The Supreme Court of the United States has complete discretion as to which cases it brings up, and the justices often decline to hear arguments on a given matter, letting the ruling of a lower court stand. Their selections are sometimes as politically significant as the final decisions, as they can indicate a showdown on a controversial issue or raise the specter of a new legal precedent. This week, SCOTUS said it would take on the question of whether Dzhokhar Tsarnaev, one of the men responsible for the 2013 Boston Marathon bombing, should be executed or merely spend the rest of his life in prison. This has been framed as a test for President Biden, who is against the death penalty. Really, it is a testament to our national rage.
In an era of hyper-polarization, there remains bipartisan agreement on the necessity of capital punishment. Tsarnaev was first condemned to lethal injection for his role in the terrorist attack, which killed three and injured hundreds, because of the Obama administration’s choice to seek the ultimate recourse. When that sentence was vacated on appeal last summer — because of improper jury screening and likely bias — the Trump administration went to the Supreme Court to ask that it be upheld. Surely this marks one of very few instances where Trump sought continuity between his predecessor and himself. And the court will entertain this demand for vengeance because the U.S. is preoccupied with deciding who has the right to deadly force.
It’s possible to be horrified and sick at what Tsarnaev and his older brother did at the respective ages of 19 and 21, to know it was an act motivated by Islamic extremism, to have no sympathy for either man and still know that murdering the one captured alive is not justice. It is also possible to notice that Tsarnaev has been cynically used, time and again, by liberals and conservatives alike, as a convenient prop for whataboutism. Oh, you think the incarcerated deserve basic human rights? Even the Boston Bomber? Free health care for the Boston Bomber? You want felons to be able to vote, including the Boston Bomber? You’re saying we need to abolish prison altogether… so the Boston Bomber can walk free?
His particular atrocity is supposed to be so egregious that it short-circuits the conversation around the profound cruelty done in our names to millions of people behind bars, god knows how many innocent, awaiting long-delayed trial or convicted on the flimsiest charges, then given the maximum term.
Despite the bloodlust in our culture, and the faith in barbaric torture made to appear sterile and humane to the lay observer, it’s almost surprising that the federal government seems to be grinding toward Tsarnaev’s day on the gurney. Some tough-on-crime types will see any execution as a personal victory and a public good, but to many, Tsarnaev is far more valuable in his role of surviving boogeyman, a device for denying the humanity of anyone else in prison. If you’re willing to accept that he’s a monster, totally beyond redemption or mercy, then you’re ready to believe the same of inmates overall.
It’s never clear why we should be afraid of a violent radical who was locked away as a teen and has no hope of release — his single vote in a vast electorate, his access to a doctor while isolated in a tiny cell of a mountain fortress — since his nefarious title is only a piece of cheap rhetoric for anyone unaffected by the event.
This is at once hollow posturing and deflection from a crucial fact: It literally does not matter if Tsarnaev gets a stimulus check. What good could it ever do him? We as a country are meant to be outraged that an individual cut off from society might hold a piece of paper that is, in his confinement, meaningless. We are told to care about the specific and symbolic example of a favorite villain instead of the institutional moral rot that pervades the legal system haggling over his fate.
That question, too, is of the vaguest consequence to all but the survivors and families of those wounded or lost on April 15, 2013. Bill and Denise Richard, whose 8-year-old son Martin died in the bombing, begged the government to forgo the death penalty, accurately foreseeing how a prolonged battle on this front would deny the family closure, leaving their other children “to grow up with the lingering, painful reminder of what [Tsarnaev] took from them.”
But grief isn’t the sort of thing you put before retribution — at least not in America. So the Richards carry the anguish of an unsettled trauma, with the worst politicians and pundits continuing to leverage the man who did them irreparable harm for imaginary points in a debate engineered to derail progress against carceral evil. The Unabomber, the Olympic Park bomber and a conspirator in the Oklahoma City bombing are held in the prison where Tsarnaev resides; evidently these white killers don’t merit equal fear-mongering when the subject of prisoners’ rights is introduced. Better to stick to the guy with an exotic name, the Islamic connections, the post-9/11 narrative.
And now, thanks to the highest court in the land, we won’t hear the end of it.