Killing a Ghost

What if Tamerlan had survived?

What if the Boston Marathon bombing had occurred exactly as it did, but without the older of the two perpetrators getting mortally wounded during the would-be getaway?

What if both Tsarnaev brothers had been captured alive, instead of just one?

What if they were both on trial, either separately or together, giving us the chance to extract all the justice that could be got from their crimes, not just half of it?

It’s a shame, really, that Tamerlan Tsarnaev found himself on the losing end of a firefight with police and then run over by the getaway car driven by his brother, Dzhokhar.  As unpleasant as that must have been, it allowed him to effectively cheat the system.  He should be rotting in a prison cell, not six feet underground.  At least not until a jury has had its say.

While all “what if?” speculation regarding the Marathon attack is ultimately meaningless, it’s worth pondering in light of the actual trial that began last week—the one that charges Dzhokhar Tsarnaev with 30 counts of criminal conduct, 17 of which could lead to his being executed by the state.

The defense team’s grand strategy—at least on the basis of its opening statements—is to blame everything on Tamerlan, whom it will portray as the Marathon plot’s mastermind with an overpowering influence on his otherwise laid-back younger brother.

It’s a terribly convenient approach, insofar as Tamerlan will be in no position to refute it.  Truly, he can’t seem to catch a break:  First he was thrown under a car.  Now he’s being thrown under a bus.

The defense surprised many people on the first day of the trial by conceding that its client is, in fact, guilty of all charges.  The idea, according to experts, is that if Team Tsarnaev doesn’t contest Dzhokhar’s guilt, it can more easily persuade the jury not to sentence him to death.

It’s a fascinating legal gamble, but what makes it even more interesting is how much it depends on Tamerlan’s being dead.  Just imagine how different the trial would be if he weren’t.

Were both brothers equally alive, and thus equally at the mercy of the U.S. judicial system, the defense team would presumably not be attempting to exonerate one by scapegoating the other.  While it may well have painted Dzhokhar as a reluctant supporting player in any case, its portrait of Tamerlan would have been a touch more nuanced and sympathetic than the one currently on display.  How one might square that delicate circle is anyone’s guess, and it’s too bad we won’t ever find out.

But really, the more compelling counterfactual in this mess lies with the prosecution and how it would have presented a case against both brothers, rather than just one.

Let’s not kid ourselves:  The main reason Dzhokhar’s lawyers are insisting the Marathon attack was Tamerlan’s idea is because it’s true.

As all available evidence has made clear, it was Tamerlan who “self-radicalized” into an anti-Western Islamic extremist, while Dzhokhar kept his religious views so private that many of his close friends didn’t even know he’s Muslim.  It was Tamerlan who retained a kinship to the former Soviet Union, where he grew up, and never fully assimilated into American culture, whereas Dzhokhar became a naturalized U.S. citizen in 2012.  It was Tamerlan who boasted a long history of violent behavior, including an alleged triple homicide in 2011, whereas Dzhokhar’s pre-Marathon record was clean.

While none of this excuses Dzhokhar’s eventual descent into terrorism and mass murder, it underlines the uncomfortable fact that one of these two losers was more morally repulsive than the other, and that the brother who is most deserving of a public accounting for his crimes is also the one who will never get it, because he’s already dead.

We have been left to deal—literally—with the lesser of two evils.

Which brings us—as it must—to the small matter of capital punishment.

Considering that the Justice Department has sought the death penalty for Dzhokhar, we can safely assume it would have done the same for Tamerlan, who by all appearances would have been a more urgent candidate for it.

But I wonder:  Might prosecutors have stopped with Tamerlan and settled on a life sentence for Dzhokhar, on the understanding that the former’s conduct was (slightly) more irredeemable than the latter’s?  And, even if both were on the hook for execution, wouldn’t the jury be far more likely to endorse it for Tamerlan than for Dzhokhar?

In buying the theory that Tamerlan was the ringleader while Dzhokhar was a loyal foot soldier, wouldn’t a jury—and, by extension, our whole society—be content with executing just one of them?  Wouldn’t that be a reasonable means of making a point about punishing evil without getting carried away—a way to balance justice with mercy?

But of course we don’t have that option, and that leads us to a discomforting possibility:  We are going to punish Dzhokhar as if he were his brother.  We are going to harness the righteous ire meant for two people and unleash it upon the only one who is available to receive it, because, dammit, somebody’s gotta die for what happened on April 15, 2013, and if it’s the least-deserving of the two, that’s close enough.

In other words, we are in danger of blurring the line between justice and vengeance.  We are prepared to execute a criminal not so much because he deserves it as because it would make us feel better.

This is problematic, because it gets perilously close to turning Dzhokhar Tsarnaev into a martyr.  We would be killing him in retribution for his brother’s crimes, in addition to his own.  In effect, he would be dying for another person’s sins.  Are we sure that’s what we want him to be remembered for?

But then that’s always the risk you run when capital punishment enters the equation:  Lending pity to someone who deserves none.

Among the reasons that Tamerlan’s premature death is a shame is how it robbed us of a more honest reckoning with capital punishment itself.

Like Timothy McVeigh, the most infamous death row inmate in modern times, Tamerlan presents a real challenge to death penalty opponents such as myself:  He killed and maimed indiscriminately—in a setting containing a large number of families with young children, no less—and his guilt is absolutely beyond doubt.  Combine this with his long criminal record and his unambiguously adult status (he was 26; Dzhokhar was 19), and you have about as clear-cut a death row candidate as you’re ever likely to find.  Indeed, so long as the death penalty still exists at all, how could you possibly justify forgoing it here?

Having Tamerlan in the courtroom would have allowed us to fully hash out the Marathon tragedy once and for all.  To have all members of civilized society look evil in the face and arrive at some kind of catharsis.

Instead, we have to settle for the second-most reprehensible specimen to inflict himself on the people of greater Boston, and to do with him what he has coming.

Let us just make sure that that is all that we do.

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