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March 4, 2022
Voting 6-3, SCOTUS reinstates vacated death sentence for Boston Marathon bomber Dzhokhar Tsarnaev
The Supreme Court this morning handed down its ruling in US v. Tsarnaev, No. 20-443 (S. Ct. March 4, 2022) (available here). When the US Supreme Court back in March 2021 decided to grant cert on the federal government's appeal of the First Circuit's reversal of Boston Marathon bomber Dzhokhar Tsarnaev's death sentence, the smart bet would have been that a majority of Justices were inclined to reinstate that death sentence. Such a bet looked even smarter after the Supreme Court oral argument in October 2021 which revealed a predictable ideological split and strongly suggested a majority of Justices were inclined to reinstate Tsarnaev's death sentence. Here is how Justice Thomas's opinion for the Court gets started:
On April 15, 2013, Dzhokhar and Tamerlan Tsarnaev planted and detonated two homemade pressure-cooker bombs near the finish line of the Boston Marathon. The blasts hurled nails and metal debris into the assembled crowd, killing three while maiming and wounding hundreds. Three days later, the brothers murdered a campus police officer, carjacked a graduate student, and fired on police who had located them in the stolen vehicle. Dzhokhar attempted to flee in the vehicle but inadvertently killed Tamerlan by running him over. Dzhokhar was soon arrested and indicted.
A jury found Dzhokhar guilty of 30 federal crimes and recommended the death penalty for 6 of them. The District Court accordingly sentenced Dzhokhar to death. The Court of Appeals vacated the death sentence. We now reverse.
Justice Barrett authored a concurrence joined by Justice Gorsuch which starts this way:
In this case, the First Circuit asserted “supervisory power” to impose a procedural rule on the District Court. Because that rule (which required a district court to ask media-content questions on request in high-profile prosecutions) conflicts with our cases (which hold that a district court has broad discretion to manage jury selection), I agree with the Court that the First Circuit erred.
I write separately to note my skepticism that the courts of appeals possess such supervisory power in the first place.
Justice Breyer authored the sole dissent, which was joined by Justice Sotomayor and mostly by Justice Kagan. It starts this way:
During the sentencing phase of his murder trial, Boston Marathon bomber Dzhokhar Tsarnaev argued that he should not receive the death penalty primarily on the ground that his older brother Tamerlan took the leading role and induced Dzhokhar’s participation in the bombings. Dzhokhar argued that Tamerlan was a highly violent man, that Tamerlan radicalized him, and that Dzhokhar participated in the bombings because of Tamerlan’s violent influence and leadership. In support of this argument, Dzhokhar sought to introduce evidence that Tamerlan previously committed three brutal, ideologically inspired murders in Waltham, Massachusetts. The District Court prohibited Dzhokhar from introducing this evidence. The Court of Appeals held that the District Court abused its discretion by doing so. 968 F. 3d 24, 73 (CA1 2020).
This Court now reverses the Court of Appeals. In my view, the Court of Appeals acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce this evidence.
March 4, 2022 at 10:19 AM | Permalink
Comments
Time to set a date and put him down.
Breyer’s dissent is so pathetic. If the courts were going to exercise their supervisory power, they should have done it with the Michael Flynn case. Judge Sullivan’s handling of that case was disgusting to any neutral observer. Doug, you cool with Sullivan blowing off his own Brady order?
Posted by: Federalist | Mar 4, 2022 10:47:50 AM
I did not follow the Flynn affair closely, but I do think federal prosecutors and district judges mistreat federal defendants all the time and often make up their own rules to do so. That is one of many reasons I would like to see more transparency and review of the work of federal prosecutors and district judges in criminal cases.
Posted by: Doug B. | Mar 4, 2022 10:59:46 AM
Take a gander at Sullivan’s resolution of the Brady problems in that case. The feds withheld info from Flynn that Strzok thought he was being truthful. Sullivan said not relevant and cited a case that didn’t stand for that proposition—plus the SOB tolerated Flynn getting railroaded with 302s that were edited by Lisa Page. That was a no-no.
Posted by: Federalist | Mar 4, 2022 12:00:33 PM
No date yet in Tsarnaev for two reasons. First, there are other issues outstanding on the direct appeal that First Circuit decided did not need to be reached based on the grounds on which it granted relief. Second, even if trial was fully affirmed, there would still be the 2255 proceeding as claims of IAC are generally not considered on direct appeal. (I have trouble seeing any meritorious IAC claims but the way Strickland encourages microclaims of specific mistakes even when the overall representation was excellent.)
Posted by: tmm | Mar 4, 2022 12:25:28 PM
tmm --
This is another illustration of why we need a set deadline to get the execution done. There is absolutely no sane doubt of this defendant's legal and moral guilt. He blew up an eight-year old out of sheer hate. His case has already received more examination and scrutiny than 99.9% of criminal cases in the world, ever.
If we don't have the moral confidence to execute this child killer, we don't have the moral confidence to do anything.
Posted by: Bill Otis | Mar 4, 2022 2:23:49 PM
Doug --
If we might take a minute to stray from the usual theme of the moral deficiencies of prosecutors, let me ask, yes or no, whether you think executing Tsarnaev is just.
Posted by: Bill Otis | Mar 4, 2022 2:27:27 PM
Federalist: Hmmm, federal prosecutors badly misbehaving and a federal judge looking the other way? Sounds like a description of an average day in the federal criminal justice system (that's really for Bill, and I do not think it is really quite so bad every day). I believe Flynn was pardoned by Prez Trump. Would you support Prez Biden pardoning everyone he thinks got similar treatment in the federal CJ system?
Bill: Because a jury decided that a death sentence was a just outcome for Tsarnaev, and because a judge agreed, and the defendants had full rights to appeal, I am disinclined to second guess the justice of the outcome. Do you agree that both the reality of justice and the perception of justice is considerably stronger in this case because a jury and a judge had a say in the outcome AND there were full appellate rights to double-check their work?
Posted by: Doug B. | Mar 4, 2022 3:28:03 PM
Doug, doesn't the sentencing judge have to follow the jury's "recommendation" in the federal system under 18 U.S.C. § 3594?
Posted by: Jason | Mar 4, 2022 8:25:59 PM
Bill, I have had more than my fair share of experience with IAC claims (over 300 2254 petitions when I was doing habeas work and about 40 each of state IAC motions and state IAC appeals). In my experience, the overwhelming majority of IAC cases are, at best, proposing that trial counsel was an idiot for going with defense A rather than defense B when both were about equally strong and, beyond the motion mouthing the language from Strickland, nothing in the motion gives any good reason to believe that trial counsel was incompetent or that the counsel's decisions prejudiced the defendant Out of all of those cases, maybe 10 involved a substantial claim of IAC where defense counsel's decisions required some explanation and the defendant had a decent argument that the trial counsel missed something major that might have made a difference.
I truly expect the Tsarnaev case to be like the vast majority of cases that I have seen in which the IAC claim is barely colorable. From what I heard in the media coverage, the defense tried a very good case. Thus, my expectation is that the 2255 motion will assert that counsel should have called additional witnesses who are similar to the witnesses that were called or presented additional evidence focusing on a different part of Tsarnaev's background whose mitigation value pales compared to Tsarnaev's crimes. But I could be wrong. Tsarnaev's case might be one of those rare cases in which trial counsel missed something earth shattering that would have put the penalty phase into an entirely different light.
I would hope (not expecting it, but would hope) that if the 2255 motion is as flimsy as most IAC claims are, the trial court would quickly schedule a hearing ad dispose of the claims. But, even Tsarnaev deserves the chance to raise any truly meritorious IAC claim.
Posted by: tmm | Mar 4, 2022 11:36:56 PM
Jason, I think you are right that federal judges have less express discretion to "override" a jury recommendation of death than some state judges do. But I still think a federal judge would have some authority, under a variety of constitutional and statutory doctrines, to decline to impose a sentence of death if there was a strong basis for him/her to conclude that the jury's recommendation was deeply unjust. As but one example, 18 USC 3595 says the circuit court on appeal "shall consider whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor." I would think a showing to the district court that the jury was greatly influenced by, say, evidence the defendant was a NY Yankees fan would allow the district judge to refuse to enter a death sentence. (Or, more dramatically, what if the juror foreman said in open court, say in the Roof case, "the whole jury decided that we had to vote for death, and only did so, because we were worried there would be nationwide riots if we didn't"?)
Because I have not litigated capital cases in the federal system, I may not be fairly reflecting how these cases operated on the ground. But I do not think I am entirely wrong to believe that federal capital judges view their role as not merely ministerial, but as including at least some residual supervisory authority so that they need not and should impose death sentences that seem to reflect procedural or substantive injustice.
Posted by: Doug B. | Mar 5, 2022 10:54:30 AM
Doug --
"I do not think I am entirely wrong to believe that federal capital judges view their role as not merely ministerial, but as including at least some residual supervisory authority so that they need not and should impose death sentences that seem to reflect procedural or substantive injustice."
That's just a fancier way of saying that the judge can veto a jury-imposed death sentence whenever he would not have imposed it himself ("...substantive injustice"). But that's not law; it's taste, which is the opposite of law. In addition, if you actually believe in enhanced jury power at sentencing, which I take it you do given your enthusiasm for Apprendi/Blakely/Alleyene, then the judge should have less power, not more, to change the jury's result.
Posted by: Bill Otis | Mar 5, 2022 3:27:19 PM
Doug --
"Because a jury decided that a death sentence was a just outcome for Tsarnaev, and because a judge agreed, and the defendants had full rights to appeal, I am disinclined to second guess the justice of the outcome. Do you agree that both the reality of justice and the perception of justice is considerably stronger in this case because a jury and a judge had a say in the outcome AND there were full appellate rights to double-check their work?"
Your first sentence elides rather than answers the question. It is one thing to decline to second guess the jury's sentence, and another affirmatively to think that executing Tsarnaev is just. Do you think that executing Tsarnaev is just?
Your second sentence reflects what I view as an odd take on that central question. Whether it's just to execute Tsarnaev depends on what Tsarnaev did, not on what the government did months or years afterward his grotesque crime. If death is a just punishment for Tsarnaev's crime, it was just the second he committed it.
To answer your question directly: The reality of the justice of executing this character (for child murder, multiple murder and terrorist murder) is not affected by any after-the-fact event. How could it be? The perception of the justice of executing him is probably bolstered by the fact that we gave him plenty of process, yes. But even there, a caveat is needed: There are plenty on the Left who think that there is no such thing as enough process to make a death sentence just. They ALWAYS demand one more shot, and then one more and one more ad infinitum (see, e.g., the zillions of literally last-hour appeals based on "newly discovered" this that and the other thing, most of it sheer fiction designed just to gum up the works).
To these people, it's time to say that the obstructionist game is up, and I'm glad that we now have a SCOTUS that seems reasonably likely to do just that.
Posted by: Bill Otis | Mar 5, 2022 3:50:34 PM
You all appear to be ignoring his Federal Defendant's behavior in the case. It is my understanding that she did all she could to prevent a defense, claiming that her way was the only way to avoid a death penalty: which she didn't avert anyway.
Also there is the highly suspicious attempt by the authorities to murder the defendant while he was in the bottom of the dry-docked boat, after his brother was mysteriously gunned down, and before one of their associates was assassinated during an interrogation.
But the central piece of evidence for he defense: the brothers were not carrying or wearing the same back packs as those that were blamed for exploding. Its is for the above reasons that a new trial should be ordered.
So yes, tmm, there are many who disagree on the man's guilt. But that aspect is no nevermind. They did not prove quilt. And all--including the defense--were behaving emotionally, per-judging guilt before innocence.
Posted by: restless94110 | Mar 5, 2022 4:01:07 PM
Bill, I think all important decisions --- especially those about matters of life and death --- benefit from the maximum amount of information, as well as often deliberation and reflection and the hearing of opposing viewpoints. The Framers visions of adversarial justice and many part of our Constitution reflects this notion of sound criminal justice decision-making. Thus, I am inclined to respect the justice judgments of juries and those who make decisions with full constitutional process.
In contrast, you seem ever drawn to a regal (or maybe deity) vision of justice that you think is settled as soon as a king or a god decrees what "justice" must be. Applying the same kind of snap judgment, many think a death sentence can never be "justice" and many of those folks (like Sister Helen and I think Justice Barrett) are informed by their own vision of a deity who is loving of all his children, even the multiple murderers. I do not think our secular system should be debating whose god has the right vision of "justice" --- I will stick with the procedural justice tools our Framers gave us.
In the end, Bill, I think you do, too. Would you support upholding Tsarnaev's death sentence here if there was conclusive evidence the prosecutor had bribed all the jurors and witnesses? When you were a prosecutors, did your personal vision of "instant justice" always drive you to pursue your personal vision of "justice" without any regard for the legal rules of the road? Unless you say yes to that question, you are accepting that procedural justice in our system is essential to a secular "just" outcome. Procedural justice calls for all the law-abiding players to follow the rules. And one of the rules in the federal system seems to be that a sentence of death may not be "imposed under the influence of passion, prejudice, or any other arbitrary factor." 18 USC 3595. Are you saying a federal district judge is obligated to enter a death sentence even if he/she concludes that the jury recommendation was made under "influence of passion" despite law indicating the opposite? Did you ignore federal statutory law as a prosecutor in pursuit of your vision of "justice"?
For someone who (sometimes) claims to care about the rule or law, Bill, you really do not seem to care much about law. I hope you did when you were writing briefs on my behalf for the US as a federal prosecutor.
As for judge/jury powers, I want them both to have considerable authority to constrain the exercise of state powers to punish when punishment might be improperly based on lawnessness, passion, prejudice, or arbitrary factors. I will often trust fully informed juries to serve that role best, but juries are not perfect and thus it is always valuable to have additional checks (via district judges and appellate judges). This is about limiting and making transparent and deliberative and cautious the use of state power, as the Framers intended. I know you struggle to wrap your head around these concepts since you seemingly cannot name a single Supreme Court ruling for a criminal defendant that you think is consistent with the text of the Constitution. Such is the thinking of a statist, I suppose.
Posted by: Doug B. | Mar 5, 2022 6:40:38 PM
Doug --
Let me try once more: Do you think that executing Tsarnaev is just?
That can be answered yes or no.
After that, you are of course free to elaborate as you care to, including about how I was cheating during my career and don't care about law and really want to be a king, etc., etc.
Do you think that executing Tsarnaev is just?
Posted by: Bill Otis | Mar 5, 2022 7:12:19 PM
Doug --
"Would you support upholding Tsarnaev's death sentence here if there was conclusive evidence the prosecutor had bribed all the jurors and witnesses?"
No, I would not support the SENTENCE, but I would continue to think that death is the just punishment. Indeed, I would support charging the prosecutor in a separate case with bribery and obstruction and giving him a lengthy prison sentence, notwithstanding his defense lawyer's off-the-word-processor wailing about building the "carceral state," our country's "extraordinary punitiveness," how the defendant/bribester had a tough childhood and "affluenza" and all the other endless baloney to which the defense bar is addicted.
Now a question for you: Would you support upholding Tsarnaev's acquittal if there was conclusive evidence the defense lawyer had bribed all the jurors and witnesses? Or is bribery (and e.g. witness assassination) strictly a one-way street?
Posted by: Bill Otis | Mar 5, 2022 7:34:19 PM
Bill, I think a corrupted process is not a lawful or just one, so I would not want to uphold an acquittal if the product of bribery.
Now, speaking of processes and matters of "justice," do you think justice for the Unibomber also called for the death penalty? If so, do you think the decision by federal prosecutors to take a plea to LWOP was an injustice? (Notably, I believe he later sought to undo his plea -- should that have been granted by a judge to allow a new capital trial in the name of justice?) We might explore the same questions with other similar mass murders like Eric Rudolph and Jared Loughner.
I know you are a big fan of plea bargaining, but I wonder if you would say that in these kinds of mass murder cases (and perhaps many others) that plea deals end up subverting "justice" rather than advancing it.
As for whether executing Tsarnaev is "just," I can comfortably say that I will not consider his execution to be an injustice. But I have always embraced consequentialist notions of justice and sound punishment --- which implicate process and perceptions of justice --- over deontological ones because I do not quite know how to make sense of claims of absolute "justice" detached from concerns about consequences and context.
For example, would it be "just" to torture Tsarnaev before he is executed, perhaps to inflict a level of pain comparable to what is still experienced by some of his victims? Would it be "just" to stone him to death, which I believe is still a traditional method of execution in Muslin nations? Would it be "just" to not tell Tsarnaev when he will be executed --- as is done for those on death row in Japan? When Sister Helen says her god tells her that no execution is ever "just," is she plainly wrong about god and justice? I lack simple answers to these questions because many assertions about "justice" in this context strike me as statements of faith not statements of fact.
Posted by: Doug B. | Mar 5, 2022 8:20:08 PM
Doug --
"... do you think justice for the Unibomber also called for the death penalty?"
Yes.
"If so, do you think the decision by federal prosecutors to take a plea to LWOP was an injustice?"
Yes. They had their good faith reasons, but the answer is yes.
"Notably, I believe he later sought to undo his plea -- should that have been granted by a judge to allow a new capital trial in the name of justice?"
No. Judges are required to follow law, not their own (inevitably varying) sense of justice. The Unibomber's request to withdraw his plea was deficient under the law and therefore properly denied.
"I know you are a big fan of plea bargaining..."
Actually I'm not. I understand that it's constitutionally permissible and a practically necessary, however, so I don't whine about it all the time. This distinguishes me from the great majority of the defense bar, which belligerently yelps about it without relent -- all the while seeking out and signing plea deals for all they're worth. It's enough to give hypocrisy a bad name.
"...but I wonder if you would say that in these kinds of mass murder cases (and perhaps many others) that plea deals end up subverting "justice" rather than advancing it."
Yes, I would say that (and indeed have said it more than once). But we live in a world of scarcity, limits and painful choice, in which some very good things must be given up in exchange for other good things (like the number of cases you can handle and at what cost to best serve public safety). That's adult life.
"For example, would it be "just" to torture Tsarnaev before he is executed, perhaps to inflict a level of pain comparable to what is still experienced by some of his victims?"
No, because barbarism and sadism are, to civilized people, unjust by definition.
"Would it be "just" to stone him to death, which I believe is still a traditional method of execution in Muslin nations?"
Ditto. I disagree with arranged marriages to 10 year-olds, too.
"Would it be "just" to not tell Tsarnaev when he will be executed --- as is done for those on death row in Japan?"
Don't know.
"When Sister Helen says her god tells her that no execution is ever "just," is she plainly wrong about god and justice?"
She's a dopey ideologue and I'm surprised someone of your intellect pays any mind to what she says. I don't.
"I lack simple answers to these questions because many assertions about "justice" in this context strike me as statements of faith not statements of fact."
As the great Ronald Reagan famously said, there ARE simple answers. There just aren't easy answers.
Posted by: Bill Otis | Mar 5, 2022 9:21:43 PM
Just wondering if Tsarnaev considered Brady issues or held 2255 proceedings on behalf of any of the people he executed.
Also the kids whose legs he blew off.
Posted by: William C Jockusch | Mar 6, 2022 9:52:34 AM
Bill, I appreciate the answers, many of which lay the foundation for every version of capital abolition:
--- you say: "barbarism and sadism are, to civilized people, unjust by definition." Many abolitionists view the killing of caged people to be "barbarism and sadism." Some like the Pope ground such views in religious belief (even if you might think them "dopey"), others have other kinds of faith and philosophy grounding categorical opposition to killing. You disagree. If I say "Don't know," can there be a sound way to resolve this fundamental dispute in views of justice other than each side saying they consider opposing views "dopey"?
--- you say: "we live in a world of scarcity, limits and painful choice." Many abolitionists agree, and fret that choices made in capital punishment administration are filled with error and inequities and excessive costs. Since scarcity means injustice is the norm (eg, far fewer than 1% of murderers get sentenced to death), some abolitionists argue we ought not waste any scarce time/energy/money pursuing death sentences.
--- you say: stoning as a method of execution is a form of "barbarism and sadism." Many abolitionists claim, with some science to back them up, that lethal injection inflicts a comparable level of unnecessary pain as stoning. Your stated view about the injustice of stoning would seem to support halting any execution in which the method poses a risk of stoning-like pain.
I have no real interest in defending abolitionism to you, Bill, and I am not sure I would do a good job since I am not a capital abolitionist. But I do mean to encourage you to appreciate that your own accounting of "simple" answers to these moral and practical issues are often embraced by others to underwrite their steadfast opposition to capital punishment. If you really think such matter can be "simple," you should at least understand that abolitionism is in many ways the most simple of approaches to question of justice.
I do have a real interest in understanding where your vision of the death penalty as "justice" takes you (especially since it is, if I understand correctly, entirely 'crime-based'). I'd welcome your "simple" account of whether your visions of "justice" is served by the punishment of death for these crimes (numbered for convenience):
1. intentional premeditated killing of (one) person at workplace
2. intentional "heat of passion" killing of a spouse
3. unintentional (but very reckless) killing of young child by parent
4. unintentional (but very reckless) killing of drug user by drug distribution
5. unintentional (and unexpected) killing of victim by accomplice during robbery
----
6. intentional rape of an adult
7. intentional rape of a teen (or child)
8. intentional kidnapping/unlawful confinement for an extended period
9. intentional defrauding of many thousands out of millions of dollars
10. intentional dealing of a large quantity of illegal drugs
Of course, the abolitionists have the simple response that the death penalty should not be employed in response to any of these crimes. Perhaps you have simple answers, too.
Posted by: Doug B. | Mar 6, 2022 11:10:21 AM
Doug --
One of the first and most valuable lessons I learned in law school is that the key question for governance most of the time is not, "Is X right?" or "Is X just?" but, instead, who gets to decide the answer. This is why I'm such a hawk on separation of powers, and also so opposed to the every-man-gets-to-be-his-own-law theory of, among others, jury nullifiers, judicial supremacists (where judges get to decide and the heck with anything else like democratic outcomes), and a certain crackpot brand of libertarians. It's also why I immediately opposed the Trump-inspired Jan. 6 riot (see https://www.crimeandconsequences.blog/?p=2710). The question at that point was not whether the election had been stolen. The question was who had the right to decide that issue. It wasn't the mob. It was established legal process, which Trump had tried and lost. He had to live with an outcome he really, really didn't like. So do you. So do I. And so does the Left no matter how Wonderful and Brilliant it takes itself to be.
To apply this principle to your questions:
-- The electorate and the courts have concluded that capital punishment as administered in this country is not barbaric or sadistic (although of course it's not pleasant, either). That, therefore, is the answer that public governance will embrace. If the Pope wants to think differently, fine. If Sister Perjean wants to think differently, fine. But they don't run the show in this country, and I've had more than enough of this kind of Bible-thumping arrogance (something liberals used to ridicule without relent). The Framers made this a secular country, end of story. If those so moved (or claiming to be so moved) by religion need a cause, let them direct themselves to Putin and his grotesque actions in the Ukraine. If they're actually interested in barbarism and sadism (which mostly they aren't -- it's just posturing), these things are real easy to find in Europe just now. Should I wait for Sister Perjean to give Putin a lecture? Do tell me when she does.
-- Same deal with the argument that lethal injection is just like stoning. First, it's asinine on its face, not something that should detain serious people for even ten seconds. Second, it's flagrant hypocrisy and dishonesty. They people making this argument are EXACTLY THE SAME ONES in the camp that demanded we use lethal injection rather than electrocution because it was -- ready now? -- more humane and much less likely to produce unnecessary pain. Now they're bellowing the opposite. They've had ample chance to make their (newly-minted) case to both legislatures and courts. They failed. The mere fact that they claim to be so much Holier Than Thou, and so much more
Guided By Science Than Thou, does not impress me. In fact it annoys me.
More later.
Posted by: Bill Otis | Mar 6, 2022 4:53:44 PM
Doug --
To address your list: My own preference would be to make the DP available for aggravated child rape (contra Kennedy v. Louisiana) and for premeditated killing combined with some aggravating factor (for example, child murder, murder by torture, murder by especially heinous or cruel means, murder of a kidnap victim, murder of a policeman, prosecutor, judge or witness, murder for hire, terrorist murder, multiple murder, murder by supplying an overdose amount to a person the supplier knew or should have known had a high likelihood of an OD). There might be others. I would not use the DP for a property crime, and would support LWOP but not the DP for felony murder for a person who was not himself the killer.
Again, the key question is not what I want or you want or the Pope wants. The key question is what the elected branches or the people by referendum want, limited only by the express terms of the Constitution. Some legislatures would expend my list, others would trim it, and still others would not have the DP. That's life.
The whole idea of the rule of law and the social contract is that no one person decides (including and especially foot-stomping abolitionist screechers who insist they're smarter/more data-drive/more compassionate/more advanced, blah, blah, blah than everyone else). Such a claim is (a) false and (b) even if true irrelevant, given the one-man-one-vote principle liberals are (intermittently) so fond of.
Posted by: Bill Otis | Mar 6, 2022 11:12:15 PM
Bill, you asked me multiple times whether I thought executing Tsarnaev was “just.” When I repeatedly gave “rule of law” answers, you asked again and again. So I am going to do the same here: are you willing to say whether executing persons for these various crimes is just or not just? You seemed to assert that criminal behavior alone can resolve this question of justice and the use of capital punishment, but now it seems you are suggesting it is really not that “simple” (though perhaps Reagan would see it another way).
Posted by: Doug B. | Mar 7, 2022 8:23:14 AM
Doug --
"Bill, you asked me multiple times whether I thought executing Tsarnaev was 'just.'”
Yes I did, and you never would say yes or no. Perhaps the woke legal academy is now so much of a snarling cancellation menace that it's imprudent to just say yes (although I'd bet good money that "yes" is what you think).
"When I repeatedly gave 'rule of law' answers, you asked again and again."
Correct, because when I ask about justice I'm not ipso facto asking about law. I can look up the law, but I have to ask you what you think is just.
"So I am going to do the same here: are you willing to say whether executing persons for these various crimes is just or not just?"
Sure, but not in the form you want (although in a form that will save us both time and is easy to understand). I think it is just for juries to be able to consider the DP, and when the triggering facts are found to impose it, for the categories of crimes I mentioned and not otherwise. To the extent your list of ten falls in the "otherwise" category, the answer is no.
"You seemed to assert that criminal behavior alone can resolve this question of justice and the use of capital punishment, but now it seems you are suggesting it is really not that “simple” (though perhaps Reagan would see it another way)."
Yup, you figure out the just punishment for Crime X by looking at Crime X and the person who committed it. The post-facto behavior of other people -- often months or years later post-facto behavior -- is not relevant.
The only reason I can think of that you keep poking at this is to advance the notion, which I've seen for years on this blog, that IT'S ALWAYS SOMEONE ELSE'S FAULT. Since that notion is the lifeblood of criminal defense, I'm not real surprised. But I don't believe it. I think the crime is the fault of the person who did it, and that is where I will focus my attention when figuring out what punishment is just.
Posted by: Bill Otis | Mar 7, 2022 1:40:23 PM
I am confused, Bill: is death as punishment “just” upon the crime, or only when imposed by a jury? Would it be just if imposed by a judge or carried out on the scene by law enforcement? I keep saying that my vision of justice is informed by a certain process, but I cannot tell if you agree or disagree with such a vision of justice.
Posted by: Doug B. | Mar 7, 2022 2:37:30 PM
Doug --
Death as punishment is JUST upon the commission of the crime. Death as a punishment is LEGAL only when imposed by a jury after all other required components of process have been completed.
Posted by: BILL OTIS | Mar 7, 2022 2:46:54 PM
So why did you keep talking about legal process at such length, when I asked about justice? I think I understand you views now, maybe, but I do not now quite understand why you went on long tangents about law unless you still do see links between justice and the legal process.
Posted by: Doug B. | Mar 7, 2022 3:00:32 PM
Tsarnaev's crimes are sufficiently outrageous that it is not cruel to put him to death. As it is not cruel, it is also not "cruel and unusual."
Get it done.
Posted by: William C Jockusch | Mar 7, 2022 3:24:31 PM
Doug --
"So why did you keep talking about legal process at such length, when I asked about justice?"
I was going to ask you exactly that question.
I'll provide a bit more elucidation. If the eight year-old boy's father had killed Tsarnaev a few minutes after the explosion, that would have been just but not legal (since you don't get to take justice into your own hands, whether you're Donald Trump or a jury nullifier or a drug dealer or the father of a murder victim). Preservation of the rule of law, and its advantages over the rule of the jungle, requires you to defer to legal process, painful and sometimes deficient as that may be.
Posted by: Bill Otis | Mar 7, 2022 5:00:29 PM
William C. Jockusch --
Just so. The Boston Marathon murders were nine years ago. We have known almost from the get-go who did it (Tsarnaev) and why (hate). A system that cannot execute someone like that after NINE YEARS is in desperate need of expediting reforms.
Posted by: Bill Otis | Mar 7, 2022 5:04:22 PM
For me, Bill, a certain sound legal process and the rule of law is an integral part of my own notions of justice (because, as I mentioned before, my notions of justice are mostly consequentialist in nature). For you, it seems, even sound legal process and the rule of law is wholly distinct from your vision of justice — though it seems when they are in tension, you will prioritize your vision on the rule of law over your vision of justice. Is that a fair accounting?
Of course, as I stressed before, many abolitionist adopt your basic divorce of justice from law and argue the death penalty is always unjust even if lawful.
Posted by: Doug B. | Mar 7, 2022 6:20:44 PM
Doug --
"For you, it seems, even sound legal process and the rule of law is wholly distinct from your vision of justice — though it seems when they are in tension, you will prioritize your vision on the rule of law over your vision of justice. Is that a fair accounting?"
Pretty much. Since I'm a lawyer and a law professor, I am committed to the outcomes dictated by law even when I think they're unjust. As I was saying, insisting on the rule of law is better than the alternative -- the law of the jungle -- because its long-term advantages massively outweigh the Hobbesian nightmare that would follow its departure. And I say this knowing as well an anyone that the rule of law is sometimes maddeningly slow, painful and error-prone. But it's also civilization's best hope.
"Of course, as I stressed before, many abolitionist adopt your basic divorce of justice from law and argue the death penalty is always unjust even if lawful."
The conceptual separation of law from justice is correct, but the idea that the death penalty "is always unjust" is not merely incorrect but preposterous. The notion that a prison sentence, no matter its length, is justice for the McVeighs and Tsarnaevs of the world is crazy. An innocent little boy died in his pulverized father's arms while the life bled out of him and his guts spilled out onto the street -- all because of Tsarnaev's grotesque and mind-bending cruelty. Not for nothing did America's greatest Presidents and jurists uniformly support capital punishment.
Posted by: Bill Otis | Mar 8, 2022 3:02:43 AM
I fully agree with you commitment to the rule of law, Bill, but I go further because my own vision of justice is deeply informed by the rule of law. That's why I stressed the legal process when giving my view on the justice of Tsarnaev's death sentence -- and I think it's why you stressed at length the law and modern legal processes and norms when I asked you about your vision of justice. (Indeed, if justice truly had nothing to do with law, it would be more compelling to cite the religious-influenced views of Popes rather than politics-influenced views of Presidents.) So, as is sometimes the case, I think we agree more than we disagree -- though I tend not to call respectable opinions "preposterous" just because I disagree with those opinions. For those who divorce law from justice, it is had for me to view notions of justice as much more than opinions.
Posted by: Doug B. | Mar 8, 2022 10:21:11 AM
Doug --
I'd be interested in whether you agree with my view that, if the little boy's father had killed Tsarnaev a matter of minutes after the boy died his horrible death, the father's action would have been illegal but just.
Posted by: Bill Otis | Mar 8, 2022 2:45:27 PM
Because I am deeply concerned about "every-man-gets-to-be-his-own-law," Bill, and especially because I always include consequentialist thinking in my visions of justice, I am not prepared to call this hypothetical action "just" unless and until I had a lot more information. For example, did the father seek to inflict extreme pain as part of killing Tsarnaev? I surmise from your "barbarism and sadism" statement that any sadism involve in the killing would turn what you might view as just into an injustice. But I think more than a few retributivists have made plausible cases that very harsh forms of punishment, including torture, can be morally justified.
Also, with my consequentialist concerns front and center, I have to think about the fact there was little basis for various folks to know with certainty that Tsarnaev was responsible for the killing at that time, and so I wonder if you think it would have been legal (and perhaps also just?) for a bystander to attack or even kill the father if that bystander reasonable thought the father was in the midst of an unjustified rage when going after Tsarnaev. And I also wonder, given that the murderous brother was presumably nearby, if you think justice really demanded killing both on the scene (e.g., would it be fair, in terms of justice considerations, that one brother lived on? Of course, that is what ended up happening, which leads me to wonder if you think it unjust that Dzhokhar continues to live after his bother was (justly?) killed a week later).
I could go on and on, but my main point is that I think many use the label "justice" simply to describe their feelings about what seems like a satisfactory outcome, and I fear that lots of talk about "justice" being divorced from law puts us on a the path to "every-man-gets-to-be-his-own-law." I prefer, largely for consequentialist reasons, those visions of "justice" that are very closely tied to law --- I am not sure I would assert that without law there can be no justice, but I am sure that law can and should play a foundational role in how we construct justice (and that trying to deconstruct these links strikes me as a worrisome pursuit).
Posted by: Doug B. | Mar 8, 2022 3:57:21 PM
