Pace Law School Professor – an expert in the field of international law and its application in the U.S. courts – Thomas M. McDonnell shares his view on the debate of whether to impose the death penalty in the Boston bomber case.  Where do you stand on the death penalty?

BY THOMAS M. McDONNELL

Dzhokhar Tsarnaev, the surviving Boston bomber, has been charged with using a weapon of mass destruction, a capital offense. Given the enormity of his crimes, many have called for the imposition of the death penalty. Below is the conclusion to an article, The Death Penalty:  An Obstacle to the War on Terrorism?, I wrote in connection with imposing the death penalty on those responsible for the 9/11 attacks.  Some of the arguments therein likewise apply to Tsarnaev’s case.

The thundering weight of the crimes of September 11 inevitably demands the maximum punishment that our judicial system allows. If anyone deserves the death penalty, then those who planned and actively participated in the September 11 conspiracy do. The United States will almost certainly execute those, like Mohammed Shaikh Khalid, Ramzi bin al-Shibh, and Abu Zubaydah, assuming, as expected, they are found responsible for the attacks. Yet as we enter the third year in the “war on terrorism,” the euphoria of the seemingly quick victory in the largely unilateral war against Iraq is beginning to give way to recognition that we need the United Nations, the help of our allies, and respect for the rule of law.

Similarly, the natural demand for retribution after a terrorist organization has committed mass murder and other heinous crimes needs to be tempered by the fact that carrying out the death penalty may strengthen the terrorists. Given the perceived and actual grievances that the Arab and the greater Islamic worlds have towards the West in general and the United States in particular, carrying out such executions will probably tend to inflame the Arab and Islamic worlds, increase their support of terrorist movements and thwart cooperation with our allies, almost all of whom have abolished the death penalty. In addition, assuming the evidence at trial fails to show that Zacarias Moussaoui directly participated in the conspiracy to carry out the September 11 attacks, executing him may be contrary to our current death penalty jurisprudence and would appear unjust to our allies and the Islamic world alike. Even if the evidence shows that Moussaoui directly participated in the September 11 conspiracy, executing him will, as the Kasi case so well illustrates, almost certainly make him the twentieth martyr for Muslims.

Because, however, we routinely carry out executions on individuals such as Paul Hill, the anti-abortion killer, who murdered two persons, a physician and his bodyguard, how can we not execute one who, at the very least, was actively involved in an organization that killed over three thousand innocent people? We should, however, learn from the mistakes and the successes of Great Britain in fighting the IRA, that executing politically motivated agents of terror is likely to spawn greater terrorism. Such restraint is a surer path towards isolating al Qaeda and its allies in the lands of the aggrieved and the repressed. The death penalty is a luxury that we can ill afford in this international struggle.

Related Readings

• The Death Penalty:  An Obstacle to the War on Terrorism?, 37 Vand. J. Transnat’l L. 353 (2004) (Also available on SSRN).
• The West’s Colonization of Muslim Land and the Rise of Islamic Fundamentalism, Chapter 1 in in The United States, International Law, and the Struggle Against Terrorism (2010).
• Dzhokhar Tsarnaev in Google News
• Professor Thomas McDonnell talks with News 12 about Boston bombings