill Otis (or anyone else) to believe/decide that he will always favor whichever sentencing decision-maker is likely to be harsher (or softer).  But I hope he (and others) recognizes that such a position --- whether driven by a desire for consistent sentencing harshness or sentencing leniency --- necessarily prioritizes a substantive commitment to certain kinds of sentencing outcomes, and suggests that certain substantive sentencing ends always justify whatever procedural means are needed to get there.

Some related recent posts:

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Comments

Mr. Otis offers a compelling argument that will convince many. The problem is that it is founded on the presumption of guilt. And the presumption of guilt is founded on what LE, the executive branch, provided to the media. Therefore, fundamentally, the argument is that the DP should be on the table because the executive branch said so. Prematurely perhaps. Such is the environment we live in.

The prosecution will of course be able to make that decision but the presumption of innocence, as a value, suffers from internal bleeding and is almost dead.

As a related aside, perhaps the defense should ask everyone on the stand who had potential information if they leaked it to the media without authorization. I'm reminded of Justice Scalia saying once, to paraphrase, that a court clerk who leaks information without authorization cannot be trusted.

I'm interested in trial by media and do not argue for or against the DP in this post because that may depend a great deal on what the victims say they want. Not us.

Posted by: George | Apr 30, 2013 11:44:39 PM

I would be very interested to read Bill's response to your suggestion that his desire for a certain outcome is perhaps what's driving his call for a transparent trial in a court rather than a backroom deal with the Justice Department.

Posted by: Liz McD | May 1, 2013 12:27:16 AM

"This is not because these people are bloodthirsty or revenge-driven. It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes. "

I would find this statement far more believable if it had come from anyone other than Bill O. Even a broken clock is right twice a day, as the saying goes. Sooner or later a factual situation was going to arise where Bill's vengeance would coincide with a crime justifying it. This crime happens to be it. Now he is going to expect us to believe that all those other crimes where he thirsted for blood justified it too. Oi vey, we will never hear the end of it.

Posted by: Daniel | May 1, 2013 1:02:42 AM

Due to Tamerlan's multiple violent crimes and arrests, under 123D, there would be no bombing, people would still have their limbs, three people would have their lives, and the economy would not have suffered $billions in losses from the stupid decisions of the internal traitor lawyer that shut down a city, and have federal thugs invade people's homes without warrants. The dead brother would have been executed a year ago. Thank the dumbass lawyer running our government for the bombing, its casualties and for compounding these with a city shutdown, and all out home invasions by FBI vermin of every house in Watertown.

The death penalty must be mandatory, and after a simple calculation, such as counting to three. This must be so due to the irremediable conflict of interest of the lawyer profession that profits from a living criminal, and is devastated if the criminal is killed, to make the public safe, and the economy richer.

Posted by: Supremacy Claus | May 1, 2013 2:27:50 AM

Whatever our disagreements, I congratulate Bill for getting published a well reasoned and written article in a prominent publication read by big businessmen. They probably run things, and communicating with them is important.

Posted by: Supremacy Claus | May 1, 2013 4:13:53 AM

Doug --

I very much appreciate your posting this. I was on Piers Morgan tonight in a short (maybe ten minute) debate with Alan Dershowitz. I imagine the replay is available somewhere, but for the moment I don't know where. If I find out, I'll post it on C&C, and send it to you, for those who may be interested.

It's a bit late in the evening for me to answer your questions, so I will return to this in the morning. For now I will just say that (1) the case is obviously a strong candidate for the DP unless one is an impenetrable abolitionist, and (2) under Ring v. Arizona (not to mention federal statutory law) a jury determination is required to impose it.

The case is obviously unusual to say the least. My reasons for opposing a plea bargain are largely prudential, not categorical, as explained in my C&C piece you link. Among other things, it seems very likely that the government can get the information it wants without giving away the DP, and, if that is true, there is no intelligence-based reason for DOJ to put aside any sentencing option the law makes available.

Posted by: Bill Otis | May 1, 2013 4:22:05 AM

I saw you on CNN, Bill, and you looked good and stated your positions effectively and forcefully. And, as I explain above, I largely share your view that in Tsarnaev's case it would be preferable for our nation to be able to observe a jury exercise its sentencing discretion to select a punishment among the reasonable and legally available options after an open and transparent sentencing hearing rather than for DOJ's prosecutors decide, through an opaque process that cannot be known, observed or appealed, to take a reasonable and legally available punishment option categorically off the table via exercise of traditional charging and bargaining discretion.

In other words, I fully agree with you here that it would be inappropriate for federal prosecutors to "put aside any sentencing option the law makes available." But, in response to my advocacy for the new Justice Safety Valve Act sponsored by Senators Leahy and Paul, you were very eager to assert, defend and promote the appropriateness of DOJ's prosecutors using existing mandatory minimum sentencing laws in federal drug and gun and CP cases to decide, through an opaque process that cannot be known, observed or appealed, to take a reasonable and legally available punishment option categorically off the table via exercise of traditional charging and bargaining discretion. I perceived in that setting that you favor the power mandatory minimum laws give to DOJ's prosecutors because you trust executive branch officials to exercise their sentencing discretion soundly more than you trust judicial branch officials to do so.

So, I am trying to figure out why you are so forcefully and effectively advocating AGAINST DOJ's prosecutors "putting aside any sentencing option" in the Boston bombing case (in Forbes and on your blog), while you are also so forcefully and effectively advocating FOR preservation of mandatory minimum sentencing laws which enable DOJ prosecutors to put aside many sentencing options in many federal drug and gun and CP cases (in comments to this blog). I surmise that what drives this difference is your view about the right/justified sentencing process is ultimately the reality that DOJ prosecutors could put aside in the Boston case only a harsher punishment you favor, while in other cases MMs allow DOJ prosecutors to put aside only lighter punishments which you disfavor. (Another possibility is that you favor jury sentencing over sentencing by prosecutors or judges, but then you should be willing/eager to allow juries in all cases to decide if/when various sentencing options should be available and/or employed.)

As I tried to make clear above, I know lots of folks embrace and endorse certain procedures when it favors their preferred substantive outcomes and then assail these sames procedures when the tables turn. (See, e.g., all the "judicial activism" nonsense thrown around by both political sides.) And I know you like to fault folks on the left for always embracing the sentencing process they think more likely to result in lighter punishments. But it seems you have the same kind of philosophical DNA, except you are just embracing the sentencing process you think more likely to result in harsher punishment. That's fine, but you should realize I fee more confident promoting the importance of a fair/just process in all cases, perhaps in large part because I lack the confidence you and so many others so often seem to have about always knowing what you think would be a fair/just result.

Posted by: Doug B. | May 1, 2013 8:52:00 AM

Daniel stated: "Now he is going to expect us to believe that all those other crimes where he thirsted for blood justified it too. Oi vey, we will never hear the end of it."

Can you say "false premise?"

Do you have ANY evidence that Bill's (or myself, or other DP supporters that comment on this blog) position is based on a "thirst for blood" and not justice?

Whether you know it or not, your statements are right out of the same old, worn out, and tired Alinsky playbook.

Posted by: TarlsQtr1 | May 1, 2013 8:56:45 AM

Liz McD --

"I would be very interested to read Bill's response to your suggestion that his desire for a certain outcome is perhaps what's driving his call for a transparent trial in a court rather than a backroom deal with the Justice Department."


And I'll be happy to give it, but only after you directly answer a question still on the table. I asked you a few days ago whether you, Liz McD -- not society and not the public and not anyone else -- believe that Tsarnaev, if and when sentenced to prison, should be released if, after three years, a board of psychiatrists finds that he has been rehabilitated. Do YOU think the just outcome in that scenario is to release him? If not, why not?

Posted by: Bill Otis | May 1, 2013 8:57:55 AM

PS Congrats, Bill.

I watched the exchange on CNN last night and knew the minute that Dershowitz was forced to use the example of terrorists working for the University of Chicago and Columbia as an argument AGAINST the DP, you had won.

Of course, with the topic and nature of the bombers crime, it is like starting the game with a two touchdown lead. Those who oppose the DP for the bomber are really a radical fringe element in society.

Posted by: TarlsQtr1 | May 1, 2013 9:03:41 AM

Bill Otis is certainly entitled to make a moral argument in favor of the death penalty. But if we're to have an intellectual discussion of these issues, it behooves him to be respectful of research evidence. His statement that "the death penalty is a deterrent, as the majority of scholarly studies has found" is false. Most of the key studies of recent decades have in fact failed to find evidence of a deterrent effect, although there have been methodological challenges in studies on "both sides" of this issue. This led the National Research Council to conclude in an exhaustive review of the research in 2012 that "the studies do not provide evidence for or against the proposition that the death penalty affects homicide rates." The moral debate will continue, but we should look to research, not anecdotal evidence, if we want to debate the practical issues.

Posted by: Marc Mauer | May 1, 2013 9:10:12 AM

Daniel --

I said, in the article, referring to those who support the DP, "This is not because these people are bloodthirsty or revenge-driven. It’s because a prison sentence, no matter what its length, hardly seems to fit some gruesome, hate-driven, calculated crimes."

You respond, "I would find this statement far more believable if it had come from anyone other than Bill O."

I don't think a whole lot need be said here beyond making the obvious point that whether proposition X is true is independent of who writes proposition X.

My personality is not the subject of this blog, and remarks about it are, among other things, simply diversionary. Address yourself to ideas, not persons.

Posted by: Bill Otis | May 1, 2013 9:10:43 AM

Marc Mauer stated: " Most of the key studies of recent decades have in fact failed to find evidence of a deterrent effect,..."

Translation of the word "key" as Mr. Mauer used it-Those which agree with him.

Posted by: TarlsQtr1 | May 1, 2013 9:33:55 AM

Marc Mauer --

I repeat: A majority of studies has found that the death penalty is a deterrent. The studies are collected here: http://www.cjlf.org/deathpenalty/dpdeterrencefull.htm You are free to read them for yourself, and I encourage you to do so.

I am not required to rely, and I do not rely, on the agnostic conclusions of academics who have no great use for the death penalty. More telling, I think, is this part of a CBS report titled, "Death Penalty Deters Murders, Studies Say" (http://www.cbsnews.com/2100-201_162-2911428.html):

"Science does really draw a conclusion. It did. There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect."

"A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?"

"Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory — if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy away from murder)." ###

If you are concerned with those who lie about death penalty issues, I congratulate you. You might start with the cacophony on your side who spent close to a decade lying about the supposed innocence of Roger Keith Coleman, and accusing Coleman's judge, jurors and prosecutors of having, for crass and morally careless reasons, rushed an innocent man to his execution.

That was an extremely serious charge -- as serious as it was false. Will you now admit its falsehood and apologize?

Posted by: Bill Otis | May 1, 2013 9:34:50 AM

TarlsQtr1 --

When Alan noted that we have a terrorist teaching at Columbia, I should have interrupted him and said, "Indeed we do, and that tells you a great deal of what you need to know about Ivy League education these days." But I was trying to be on good behavior.

P.S. Good catch on Marc Mauer's quite clever use of the word "key."

Posted by: Bill Otis | May 1, 2013 9:41:49 AM

Doug --

The major sticking point between our views, it seems to me, is that I differentiate charging and sentencing more emphatically than you. I believe my view is the more persuasive, since it is better anchored both in the differing Constitutionally-assigned powers of the executive vs. the judicial, and it better describes actual courtroom practice.

DOJ decided on its own, with no "transparency" and no by-your-leave from the courts, the state (or from anyone) that it would bring a capital charge against Tsarnaev. I have no problem with that, and you shouldn't either. That part of the system -- the front end -- is exclusively an executive branch function. It is no business of the courts. If it is not functioning properly, the remedy is at the ballot box.

There should be a "check" on it, of sorts, but the Constitution requires that the check be exercised ONCE ADJUDICATION STARTS, not before it starts. The check lies principally with the jury. It does not lie with the defendant's complaining that the charges aren't "fair," whatever that means.

If the jury tosses out the government's charge, the government has had its "check." Better it should think more carefully next time.

If on the other hand the jury convicts, the government was well within its rights to bring the charges as stated. Why, other than as an act of grace (which by definition is not subject to regulation) should the government decline to bring charges its victory before the jury vindicates? Once the jury unanimously agrees that criminal charges have been proved, the claim that it was "unfair" to bring them is empty. That convicted defendants whine this way is not new, but it's not a reason to criticize the prosecutor's charging decision, either.

The charges that wind up getting brought depend on whether the available evidence warrants them, not on whether the prosecutor wants to play king. The prosecutor knows from the getgo that if it's playing king he wants -- irrespective of the evidence about the defendant's crimes -- the jury is in short order going to demote him to serf.

THAT'S the check on "over-charging." And I can tell you, from 18 years in the USAO, it's a very effective check indeed. The wages of overcharging is death, so to speak.

But one way or the other, the courts have absolutely no Constitutionally legitimate role in nullifying jury-vindicated charges by the slick expedient of imposing a next-to-nothing sentence. It is precisely to CHECK THE COURTS that Congress passed MM sentences to begin with. And as long as courts -- judges like Gleeson, Weinstein and Gertner (while she was there) -- show that they need the discipline because of their ideological outlook, Congress is wisely unlikely to stand down.

Posted by: Bill Otis | May 1, 2013 10:20:51 AM

Marc:

I have answered the argument of weak deterrent effect or no deterrent effect with the concept of the dose response curve. Take an established miraculous remedy, penicillin for bacterial pneumonia. Before, 90% died. After 90% survive.

Now give penicillin to only 1 in 100 pneumonia patients. Do so 7 years after the start of pneumonia. In 20% of cases, give it to people without pneumonia. Price it at $million a course of treatment. It does not look so good anymore.

So the deterrence of the DP is unknown until it is applied immediately to a lot more people, with far greater certainty. We know LWOP is a license to kill. We know the deceased have little recidivism. The main benefit of the DP is incapacitation.

That being said, I have changed my mind about deterrence on legal grounds. It violates procedural due process rights to punish a person for the speculative future crimes of a person in the future yet unknown to the defendant, and not under his control. So any remark about sending a message, young people, or general deterrence should result in a mistrial.

My advocacy of the death penalty rests solely on incapacitation.

Posted by: Supremacy Claus | May 1, 2013 10:33:30 AM

On the separate blog point, the reason for a "deal" seems to be fact based. It is suggested at times by supporters of the d.p. that it is useful at times for bargaining and as an incentive to give up info etc. IF that is sound here, a deal might be warranted. But, there doesn't seem to be any reason to do that now really, given how long it will be before the trial comes etc. etc.

As to this "William G." Otis person's op-ed. As someone against the death penalty, I don't know how atypical my belief is, but don't think "soaked in vengeance-seeking" as such is why people support it in a given case. In the past, I provided a link to Susan Jacoby, who supports retributionist arguments while opposing the death penalty. And, wrong or not, concerns about deterrence, special or general, clearly factor in here too. I think the evidence as to deterrence is at best mixed and many supporters of the d.p. agree that relying on it really doesn't work -- ultimately it is a moral question.

"It is of course true that the judicial system is fallible – thus creating the risk of error – but so is the prison system." We then get an example of someone who killed in prison after being prosecuted for murder. But, lots of people are prosecuted for murder. Only a small segment are sentenced to die, only a small segment of JURIES find it warranted. So, that doesn't tell me much. And, anyway, wrongfully killing someone (including someone not guilty enough to warrant it) is worse under our system of justice. Or, should we erase the proverbial better 100 guilty let free than one punished rule?

It is noted that in this specific case race is not a factor. First, it is unclear to me if his nationality or religion won't be an issue. But, the basic issue here is that race corrupts the whole system. If a system is tainted, the fact that individual cases might work is not always enough. Some 16 year olds are mature enough to vote. We don't trust the system as a whole that would allow them all to vote. We don't single out the few 16 year olds who can.

The op-ed ends with highlighting the core reason people support the d.p.: "moral" reasons. It also wishes to trust the jury system to make the call here. That's fine. Of course, in most cases, including some death penalty ones, that isn't how things work. Juries decide only a few cases. A litigant can ask for a bench trial and not sure of any cases where this was refused. I'd be curious just how far this "jury determine things when heinous crimes are at stake" rule would go. Anyway, since juries over and over again don't hand out death sentences, the guy has something of a chance either way as Liz suggested.

Posted by: Joe | May 1, 2013 11:06:28 AM

Doesn't it still go back to unreviewable executive branch discretion? If DOJ for whatever reasons had decided not to seek the DP (or in the future were to take it off the table as part of a plea-bargain), I assume Bill might criticize the wisdom of that decision but would not support any actual remedy or review in terms of an independent right of judge or jury to pursue an outcome the government declined to pursue? And state prosecution (using the dual-sovereignty sidestepping of double jeopardy, if that even works as a matter of state law) can't get the DP. On the other hand, I wonder if Communist China thinks it has jurisdiction to prosecute the terrorist murder of one of its nationals that happens to occur outside its territory? If it does, I would assume it would be a capital offense over there if we were inclined to extradite . . .

I still believe for what it's worth that the people of Massachusetts should bear the consequences of voting for squeamish anti-DP politicians and see this guy get no more than the typical maximum for state-court triple murderers. Heck, he maybe he should get a Willie-Horton-style furlough if applicable Mass. law still provides for that.

Posted by: JWB | May 1, 2013 11:14:46 AM

JWB --

If, as you say, the voters of Massachusetts should reap the consequences of their lousy decision to strip the DP from state law, why shouldn't the voters of the United States reap the consequences of their much better decision to keep it in federal law?

Posted by: Bill Otis | May 1, 2013 11:29:13 AM

Professor, the largest problem with this blog is that it is dominated by Bill Otis. Bill Otis posts more words here than you, and Bill Otis plays a large part in turning the comments section of this blog into the cesspool that they are. Years ago you had a large and varied commentariat; now your regular commenters are Bill, federalist, TarlIsQtr and adamankis. This is not an accident.

So why do you continue to promote Bill's place on this blog? Why do you make posts like this that give him even greater prominence? Do you understand the damage his prominent role here has done to the quality of your commentary? Does it ever bother you that you have no regular defense-oriented or leniency-oriented commentator, just a series of people who comment for a few weeks then give up? Have you noticed that you could not write a post like this asking for the views of a Jeff Gamso, Scott Greenfield, Mark Bennett or Scott Henson, much less a Judy Clarke, Stephen Bright or Bryan Stevenson?

Posted by: Paul | May 1, 2013 12:48:05 PM

Bill says, "I don't think a whole lot need be said here beyond making the obvious point that whether proposition X is true is independent of who writes proposition X."

That is the false premise. We do not elect ideas into office, we elect people for the sane reason that ideas are not self-executing, they require people to implement them. A person's personality can impede and corrupt the ideas they espouse; your hatred of life is proof of that.


"My personality is not the subject of this blog, and remarks about it are, among other things, simply diversionary. Address yourself to ideas, not persons."

Of course your personality is not the subject of this blog, do not flatter yourself. However, it is very much in play when people interpret your comments. This is the real hypocrisy in your position: you eagerly utilize your public reputation to gain access to the media megaphone that is CNN but when that same reputation is held against you, you squawk like a wounded duck.

In the end Bill, you are just another attention whore and like all attention whores you exaggerate in order to draw attention to yourself. If you genuinely wanted to be judged on the cogency of your ideas /alone/ you would post anonymously. Then no one could confuse the ideas and the man.

Posted by: Daniel | May 1, 2013 1:08:53 PM

Answer to Bill regarding hypothetical situation of Dzhokhar Tsarnaev being imprisoned and psychiatrists determining after 3 years that he has been rehabilitated:

Personally, no. It's certainly possible that he could have been rehabilitated after that short amount of time, if he already is remorseful and not in denial about what he allegedly did. But, I personally would want him to be imprisoned longer because the goal of prison is not just rehabilitation (or should be for those for whom it makes sense), it's also punishment. Three years is not enough punishment for what Tsarnaev allegedly did - neither for him and his own guilt (assuming he feels that), nor for society. Everyone, including Tsarnaev, would think the punishment was too lenient.

Posted by: Liz McD | May 1, 2013 1:14:05 PM

Joe says: "It is noted that in this specific case race is not a factor. First, it is unclear to me if his nationality or religion won't be an issue."

I agree that Tsarnaev's religion and/or nationality will be an issue in this case.

Let's assume that Tamerlan Tsarnaev's wife actually helped build the bombs and was in communication with the two brothers as they were allegedly dropping the bombs at the marathon. Would Americans be willing to give her the same penalty they give Tamerlan's younger brother? I seriously doubt it.

Posted by: Liz McD | May 1, 2013 1:21:53 PM

Paul --

This blog is overwhelmingly dominated by the defense point of view, as you could not help knowing. But for however that may be, what makes you think you are better able to gauge the readership and value of the blog better than its owner, a chaired professor at a major university?

If you think a "cesspool" is created by my comments, or those from people not addicted to the kind of fiction we see see from defendants ranging from Tsarnaev to Gosnell to the baby killer Doug has blogged about today, fine, you are entitled to your opinion. What you are not entitled to is the massively one-sided, pro-criminal blogosphere that you seek (even though that's what you have).

I will continue to write here as long as I believe it is (1) welcomed by the host, (2) intellectually productive, and (3) realistically possible given my schedule. My colleagues at the law school are, like you, pro-defense, but, unlike you, open to robust debate in which conservatives are not muzzled by your brand of McCarthyism.

P.S. Your claim that I post more words on this blog than Doug is an outright lie.

P.P.S. If you have any substantive rebuttal to the arguments I set forth in my Forbes piece, or on CNN, feel free to explain it.

Posted by: Bill Otis | May 1, 2013 1:22:55 PM

Bill: because overfederalization of criminal law is a bad idea regardless of its popularity with voters (and the post-1937 acquiescence of the judiciary), the oft-lauded and sancrosanct charging discretion of DOJ recognizes that it's a bad idea in the sense that DOJ typically does not (and could not) federally prosecute the vast majority of the cases that have a sufficient post-1937-interstate-commerce hook to technically fall within the broadly-worded statutes being employed here, and there is no particularly strong or distinctive federal interest in prosecuting this case other than a) headline-grabbing; and b) relieving the local authorities of the consequences of their own squeamishness. They'll be happy if the feds put this guy to death, and then next year they'll be right back feeling smug and morally superior to the redneck yahoos in Texas and Virginia who carry out their own DP statutes.

It's not that there aren't enough things the feds can properly and prudently prosecute. Sending ricin-contaminated letters through the U.S. mail to federal elected officials, for example, seems like a perfect case for DOJ to take the lead. Robbing or defrauding federally-insured banks (if we must have federally-insured banks . . .). Illegally importing elephant ivory in a way that implicates our treaty obligations. Even (federal involvement does go back to the Washington administration . . .) distilling whiskey w/o paying appropriate federal excise tax.

Posted by: JWB | May 1, 2013 1:34:28 PM

JWB: Attorney Harvey Silverglate agrees with you that this case should be tried in state court.

"Noted defense lawyer Harvey Silverglate, of counsel to Boston's Zalkind Duncan & Bernstein, argued that Tsarnaev belongs in state court. The federal government is prosecuting because 'they want the death penalty and the…formerly sovereign people of Massachusetts have eliminated the death penalty in the state,' Silverglate said.

Silverglate believes prosecutors could get a Massachusetts federal jury to vote for the death penalty. 'This is a horrendous case that really tests the will of the state to stick to its principles. This is not a plebiscite on the death penalty,' he said."

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202597046434&Boston_Suspect_Faces_Federal_Charges_Death_Penalty&slreturn=20130401135202

Posted by: Liz McD | May 1, 2013 1:56:01 PM

JWB --

"[Massachusetts voters will] be happy if the feds put this guy to death, and then next year they'll be right back feeling smug and morally superior to the redneck yahoos in Texas and Virginia who carry out their own DP statutes."

They'll be smug and superior no matter what happens, so we might as well at least get some justice -- the DP -- on the way.

You don't doubt that the feds have legal authority to bring this case, and the decision to bring it is popular, indeed very popular so far as I have been able to see -- with people in Massachusetts and around the country.

When a decision to use federal authority is both plainly legal and in accord with the wishes of the electorate, state and national, there is a heavy burden -- heavier than you have discharged, I would respectfully submit -- on those opposed to going forward.

Posted by: Bill Otis | May 1, 2013 3:36:24 PM

Daniel --

"A person's personality can impede and corrupt the ideas they espouse; your hatred of life is proof of that."

You're out of your mind. The thought that you're a psychologist -- if you are -- is frightening.

No wonder you won't sign your name. It's less cowardice (although that too) than prudence.

Posted by: Bill Otis | May 1, 2013 3:44:01 PM

Liz McD --

Thank you for your direct answer.

By what criteria do you arrive at the conclusion that three years would be insufficient punishment? Once it is conceded that punishment is a legitimate goal of the criminal law, and once it is conceded that the death penalty is a Constitutional punishment (as it must be, given the state of current and accepted precedent), why is it wrong to do what I suggest in Forbes: To put before a jury the question whether the death penalty or some lesser punishment should be imposed? Why is the opinion of an individual (be it you or me) to be preferred to the collective opinion of 12 neutral strangers who hear all the evidence?

Posted by: Bill Otis | May 1, 2013 3:53:41 PM

By "plainly legal" I assume Bill means "in accord with whatever the case law of the moment happens to say." In that sense, sure. Under a sensible (but not currently in the case law) view of the Commerce Clause, perhaps not so much. But if you think the law is whatever the Supreme Court says it is, you have no basis to dispute that the law may equally well be whatever Jack Weinstein says it is, unless and until the Second Circuit finds the time to reverse him, which they don't always manage to do.

That the charging decision made initially appears popular does not actually prove that a contrary decision would have been unpopular (and without combing the archives I assume Bill has not always thought that charging discretion should be about public opinion polls). A press conference could easily have been staged at which various senior federal officials appeared with the Mass AG and relevant county DA and gave a spiel about how the Marathon is a uniquely Massachusetts institution and the feds have the utmost respect for the competence and determination of the Mass authorities to see justice done and that because there was federal-state cooperation in the investigative phase appropriate federal assistance will of course continue in terms of the evidence that's been gathered etc. Then during Q&A they could say something bland about how they didn't think the possible availability of the DP in federal court should be dispositive given all the other important factors to be weighed in considering blah blah blah. I'm not convinced that would have polled all that badly.

Posted by: JWB | May 1, 2013 4:32:31 PM

Bill, your vision of how the system does and should work would not be so wrong if (a) there were not so many overlapping possible charges for so many basic federal offenses, and (b) if juries we able to be told about the sentencing ranges that go with each charge. But, because of the realities of the federal code and jury ignorance, IN FACT DOJ's prosecutor get to "play king" in many settings, especially in drug and CP cases, WITHOUT ANY POSSIBLE JURY CHECK ON SENTENCING OUTCOMES.

In the drug cases, especially for crack, such small quantities can trigger MMs that there are precious few cases that even get the feds attention unless/until there is plenty of evidence to charge a defendant with a statute that carries an MM of 5+ years OR another overlapping statute without any MM (e.g., conspiracy, a phone change, etc.) If a gun is around, DOJ's prosecutors get the power (but not an obligation) to charge another crime which carries another consecutive MM of 5+ years (and the 25+ more for one more gun). And in CP cases, the same basic evidence will in EVERY CASE reasonably permit a charge to possession (with no MM) or to receipt (with a 5+ year MM).

I have no idea how these charging and bargaining decisions get made by DOJ's prosecutors in each individual case, and you argue (perhaps wisely) that I have no right to know how these charging/bargaining decision get made. But these charging/bargaining have a direct, UNCHECKABLE AND UNREVIEWABLE IMPACT AT SENTENCING by taking "off the table in advance" certain reasonable sentencing options that a judge should, in my view, have open.

Please understand, I am not saying it is unconstitutional under current doctrine that prosecutors have this king-like power --- though I think it should be. But I am accurate on the facts, and you are not: the functional operation of MMs in the federal sentencing system as currently operational gives federal prosecutors a king-like power to determine some sentencing outcomes in some cases WITHOUT ANY FUNCTIONAL JURY CHECK BECAUSE THERE IS NO QUESTION OF GUILT TO DISPUTE BEFORE THE JURY.

I keep hoping you will be straight with the facts and admit that you prefer that federal prosecutors retain their king like power because you trust Eric Holder and his prosecutors to be wiser kings "than judges like Gleeson, Weinstein and Gertner." But please stop trying to dodge the reality that MMs give DOJ prosecutors king-like powers.

(And realize that the main real reason I prefer judge-kings to prosecutor-kings is because judges necessarily are judicial-branch neutral arbiters who have to at least appear to follow the rule of law to keep their jobs and there are folks like you able to see and criticize their efforts. In contrast, there is really no reason to believe or expect that executive branch prosecutors will act like neutral arbiters and folks like me are not even able to see and criticize most of their back-room dealing efforts.)

Posted by: Doug B. | May 1, 2013 4:34:40 PM

Doug B a very good dissertation and analysis of the basic federal sentencing system we have..
I totally agree with you...For the most part, sentences are already set in the PSR even today..
Most Judges give what the AUSA wants in the PSR....Its a down right shame...

But here we are 2013 with advisory guidelines only.. We have a bill in progress to override the MM
when they seem like its way over done.. But some people wanted to know if we could go less than the MM, then why can't we go higher than the MM... Actually simple, the MM are so drastically high no rational
person would think to go with the MM, much less higher..

Posted by: MidWestGuy | May 1, 2013 4:51:57 PM

P.S. Your claim that I post more words on this blog than Doug is an outright lie.

Really Bill? Just for the heck of it I took the posts on this blog on Monday the 29th and put them into Word for a count. Professor Berman wrote 572 words (I did not count the parts of his posts where he quoted someone else, as those are not his words, but it would not change the outcome). You wrote 1,350 words. Your claim that I wrote an outright lie is an outright lie. I demand an immediate and profuse apology from you and that you acknowledge your deception and the horrible moral character you showed in lying.

Posted by: Paul | May 1, 2013 4:57:39 PM

I would be against the death penalty in the case simply because I believe a life sentence of solitary confinement would be much worse than death. If he's proven guilty he should sit everyday for the rest of his life with no human contact and nothing to do but think. I'm not against the death penalty, but I think solitary would be much worse.

Posted by: Jack | May 1, 2013 5:35:28 PM

Hey Paul,

Gosh, you're so smart. Now let's see, you took ONE DAY of the blog and found out that I wrote more words that day than Doug.

Of course what you said was (emphasis added), "Professor, the largest problem with THIS BLOG is that it is dominated by Bill Otis. Bill Otis posts more words here than you, and Bill Otis plays a large part in turning the comments section of THIS BLOG into the cesspool that they are [sic]."

Now how many days has "this blog" been operating?

I don't know exactly, but I see in the top left hand corner of the page a bright yellow box noting that the blog got the 2005 award for Best Blog by a Law Professor.

How's that? 2005?

So assuming that 2005 was its very first year (which I don't know -- it could have been earlier) and that it's been operating continuously since then (which I do know), that would mean that Doug has been writing on "this blog" for eight years and four months, which is three thousand forty days, not counting the extra days for leap years.

Out of those three thousand plus days, you managed to find ONE in which I wrote more than Doug. You now want to palm that off as bellowing "proof" that I write more words on "this blog" than its author.

Do you think your sample size might be a bit small? And a bit, ummm, selected? And, not to put too fine a point on it, a remarkably transparent fraud?

You're a hoot, Paul. And, as I was saying, an outright liar.

Posted by: Bill Otis | May 1, 2013 6:02:26 PM

Doug --

Wanting to keep things short, since, as we have been informed, I write more on your blog than you do, I will just say, for the moment, that you keep ignoring the centerpiece of this discussion: The entire predicate for the charge AND the sentence is EVIDENCE. That is, the charging and sentencing predicate depends first and foremost on the defendant's provable behavior, not on the prosecutor's temperament, whether imperial or not.

Posted by: Bill Otis | May 1, 2013 6:10:59 PM

Paul: Please, tell us if you are a public defender. Multiple times, my analysis of your specialty has disappeared. I think you have the protection of Prof Berman.

1) You job comes from a case that had a defendant with $23 in quarters in his pants shortly after a cigarette machine was broken into. He lost at a fair trial. When the Supreme Court mandated a defense at ta expense, he passed on the ACLU lawyer, and on the public defender, instead choosing the top, private defender in the county at great expense. It is that guy that set him free.

2) The public defender in 95% of cases serves as a salesman for the prosecutor's plea offer. You assume guilt and want to spend only a few minutes a case.

3) You get $million for the death penalty case. Yet, there is one exoneration for every 5 executions. That is an appalling failure of your specialty, to protect the innocent from execution, and cast opprobrium on the entire judiciary.

4) Pro se criminal defendants with no legal training, average IQ's of 85, have the same trial outcomes as the public defenders. Your specialty adds no value. Your specialty is pure rent seeking, a synonym for armed robbery of the taxpayer.

5) You will never attack the prosecutor personally, such as by moving for e-discovery
of personal or work computers seeking evidence of feminist agenda, and an improper motive. If anyone has ever done that, they would never the certain child porn on government computers to the FBI. Why is the prosecutor so above attack? You owe your job to his over-reaching and unfair persecutions. Yes, we are in the middle of the Inquisition 2.0. Your specialty is doing nothing about it. To deter.

Posted by: Supremacy Claus | May 1, 2013 6:26:38 PM

Bill,

I actually agree with you that the matter of punishment should be decided by a jury, not by a deal between defense counsel and Carmen Ortiz or whomever. I think there should be a trial. In fact, I think the public would be upset if there wasn't.

However, I think there's a good chance that Eric Holder does not want the death penalty in this case. It's his option. I have no rational basis for assuming this; it's just a hunch. It's been reported that he will make the decision with input from the White House. If I am right, life without parole would be the most severe punishment that could be given to Tsarnaev.

The criteria I use for concluding that three years is insufficient punishment for a crime of this sort, even if the convicted person has proven to be rehabilitated, is my own sense of fairness - completely subjective, based on standards practiced in other parts of the world. I am a practicing Catholic, a baby boomer, and not an attorney. Don't know if that means anything. Several of our Supreme Court Justices are Catholic baby boomers. Although they are attorneys.

Posted by: Liz McD | May 1, 2013 7:01:17 PM

Bill -- It seems that you keep ignoring my efforts to make this discussion realistic and sophisticated with my focus on how the federal system now works in light of existing MMs: In most drug and CP case, the EVIDENCE can and will reasonable support a charge with an MM and/or a charge without an MM and/or both. Consequently, it is entirely "the prosecutor's temperament, whether imperial or not," --- and not the EVIDENCE -- which ultimately determines whether and when the prosecutor will charge/bargain toward a conviction with certain sentences taken off the table.

I fear, Bill, that you do not really know of what you are discussing because you were not active when the CP prosecutions started to tick up. IN EVERY ONE of the 1500+ cases in the federal system each year, a federal prosecutor has a reasonable basis, based on the simple EVIDENCE of CP downloaded on a computer which is readily provable in every case, to charge either possession (now with a statutory range of 0 to 20) or receipt (now with a statutory range of 5 to 20).

I will make it very clear and very simple in the hope of getting to the "centerpiece" of this debate and in the hope of educating you on the real problems with the status quo: there current exists NO law and NO evidence and NO policy and NO practice that provides, either formally or functionally, any tangible basis to structure (or criticize) whether and how a federal prosecutor decides whether/when charge the federal crime with no MM or the one with a 5-year MM when the EVIDENCE proves he received and possessed CP downloaded on his laptop. I keep hoping to discover that there is some rational basis by which DOJ and its prosecutors sort out this issue, but I cannot find anything. (For all we know, DOJ's prosecutors in a few (many? most?) districts just do coin flips or throw darts in order to decide whether to charge/bargain around one federal charge with an MM or another without and MM because the EVIDENCE is always there.)

When it comes to the subsequent sentencing by a judge, I can point to 3553(a) and say that this duly enacted law provides a clear foundation/structure/legal standards for deciding what sentence a judge should impose when the EVIDENCE proves a defendent received and then possessed CP on his laptop. Though I know you often do not like the decisions made by judges when sentencing under this law --- especially judges "like Gleeson, Weinstein and Gertner" --- you at least have a legal standard and rational basis on which to assess their decisions. Also, if either the defendant or the prosecutor thinks the judge applied the sentencing law of 3553(a) unreasonably, that party can appeal (absent the magic appeal waiver your are so proud of creating, but which actually enables judges to be more king-like because they know nobody can review their work).

Meanwhile, returning the the typical CP downloading case, whether/when any judge can give a sentence of less than 5 years based on his interpretation of the legal standards of 3553(a) now depends entirely on the decision (or whim or coin flips or who knows) by a prosecutor's decision to charge/bargain on the two alternative counts here which the EVIDENCE does not sort out. (Also, as you know, if everyone, including the sentencing judge, thinks the prosecutor made the "wrong" charging decision, there is no check or review. Everyone is stuck with the AUSA's (unexplained and perhaps terrible) charging/bargaining decisions at sentencing.)

Let me restate the challenge here to you in simple terms: by what legal or policy standard can we rationally assess or criticize the choices being made every day by DOJ's prosecutors to charge/bargain around CP receipt (with a 5-year MM) rather than possession (with no MM)? (Or, if it makes you happier to criticize a lenient prosecutorial choice, explain how should I can assail the charging/bargaining choice in this DOJ press release about a CP case in which when the defendant save 1500(!) videos of CP, and yet the prosecutor still allowed him to plead to possession rather than receipt thereby allowing a judge to give the defendant only 2.5 years imprisonment (less than 1 day per video):
http://www.justice.gov/usao/cae/news/docs/2013/02-2013/02-04-13Kim.html

What defines a true "king" is one who can never be wrong and never be questioned. That, I fear, is the current "sentencing" power of prosecutors because of MMs, and that is really all that the Justice Safety Valve Act of 2013 seeks to remedy. If you can reasonably explain to me how a federal prosecutor can be wrong or questioned when charging CP receipt (with a 5-year MM) instead of CP possession (with no MM) --- or vice versa --- I will no longer advocate for the Justice Safety Valve Act of 2013. But if you cannot, I hope you will join me in advocating for it. And, please know, you can/should take as many words as needed to respond to this challenge (on this blog or on yours).

Posted by: Doug B. | May 1, 2013 7:17:35 PM

Why is your sense of fairness "completely subjective, based on standards practiced in other parts of the world," if you are "a practicing Catholic"?

Posted by: Adamakis | May 1, 2013 7:24:46 PM

Many people in America are religious. Many of those who are will wear their religion on their chest, their sleeve, and trumpet their deeply held views. I am not one of those religiosity folks. However, when the death penalty is discussed there is much talk about why it shoudl be imposed on a certain human. Here it is because they killed on purpose and were terrorists. True. But the underlying heartfelt premise is that murder is wrong. Killing is wrong. Those who are religious seldom square up their support of the death penalty with the Sixth Commandment: Thou shalt not kill. It is a simple statement and it is etched in stone somewhere. It may have some exceptions in places like the Sears Roebuck bible. In Texas it is sometimes referred to as the "Y'all Can" exception, that is that the People of The Great State of Texas have a right to kill a human.

Can we discuss the Sixth Commandment and the Y'all Can Exception here on this blog?

Posted by: liberty1st | May 1, 2013 8:17:24 PM

Adamakis - Okay, not completely objective.

Posted by: Liz McD | May 1, 2013 8:20:30 PM

Sorry, that not completely subjective - and objective, really.

Posted by: Liz McD | May 1, 2013 8:23:34 PM

Doug --

I'll be out of pocket for the next few days at my wife's class reunion, as explained here: http://www.crimeandconsequences.com/crimblog/2013/04/pure-bragging.html

I should be back to the computer by Monday. I don't take it with me, and the next few days will be too busy anyway to do much beyond stand around at receptions.

Posted by: Bill Otis | May 1, 2013 10:55:31 PM

Liberty 1st,

Didn't we already HAVE this discussion? The Hebrew word is rorsatch, which does not mean "kill." It means to murder or kill through negligence (manslaughter). The DP violates no commandment.

Posted by: TarlsQtr1 | May 1, 2013 10:59:51 PM

Have a safe trip, Bill. I may start a new post upon your return so that my challenge to you gets a new comment thread. In the meantime, I suspect Paul won't miss you, though I will.

Posted by: Doug B. | May 2, 2013 8:25:05 AM

liberty1st, I am against the death penalty.

But, you can't appeal to that. The very same source material provides a long list of things where the death penalty is deemed legitimate.

The nuanced argument is that, particularly with a later gloss like Jesus did on various things stated in the Torah (the stoning of the woman, e.g., was not said to be illegal; he promoted a higher test though -- I put aside that the account is probably a later addition, not an original event), that such and such a killing is illegitimate. But, is killing in self-defense wrong?

Anyway, I appreciated Doug B.'s pushback on Bill Otis. He is often not really in "William G" mode here. He is like a caricature of himself and needs a nudge to face up to the tough questions. When he respects the person doing the nudging, there appears to be some useful back/forth.

Posted by: Joe | May 2, 2013 12:17:04 PM

Bills Pre Booker Guideline chip has taken over again.. This happens fairly often... He knows about the
bright orange button right behind his left ear....I think he is afraid to turn it off, as he would
actually see the world as it really is...3 dimensional, not just 1 dimensional as it pretty much just feeds off his own thinking...

Bill you need to turn off the PBGLC at least sometimes..

Posted by: MidWestGuy | May 2, 2013 4:49:56 PM

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