Sentencing Law and Policy: Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev

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April 19, 2013

Spotting punishment and victims' rights issues after capture of Boston bombing suspect #2, Dzhokar Tsarnaev

This CNN headline gets to the heart of the most notable news after a remarkable manhunt: "'CAPTURED!!!' Boston police announce Marathon bombing suspect in custody." Here are the basic details as of late Friday night:

The suspect in the Boston Marathon bombings was taken into custody Friday night, bringing to an end a massive manhunt in the Massachusetts capital amid warnings the man was possibly armed with explosives.

Law enforcement officials told CNN that authorities have confirmed the man in custody is 19-year-old Dzhokar Tsarnaev, who escaped an overnight shootout with police that left his older brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead. The younger Tsarnaev was in need of undisclosed medical care, the officials said.

After announcing the arrest on Twitter, Boston police tweeted: "CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won. Suspect in custody."...

Tsarnaev was cornered late Friday on a boat in a backyard of Watertown, a suburb of Boston. Authorities "engaged" the man, according to one of the officials who spoke on condition of anonymity, just minutes after authorities indicated during a news conference that a manhunt for the suspect appeared to come up empty....

The development came after authorities cast a wide net for the suspect that virtually shut down Boston and its surroundings following a violent night in which authorities say the brothers allegedly hurled explosives at pursuers, after killing Massachusetts Institute of Technology police Officer Sean Collier and hijacking a car....

A federal official told CNN that Dzhokar Tsarnaev came to the U.S. as a tourist with his family in the early 2000s and later asked for asylum. He became a naturalized U.S. citizen in 2012. Tamerlan Tsarnaev was not a naturalized citizen, said the official, who spoke on condition of anonymity. He came "a few years later" and was lawfully in the United States as a green-card holder.

In a brief press conference following the capture of Dzhokar Tsarnaev, the local US Attorney, Carmen Ortiz, was asked about whether she would seek the death penalty; she effectively dodged the question for now. I would be surprised if federal capital charges are not pursued, even if the now-deceased older brother of Dzhokar Tsarnaev is found to have been the real mastermind of the Boston bombings. That said, as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea.

Among other significant legal issues now in play now is how the federal Crime Victim Rights Act might impact the prosecution of Dzhokar Tsarnaev. Obviously, all the persons harmed by the Boston bombings and their relatives qualify as crime victims and thus now have, under the CVRA, a "reasonable right to confer with the attorney for the Government in the case." But, in light of the manhunt lockdown today, an argument can be made that more than one million persons in and around Boston were "directly and proximately harmed as a result of the commission of a Federal offense" by Dzhokar Tsarnaev. Of course, it will be entirely impractical for everyone terrorized (and thus arguably victimized) by the Boston bombings and its aftermath to invoke formal rights under the federal Crime Victim Rights Act. Still, how federal prosecutors will seek to comply with the CVRA in this case will be interesting to watch.

April 19, 2013 at 10:36 PM | Permalink

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I want the names of the following lawyers.

The lawyer that authorized the entrance of a Chechyan Moslem onto our shores, then his relatives.

The lawyer that failed to deport the terrorist after an arrest.

The lawyer that shut down a major city, thus amplifying the victory of the terrorists gnats 1000 fold, transforming them into soaring eagles of Muslim heroism and power. The shut down rewarded a frustrating small amount of damage caused by the Marathon bombing.

The liberty loving patriot can learn something from these terrorists. The government is a big sucker, falling for the drama of a bomb, and greatly rewarding it. When the rent seekers start to impose their tyranny, any patriot with basic skills can shut down the economy of a region.

Instead of killing the terrorist on the spot, now, $millions will be spend on trauma care, on legal prosecution, the legal defense, and the literally endless appeals. That is the bottom line, isn't it? The terrorist is protected by the lawyer to generate $millions in lawyer fees.

Posted by: Supremacy Claus | Apr 20, 2013 12:18:54 AM

"I would be surprised if federal capital charges are not pursued, even if the now-deceased older brother of Dzhokar Tsarnaev is found to have been the real mastermind of the Boston bombings."

Let the excuses begin!

But not to worry. This will be only the first of zillions.

I can't wait to see what the abolitionist lobby will come up with to make a hero/victim of some guy who kills an eight year-old by blowing a bunch of nails through him.

He's just a misled youth! Abused as a boy! Brain lesions! Excess Twinkies!

Ladies and gentlemen, pull up a seat for the show the abbies are about to give us.

Posted by: Bill Otis | Apr 20, 2013 2:06:14 AM

LWOP in a cell* with no windows , at a constant 20°C (68°F) , constant humidity , constant illumination of unvarying lumens , with a balanced unvarying diet where all meals are identical probably would not pass an Amendment VIII challenge .

* The cell size would be large enough to allow exercise , therefore eliminating the necessity to leave the cell.

Nemo Me Impune Lacessit

Posted by: Anon. #2.71828³ | Apr 20, 2013 4:38:03 AM

Bill Otis | 20 Apr 2013 02:06:14
“He's just a misled youth! Abused as a boy! Brain lesions! Excess Twinkies!”

One could also offer that the curve of normal distribution includes a few that are just plain evil.

Unfortunately „ society has yet to figure a way to detect those few before they harm others.

Nemo Me Impune Lacessit
Docile Jim Brady – Columbus OH 43209

Posted by: Anon. #2.71828³ | Apr 20, 2013 4:47:49 AM

I expect a defense based on his upbringing in Chechnya. It is an impoverished country essentially destroyed by Russian invasions and Islamic radicals with crimes against humanity committed by both sides going back to the 90's. It's an excuse, and a weak one, but it's the only one like to save a man who is a terrorist who killed a cop and a child among others.

Posted by: MikeinCT | Apr 20, 2013 6:29:19 AM

MikeinCT --

I think you're onto something. I also think they'll hire the smoothest talking shrink (our) money can buy to cook up whatever the next syndrome is. Maybe we'll be treated to the "Chechnya makes you crazy" syndrome.

From what has come out so far, though, everyone says he was an ordinary kid, got along, wasn't one of these head cases like Loughner or Adam Lanza. Plus it seemed that he lived in this country for about ten years without problems.

What's both amusing and revealing is the extent to which the numerous abbies who comment here will go to fabricate any excuse they can think of, while saying that the real problem is not some child killer and cop killer -- noooooooooo, not that -- but people like you and me.

You watch. I guarantee you it's on the way.

Abbies are impervious to facts. Mr. Nicey could have blown nails through 100 eight year-old's and it wouldn't make any difference. The real problem would remain that retentionists are barbarians and Amerika Stinks. That's how these people "think."

Posted by: Bill Otis | Apr 20, 2013 8:46:52 AM

Bill, I know you have very little regard for abolitionists, but I am surprised you do not at least have some respect for those who may categorically oppose the death penalty on religious grounds. Do you condemn the Pope and others who follow Catholic teachings to the view that, regardless of the facts of the crime, taking of life as punishment in immoral?

More broadly, I wonder how far some of your "anti-Abbie" feelings go. Do you think it is wrong that our system ensures that Dzhokar Tsarnaev gets a lawyer who will have an obligation to seek to avoid a death sentence for his client (if that's what the client wants)? Do you think it wrong that the US Constitution has been interpreted to preclude a mandatory death penalty for crimes like these?

In other words, I am trying to probe the depth of your apparent concern that "Abbies are impervious to facts." My first paragraph probes whether you categorically condemn those who are "Abbies" motivated by genuine faith (which, to some extent, is always impervious to facts). My second paragraph probe whether you might also be "impervious to facts" if/when you think the crime is so terrible so that you decide any other facts about the offender become irrelevant and death is the only proper punishment.

Posted by: Doug B. | Apr 20, 2013 9:35:28 AM

"I expect a defense based on his upbringing in Chechnya."

He's actually from Kyrgyzstan, he's never set foot in Chechnya.

But please, Bill and Mike, keep speaking so confidently about something you clearly know very little about!

Posted by: Anon | Apr 20, 2013 10:28:34 AM

Doug --

The problem here is not me or my attitude toward abbies. The problem is killing cops and blowing nails through eight year-olds. Everything else is far behind in second place.

With that understanding:

"Bill, I know you have very little regard for abolitionists, but I am surprised you do not at least have some respect for those who may categorically oppose the death penalty on religious grounds."

Religion has no business attempting to dictate secular law. When conservatives do this, they get ridiculed as Bible-thumping wahoos. When liberals do it, all of a sudden they are men of God.

"Do you condemn the Pope and others who follow Catholic teachings to the view that, regardless of the facts of the crime, taking of life as punishment in immoral?"

First, I am not aware that such is Catholic teaching, and second, the teachings of Religion X are fine for followers of Religion X, but attempting to bully others into having a particular view of punishment because they follow a different religion (or none) -- yes, I have no respect for that. Indeed, I think it's unbelievably arrogant.

"More broadly, I wonder how far some of your "anti-Abbie" feelings go. Do you think it is wrong that our system ensures that Dzhokar Tsarnaev gets a lawyer who will have an obligation to seek to avoid a death sentence for his client (if that's what the client wants)?"

No, so long as the lawyer doesn't try to game the system.

"Do you think it wrong that the US Constitution has been interpreted to preclude a mandatory death penalty for crimes like these?"

Yes, as did the four dissenters in Woodson (including Justices White and Blackmun). I think the legislature can determine that there are some crimes so heinous that only the DP will do. Why do you so distrust democratic (as opposed to judicial) resolutions?

"In other words, I am trying to probe the depth of your apparent concern that 'Abbies are impervious to facts.'"

But they ARE impervious to facts, are they not? Do you think that's a productive way to approach litigation?

Incidentally, the usual abbie line is pure hypocrisy. It's that, "It's wrong for the state to kill." In fact, almost none of them actually believes this. Most of them would allow a policeman (an officer acting for the state) to kill in self defense, and most would allow killing in wartime. So you don't have to press them for long to find out that they do NOT have a blanket opposition to state killing. They have merely an ideological opposition to the death penalty in particular. And at bottom the reason for this, as we have seen again and again and again here, is that, in one form or another, they think Amerika Stinks, and thus lacks the moral standing to impose this perfectly Constitutional punishment.

"My second paragraph probe whether you might also be "impervious to facts" if/when you think the crime is so terrible so that you decide any other facts about the offender become irrelevant and death is the only proper punishment."

No, I am not impervious to facts. I also believe, however, (1) that the "facts" that are going to be used to build sympathy for Mr. Nicey here will be either exaggerated or outright fabricated, as is SOP in capital defense, and (2) that the legislature should have right to decide, free from religious bullying, that some crimes deserve the DP EVEN THOUGH the killer is able to gin up some phony defense.

I might note in that regard that you have speculated, without any factual basis at all, about how Dzhokar was really just the tag-along to "the now-deceased older brother of Dzhokar Tsarnaev [who might] have been the real mastermind of the Boston bombings."

It's exactly that kind of baseless guessing that a mandatory DP is designed to guard against. But it's less that such a "defense" is speculative; it's that even if true, it does not even arguably mitigate Dzhokar's role. Dzhokar was an adult male of sound mind (so far as any facts show). There is not one shred of evidence that he had mental problems or adjustment problems of any kind whatever.

An adult male of sound mind cannot possibly be persuaded to engage in grisly mass murder simply because his brother wants him to (which, again, is nothing but casting-for-any-excuse speculation).

Finally, if you think MikeinCT and I are the problem, and if you immediately and reflexively reach out to hypothesize about how Dzhokar was really just in the thrall of his Big Bad Older Brother, you're closer to being an abbie yourself than you might think.

Posted by: Bill Otis | Apr 20, 2013 10:40:40 AM

Anon --

"But please, Bill and Mike, keep speaking so confidently about something you clearly know very little about!"

I don't give a good God damn where he's from, nor does it have any relevance. What I do know is that he blew up an eight year-old. What his exact role in killing the MIT cop was I don't know exactly, but he was in on it, you bet.

These are the facts you want to ignore (or find appealing). Have at it. Don't worry -- I'm sure there'll be a defense fund you can contribute to.

Posted by: Bill Otis | Apr 20, 2013 10:50:56 AM

Nope, Bill, I actually agree with you that he should get the death penalty, and I look forward to his execution. I just think that you lose credibility when you don't moderate the confidence with which you make predictions based on your limited knowledge about the facts of the case.

Posted by: Anon | Apr 20, 2013 11:01:05 AM

Going back to Doug's primary question, (am I the only one capable of reading at a 9th Grade Level?),

"Obviously, all the persons harmed by the Boston bombings and their relatives qualify as crime victims and thus now have, under the CVRA, a "reasonable right to confer with the attorney for the Government in the case." But, in light of the manhunt lockdown today, an argument can be made that more than one million persons in and around Boston were "directly and proximately harmed as a result of the commission of a Federal offense" by Dzhokar Tsarnaev."

I don't give a d--n whether he get the death penalty or LWOP.

I maintain that he victimized the entire US TV viewing audience by the mostly inane cable TV coverage of the event, thus further dumbing us down as a nation. That should also be a consideration!

Posted by: albeed | Apr 20, 2013 11:18:33 AM

Anon --

Would you forgive me if I don't put a whole lot of store in evaluations of my "credibility" by a person who won't sign his name?

P.S. Speaking of limited knowledge of the facts, could you tell me the source for your quite confident assertion that "he's never set foot in Chechnya"? Do you know where he's spent every day of his life? How?

Posted by: Bill Otis | Apr 20, 2013 11:19:21 AM

albeed --

"I don't give a d--n whether he get the death penalty or LWOP."

How thoughtful of you. But I'm sure we all share your concern that there was a lot of TV coverage. We really do need to attend to the important things.

Posted by: Bill Otis | Apr 20, 2013 11:37:41 AM

Cases like these show how ridiculous SCOTUS' decision to declare a mandatory death sentence unconstitutional was.

Posted by: federalist | Apr 20, 2013 12:07:35 PM

Papal opposition to the death penalty is hypocritical. The Inquisition likely killed a million productive males, to seize their assets. When papal officials were beheaded by French patriots, then the Church opposed the death penalty. Find another more valid religious opposition than that of the self dealing church. The lawyer took up the Inquisition 2.0, and weare undergoing a sophisticated version of this business model. Tiny infractions of an infinity of rules, drastic punishments, profitable plea agreements.

Posted by: Supremacy Claus | Apr 20, 2013 12:30:36 PM

I would like to see the first poll asking whether this guy should get the DP and then a slew of abolitionists to tell us how support for it is waning in this country.

Another case of liberals being slapped in the face with reality.

Posted by: TarlsQtr1 | Apr 20, 2013 12:48:21 PM

Doug B stated:"Do you condemn the Pope and others who follow Catholic teachings to the view that, regardless of the facts of the crime, taking of life as punishment in immoral?"

Like most in the liberal echo chamber, you misrepresent Mother Church's position on the death penalty. There is no ex cathedra statement made by any pope that the death penalty is immoral. In fact, the Catechism of the Catholic Church specifically states that it does "not exclude" the death penalty as recourse. The last two popes personally opposed it (I am not aware of the present Holy Father's personal position)on the grounds that with modern technology, it is very rare that the death penalty is necessary to keep society safe. However, again, this was their personal position, was not made ex cathedra, and Catholics are not bound to agree any more than we are to see a pope's stock tips as infallible or binding.

Posted by: TarlsQtr1 | Apr 20, 2013 1:00:20 PM

SC-Your historical ignorance of the inquisition is staggering.

Posted by: TarlsQtr1 | Apr 20, 2013 1:02:21 PM

On topic.

I disagree Dough tha the entire city of Boston is the victim of his crime. The fact that the bumbling bozos of the Boston's finest blue decided to go into massive overdrive for the sake of attention whoring is not the bombers fault. The most hilarious thing is that it did not even work as in the end they found him based upon yet another citizen tip. What a farce. And you want to claim that the victims of this police farce should be placed upon bomber? Oh please. You embarrass yourself.

The only victims here are the people who were hurt in the bombing. Accommodating them should be easy enough.

What I thought was most interesting about your hack job of a post was that you did not even mention the real winner in this whole saga: The US attorney. This is the same one that everyone around was hating on for the whole Aron Schwartz fiasco. I bet that congressional inquiry gets dropped post haste.

And for the record, her last name is ORTIZ not Diaz. I believe Carmem Diaz is a model.

Posted by: Daniel | Apr 20, 2013 1:42:17 PM

TarlsQtr1 --

Please. When William Sloane Coffin holds forth on how Amerika Stinks, then religious teaching must be followed, but when the position of the Catholic Church do not exclude the DP, then religious teaching must be...............made up!

These guys are a hoot. Remember the last time anyone on this forum suggested that the teachings of the Southern Baptists be "respected?"

Ha!

Still, I'll say this for the abbies: They are having a bit of trouble with this one. Although this thread has the largest number of comments since the last DP entry, not a single abbie has stuck up for Mr. Wonderful.

I would like to think this is out of a sense of embarrassment, but I doubt it. That would require a capacity to be embarrassed. I think it's more likely that they know they'll have a tough time selling their wares when pictures of the blood-soaked, gruesome scene Dzhokar left behind are all over the Internet. Abbies always do better when the specifics stay out of sight.

Posted by: Bill Otis | Apr 20, 2013 1:48:49 PM

Daniel stated: "The fact that the bumbling bozos of the Boston's finest blue decided to go into massive overdrive for the sake of attention whoring is not the bombers fault. The most hilarious thing is that it did not even work as in the end they found him based upon yet another citizen tip. What a farce."

The "farce" is your knowledge of police work. The main job of "police work" is to take information collected from different sources (e.g. citizens' tips) and turn it into actionable intelligence. They did that, which makes your post self-refuting. The "bumbling bozos" did what they were supposed to.

And the "attention whoring" kept the suspect in the area, so that he could not leave the state or even country and make such a search far more difficult.

If he had somehow dragged this out for weeks or escaped to a foreign country altogether, you would be criticizing the police for that as well and probably secretly celebrating.

Posted by: TarlsQtr1 | Apr 20, 2013 1:58:08 PM

Daniel --

1. The decision will be made at Main Justice, almost certainly by Holder, and not by Ms. Oritz.

2. "The fact that the bumbling bozos of the Boston's finest blue decided to go into massive overdrive for the sake of attention whoring is not the bombers fault. "

Some questions:

(a) Is ANYTHING the bombers' fault? Or is it just that they were misdirected youths?

(b) Why the snide attack on the cops? Who actually captured this guy? Internet snarkers or law enforcement people?

3. "I bet that congressional inquiry gets dropped post haste."

I'll take that bet. How much?

Posted by: Bill Otis | Apr 20, 2013 2:08:52 PM

Tarlsqr1

What is a farce is the way that people defend these clowns. One can cherry pick the facts all you want it doesn't change the fact that the police response was social paranoia.

"The main job of "police work" is to take information collected from different sources (e.g. citizens' tips) and turn it into actionable intelligence."

My DOG can take information and turn it into actionable intelligence. That is not a PROFESSIONAL standard.

"And the "attention whoring" kept the suspect in the area,"

This is a damnable lie and you know it. The man was severely wounded and the police knew it, considering they are the ones that wounded him. None of what they did was even remotely defensible. He was on foot and leaving a blood trail, for crying out loud.

Posted by: Daniel | Apr 20, 2013 2:13:13 PM

TarlsQtr1 --

On a day when the entire country is celebrating Boston's police work, Daniel says, "None of what they did was even remotely defensible."

If you ever wanted Exhibit A as to how far out of mainstream, or even remotely normal, thinking Daniel is, he has given it to you.

Any of our numerous left-leaning or defense-oriented commenters care to come to Daniel's defense on this one? "None of what they did was even remotely defensible."

C'mon, guys, don't head for the hills now. This is just starting to be fun.

Posted by: Bill Otis | Apr 20, 2013 2:25:18 PM

TarlsQtr1 and Bill and others: I think you are getting far too worked up by your obvious disaffinity for what you --- but not others --- consider to be an inappropriate categorical opposition to certain forms of punishment. I presume you would, regardless of the "facts," categorically oppose the mandatory execution of all of Dzhokar's family members despite the fact that they have some measure of responsibility for raising sons who went on to acts involving "killing cops and blowing nails through eight year-olds." Similarly, I presume you would, regardless of the "facts," categorically oppose the mandatory painful daily torture of Dzhokar for decades even though such a punishment (and other we could imagine) might very well effectively deter others in the future from being involving in "killing cops and blowing nails through eight year-olds." (If I am wrong and you would endorses mandatory execution of all of Dzhokar's family or mandatory painful daily torture of Dzhokar for decades as a punishment in this case, please let me know as it will change my views about your views about proper punishments.)

My main point is that we all likely embrace some form of absolutist vision of what sorts of punishments are immoral/improper regardless of the "facts." In this respect, you and me and the "Abbies" all share some willingness to put some (extreme?) categorical limits on punishment --- the difference really only lies is what those categorical limits are and what is the source of our belief in them.

I generally assume (perhaps wrongly) that folks on the right are more likely to respect persons whose views --- whether as to limits on punishment, or as to teach in high school science/health classes, or as to required access contraception, or as to who should be able to get married by civil authorities --- are based in sincere religious beliefs and faith, rather than "facts" and science. That said, I tend to share Bill's view that "religion has no business attempting to dictate secular law" in any arena --- but it sure seems to me that a lot more folks on the right than on the left suggest that religion-based public policy viewpoints at least deserve respect from others. If you are asserting, Bill, that you think all folks on both the left and right should be "ridiculed as Bible-thumping wahoos" when their social/political commitments have religious roots, then I can understand your disaffinity even for "abbies" who are motivated by their sincere religious beliefs. But, in part because our nation was based in part on a desire to respect differing viewpoints, I tend to try to find reasons to understand and respect even those who hold (religious-based) views with which I disagree.

As TarlsQtr1 highlights, one can be a sincere Catholic and still have a sincere religious view that embraces (and even requires?) the death penalty for Dzhokar. But recent Popes have advocated against the DP and there are other sincere Catholics who now "follow Catholic teachings to the view that, regardless of the facts of the crime, taking of life as punishment in immoral." That was the main point I was trying to explore --- that is, do you have any respect for anyone whose personal/moral categorical limit on proper punishments not only suggests opposition to daily painful torture but also to the ending of life?

I agree that many (but probably not all) committed DP abolitionists embrace an absolutist vision of what sorts of punishments are immoral/improper regardless of the "facts." But my comments, Bill, were prompted by my own concern that your position here may be subject to the same kind of absolutism if you believe the nature of this crime should mandate death as the proper punishment regardless of whatever other "facts" we might learn. Just as I respect (but disagree with) faith-based categorical opposition to the death penalty, I can also respect (but disagree with) offense-based categorical affinity for the death penalty.

Do you really believe that anyone who directly causes the death of a cop and a kid regardless of their mental state must die for their crimes? Would apply that absolute view to those who kill cops and kids within a "legitimate" war or to corporate executives whose mental culpability may be negligent rather than intention with respect to causing multiple deaths of innocent persons? Again, I am not saying Dzhokar is comparable to others, but rather encouraging everyone to resist jumping to immediate conclusion about either the crimes or the punishments until we have more facts. The media and others have already caused a lot of unnecessary pain by being too quick to make judgments, and I hope those engaged with this blog --- on both sides of the aisle --- can come to appreciate the importance of gathering more facts before coming to any conclusive judgments.

Posted by: Doug B. | Apr 20, 2013 2:30:04 PM

Otis -- get a life😄

Posted by: Steve Prof | Apr 20, 2013 2:49:50 PM

Doug B.,

Thanks for the reply. The main point of protest I have with your earlier post and this one is the following:

..."follow Catholic teachings to the view that, regardless of the facts of the crime, taking of life as punishment in immoral."

If you are implying that Catholic teaching takes the position that "regardless of the facts of the crime, taking of a life as punishment is immoral," you are wrong. The Catholic Church has no such position.

If you are implying that Catholics of good conscience sometimes take that position,you are correct.

You stated: "But my comments, Bill, were prompted by my own concern that your position here may be subject to the same kind of absolutism if you believe the nature of this crime should mandate death as the proper punishment regardless of whatever other "facts" we might learn."

I must say in a tongue in cheek fashion that this is the lawyer in you, Doug. The conclusions that the media jumped to were not based on known facts but on bias and the desire for the perps to be "tea partiers", "white guys", or "right wingers."

The expectation for this guy to fry comes with much more in the way of "facts" and without the same bias. I would say the same if this guy was a Roman Catholic white tea partier. This is not a court of law and there is nothing inappropriate about making such judgments with the caveat that we do not know everything yet (although I cannot think of anything off the top of my head that would lead me to believe his sentence should be less than the DP). In fact, we probably never will know all of the facts which should not be used as an excuse to suspend common sense regarding his culpability.

Posted by: TarlsQtr1 | Apr 20, 2013 3:20:07 PM

Daniel stated: "My DOG can take information and turn it into actionable intelligence. That is not a PROFESSIONAL standard."

LOL Ignorance on display again. The Boston PD, FBI, Mass SP, and other law enforcement entities probably received hundreds or thousands of calls regarding the perps' identification, location, etc. 95% percent (or more) of these are either cranks or well-intentioned people who saw/heard irrelevant information. If you believe that sorting through all of this information received by different agencies, separating the wheat from the chaff, and combining it with the physical evidence found on the ground is anything but a monumental effort, you are a damn fool.

Please, do tell, what an appropriate response would have been from the moment of the blast until the last terrorist was captured.

Posted by: TarlsQtr1 | Apr 20, 2013 3:29:11 PM

@Anon

"He's actually from Kyrgyzstan, he's never set foot in Chechnya.

But please, Bill and Mike, keep speaking so confidently about something you clearly know very little about!"
He was born in Dagestan, which proves how much all three of us know.

Posted by: MikeinCT | Apr 20, 2013 4:04:02 PM

I assume for purposes of this question that the defendant may be prosecuted under State law for a long list of state offenses in state court and he may be likewise prosecuted under Federal law for similar long list of federal crimes. And I understand how the concept of dual sovereignty works in theory. My question goes to how dual sovereignty works in practice.

Who gets to decide whether the state or federal authorities prosecute first? Does the agency that made the arrest get dibs? Does the State get first shot with the option to defer to the federal government if the federal government express an interest in prosecuting him?

Can the federal government, if it chooses to do so, take jurisdiction over the case to the temporary exclusion of the State under the supremacy clause or some other constitutional and/or statutory authority? Or is this question answered by the federal authorities, in the interest of comity, deferring until State prosecutions are completed.

Let's assume further that the State of Mass., under either law or agreement, proceeds with first prosecution. Are the federal government deadlines and requirements (e.g., Speedy Trial) abated during the State prosecution? What brings this to mind is the Rodney King prosecutions all those years ago where, if my memory is correct, the federal government did not commence prosecution of the assaulting officers until after the State process failed to vindicate the federal interest involved.

Doug, I think a post that highlights the issues along these lines in such a high-profile and complex case would be very informative. Of course, I don't know if you take requests, so I'm just asking...

Posted by: C60 | Apr 20, 2013 4:04:55 PM

Doug --

1. There is a difference between "don't-bother-me-with-the-facts" opposition to a plainly Constitutional punishment long (and still overwhelmingly) accepted in this country, and categorical opposition to a blatantly unconstitutional punishment not accepted in any civilized country. Those who demand respect for their (minority) viewpoint on the DP should give respect to the opposing (majority) viewpoint, rather than renounce it in advance as wrong in all circumstances.

2. The request to await more information, while facially reasonable, is, history has shown, the stalking horse for the view that, golly, we just never have enough info to know for sure, so we can't really.............

For that reason alone I am suspicious of it. Another important reason is your rush to speculate that the younger brother was just pushed into it by the older brother -- speculation having no basis in any reported facts I have seen (or you have noted), and undertaken only to lay the groundwork for dumbing down the punishment.

So what is going on with that? Why aren't you speculating that this was a Jihadist attack taken from some terrorist how-to manual? Isn't that at least equally plausible?

3. "Do you really believe that anyone who directly causes the death of a cop and a kid regardless of their mental state must die for their crimes?"

If he was actually crazy -- if, for example, he thought the cop and the kid were pumpkins instead of human beings -- then, no, he should not be executed.

But you can't help knowing that the defense will be nothing like that. If he tries a mental-state defense, it will be that he was "depressed" or easily led or some other such baloney, not that he didn't know what he was doing.

The problem is that such a weak defense won't work, given the grotesqueness of the crime. No one is going to care if he was easily led. Too bad. Once you're an adult, you are required to be responsible for what you do regardless of the fact that others would like to persuade you to do wrong.

If your brother wants you to explode nails through a little boy, the answer is easy: NO. If you can't say that and mean it, and go ahead and kill the little boy (and others, and wreak all manner of mayhem), you have earned your way to the needle.

4. Your immediate and reflexive salute to "sincere" abolitionist absolutism is revealing. What it reveals in particular is that all the arguments we've seen recently -- about cost, innocence, deterrence, etc. -- so completely pale beside this hideous crime that they don't even get mentioned. The abolitionist camp is thrown back on what they actually think (and sometimes say) anyway: That retentionists are barbarians because it's always wrong to kill.

What arrogant and dishonest tripe. There is barbarism in this case, alright, but it's what the defendant sees when he looks in the mirror. And, as I previously noted (and you don't dispute), very few abbies actually believe it's always wrong to kill. They just want to make excuses for the benefit of the Dzhokars of this world.

If you are really a DP agnostic, the question is: Why do you rush to join them?

Posted by: Bill Otis | Apr 20, 2013 4:49:47 PM

Daniel,

It takes so little courage to criticize the police who bravely searched an entire city of 1 million to find 2 very dangerous people that it is in fact pure cowardice on your part to do so. I find it remarkable that 5 days after a terrorist attack both suspects have been captured/killed. This is an example of exemplary police work. That won't stop the naysayers and the Monday morning quarterbacking.

You just can't please some people.

Posted by: Steve Erickson | Apr 20, 2013 4:51:04 PM

I'll overlook all the slander that has been directed at my restrained and reasonable comments. What fascinates me is the echo chamber effect. I encourage those who think I am "out of the mainstream" to put down their Drudge report and get out of their comfort zone. My comments are mild and even tempered compared to much of what is passing by on the internet these days. At least I am not with the loonies who believe that the whole thing is yet another CIA plot or those who are convinced that this was "false flag" and a trial run for the overthrow of American democracy, and other such rubbish.

I think it says a great deal about the state of mind of people like Steve and Bill and others that even the most mildest and gentlest of criticisms that the Boston police force was guilty of overreaching is met which such vitriol. You should be supporting my request for a board of inquiry into their dismal performance. Instead, you will take a well-meaning friend and turn him away.

Well, it is no skin off my nose as I do not live there. I'll just go buy some more popcorn and figure out which set of right-wing nut jobs offers the most comedy value: those who support the police without question because of "security" or those who hate the police without question because of the "bill of rights."

Posted by: Daniel | Apr 20, 2013 7:54:14 PM

Bill:

Sometimes, I wonder if you ever look at yourself in a mirror.

You say "second, the teachings of Religion X are fine for followers of Religion X, but attempting to bully others into having a particular view of punishment because they follow a different religion (or none) -- yes, I have no respect for that. Indeed, I think it's unbelievably arrogant."

Now what if someone said "second, the teachings of Otis are fine for followers of Otis, but attempting to bully others into having a particular view of punishment because they follow a different viewpoint(or none) -- yes, I have no respect for that. Indeed, I think it's unbelievably arrogant."

Would you agree with that statement? If so then why don't you tone down your displays of arrogance?

Posted by: ? | Apr 20, 2013 8:11:40 PM

The basic argument for the death penalty is deterrence, which should be weighed against the costs and damage it does.

In this case the Tsarnaev brothers were not deterred, despite a high likelihood of execution.

Ergo, this case would argue against the death penalty.

Posted by: Boffin | Apr 20, 2013 8:21:10 PM

"The fact that the bumbling bozos of the Boston's finest blue decided to go into massive overdrive for the sake of attention whoring is not the bombers fault."

This is gentle and mild criticism?

Posted by: federalist | Apr 20, 2013 8:22:41 PM

@Daniel
I'm not sure why you think your comments are moderate or that people should welcome them. You've rushed to judge the police as militaristic thugs and attacked anyone who disagreed with you as some sort of right-wing idiot.

The only thing we know as of now is that the police attempted to arrest men suspected of multiple murders who were on the loose in a major city with at least one bomb and at least one gun. They responded by shooting at cops and using explosives, killing one cop and injuring at least one other. They responded in large numbers with deadly force. Not really surprising or shameful.

Posted by: MikeinCT | Apr 20, 2013 8:24:31 PM

"The basic argument for the death penalty is deterrence..."

Maybe to some, but for to me. For me (and I think many others) it's all about desert. But lets take the above logic to its conclusion. Robberies, burglaries and many other crimes continue despite criminal law's deterrent effect. Shall we dispense with incarceration for these crimes? I'm sure that are some who would say yes, but then the onus is on them to come up with something better.

Daniel, if you consider your position reasonable b/c you're at least not in the camp of the paranoid conspiracy folks, well, that's says it all.

Posted by: Steve Erickson | Apr 20, 2013 8:51:59 PM

Bill --

1. At the core of true faith --- whether faith in the Bible as the literal word of God or faith in the wrongness of the death penalty --- is a fundamental "don't-bother-me-with-the-facts" that would potentially counteract that faith. Also, as we have long seen in traditional religious settings, this faith not only seeks to ignore competing facts, but it frequently has little respect for opposing viewpoints. I share your disaffinity for those who stubbornly cling to faith over facts/science, but I do not disdain the faithful simply for having faith. But it seems, at least in this setting, you do think those with faith in the wrongness of the death penalty merit disdain based on that fact alone. That's fine, but it is not a disdain I share.

2. I do not think seeking more information is mere cover to lower the punishment, unless you think only one punishment is possibly proper. Again, it is fine for you to have that view, but it is not why I want more information. And I do think (1) what we know about the dead brother's recent turn to fundamentalism and the reality of brotherly relations that there is a fair basis for suspecting the dead brother was the mastermind here. Even if that is the reality, it surely does not resolve whether death should be given to the younger brother, but it is a factor I want to know more about. I wish to know, as well, if this was a Jihadist attack taken from some terrorist how-to manual. Thus my desire to know more and to keep an open mind about punishment for now.

3. I surmise your view is that "given the grotesqueness of the crime," it will be essentially impossible for the defendant or his lawyer to make a viable case for sparing his life. Perhaps, but I remain eager to know more and to keep my mind open to developing possibilities.

4. I do not mean here to "salute 'sincere' abolitionist absolutism," but rather to better understand your disdain for all of those who view the death penalty as an immoral punishment. And here your comments are revealing because I surmise that you interpret EVERY abolitionist to be saying "that retentionists are barbarians because it's always wrong to kill." But that really does not follow. Sure, some abolitionists likely view retentionists as barbarians, just as some agnostics likely view believers in God to be weak-minded. But I am sure some abolitionists may just disagree, respectfully, with the views of retentionists. I tend to assume --- perhaps wrongly --- that there is a pluralistic respect for differing views here and elsewhere. Bill, you seem to assume --- perhaps rightly --- that those who disagree with you also think you are barbaric.

5. The key to really being a "DP agnostic," Bill, is always keeping an open mind both in general, and in specific cases, as to whether and when a death sentence is proper. In this case, I have strong feelings and emotions and instincts, but I remain eager to keep an open mind until I hear more of the evidence about the offense and offender and until I hear more of the pro and con arguments to be made by capable counsel.

Posted by: Doug B. | Apr 20, 2013 9:27:34 PM

Daniel is correct. He was found after shut down ended. The owner of the boat left the house to get air, and found the terrorist. The shut down therefore delayed the discovery. It cost $billions in economic activity, making the failed suicide bombing into a huge success.

Posted by: Supremacy Claus | Apr 20, 2013 10:27:05 PM

"...and you would endorses mandatory execution of all of Dzhokar's family or mandatory painful daily torture of Dzhokar for decades as a punishment in this case,..."

That is an empirical question. If these measures save thousands of lives in the future, they are appropriate. The sole reason they are used as examples of extreme views is that they are to be applied to the lawyer client, there fore beyond the pale. The fact that many victims suffered agonizing injuries, and will undergo many more agonizing surgical procedures seems of no concern to the lawyer.

Why? The crime victim generates no lawyer fee and may rot.

Posted by: Supremacy Claus | Apr 20, 2013 10:34:22 PM

Doug --

1. "At the core of true faith --- whether faith in the Bible as the literal word of God or faith in the wrongness of the death penalty --- is a fundamental "don't-bother-me-with-the-facts" that would potentially counteract that faith."

Which is an excellent reason, in addition to the Constitutional ones, to keep faith from dictating secular legal principles. But it's done here all the time.

"But it seems, at least in this setting, you do think those with faith in the wrongness of the death penalty merit disdain based on that fact alone."

What merits disdain is their pigheaded certainty that they speak for God in opposing retentionists. Their substantive position merits merely rejection, not disdain.

2. " I do not think seeking more information is mere cover to lower the punishment..."

That SHOULD be true, but far more often than not, it is not true. The supposed quest to understand the defendant is almost always the (designed) precursor to a pitch to mitigate punishment.

"And I do think (1) what we know about the dead brother's recent turn to fundamentalism and the reality of brotherly relations that there is a fair basis for suspecting the dead brother was the mastermind here."

I disagree. Brothers can be determined to follow one another, or can be determined to part ways. I've seen both, quite a lot. Guessing that the older brother was the "real culprit" is just another version of the oldest defense ploy in the book: Blame it all on someone who's dead and can't give his own version.

In addition, as I've noted, it would make no difference even if the older brother were the leader. The younger brother was an adult with, so far as news reports show, absolutely no mental or emotional impairments whatever. That means he gets full responsibility for his own actions, brother or no brother.

Posted by: Bill Otis | Apr 20, 2013 11:12:41 PM

(Cont'd)

3. "I surmise your view is that 'given the grotesqueness of the crime,' it will be essentially impossible for the defendant or his lawyer to make a viable case for sparing his life."

This guy is a poster child for the DP. No doubt of guilt; a planned attack on innocents; unbelievable and deliberate sadism; child murder; cop murder; multiple murder; almost surely terrorist murder; no racial angle; no mental impairment.

This is what every single report indicates. In other words, it's all aggravators and no mitigators. I really have no clue as to what a "viable" defense would be. That the eight year-old gave him a dirty look?

Seriously, if anyone has a clue as to what this guy's pitch will be, I'd love to know.

4. "... your comments are revealing because I surmise that you interpret EVERY abolitionist to be saying "that retentionists are barbarians because it's always wrong to kill." But that really does not follow."

It does not follow a priori, correct. But a posteriori, that is what I see here over and over. And no one to my knowledge has yet made any of the more trendy arguments like cost. Nor would that argument fly here, since the only capital prosecution would be by the feds, and the feds have all the money they can borrow or print, to wit, infinity.

"Bill, you seem to assume --- perhaps rightly --- that those who disagree with you also think you are barbaric."

It's not an assumption. I can't even remember the number of times Kent, federalist, Adamakis, MikeinCT and others (and I) have been called barbarians. And Nazis, bloodlusters, savages, dada, dada, dada.

5. One of your most laudable virtues is keeping an open mind. Right now, in this case, I don't see anything other than speculation -- and not even much of that -- to support mitigation. Do you?

Posted by: Bill Otis | Apr 20, 2013 11:14:29 PM

? --

The difference, which cannot possibly elude you, is that I present myself as a law professor, appellate litigator and former federal prosecutor, not as God or as someone representing God.

You really don't get this?

Posted by: Bill Otis | Apr 20, 2013 11:18:47 PM

Daniel --

Your comments on this thread are even more preposterous than your claim on an earlier thread that if X is not convicted in court, X is not factually guilty.

When I pointed out that this meant that neither Hitler nor Osama were factually guilty -- an absurdity by any standard -- you simply went silent.

My goodness.

Posted by: Bill Otis | Apr 20, 2013 11:27:53 PM

Boffin stated: "Ergo, this case would argue against the death penalty."

Thank you for a textbook example of the perfectionist fallacy...

Posted by: TarlsQtr1 | Apr 20, 2013 11:50:01 PM

Daniel stated: "My comments are mild and even tempered compared to much of what is passing by on the internet these days. At least I am not with the loonies who believe that the whole thing is yet another CIA plot or those who are convinced that this was "false flag" and a trial run for the overthrow of American democracy, and other such rubbish."

Do you also compare yourself to sumo wrestlers to convince yourself that you are not fat?

Posted by: TarlsQtr1 | Apr 20, 2013 11:54:42 PM

So ..... should the terrorist/murderer by prosecuted in a civilian court or declared an enemy combatant and taken to Gitmo?

Posted by: Fred | Apr 21, 2013 12:05:26 AM

@ Fred: Interrogate as an enemy combatant first. If found to have links to terrorist groups on the outside, remain enemy combatant. If only al qaeda "inspired" with no actual links, given miranda rights and a civilian trial.

Posted by: TarlsQtr1 | Apr 21, 2013 12:18:57 AM

I think there is a high probability that they were being run by outsiders.

Posted by: Fred | Apr 21, 2013 12:25:30 AM

"The basic argument for the death penalty is deterrence..."

Maybe to some, but for to me. For me (and I think many others) it's all about desert."

1) I am to the right of the Chinese government on the death penalty. I want to see 10,000 violent repeat offenders and highly dangerous people such as the terrorists executed each year. To end crime in the US, by ending the criminals. If that reduces murder by 90%, we are ahead in lives saved.

2) I do not believe the death penalty can be considered a punishment. Here are various definitions. I support the elimination of the rent, by immunizing public self help, when they blast and kill the violent criminal on the spot. Pull a gun in a bank, 50 people will start blasting or pay a $100 ticket. Get rid of the parasitic, worthless lawyer profession, as they have in China and Japan, low crime nations. To imitate the US, they are increasing their lawyer supply. Guess what. Their crime rates are increasing.

http://en.wikipedia.org/wiki/Punishment

The death penalty eliminates the person and all behavior, not just misconduct. It is a removal, an ultimate incapacitation. It therefore may not be subject to the Eighth Amendment restrictions on punishment. The death penalty is endorsed by the Constitution, but not restricted in any clause, to my knowledge, if it is not a punishment.

That being said, here are appellate arguments for the abolitionists. I would be curious how Bill could address these on appeal. Again, to no avail, I want fairness credit for these original, powerful, and self-evident arguments.

3) General deterrence, or any allusion to it in any lawyer utterance in a tribunal, violates the right to a fair hearing under Fifth Amendment procedural due process rights. One may not penalize a person for the speculative, future crimes of a person not known to the defendant. So any statement like, "Send a message." "This county will end all child murder." Immediate grounds for a mistrial or reversible error. How would Bill address that violation of due process on appeal?

4) Retribution or just deserts is from the Bible. That book was written by Palestinian and Iraqi tribesmen 3000 years ago. It is the book of two religions. Therefore any legal doctrine originating from it must be validated outside the Book, preferably by evidence, or else it violates the Establishment Clause. There is also a nearly pornographic gratification of seeing the murderer of a loved one get executed. The state has no interest in private revenge or the gratification of families of victims. A lengthy list of verses mentioning retribution:

http://www.openbible.info/topics/retribution

Therefore all tribunal utterances mentioning retribution or just deserts? Grounds for a mistrial, or reversible error.

Posted by: Supremacy Claus | Apr 21, 2013 12:30:47 AM

The Obama administration failed to act on information from Russian intelligence of the dangerousness of the terrorists months ago. They are too PC to harass Muslims. Why? The President is a Muslim, and is totally biased in their favor. No one may criticize or investigate them. They are above the law.

Now, they want to make a show to the world of their false piety. They are not going to fool around. The terrorist will get all the best, best budgets, best lawyers, best experts on brain development as our daffy Supreme Court misperceives it.

One of the moves they make? Appoint Bill Otis as lead attorney of the Dream Team. You have a budget of $10 million, including a $million/year personal retainer.

What do you do to save your client? I have some ideas, but am keeping them to myself.

Posted by: Supremacy Claus | Apr 21, 2013 12:48:26 AM

TarlsQtr1 and Fred --

Being a literalist, I think Mr. Nicey could be interrogated as an enemy combatant only if he is, in fact, an enemy combatant. What that means is that he has to have some sort of operational affiliation to an enemy (probably al Qaeda). It's insufficient, in my view, merely that he's an Islamic extremist (if he is). Merely being an Islamic devotee per se would not make him an "enemy" in any operational sense.

So the answer is: If we have sound evidence of an al Qaeda or similar affiliation, then no Miranda warnings until a reasonable interrogator would believe he has given us the need-it-now intelligence he has. If we lack such evidence, caution counsels that, under existing (harebrained) law (starting with Dickerson), he should be given the warnings before questioning.

My instinct is that this guy is not an al Qaeda operative, but a more-or-less lone wolf inspired by al Qaeda and the teachings of radical Islam.

That means there's good news and bad news. The good news is that he's probably not part of, or operating, a group with further bombings in mind. The bad news is that he could not be classified as an enemy combatant, and would (1) get warnings and (2) get tried in civilian court.

Immediate legislation is needed in Congress to insure that this case is done expeditiously, with tight deadlines and serious penalties for breaching them. There is absolutely no reason we can't get to the bottom of this, get a resolution, and have it all appealed in a couple of years. If people work at it full bore every day, that is scarcely impossible.

Anyway, I hope this helps some.

Posted by: Bill Otis | Apr 21, 2013 9:02:44 AM

SC --

I appreciate the confidence in my abilities, but I decline the appointment. Not even Obama has printed enough money -- 10 million or 10 zillion -- to entice me to become Dzhokar's lawyer.

Long before I got a law degree, I got a conscience. A person with a conscience does not willingly try to come up with some razzle-dazzle creation to assist beating the rap for a guy who kills eight year-old's by blowing nails through them.

If my life lasted ten trillion years, it would be too short for that.

Not to worry, though. There will be oodles of skilled defense lawyers willing to kill their grandmother to get this case. No matter what the outcome, the sheer publicity value, the guaranteed adoration at defense seminars and conventions, the speeches and awards -- gads, the incentives way beyond money are everywhere you look.

I think my place is elsewhere. Perhaps at the little boy's gravesite, wondering what his life might have been. Not much money in that. No banquets, either. No press conferences to bellow at the prosecution. But at least when I get off my knees, I'll be able to stand up straight.

Posted by: Bill Otis | Apr 21, 2013 9:44:20 AM

Does someone remember My Lai? Did Calley had a defender at trial? One without a conscience?

Posted by: claudio giusti | Apr 21, 2013 11:15:05 AM

Thanks, Bill.

Of course this is all fluid right now, but there is some reporting that these guys were part of a larger sleeper cell with special training.

http://www.mirror.co.uk/news/world-news/boston-bombers-fbi-hunting-12-strong-1844844

The FBI was last night hunting a 12-strong terrorist “sleeper cell” linked to the Boston marathon bomb brothers.

Police believe Tamerlan and Dzhokhar Tsarnaev were specially trained to carry out the devastating attack.

More than 1,000 FBI operatives were last night working to track down the cell and arrested a man and two women 60 miles from Boston in the hours before Dzhokhar’s dramatic capture after a bloody shootout on Friday.

A source close to the investigation said: “We have no doubt the brothers were not acting alone. The devices used to detonate the two bombs were highly sophisticated and not the kind of thing people learn from Google.

“They were too advanced. Someone gave the brothers the skills and it is now our job to find out just who they were. Agents think the sleeper cell has up to a dozen members and has been waiting several years for their day to come.”

Posted by: TarlsQtr1 | Apr 21, 2013 11:52:05 AM

Claudio: many defense lawyers are not even human. One offered to provide the location of the body of the little girl the client had tortured raped and murdered over days in exchange for removal of the death penalty. The prosecution declined. In the US plea, bargain discussions are privileged and cannot be repeated at trial.

The defense then mounted a defense over many days of trial, accusing the victim's parents of being the murderers not the client, going into all aspects of their sex lives and falsely accusing them of prolonged sexual abuse.

The Supremacy filed ethics complaints against these monsters. They were immediately dismissed. Their conduct was labelled as mere zealous representation.

Posted by: Supremacy Claus | Apr 21, 2013 12:01:17 PM

Claudio --

Try to get in the right millennium.

Posted by: Bill Otis | Apr 21, 2013 12:31:27 PM

@claudio
Yes, Lt. Calley escaped justice more than four decades ago. All the more reason not to let Dzokhar Tsarnaev and Sgt. Bales escape the harshest possible punishment now.

Posted by: MikeinCT | Apr 21, 2013 12:37:00 PM

TarlsQtr1 --

Thanks for the info. Interesting and disquieting.

I guess I favor whichever system will most expeditiously result in a trial and sentence. Delay is the only thing I can think of the defense will have going for it (other than witness murder, which is scarcely beyond these people).

Posted by: Bill Otis | Apr 21, 2013 12:37:46 PM

SC --

I do not agree that defense lawyers are not human. They are fully human, and come in all the varieties humans do, from the noble to the sleazeball.

One thing human beings are really good at is self-justification. Thus it would be easy for a defense lawyer, seeing all the publicity, fame, professional adoration, speaking invitations, etc., et al., to be had from this case, to just shuffle the victims (or the entire atrocity) to the back of his mind and tell himself that he was Helping The Downtrodden, which is the rote anthem of defense work anyway.

Victims? Ha! What, are you kidding me?

Posted by: Bill Otis | Apr 21, 2013 12:51:48 PM

Bill: When the client is beyond the pale, the standard line I get is, "I am defending the constitution." "Today, it is my client. Tomorrow, it may be you who needs these rights protected." The defense bar can be sincere, even if kidding itself.

Posted by: Supremacy Claus | Apr 21, 2013 1:29:11 PM

Bringing Out The Worst In Us

http://blog.simplejustice.us/2013/04/20/bringing-out-the-worst-in-us.aspx

Posted by: George | Apr 22, 2013 12:17:15 AM

I think Doug makes a good point here:

"My main point is that we all likely embrace some form of absolutist vision of what sorts of punishments are immoral/improper regardless of the "facts."

This is true and astute. All of us think, for instance, that it is wrong to gouge an incarcerated offender’s eyes out. However, I’d go further. Fundamentally, morality proceeds from assumptions. Once you have certain foundational assumptions, you can reason from them, but at heart the foundations are often assumptions. Many of these assumptions are unaffected by facts (after all, moral assumptions are not natural facts that can be discovered; instead, they are decreed by fiat, whether by parents or God or whomever, and cannot be “proven” or “disproven”). From those moral assumptions, and through a complex process of nurture and experience, we develop moral intuitions on a variety of subjects.

It is hard to condemn an absolutist, fact-independent moral view without condemning much of morality (though perhaps not all of it), as much morality proceeds from fact-independent assumptions. Does that lead to relativism? Not necessarily. We can still debate and think about morality within certain assumptions; we can ask whether a certain position follows from our assumptions, or is inconsistent with them. This is precisely what most contemporary moral philosophers do. However, if another person proceeds from different assumptions, you can’t get far. Nor can you argue that they are somehow “wrong,” unless you can show why your fundamental assumption is superior, which I think will be very hard to do without assuming yet more fundamental assumptions.

Posted by: AnonymousOne | Apr 22, 2013 1:19:24 AM

“And at bottom the reason for this, as we have seen again and again and again here, is that, in one form or another, they think Amerika Stinks, and thus lacks the moral standing to impose this perfectly Constitutional punishment.”

I don’t think this is a fair assessment (though it is certainly true of some). I know tons of abolitionists whose views have nothing to do with America, or any country. My own (evolving) objection is two-fold. The first is a process-based objection; I worry that there are too many innocents condemned to death. Given that the Innocence Project has found over 100 innocents, and they can only accept a tiny percentage of death-eligible cases (meaning that if the same statistics repeat in these other cases, hundreds more are to be led to death unjustly), this is a very big concern for me, and should be for others that value life. But that is process, not principle. Second, on principle, I grapple with a fundamental moral assumption that it is wrong to kill someone unless it is necessary to save life. I am not categorically opposed to the state taking life, of course, such as in war, defense, certain preemptive actions, etc.

Posted by: AnonymousOne | Apr 22, 2013 1:21:56 AM

*sigh* i'd try reading through all of these comments, but it didn't take long to see that Bill Otis is back to his old anti-Erika prejustice with this entire "Amerika stinks" thing. The subliminal message there that Erika stinks is quite obvious. Guess i haven't been around enough to straighten him lately.

And speaking of bill needing straightening out, i have to love the hypocracy of his position that people who oppose the death penalty based upon their religious beliefs should shut up because religion has no place in public policy. Yet he was the same one who repeatedly claims that President Obama is anti-religious because he is trying to stop certain religious people from preventing women from getting health insurance that covers birth control pills (even if they are used for reasons besides birth control). So i see bill's position quite clearly:

attempting to use religious beliefs to stop something he likes = religious has no part in politics in a secular country.

attempting to use secular politics to achieve a goal he doesn't like which is opposed by religious fundamentalists = government being biased against religion.

Right. So according to Bill Otis, religion should not dictate to people what to do in a secular society unless it is preventing women from getting birth control pills. Or unless it is a way to attack President Obama. What a joke he is.

Erika :)

Posted by: Erika | Apr 22, 2013 9:28:01 AM

Erika --

Please come unstuck from yourself. My use of the venerable (on the Left) slogan "Amerika Stinks" -- to imply America is a fascist country -- has zip to do with you. I didn't so much as know your name was Erika (if it is), and, apparently foolishly, took it to be "Virginia" or "Ginny" when that's how you were signing yourself.

"Yet he was the same one who repeatedly claims that President Obama is anti-religious because he is trying to stop certain religious people from preventing women from getting health insurance that covers birth control pills (even if they are used for reasons besides birth control)."

I have zero idea what you are talking about, which makes two of us.

"What a joke he is."

Up to now, you've been too yellow to accept my debate invitation. I mean, gosh, aren't you eager to show a live audience what a joke I am?

Posted by: Bill Otis | Apr 22, 2013 10:33:46 AM

Erika stated: "attempting to use religious beliefs to stop something he likes = religious has no part in politics in a secular country.

attempting to use secular politics to achieve a goal he doesn't like which is opposed by religious fundamentalists = government being biased against religion."

Erika,

There is no contradiction in stating that:

A) We are a nation of secular laws and those of religion do not get a special place in determining them (he did not say it has "no part in politics", he said it should "not dictate" secular law).

B) The government cannot, under almost all circumstances, force people of religion to violate their faith.

You created a textbook example of a strawman by erroneously restating his position and then refuted your own error filled interpretation. Debate Bill, not your own bastardized version of his statements.

Posted by: TarlsQtr1 | Apr 22, 2013 10:41:53 AM

Erika stated: "unless it is preventing women from getting birth control pills."

What US Congressman or Senator has introduced legislation that would prevent women from getting birth control pills? Please provide name, party, and # of the bill.

Posted by: TarlsQtr1 | Apr 22, 2013 10:45:17 AM

AO --

A few points.

-- The problems with splicing theocratic assumptions into secular law are manifold. Which religion is to prevail? Why is one better than the other, and how does that square with a pluralistic and religiously diverse country? Most fundamentally, how are disagreements to be worked out if all we have are moral assumptions? How do we "debate" those?

-- Absolutist thinking, which you now seem to find OK if not laudable, was previously blasted by the Left when it was coming from, say, the Southern Baptists. Back then, it was mere wahooism, the unwashed, unnuanced bleating of backwoods know-nothings. Now it seems to be much more popular -- now being the time when the usual objections to the DP won't work in the case of the Boston bomber.

-- Relatedly, one of your two main objections (the possibility of executing an innocent person) is not realistically tenable in the Boston case. Every sane person knows the captured terrorist did it. Some may eventually claim otherwise, but if they do, it will be just so much solipsistic silliness.

-- Your other objection also doesn't work. Much of the killing in war is not necessary in the slightest to protect life. We bombed the daylights out of Germany, not to protect life, but in order to inflict such massive damage on it that it would capitulate. We knew that those bombs would kill many, probably thousands, of civilians, which they did. If you approved of WWII, you approved of taking life without anything that could fairly be described as "necessity."

The theory that the state should kill only when necessary to protect life does not, with all respect, hold up to even modest examination. If the state were to lower the speed limit everywhere to 30, we'd save thousands of lives. And driving faster than 30 is by no means "necessary," to save lives or for any other purpose. It's merely extremely convenient, and quite useful to avoid the annoyance of a snail's pace when you want to drive to Grandma's house 200 miles away.

We knowingly trade lives for convenience. It must follow that we can trade them for something more valuable, that being the only justice that fits this grisly bomber -- not that any innocent lives have even a remote chance of being "traded" anyway, since, as noted, no sane person doubts that we have the right guy. There is zero chance of executing an innocent in this case.

-- Lastly, you only have to read this blog for a week to know that a whole bunch of the abolitionist segment think that, even if the DP is deserved for some killers, the USA is simply too racist, too unfair, too unequal, too frontier, too you-name-it, to be morally empowered to impose the DP. When Amerika Stinks, so the thinking goes, it lacks the standing to execute anyone.

Posted by: Bill Otis | Apr 22, 2013 11:03:02 AM

1. I’m not suggesting splicing theocratic assumptions into secular law (though I believe our law is already chock-full of such splicing). I was speaking generally about moral assumptions, however based (religion or otherwise). We certainly splice our values into law, and those values are often based on assumptions, if they are not outright assumptions.

2. I do not think absolutist thinking is laudable (even when I do it, and I try not to). I’ve always, on this blog and elsewhere, sought to critically analyze long-held assumptions. I meet with much resistance (here and in life). To me, moral assumptions are assumptions, no matter how many people may assume them, and require critical analysis. My problem is with those that are willing to accept assumptions merely by virtue of religious provenance, or by upbringing, or majority rule. I question how such people can logically condemn those with very different assumptions, when the game is that assumptions cannot be critiqued (I’m not saying you’ve done this, but speaking generally).

3. I recognize that my process-based DP objection is not at issue in this case.

4. We bombed Germany in part so they would cease hostilities immediately. Hostilities cost life. Every second Germany had not capitulated was another second in which soldiers could be killed, villagers terrorized, civilians harmed, and the crematoria continued to burn. That is a form of necessity. And while there may be cases on the margin, they are a far cry from killing an incarcerated person. To me, that would be akin to bombing Germany long after it had surrendered.

I don’t think your speed-limit analogy is fair. There is a difference between the state killing, and the state prohibiting private citizens from doing things that may result in death. And again, aside from that stark difference, none are like the kind of killing involved in the DP.

5. I don’t deny there are those whose disregard for the DP is based on some moral or political condemnation of the U.S. I do deny, however, that those are the only objections to the DP.

Posted by: AnonymousOne | Apr 22, 2013 12:10:49 PM

I think it's most accurate to call me an abolitionist of retributivist DP, because I have serious concerns about retributivism. I want to be clear that my abolitionist view is limited to that, at least at this moment.

Posted by: AnonymousOne | Apr 22, 2013 12:13:06 PM

AO stated: "And while there may be cases on the margin, they are a far cry from killing an incarcerated person. To me, that would be akin to bombing Germany long after it had surrendered."

The problem with your analogy is that it rests on the fact that the surrendered Germany stopped shooting at us. Murderers do not stop killing just because they are incarcerated.

In fact, a better analogy would be Germany after WWI instead of WWII. After the Treaty of Versailles, both Germany and their apologists spent the better part of two decades looking to erode it. Once they did and Germany again became a threat, they went back and blamed the treaty.

The same happens here. They claim, "We are safe from murderers because they are incarcerated!" The same people are also claiming that the conditions are too severe, we need to give them more freedom (if not freedom altogether), etc. They get more freedom, kill another in person, and then y'all blame the incompetents in the prison system.

Posted by: TarlsQtr1 | Apr 22, 2013 12:51:08 PM

AO --

Just one point for now: I do think my speed limit analogy is fair. The state builds roads, licenses cars and drivers, and decides on high speed limits for the sake of convenience. It does this knowing in advance that those limits (and some of the highway designs) will result in X number of deaths, X being higher than the number of deaths that would result from better designed roads, licensing fewer drivers (especially among the young and the old), and lowering the limit.

When the state has advance knowledge that innocent people are going to get killed when it makes laws A,B, and C, but that fewer innocent people will get killed if it changes to laws D,E, and F, and it refuses to change anyway, then it is morally culpable for the ensuing excess deaths.

There's a venerable jury instruction to the effect that the jury may infer that a person intends the natural and probable consequences of his acts. Ditto for the state.

The truth is that we routinely accept all manner of killing in which the state is up to its ears -- in the construction of dams and other big projects, in space and medical research, in the peacetime military -- because we think it's worth the candle. So the question with the DP becomes: Is it too worth the candle? My answer is yes because, among other reasons, we know from experience that many more innocents will eventually get killed by convicted murderers who could have been but were not executed, than by the state's executing innocent people.

I would note that this is a factual matter, and does not rely on moral assumptions one way or the other.

That there is a net saving of innocent life by keeping the DP, rather than discarding it, is per se sufficient, on social policy grounds, to retain it.

Posted by: Bill Otis | Apr 22, 2013 1:29:11 PM

SC --

"When the client is beyond the pale, the standard line I get is, 'I am defending the constitution.' 'Today, it is my client. Tomorrow, it may be you who needs these rights protected.' The defense bar can be sincere, even if kidding itself."

It's precisely the sincerity that is most frightening.

P.S. It's also not kidding itself; it's kidding the rest of us. It knows it's the client, not the Constitution, that generates the fee.

Posted by: Bill Otis | Apr 22, 2013 1:35:57 PM

Tarls: I don't disagree. I'm abolitionist on DP when it serves only a retributive function, as this is killing not to save life, but to satisfy some psychological desire. However, there may be cases where DP prevents further loss of life, such as when applied to one likely to kill in prison. That, of course, would not necessarily be precluded by my argument. Of course, determining risk of future harm is really hard--and that makes questions of "necessity" very hard. That is a very good question, but not one that I am seeking to address now (it is a complicated issue, and I'm focusing now on the contours of the theory). For now, you can simply imagine the easy case of a man who kills and is paralyzed in the course of the crime, such that he is not killing anyone anytime soon.

Bill: There is a huge difference (much discussed among moral philosophers for centuries) between (a) enacting a policy that may enable others, of their own volition, to take life, and (b) directly and actively killing a person. There is almost no moral equivalence between the two. I don't think anyone could say that, by not incarcerating all persons at birth, I'm guilty of murder--or even tenuously connected to it in some moral sense--because a percantge of those infants will grow to be murderers. I think that on your theory, I--or the state that refuses to incarcerate all adults or otherwise limit freedom which enables volitional immoral conduct--is culpable. So I still do not think that there is inconsistency in my arguing that the state may refuse to lower the speed limit, though it may not kill a man in handcuffs who does not pose a risk of future harm.

Posted by: AnonymousOne | Apr 22, 2013 7:00:44 PM

AO --

But my central point remains: The government is up to its ears in legal arrangements it knows in advance will result in the deaths of innocents. Society simply does not have the view that innocent life cannot be foregone if the stakes are high enough. The only questions are (1) what are the stakes, and (2) how high are they. The fact that, in the DP context, the state is an active rather than a knowing passive presence can (and is) thrown into the weighing of those questions, yes, but they are the questions nonetheless.

And then there is the numbers effect as well. Traffic deaths due mostly to excessive speed vastly outnumber the deaths of innocent people who were executed, even on the most exotic estimate of the latter. At some point, the sheer number of "passive involvement" deaths catches up, as it were, to the (concededly weightier) problem of active involvement deaths.

The other problem I see with your theory is that it does not pass the test of disagreement. By that I mean this: We live in a democratic country, and in such a country, the majority rules. You believe that retribution is not acceptable as a basis for punishment, but many other intelligent people of good faith disagree.

It does no good for either side simply to say: "I'm right according to my lights, and you're not." The only way, in a peaceable, democratic country, to "decide" who is "right" is at the ballot box.

I will be the first to admit that this is conceptually unsatisfactory, but, for purposes of establishing both governing legal theory and governing law, I see no better alternative. Thus, while it is true that having a mere majority in favor of X does not make X right, it makes it as right as we're going to get in a democratic society.

Posted by: Bill Otis | Apr 22, 2013 8:14:32 PM

Respectfully, I still disagree. The government may advance freedom-enabling policies that permit others to do bad, but that seems to me in a separate moral category. I see no inconsistency in permitting such policies while condemning a very narrow category of active killing.

On democracy, I don't really disagree. When competing moral assumptions are at issue, there is little one can do but decide at the ballot box (and while conceptually unsatisfactory, as you note, there may be no better option). I'm not advocating that we take the decision away from the people. All I want to do is to give people a different point of view.

Posted by: AnonymousOne | Apr 23, 2013 12:03:29 PM

And what better way to disseminate that diffeent point of view, and reach the electoral masses and our elected representatives, than by posting on this thread?

Posted by: AnonymousOne | Apr 23, 2013 7:27:52 PM

AO --

Woe be unto us, I suspect you and I are the only two of the electoral masses still looking at this thread.

Posted by: Bill Otis | Apr 24, 2013 11:26:59 AM

Nope. I follow the debates between the two of you quite closely.

Posted by: arfarf | Apr 24, 2013 1:52:00 PM

Bill, we can only hope that arfarf is a sitting senator or congressperson.

Posted by: AnonymousOne | Apr 24, 2013 5:47:52 PM

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