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Stacking the Deck

The Boston Bombings have achieved the status of a proper-noun title, reaching that rarified echelon reserved for the high-profile American atrocities that, like total eclipses, occur a few times each decade.

With that status comes ubiquity. Everyone is familiar with the appalling details that form the identity of the case: internet vigilantes misidentifying the bomber, Boston being shut down for a city-wide manhunt, the shootout with Dzhokhar Tsarnaev’s alpha, older brother, Tamerlan, the police finally trapping Dzhokhar himself in someone’s covered boat, the sense that it all, somehow, related back to that larger plot-arc of American violence—the Global War On Terror. Like any of the other infamous crimes of the decade, the narrative of the Boston Bombings was collectively fashioned into something even more sensational and lurid than it had to be, closing up any remove from which we might try to contemplate what justice should look like in this situation.

The federal government’s relentless pursuit of the death penalty in the case is just one more aspect of that self-perpetuating tragic drama. It’s difficult to see how sacrificing Tsarnaev will force him to atone, or bring the victims peace of mind. One of the three people killed in the bombing, Martin Richard, was only eight years old. Other people in his family were seriously injured. And yet the Richards pleaded with the prosecution to drop the death penalty. They aren’t the only ones uncomfortable with state execution: according to a WBUR-Boston poll, only 26 percent of Bostonians support Tsarnaev being murdered for murder. It’s difficult to see what good this Old-Testament violence-exchange will do anybody.

The unpopularity of capital punishment in Massachusetts shouldn’t come as a surprise. The Bay State has a political legacy of opposing the death penalty, which it abolished over thirty years ago and it hasn’t performed an execution since 1947. Opposition to the death penalty in Massachusetts has a bifurcated heritage, one part secular and one part influenced by Catholic moral thought. The secular argument is a familiar one: “The death penalty is so final that there’s no recourse if it turns out the state is wrong, and what gives the state the right to murder its own citizens anyway?” This is usually followed up with a healthy dose of shame at the United States being the only modern Western country that still implements capital punishment.

The Catholic Church is quite vocal on this topic, and nearly 40 percent of people living in the Boston area identify as Catholic. In 2005, the United States Conference of Catholic Bishops put out a publication called A Culture of Life and the Penalty of Death, that asserts:

When the state, in our names and with our taxes, ends a human life despite having non-lethal alternatives, it suggests that society can overcome violence with violence. The use of the death penalty ought to be abandoned not only for what it does to those who are executed, but for what it does to all of society.

Sister Helen Prejean, she of Dead Man Walking fame, made this point by testifying on behalf of the defense during Tsarnaev’s trial.

But the disturbing intercession of the federal government saw to it that none of these popular local opinions on the death penalty would matter all that much in the outcome of the trial. Everyone serving on the jury was “death qualified” beforehand, a weird way of saying that they had to be open to the death penalty as an option to even make it past voir dire, stacking the deck early.

There is recent precedent for the federal government taking control of a case and pushing for the death penalty against the wishes, customs, and laws of the community against whom the crime was perpetrated. As Bruce Shapiro explains in The Nation, it was Clinton, responding to the 1994 World Trade Center bombing, who first pushed for an extension of the federal-level death penalty—historically reserved for treason—as a way to punish terrorists. But we can almost immediately exclude “deterrence” as an explanation for the federal governments forays in court-mandated prisoner killing. Just tally up the number of terrorist attacks in America since this development. It didn’t decrease.

It didn’t take long for that to expand into the Antiterrorism and Effective Death Penalty Act of 1996, which was, Shapiro writes, “one of the most deceptively labeled bills of all time—limited habeas corpus and otherwise weakened the protections offered to state and federal death-row prisoners alike, most having nothing to do with terrorism, national security, or anything other than conventional murder.” Fast-forward to 2011 and you can see the results of this federal overreach in Lincoln Chafee, then-governor of death penalty-free Rhode Island, literally refusing to turn over a prisoner involved in a gas station robbery gone awry to federal authorities bent on executing him.

René Girard’s writings on violence and the sacred are useful in trying to understand the federal government’s attachment to barbaric and iconic articulations of justice. What Girard calls “mimetic rivalry” is the process of a culture confusing its positive identity for an act of negation. Simply put, our main collective source of identity is our rivals. As Forfare Davis explains, “It is mimetic, or imitative, because it depends upon and even apes the aspirations to power of the enemies it dedicates itself to defeating.” In other words, rather than being a modern attempt at a disinterested (“effective”) justice, the federal government’s bloodlust is the tribal manifestation of an “us vs. them” mindset which uses the same barbaric violence against our purported enemies that we ourselves claim to be morally superior to.

Dzhokhar Tsarnaev just isn’t in our tribe. Nationality has nothing to do with it. As evidence of this point, take Senators Lindsey Graham and John McCain wanting to try Tsarnaev as an “enemy combatant,” despite his being a naturalized citizen of the United States. The legality of the naturalization process just doesn’t matter as much as his own statement, scrawled on the inside of the boat he hid in, of where his allegiances lay: “Stop killing our innocent people and we will stop.” Michael Levitt, testifying against Tsarnaev, argued that this note—his admission that he wasn’t “one of us”—is “what makes it terrorism, and not just murder,” the Intercept reported.

How would “one of us” be treated in a similar situation? Take, for example, a white, Christian, American-born man who planted a bomb in the middle of a sporting event for odd religious reasons. Let’s even say that he injured more people than Tsarnaev. Furthermore, let’s say that the manhunt took even longer and used even more resources. How would we react then? The man is named Eric Rudolph. He was the Christian fundamentalist who bombed Olympic Park in Atlanta in 1996, killing two and injuring 111. The manhunt to find him lasted five years. He’s currently serving four consecutive life sentences at ADX Florence, in Colorado. He was spared from death because he’s one of our own. In the American tribe, murder vs. terrorism is as simple as us vs. them.