Sunday, July 05, 2015
The Supreme Court last week rejected a challenge by three death row inmates in Oklahoma who argued that a drug now used in lethal injections could cause excruciating pain during executions. As with many rulings by the current court, the justices were sharply divided on the question, with Justice Anthony Kennedy joining the court’s conservative wing to produce a 5-4 majority.
The inmates had a good case, given that the drug was used during three executions in the past year that dragged on while the condemned were in apparent agony. This the court’s majority brushed aside.
While that outcome was important, the most significant aspect of the ruling was contained in a dissent by Justice Stephen Breyer, who, joined by Justice Ruth Bader Ginsburg, strongly suggested that they believe the death penalty itself violates the Constitution’s prohibition against cruel and unusual punishment. In fact, ample evidence has emerged in recent years that the death penalty is pretty frequently imposed arbitrarily, unequally and in error, and has limited deterrent effect.
There is reason to hope that Breyer and Ginsburg have begun to lay the groundwork in their dissent for a future Supreme Court to overturn capital punishment entirely. This is especially true given that public support for the death penalty, as measured in polling by the Pew Research Center, is at a 40-year low: 56 percent favor it, while 38 percent are opposed. As recently as 1996, 78 percent favored it while just 18 percent were opposed. Anyone who doubts that a shift in public attitudes can inform Supreme Court decisions has only to consult the recent ruling that made gay marriage the law of the land.
All this set us to thinking about two stone-cold killers, one who was sentenced to death and one who was not, and who both recently broke long silence. The former, Dzhokhar Tsarnaev, perpetrated, along with his brother, the horrendous Boston Marathon bombings in 2013 and was sentenced to death last month following his conviction. Described as appearing impassive and possibly bored during his trial, Tsarnaev unexpectedly rose during his sentencing hearing and offered . . . a sort of apology to the victims.
“I am sorry for the lives that I’ve taken, for the suffering that I’ve caused you, for the damage that I’ve done — irreparable damage. I am guilty of it. If there is any lingering doubt of that, let it be no more.
“I prayed to Allah to bestow his mercy upon the deceased, those affected in the bombing and their families. Allah says in the Quran that with every hardship, there is relief. I pray for your relief, for your healing, for your well-being, for your strength.”
Predictably, this statement cut no ice with the judge or with many of those whose lives were turned upside down by Tsarnaev’s heinous act. That was entirely understandable. Yet, it was possible to detect in this statement the beginning of a moral awakening, an acceptance of awful responsibility and a dawning appreciation that whatever else God may ask of mankind, he issues no command to murder in his name.
The other inmate who came to mind was James “Whitey” Bulger, the 85-year-old Boston gangster who is winding down his muderous life and times in a federal prison in Florida. Bulger was captured in 2011 after 16 years on the lam and convicted in federal court two years later of participating in 11 murders during the 1970s and 1980s while running what The Boston Globe describes as a “sprawling criminal enterprise that raked in millions from drug trafficking and extortion.” When last seen in public, a defiant Bulger was snarling and swearing at witnesses during his trial.
Last February, three high school juniors in Lakeville, Mass., improbably wrote to Bulger as part of a National History Day competition, seeking his views on leadership and legacy. More improbably, Bulger answered with a handwritten note that expressed . . . regret. “My life was wasted and spent foolishly, brought shame + suffering on my parents and siblings and will end soon. . . . Advice is a cheap commodity some seek it from me about crime — I know only one thing for sure — If you want to make crime pay — ‘Go to Law School.’ ”
This confession, if that’s what it was, did nothing to palliate the relatives of the victims Bulger murdered without pity. But, as with Tsarnaev, it did demonstrate that over time, even moral monsters begin to come to grips with the enormity of their actions. By our lights, it is a waste to cut that process artificially short, which is yet another good argument for abolishing the death penalty.