What Will History Say?

With last week’s jury decision in the sentencing phase of Dzhokhar Tsarnaev’s trial, we find ourselves at an interesting crossroads. The jury decided that Dzhokhar, found guilty last month, deserved the death penalty. He was 19 at the time he committed the crime of helping his older, more violent brother Tamarlane set off a deadly explosion at the 2013 Boston Marathon.

With this decision, the city of Boston finds itself in a crisis of conscience, disappointed that the jury in federal court was in favor of capital punishment. A recent poll found 85% of Bostonians opposed Tsarnaev’s execution.

Of that group some felt that with a death penalty the appeals process would take months — if not years — giving those who lost someone in the bombings and families of bombing survivors no chance of immediate closure. It would be better for them to imprison him the rest of his life and have done with it.

Tsarnaev’s sentence comes just as Americans are experiencing a growing shift away from capital punishment. Though 63% of the country still favor the death penalty, that number drops significantly — to 50% — when faced with a choice of life imprisonment without possibility of parole.

Though a large swath of the country trails behind Massachusetts’ view on capital punishment (and although many in Massachusetts simply did not want Dzhokhar to be made a martyr), it appears that an increasing number of states are distancing themselves from executing criminals. What has happened?

Massachusetts is one of eighteen states that have abolished the death penalty. Included in this list are Michigan, Illinois, Maine, Iowa, North Dakota, Minnesota, Wisconsin, West Virginia, Maryland, the District of Columbia, New Jersey, New York, Connecticut, Rhode Island, Vermont, New Mexico, Alaska and Hawaii.

Of the remaining states still employing capital punishment, eight are reevaluating use of the most common and less gruesome form of execution — lethal injection — because of the European Commission’s export ban on the drugs used for the procedure. These same states are fielding questions regarding the constitutionality of the death sentence in general.

Being against capital punishment is no longer the realm of liberals. Many former proponents of the death penalty have come out against it. As Eric covered in a 2003 edition of Planet Waves, one conservative — former Illinois Governor George Ryan — found Illinois’ criminal justice system so fallible and corrupt that he commuted the death sentences of 167 inmates on death row.

The federal government itself is reluctant to carry out executions. From 1973 to 2010, federal courts sentenced 69 inmates to death. Yet of those 69, only three have been executed, one of them Timothy McVeigh, the Oklahoma City bomber.

We’re in a moment of reflection on where we’ve been and where we’re going — as communities, and as a nation. There’s a strong undercurrent, rising slowly to the surface, surrounding the Tsarnaev judgment. People in Boston and the rest of the country at this point in our history are questioning what we’ve been doing and why. It’s a hopeful sign.

Soon after 9-11, military retribution against nations considered to be terror threats played a large part in our foreign policy, with disastrous results. The use of our criminal justice system to try alleged terrorists, or “enemy combatants,” in our domestic courts was considered unthinkable. That we tried Tsarnaev at all in a federal court is remarkable, especially since some “enemy combatants” still languish in Guantanamo.

By varying degrees Bostonians and the people of the region are united in their centuries-old aversion to the death penalty. They have held to this aversion even in this instance.

I am trying hard not to kid myself or you that we are on the downhill slope and heading fast towards abolishing capital punishment in America. Not with Texas as the frontrunner in prisoner executions, and with Florida and Oklahoma a distant second. We’re still running a death row machine in America. But America is following a slow downward trend in capital punishment, in fifth place behind China, Iraq, Iran and Saudi Arabia.

There’s growing acknowledgement that our judicial system is still human, and therefore flawed. Too many have been killed and their innocence revealed only after their executions. Then there is the very current example of Boston, a city with a crisis of conscience even in the wake of the death sentence of a young man who, still a teenager, followed and assisted his brother in committing a horrible act of terror the day of the Boston Marathon. There is some soul-searching going on.

It is a given that Tsarnaev’s defense team will probably post an appeal. What is more natural for a Mercury station and void-of-course Moon — the day the sentence was announced — than to go back over what has happened? As demonstrated by Bostonians’ dismayed reaction to Tsarnaev’s death sentence, the seemingly endless appeals process will mean Tsarnaev will be alive with an uncertain future in prison for a while.

“As a city upon a hill — the eyes of all people are upon us.” That is what Puritan John Winthrop said of Boston when it was established nearly 400 years ago. Boston is aware of that historic role and the symbolic hill it stands on, even today. All eyes are watching it as America struggles through the complexities of dispensing justice against the backdrop of violence and vindictiveness in its recent past.

What will history say of us at this moment five, ten, twenty, a hundred years from now? Are we watching a trend towards being more humane taking root in our society as it teeters on shaky legs? With violence of the last decade and the countless years of war littering our past from the late 20th century into today, that would be remarkable. It might even be real justice. History will tell us.