Ending the federal death penalty would bolster our democracy

On Oct. 13, hearing the case of United States v. Tsarnaev, the surviving “Boston Marathon bomber,” the Supreme Court’s conservative justices signalled that they will reverse a soundly reasoned federal Court of Appeals’ ruling and reinstate Dzhokhar Tsarnaev’s death sentence. The case not only challenges our legal process, it also tests President Biden’s promise to work “to pass legislation to eliminate the death penalty at the federal level.”

It is no great surprise that conservative justices favor the death penalty and appear unreceptive to Tsarnaev’s appeal. But it is surprising and disappointing when Biden’s Justice Department asks the court to reinstate Tsarnaev’s sentence.

The stakes go beyond his life. Underlying every death case is the vibrancy of our form of government. The challenge that capital punishment poses to democracy is an underappreciated underpinning of efforts to end it in the United States.

Capital punishment is a vestige of monarchical prerogatives which allow a single person to decide who lives or dies. In today’s world, autocrats love capital punishment and use it to crush and intimidate political opponents.

Visiting it upon so-called “enemies of the state” demonstrates their dominance. According to French philosopher Michel Foucault, the ultimate expression of sovereign power is the “right to take life or let live.” For would-be dictators, merging the death penalty with unconstrained executive power is a marriage of considerable convenience.

Check out national leaders around the world who crave the power to kill their enemies.

Hungary abolished the death penalty in 1990. But its current strongman, Viktor Orban, wants to restore it in the European Union, currently a death penalty-free zone. Orban’s the guy who cracks down on a free press, rails against LGBT people, and blames George Soros for flooding Christian Hungary with Muslims.

Rodrigo Duterte, the autocratic Philippines president, also wants to bring back the death penalty as part of his brutal “war on drugs.” Capital punishment ended there in 2006. China, Iran, Egypt, Iraq and Saudi Arabia — none paragons of democracy — lead the world in death sentences and executions.

At home, Donald Trump, this nation’s most autocratic president, was also a death penalty enthusiast. He rushed to kill 13 death row inmates on his way out the White House door.

We’ve seen dictators’ love affair with the death penalty before.

On Feb. 27, 1933, four weeks after becoming German Chancellor and the day after the Reichstaag fire, Adolph Hitler had the death penalty authorized for arson. A month later, he had that decree applied retroactively to cover the date of the fire.

In the 1934 Soviet Union, dictator Josef Stalin, made the number of official executions “a state secret in an effort to hide the full scope of his purges.” With “l’etat, c’est moi” absolutism, transparency about such things is unnecessary because neither it, nor life itself, is of value.

By contrast, in a country like ours, built on the principles of philosopher John Locke, individual life and liberty along with rationality, are ideals. Hence, from the start, there was something not quite right about the death penalty in America. 

Benjamin Rush, one of the signers of the Declaration of Independence, described the death penalty as “the natural offspring of monarchical governments . . .  An execution in a republic is like a human sacrifice in a religion.”

The finality of the death penalty has always made it seem anomalous in a society whose checks-and-balances constitution acknowledges human susceptibility to error. Capital punishment is the ultimate assertion of righteous indignation and undemocratic infallibility.

Today, those like Bryan Stevenson and Equal Justice Initiative, dramatized in the film “Just Mercy,” have shown that our court system makes more mistakes than it cares to admit. They also teach that death sentences fall unequally on people of color and deny dignity to executioners and executed alike.

To date, strongmen like Orban and Duterte have been unable to overcome abolition and use the death penalty on opponents. In years to come, were an autocrat to take power here, we would need multiple barriers to government’s control over life and limb.

That is why our first openly abolitionist president needs to act as he said he would. Regrettably, Biden has both found himself on the wrong side of the Tsarnaev case and failed to end federal capital punishment.

As former Supreme Court Justice William Brennan once observed “[W]hen the state punishes with death, it denies the humanity and dignity of the victim and transgresses the prohibition against cruel and unusual punishment.” Ending capital punishment, Brennan continued, would be “a great day for our country, and also for our Constitution.”

It is time for Biden to heed Brennan’s admonition and to turn federal death row prisoners into “lifers.” Doing so would advance his agenda to restore and revitalize our democracy.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including Gruesome Spectacles: Botched Executions and America’s Death Penalty. The views expressed here do not represent Amherst College.

Dennis Aftergut is a former federal prosecutor.