Tsarnaev and the death penalty’s future


Anyone convicted of a capital crime in Massachusetts faces life in prison without parole, although for the past two years, some legislators have attempted to end this practice by allowing parole hearings for prisoners jailed for a minimum of 25 years. The commonwealth outlawed capital punishment in 1984. Today, the total of non-death penalty states stands at 23, with another three with moratoriums on executions.

A Gallup Poll in 2019 found that 60 percent of those responding favored life imprisonment without parole over capital punishment. Federal law, however, since 1988, allows for the death penalty. This was the issue debated before the Supreme Court on Oct. 13 in United States v. Tsarnaev.

No one in Massachusetts will forget brothers Dzhokhar and Tamerlan Tsarnaev, the 2013 Boston Marathon bombers who killed three people, including a young child, and injured scores of others. Police fatally shot Tamerlan in a fierce gunfight shortly after he murdered an M.I.T. Police officer. His brother was arrested a few days later.

In 2015, Dzhokhar, who became a U.S. citizen three years earlier, was found guilty of first-degree murder, not in state, but in federal court, where he received the death penalty. Last year, the U.S. Court of Appeals for the First Circuit overturned the sentence and ordered a new trial. The court ruled that the trial judge did not properly question prospective jurors to determine what media coverage they had seen about the case, among other factors.

The Supreme Court will now determine whether he should be executed on a petition from the Trump administration’s Department of Justice. President Trump oversaw 13 federal executions in his final weeks in office (10 in 2020 and three in 2021), including one just a few days before Joe Biden’s inauguration. No president in more than 120 years oversaw so many executions. President Biden has advocated an end to the federal death penalty.

Americans have long debated retaining or abolishing capital punishment. One of the best summaries of this debate took place in 2015 in a Supreme Court case involving the use of a single drug to execute a prisoner. Writing for a bare majority of five to four, Justice Samuel Alito’s ruling for the court upheld the drug’s use.

However, it was Justice Antonin Scalia’s concurring opinion and Justice Stephen Breyer’s dissent that starkly set out the differences between the two sides of the argument.

Scalia, who died the following year, styled himself an originalist, which means he interpreted each provision of the Constitution in the way in which its drafters and ratifiers originally understood it. He argued that when the Eighth Amendment was added to the Constitution in 1791 prohibiting “cruel and unusual punishments,” everyone understood that the death penalty was neither cruel nor unusual. He contended that it should be up to the people through their elected representatives or by constitutional amendment to decide whether a state or federal government should end the practice — not the court.

Justice Clarence Thomas, the only other originalist on the Court at the time, joined Scalia’s opinion.

Justice Stephen Breyer, however, heatedly disagreed. He rejected originalism, and argued that judges must interpret the Constitution’s provisions through 21st, not 18th, century eyes. He used living constitutionalist language: in Justice William Brennan’s words, “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”

Breyer argued several points about the phrase “cruel and unusual punishments”:

  • It is “cruel” because it is unreliable. Many prisoners on death row have been exonerated and freed after incontrovertible evidence proved they did not commit the crime. The total number today of death row prisoners who have been released stands at 186.
  • It is “cruel” because it is arbitrary, insofar as it has been applied inconsistently. Numerous studies have shown that race, gender, and geography account the most for the death sentence.
  • It is “cruel” because of the excessive delay in time from the sentence to the execution. Sometimes several decades pass from sentencing to execution date.
  • It is “unusual” because it has become increasingly rare to execute prisoners. The height of executions reached 98 in 1999, one by the federal government. In 2020, the states put to death seven inmates, while the Trump administration oversaw 10.

So, what might we expect from the current court when it decides on what to do about Tsarnaev? It is always hazardous to anticipate how justices will decide a case, and which side each of them will choose to take.

After Scalia’s death in 2016, Thomas was the only originalist on the Court. But President Trump nominated three new justices, all of whom are originalists. Two others have never voted to overturn a death row sentence. No matter where you stand on the issue, it is unremarkable to predict that a majority of six justices will rule that the trial judge made no errors and vote to reinstate Tsarnaev’s death sentence.


Jack Fruchtman, who lives in Aquinnah, is updating his book, “American Constitutional History.”