ON POINT: Death penalty cases raise troubling issues

By John P. Pucci, The Daily Record Newswire

U.S. Attorney General Eric H. Holder and U.S. Attorney Carmen M. Ortiz recently announced that federal prosecutors in Boston would seek the death penalty in two pending cases: the first against Dzhokhar A. Tsarnaev, accused “Marathon Bomber #2”; and the second against Gary Sampson, who already has pleaded guilty to several gruesome murders.

The government’s decision to seek the death penalty in both cases on our collective behalf raises troubling issues.

In our schools, we have taken substantial efforts to teach our children how to resolve conflicts peacefully. Educators have instituted violence prevention programs through which children learn how to manage their anger and resolve conflicts without violence.

Efforts to discourage retribution also have been a theme in our courts, where state prosecutors have led the effort to stop spousal abuse.

Although clear differences underlie violence among students and between spouses, our response to each shares the same message: Whatever the claimed justification, violence is never an acceptable response.

The federal government’s use of the death penalty cuts deeply against the grain of these efforts, however, by sending the clear message that it is acceptable to settle scores through violence, even to the point of killing. As a community, we have been fighting against that very message for years.

Advocates of the death penalty often justify it based on the Old Testament idea of an “eye for an eye.” Yet the idea that the death penalty is necessary to punish the taking of another’s life overlooks the reality of the alternative: life imprisonment without parole.

Living life means variously enjoying family, children, friends, work, food, physical intimacy, privacy, a walk in the woods, the beach, and all the other freedoms and pleasures we have.

A life sentence without parole means the person is locked in a cell, sometimes for 23 hours a day, and deprived of all these parts of life and more. It is, in a very real way, a living death, closely akin to actually taking life itself away in an “eye for an eye” sense.

Being condemned to such a “life” is an extraordinary punishment that meets the demands for retributive justice by depriving the wrongdoer of what has been taken from the victim — the chance to live life as we know it.

When that life sentence extends out over many decades, as it likely would for 20-year-old Tsarnaev, a sentence of life without parole is arguably even harsher than execution.

The claimed moral necessity for the death penalty underlying “eye for an eye” retribution is suspect when one observes how prosecutors regularly surrender the death penalty to achieve other objectives.

In the James “Whitey” Bulger prosecution, the U.S. Attorney’s Office, together with state prosecutors in Florida, gave plea bargains waiving the death penalty to government witnesses John Martorano and Stephen Flemmi, who between them committed more than 20 murders in exchange for their testimony against Bulger.

The U.S. Attorney’s Office’s use of the death penalty as a bargaining chip to trade in plea negotiations with serial murderers undermines the legitimacy of the claim that imposition of the death penalty is based on moral principles so important that executions are essential to the public interest.

Turning the Tsarnaev and Sampson cases, in which the evidence of guilt is strong, into death penalty prosecutions opens the door to much broader application of the death penalty.

Historically, however, many death penalty cases involve crimes that are terrible and in which emotions run high, but where the evidence is sometimes thin.

Studies have revealed repeatedly that our judicial system is too fallible to serve as a credible platform for imposition of the death penalty. In recent years, 143 inmates have been released from death row nationwide because they were found to be actually innocent based on DNA analysis.

Our judicial system is simply not reliable enough to be a platform for imposing the death penalty.

Death penalty advocates insist that executions deter crime, particularly murder for which it is most often imposed. Statistics belie that claim. In the years 2008-2012, murder rates in states without capital punishment ran much lower, by 18 to 42 percent, than in those states with the death penalty.

From an international perspective, the murder rate in the U.S. is four to five times higher than the murder rates in Britain, France, Germany and Australia — all nations that have eliminated capital punishment.

Because of its imposition of the death penalty, our country stands in stark contrast to the vast majority of western nations that have abolished the death penalty. The European Union even denies membership to those countries that use the death penalty.

The United States, however, ranked fifth in number of executions between 2007 and 2012, keeping company with Iran, Iraq, Saudi Arabia and North Korea.

Our country’s widespread use of the death penalty also badly undermines the credibility of our periodic campaigns for human rights in other nations. Why should other countries take us seriously on these issues when we execute our own citizens in a criminal justice system that is, by all accounts, quite fallible?

The federal government’s decisions to seek the death penalty in the Tsarnaev and Sampson cases make these issues real and pressing in our community. Even assuming Tsarnaev and Sampson are guilty of the awful crimes with which they are charged, executing them would send the message that retribution through violence is a valid means of responding to wrongdoings.

That, literally, is a deadly message.
John P. Pucci is a lawyer at Bulkley, Richardson & Gelinas in Springfield where he co-chairs the litigation department. He was an assistant U.S. attorney from 1984 to 1994.