Considering Tsarnaev's Fate: Death, Or Life In Solitary Confinement

The United States Supreme Court is facing, yet again, the controversial question of the death penalty. This time, the issue arises in a high-profile case coming out of the District of Massachusetts: the prosecution of Dzhokhar Tsarnaev for participating, with his older brother Tamerlan (who died in a shootout with police), in the bombing at the Boston Marathon finish line that killed three people and injured more than 260 others. The jury recommended that the judge sentence him to death, which District Court Judge George O’Toole did.

However, on July 31, 2020, the Court of Appeals, while upholding the guilty verdict, vacated the death penalty on the ground that Judge O’Toole had failed to sufficiently question the jurors about their knowledge of highly publicized aspects of the crime. As a result, Tsarnaev will spend the rest of his life in a federal “supermax” prison, probably the one in Florence, Colo. — provided that the Supreme Court does not step in to reverse the First Circuit and reinstate the penalty of death. And, indeed, the Supreme Court has already taken what could be the first step in such a reimposition: it agreed on March 22 of this year to review the case and heard oral arguments on Wednesday, Oct. 13.

The oral argument proceeded along predictable lines. The government reviewed, blow-by-blow, the cold-bloodedness and meticulous steps taken by the two brothers in positioning the bombs, and in their timing — setting off one, and a little later the other. This presumably had the effect of making it appear that, after the first bomb went off, nothing would follow. It was the second bomb that did the most damage. And the defense argued, again predictably, that the younger brother, Dzhokhar, was heavily influenced by his controlling older brother, Tamerlan.

The issue of capital punishment, imposed capriciously (and occasionally in error) has long been controversial. It has been sufficiently troubling that the Supreme Judicial Court of Massachusetts outlawed the penalty on the basis of the state constitution. But the feds grabbed the Tsarnaev case out of the hands of state authorities and proceeded to prosecute Tsarnaev in the federal system, where the penalty of death was, and remains, available.

Indeed, the death penalty has arisen recently in yet another case with Massachusetts ties. Judge Vanessa Baraitser in London refused to extradite Julian Assange, the founder of Wikileaks, to the United States earlier this year. Her reasoning rested on the conditions of the federal supermax prison that Assange would have ended up in if he were extradited. Assange, admitting to having underlying mental health issues, disclosed that he had been considering suicide: ending up in a federal supermax prison in Colorado — the same the Tsarnaev would live out his days in — would likely have ended in his killing himself. Thus, although not a death penalty case per se, extraditing Assange would likely result in his death.

What appears to be ignored in the heated battle over the death penalty is the fact that the alternative punishment — life in prison in one of the federal “supermax” prisons — is hardly a walk in the park. In fact, a very compelling case can be made that a sentence of life is considerably harsher than execution. In order to understand why life is a harsher sentence than death, one has to understand the nature of these prisons and the prisoner’s daily regimen.

Solitary confinement for life spent in a supermax prison might realistically be viewed as borderline torture. It does the defendant no favor to spare him from death. His life becomes a living hell. But vacating a defendant’s death sentence does help spare society of the moral opprobrium of engaging in the killing of a human being.

However, consider the several instances where prisoners have been placed in solitary confinement, supposedly for their own good (in an ironic and even cruel twist, precautions are taken to prevent inmates from killing themselves):

• Ian Manuel spent 18 years in solitary confinement in Florida, his sentence beginning at the tender age of 15. He had no window in his cell, no ability to communicate with his fellow inmates and hardly any food. Manuel and other inmates resorted to harming themselves so they could spend time in a hospital, away from their solitary cells, “just so they could feel human again.”
• Brian Nelson spent 23 years in solitary confinement in Illinois. He could not speak to anybody within the prison nor outside via phone calls, lost a tremendous amount of weight and had hardly any access to reading material. Nelson, a man who had no prior mental health problems before incarceration, ended up with severe depression and struggled to maintain his sanity.
• Tyquine Lee, having dealt with mental illness in the past, spent 600 days in solitary confinement in Virginia. When his family came to visit him in prison, he was entirely unrecognizable, physically deteriorating and speaking to himself in a made-up language. When he was released, he was diagnosed with schizophrenia and personality disorder.
• Kalief Browder spent nearly two years in solitary confinement on Rikers Island. After being released, he reproduced a similar solitary environment regimen at home and stayed away from people. He had constant fears of being attacked in public and at home. Although it seemed that some normalcy in Browder’s life was returning, with him having earned a high school education and beginning a college degree, he ended up committing suicide.

The list of solitary confinement cases could go on and on. According to a Vox article written by Stephanie Wykstra in 2019, “at least 61,000 on any given day and likely many thousands more than that… are in solitary confinement across the country,” Derek Chauvin and Dzhokhar Tsarnaev being among those in solitary.

The issue before the Supreme Court is whether the First Circuit erred in vacating the death sentence, substituting life. That life sentence would be spent in one of the federal supermax prisons. If the Supreme Court reinstates Tsarnaev’s death sentence, it would be doing him, and the entirety of the American prison system, a disservice. But if the high court affirms the First Circuit, it would be doing our society a favor: preventing the phenomenon of state-inflicted death in the name of all of us.

Harvey Silverglate, a lawyer and writer, is GBH’s Freedom Watch columnist. Emily Nayyer is his research assistant and occasional collaborator.