DOES EXECUTING TERRORISTS WORK?

James P. Rooney

 Now that the guilt phase of the Marathon bombing trial is over, the question becomes what sentence should be imposed.  Much of the debate so far has been about whether the death penalty would be appropriate retribution for the heinous acts committed.  We would point out, as we would in any capital case, that many citizens and most civilized nations believe that there should be limits on the retribution society imposes, and that death violates the very norms society intends to uphold.  In this case, we would add that the federal government did not get involved to seek retribution for the bombing victims.  The Justice Department chose to bring federal charges because the bombing was a terrorism act.  And its chose to bring this case to trial, when it could easily have settled it, because it thinks that executing those who commit terrorist murders is an effective strategy in the War on Terror.  But is it?

 Putting aside for the moment other arguments about the death penalty, consider only whether the death penalty for terrorists can actually achieve a safer, more secure society, which is what we normally expect our criminal justice system to do.  The criminal justice system tries to address typical violent criminal behavior by coming up with a punishment that is both appropriate for a particular crime and that will likely deter those who might otherwise commit that crime.  This approach works best when society and potential criminals see the matter in the same light.  For example, the long sentences usually meted out for bank robbery are perceived by society as appropriate and tend to reduce the frequency of bank robberies because potential robbers assess the money they might gain from holding up a bank against the decades they might have to spend in prison and decide the crime is not worth the time.

 Terrorism is different.  Americans rightly view terrorism with abhorrence, and did so long before 9/11.  The random killing of strangers for purported political purposes puts everyone potentially at risk, at any time and anywhere, and generates an understandably widespread fear.  Furthermore, trying to effect political change through killings violates our fundamental conception of the United States as a participatory democratic society that provides ample opportunity to promote political change by peaceful means.

 Terrorists take the opposite view.  If a terrorist act puts everyone at fear, that’s all to the good as far as the terrorists are concerned.  At least it has gained society’s attention – and attention may be the immediate goal, just as it was in the attack on the Munich Olympics in 1972, which Black September explained that it carried out to publicize the Palestinian cause.  And better yet, terrorist acts my help steer a populace that wishes to be free of further terrorism toward a particular goal that might not otherwise be achieved.  The 2004 bombings of Madrid commuter trains by Islamists three days before an election may have helped turn the tide against the party in power that had sent troops to the Iraq war.

 The individuals who commit terrorist acts are not likely to be deterred by the usual punishments that the societies they attack might mete out, including the death penalty.  They see themselves as working toward a goal that is greater than themselves, and one worth sacrificing for – even to the point of sacrificing one’s life.  Those they attack may hate them, but they earn glory among those who back particular terrorist groups or their goals.

 This makes deterring terrorist acts extremely difficult.  The harsher a captured terrorist is punished, the more it will seem to terrorist sympathizers that the terrorist has gotten under the skin of the society attacked, thus validating the worthiness of the very act that is being punished.  Were a captured terrorist to be executed, it would serve only to create a martyr to a cause and convince others to serve that cause in the very same way.

 In light of this, take a look at how the Marathon bombing trial has played out inteh gulit phase.  The prosecution, because it wants to convince the jury that Dzohkhar Tsarnaev is a so vile that he deserves death, portrayed him as someone who, motivated by a feverish jihadist hatred, deliberately planned and staged an horrific attack at the Marathon finish line and then, after pulling it off, coldly left to buy milk.  This portrait may help the prosecution in the short run, but how does it help fight terrorism?  Nothing in this approach undermines the terrorist narrative of self-sacrificing hero fighting for Islam.

 Is there an alternative?  Before considering that question, consider another one: when fighting terrorists, is it more important to punish the terrorist who has been caught or prevent others from engaging in terrorism in the future?  Put another way, if you had to choose between seeing a terrorist receive an appropriate punishment or punishing in a way that would deter future terrorist attacks, wouldn’t you choose the latter?  Punishing simply is not of much value if terrorist attacks continue.  But if they can be deterred, society can resume normal life.

 If deterrence is the primary goal, then the most effective deterrent may not be the harshest punishment.  For example, when Elizabeth Holtzman was the Brooklyn District Attorney, she attempted to address a widespread graffiti problem, not by sentencing to prison those caught with spray paint bottles in their hands, but instead by sentencing first time offenders to spending a day cleaning graffiti off of walls.  This program dramatically cut the recidivism rate.

 Furthermore, deterrence does not necessarily depend on the workings of the criminal justice system.  As horrific as 9/11 was, one thing it did not do was usher in an era of persistent successful terrorist attacks on the United States.  The Marathon bombing thirteen years after 9/11 was the first terrorist bombing here since then.  Giving all due credit to the security agencies’ efforts to foil other terrorist plots, the principal reason for this lack of such attacks is that there is no audience in this country that would praise them.  The condemnation that terrorists get here, whether they survive or die in an attack, is primarily what deters individuals from committing terrorism acts.

 Thus, if we take steps as a society to undermine this image of living or dead terrorists, then this will help deter future attacks because those contemplating terrorist attacks will know that, instead of earning glory, they will be humiliated and forgotten, as they spend their lives in prison.  This approach could provide a useful alternative description of the Marathon bombing: Tamerlan Tsarnaev, unemployed and unmoored after his hopes of rising in the amateur boxing world were cut short when Golden Gloves changed its rules to bar non-citizens from participating in its national tournament, and troubled by voices that were telling him to do things – things he did not wish to do – drifted toward radical Islam and possibly attempted to contact a radical group on a visit to Dagestan, little appreciating that radical groups there seek to fight Russia, not the United States.  Later, he convinced his younger previously apolitical and irreligious brother, who was himself adrift – flunking out of college and dealing drugs – to bomb the Marathon.  Their purported goal: to protest American military involvement in Iraq and Afghanistan: a goal that made no sense since the U.S. had withdrawn its troops from Iraq at the end of 2011 and, in June 2011, President Obama had announced that the U.S. would withdraw its troops from Afghanistan by 2014.  Tamerlan’s subsequent death during a shoot out with the police, something the brothers chose to do rather than surrender, was a classic suicide-by-cop, which is just as easily the fate that could have befallen Dzohkhar who was wounded in the neck, and no more heroic that the death of any other criminal who chose to exchange fire with an overwhelming police force.

 In the end then, trying to convince a jury to execute Dzohkhar Tsaranev by portraying him as a radical 19 year old terrorist at the time he committed the Marathon bombing will do nothing to deter other terrorists.  Were we to depict the Marathon bombing as a function of a deranged mind, political naivete, and suicidal urges, it would result is a punishment other than death, but it would do far more to deter future acts of terror.