How to end the arbitrariness of capital punishment in America

Two recent developments have revealed the unsettled state of the death penalty. First, the Supreme Court agreed to hear the federal government appeal of the decision which overturned the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev. Second, Virginia became first state south of the Mason Dixon Line to repeal the death penalty. These critical developments reflect both our past and our future. They illuminate the contrast between who we are as a nation and who we want to be.

Political majorities in state legislatures have found that having the death penalty means accepting the risk of executing the innocent. It is a high risk when there is one exoneration for every nine executions. The cost associated with the death sentence is so enormous that it has led even conservative lawmakers to consider abolition. The racist origins of the death penalty have become ever more apparent as the nation grapples with its sordid history of enslaving and lynching people of color. While a repeal of the death penalty marks a pragmatic decision for state leaders, likely based more on the cost than on the inherent inhumanity, abolition also eliminates the disparate imposition of the ultimate penalty.

Despite these concerns about capital punishment, which are endemic to both the state and federal systems, the federal government has executed more people in the last year than all 50 states. Federal prosecutors sought executions with renewed vigor at the behest of the former administration, putting more than a dozen people to death in six months. The Supreme Court then allowed the executions to proceed without considering such legitimate issues as deficiencies at trial and sentencing, disabilities and illnesses of the condemned, and concerns about lethal injection drugs. In none of these cases did the justices issue a written opinion, so we do not know why they saw no merit in the challenges of the prisoners.

All of this makes the Supreme Court decision to review the Tsarnaev ruling particularly striking. Unlike the cases in the recent federal executions, this one does not appear to raise any of the extraordinary issues which tend to capture the attention of the justices. The lower court reversed his death sentence since the trial court failed to sufficiently ask jurors about their exposure to pretrial publicity and because it had excluded evidence on the crimes of the older brother of Tsarnaev. Neither of these grounds is remarkable or unsupported by the record. Perhaps the justices accepted the appeal because of the notoriety of Tsarnaev, which if true would be emblematic of the arbitrariness in the use of capital punishment.

Even more baffling than the Supreme Court decision is the pursuit of the death penalty by the new administration. White House press secretary Jen Psaki said that President Biden has “grave concerns about whether capital punishment as currently implemented is consistent with the values that are fundamental to our sense of justice and fairness.” Yet prosecutors are still seeking the reinstatement of the death sentence for Tsarnaev.

Justice Potter Stewart, disturbed by what he called “wanton and freakish” imposition of the death penalty years ago, wrote that death sentences are “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” This is no less true today as we do not know why the former administration decided those death row prisoners should die as soon as possible, or what differentiated them from the dozens of others awaiting execution. We do know the decision whether to seek the death penalty, or to continue to pursue it, is based on factors like race and geography.

Tsarnaev continues to face a death sentence because he was prosecuted in federal court on federal charges. Though he committed his crimes in Massachusetts, the state had its final executions in 1947 and abolished the death penalty in 1984. As Virginia has now determined, the only way to eliminate the arbitrary imposition of the death penalty is abolition. No doubt some citizens of Virginia, and Massachusetts for that matter, still believe the death penalty serves some salutary purpose, all evidence to the contrary. But at least they know that the state government will not kill anyone based on a rationale that is no better than the flip of a coin.

Lawrence Friedman teaches constitutional law for the New England Law in Boston. Nicole Noel is an assistant director with the academic excellence program with New England Law in Boston and is a former capital defense attorney representing death row inmates in both state and federal courts.