Portrait of the Artist
April 1, 2015 9:26 PM   Subscribe

Dzhokhar Tsarnaev Has the Most Ferocious Lawyer in America Defending Him. Judy Clarke, the publicity-shy anti-death-penalty attorney, has defended the Unabomber, Susan Smith, and Jared Loughner, and successfully spared them capital punishment.
posted by likeatoaster (232 comments total) 37 users marked this as a favorite
 
Good. Hope she succeeds here, too.
posted by kafziel at 9:26 PM on April 1, 2015 [30 favorites]


My opinion of the death penalty was never high, but by now I think it is just a relic of another time, and part of a heavily corrupt justice system. If he is guilty send him to prison, but it is time to get rid of capital punishment.
posted by Dip Flash at 9:34 PM on April 1, 2015 [21 favorites]


If convicted, he would probably be sent to supermax prison.
posted by clavdivs at 9:41 PM on April 1, 2015


TBH, I'm almost in favor of killing people instead of locking them in isolation for the rest of their lives. It is torture to many, if not most. And in a way that goes far beyond the abuse we allow and perpetrate in "normal" prisons.
posted by wierdo at 9:53 PM on April 1, 2015 [14 favorites]


Yes, he did it, and yes, he should go to prison (though, as clavdivs brings up, supermax has its own issues!). However, this trial has really felt like a show trial, what with the judge's denial of requests to move the trial to another city to try to get a more impartial jury (Timothy McVeigh's trial was moved to Colorado, for example), and the prosecution's refusal to just offer life in prison in exchange for a guilty plea.
posted by Blue Jello Elf at 9:54 PM on April 1, 2015 [5 favorites]


He was 19 years old when he committed these crimes. He is only 21 years old now. That so many people believe that his life cannot be redeemed, that no reform even in one so young is ever going to be possible, is a mistake. Yes, I want him to be punished for what he did. But surely sending him to prison a young man and having him emerge well past middle age is enough? Denying him his youth, his education, the most social and economically productive years of his life?

There are many places where indefinite jail terms have been abolished. I worked in an international tribunal where common sentences for mass murderers was 25 years. I think for a lot of people the appeal of an actual life spent in jail is that it punishes the offender more, rather than less. There is no talk about reform. I haven't heard a single word about it listening to the radio here in Boston. His act demonstrated a child's disregard for human life and suffering. I am naive I guess in the belief that society's response should be better than that.
posted by 1adam12 at 10:03 PM on April 1, 2015 [116 favorites]


Sometimes you listen to the wrong person, because they're your brother, and they talk you into doing something you shouldn't. Sometimes you listen for years, and they talk you into something catastrophic, because you trust them, and just don't think to doubt.

The appropriate reaction here is sympathy.
posted by kafziel at 10:05 PM on April 1, 2015 [4 favorites]


Massachusetts doesn't have a death penalty. I have yet to see why in a country devoted so much to States Rights rhetoric, so many are in favor of superseding parameters established by the people of Massachusetts.
posted by Nanukthedog at 10:07 PM on April 1, 2015 [16 favorites]


The appropriate reaction here is sympathy.

The more appropriate word here is "mercy." He doesn't deserve that either.
posted by charlie don't surf at 10:14 PM on April 1, 2015 [31 favorites]


I don't think he should be put to death, but I certainly don't have sympathy for him. This wasn't a crime of passion, it was a planned terrorist attack on hundreds of innocent people.
posted by Ferreous at 10:18 PM on April 1, 2015 [27 favorites]


I don't believe in the death penalty.

But I do believe in deep, dark holes in the ground from which you never return.

Prison is about many things. Rehabilitation. Redemption. Revenge.

But it's also about the story we need to tell ourselves about what society is and how it works. And in my opinion, a civilized society needs deep, dark holes in order to function as a civilized society.

I hope there's a deep, dark hole and no one to pray for him.

The rules are written in the stone.
Break the rules and you get no bones.
All you get is ridicule, laughter,
And a trip to the house of pain.

posted by Cool Papa Bell at 10:21 PM on April 1, 2015 [8 favorites]


@1adam12 --

    "To decide that a man must be definitively punished is to deny him any further opportunity whatsoever to make reparation for his acts... This right to live that coincides with the opportunity for reparation is the natural right of every man, even the worst. The most wretched criminal and the worthiest judge here find themselves side by side, equally miserable and jointly responsible. Without this right, the moral life is strictly impossible. None among us is entitled to despair of a single man, unless it be after his death, which transforms his life into destiny and admits of a final judgment. But to pronounce this final judgment before death, to decree the closing of accounts when the creditor is still alive, is the privilege of no man. On these grounds, at least, he who judges absolutely condemns himself absolutely. ...It is because man is not fundamentally good that no one among us can set himself up as an absolute judge, for no one among us can pretend to absolute innocence. The verdict of capital punishment destroys the only indisputable human community there is, the community in the face of death, and such a judgment can only be legitimated by a truth or a principle that takes its place above all men, beyond the human condition."

--Albert Camus, Reflections on the Guillotine
posted by Vic Morrow's Personal Vietnam at 10:24 PM on April 1, 2015 [60 favorites]


I believe nothing.
posted by telstar at 10:24 PM on April 1, 2015 [2 favorites]


A life sentence is about right, but I also have a bit of trepidation about the supermax.
posted by scottymac at 10:27 PM on April 1, 2015 [3 favorites]




The article is primarily about Judy Clarke, not the death penalty.

No matter what you think of the death penalty, you cannot dispute that Judy Clarke is one of the world's best lawyers, hands down.

You can't know the difficulty of what she does unless you've been in that particular line of work. It's one of the hardest things in the world a person can choose to do. And she does it supremely. What an incredible attorney!
posted by mikeand1 at 10:33 PM on April 1, 2015 [38 favorites]


The guy was 19, not 9. Some people in this thread are talking about him as if he were a middle-schooler led on by his college-age brother. 19 is old enough, absent mental health issues, to be able to make and be responsible for your own decisions. I don't think he should get the death penalty, but this infantilizing of him is just weird.
posted by Sangermaine at 10:48 PM on April 1, 2015 [58 favorites]


Her record defending the indefensible speaks for itself. Among those who want capital punishment abolished in this country, Judy Clarke is the most effective champion in history.

The article is about both Judy Clarke and about the death penalty, in particular the pivotal role she has played in weakening it and, hopefully, bringing about its downfall and abolishment.

It is interesting to read about her cases but more so her particular philosophical stance on the issue:

... Clarke argued that most of those who commit heinous acts “have suffered from serious severe trauma, unbelievable trauma. We know that from brain research. Many suffer from severe cognitive development issues that affect the core of their being.” In other words, “most” of those who commit these terrible crimes, the worst of the worst, are not evil; they are sick.
...
If the act itself were proof of insanity, then no one could be executed, which is, of course, Clarke’s intent. It allows us to believe that all people are essentially good, and do very bad things only when their brains misfire.

posted by vacapinta at 10:48 PM on April 1, 2015 [8 favorites]


And in my opinion, a civilized society needs deep, dark holes in order to function as a civilized society.

It seems to me the countries with the worst prisons tend to have the least civilized societies.
posted by ryanrs at 10:53 PM on April 1, 2015 [104 favorites]


I don't believe in the death penalty.

But I do believe in deep, dark holes in the ground from which you never return.


"Objection!" the defense attorney shouted. "Your Honor, the Sarlacc pit is clearly a form of death penalty."

"Are you kidding?" asked the prosecutor. "The Sarlacc pit isn't the death penalty — it's practically revolving-door justice. Published accounts from the Expanded Universe make it clear that Boba Fett escaped from the Sarlacc pit not just once, but repeatedly. This objection is risible. A 'new definition of pain and suffering' does not the death penalty make."

"Your Honor, a felony conviction will prohibit the accused from possessing the blasters, jetpacks, or Mandalorian body armor necessary for escape. Furthermore, I refer you to Disney v. Lucas, which affirms that the Expanded Universe sets no precedents for future rulings."

"Objection sustained," said the judge. "But be advised this has no bearing on the carbonite issue."
posted by compartment at 11:07 PM on April 1, 2015 [41 favorites]


The appropriate reaction here is sympathy.


Perhaps for the victims and the victims' families.
posted by auggy at 11:08 PM on April 1, 2015 [10 favorites]


"According to recent findings, the human brain does not reach full maturity until at least the mid-20s. (See J. Giedd in References.) The specific changes that follow young adulthood are not yet well studied, but it is known that they involve increased myelination and continued adding and pruning of neurons. As a number of researchers have put it, "the rental car companies have it right." The brain isn't fully mature at 16, when we are allowed to drive, or at 18, when we are allowed to vote, or at 21, when we are allowed to drink, but closer to 25, when we are allowed to rent a car."
posted by Hairy Lobster at 11:12 PM on April 1, 2015 [21 favorites]


Sorry, posting from phone... That was in response to Sangermaine: "The guy was 19, not 9. "
posted by Hairy Lobster at 11:13 PM on April 1, 2015


19 is old enough, absent mental health issues, to be able to make and be responsible for your own decisions.

Hands up, everybody who made WAY worse decisions and was WAY more easily influenced by others at 19 than when they were 9, and never got killed for it? That's about the point where I ended up in a really awful abusive relationship and it took a lot to get back out of that. Sibling relationships can get abusive and manipulative just as easily as romantic relationships do. In childhood, you're completely powerless, but that also limits the utility of adults trying to manipulate you. Before you're really capable of fully adult judgment but after you have some independence is a very dangerous time. The government has set a firm position that 19 year olds do not possess the necessary judgment faculties to drink alcohol without parental supervision. That's a pretty low bar. Being self-possessed enough to resist the manipulation of older people who you've been raised to regard as authority figures is a much higher one.

That doesn't mean that there should be no consequences, but there's miles and miles of ground between killing someone and letting them go with a handshake and a pat on the back. I don't know if he's capable of rehabilitation or if he just needs to be confined from the world. I do know that the people calling for the death penalty in his case are no more experts on that issue than I am.
posted by Sequence at 11:13 PM on April 1, 2015 [34 favorites]


The appropriate reaction here is sympathy.


Perhaps for the victims and the victims' families.


Because you can only pick one!
posted by ominous_paws at 11:18 PM on April 1, 2015 [67 favorites]


Way worse decisions than setting down a bomb in a crowded area, joking with friends later, having a shoot out with police and then scrawling jihadists propaganda with your own blood in a boat you're hiding in?

No. No, no one in this thread has made decisions like that. WTF. That is so insulting to the victims. This is not a youthful indiscretion. This is two deliberate choices to commit murder.
posted by OnTheLastCastle at 11:19 PM on April 1, 2015 [72 favorites]


you cannot dispute that Judy Clarke is one of the world's best lawyers, hands down.

It is a fascinating article:
Kaczynski would later accuse Clarke of having deceived him about [using mental illness as a defense] until shortly before the trial. [...] An insanity defense would forever color his theories as madness. And, for him, his ideas were the important thing. They were why he had killed. He was prepared to die for them.
[...]
Her refusal forced the question, and she must have known that doing so would scuttle her client’s wishes. [...] Within hours he would attempt to hang himself in his cell. Two weeks later he grudgingly pleaded guilty—not to avoid the death penalty, but to avoid Clarke’s insanity defense.
Just one aspect of what makes it so fascinating, Clarke does not conform to my understanding of professional ethics.
posted by Chuckles at 11:20 PM on April 1, 2015 [18 favorites]


People also would likely agree that they are wiser as they enter their 50s than they were in their 30s, and I think anyone on here over 25 would raise their hand if asked for a show of those who made mistakes influenced by others after 25. But, it seems to me there has to be a line drawn at some point at which a certain level of responsibility must be assumed (apart from severe mental issues).

There may be an argument to put that line at 25, but I suspect it's tenuous.



Because you can only pick one!

Of course you don't have to only pick one, but I would suggest any sympathy you might have for Tsarnaev is better spent on the victims. Understanding (per the article) is one thing, and there might be room for understanding what Tsarnaev did and why he did it. I am not sure about sympathy.
posted by auggy at 11:20 PM on April 1, 2015 [3 favorites]


I think the death penalty is barbaric, and especially so the way it is implemented in those States that still have it.

OTOH, I don't think there is any shadow of a doubt that Dzohokhar blew people up in the most barbaric manner. I do not think excising him from humanity is a bad thing. An instant, painless removal of his existence would not be detrimental.

There are six billion people on earth, many suffering. Hold a lottery and replace Dzohokhar's space in America with someone who is less barbaric.

I contain multitudes. Perhaps tomorrow I will feel less uncharitable toward this mass murderer.
posted by five fresh fish at 11:25 PM on April 1, 2015 [10 favorites]


If it matters, I am anti-death penalty until (I just decided) someone uses a weapon designed to indiscriminately kill as many people as possible.
posted by OnTheLastCastle at 11:26 PM on April 1, 2015 [2 favorites]


Clarke does not conform to my understanding of professional ethics.


Feel free to elaborate, but the excerpt you cited wouldn't present any ethical issues for the vast majority of criminal defense attorneys.

As a criminal defense attorney, there's nothing in the rules of ethics that obligates you to follow your client's wishes on general tactical or strategic matters. The client gets the final say on only a couple of decisions: Whether to testify, and whether to plead guilty or innocent. If you're retained counsel, the client generally has the right to fire you as well, but if you're appointed, the client has to have a really good reason why you should be fired (e.g. you're legally ineffective, or you've lost any ability to communicate with the client).

I'm not aware of any ethical rule that would require a defense attorney to abandon an insanity defense on the client's demand. And if the client is truly mentally ill -- as the Unabomber most likely was -- the attorney has a duty to proceed independently of the client's claimed desires.

If the client was NOT insane and wanted to take a plea deal, that might be a different matter, but I've never seen a convincing evidence for that with respect to the Unabomber. He claimed he was sane, but he did not have the option of a plea deal absent his attorney's efforts, and his sanity was legitimately in doubt. The attorney has an ethical obligation to follow her own understanding in that circumstance. The client can argue directly to the court if he wants to dispute it.
posted by mikeand1 at 11:33 PM on April 1, 2015 [10 favorites]


I imagine myself a family member of the victims listening to some long speech by Camus and other assorted theorists.

I think Clarke is a fine lawyer. Everyone deserves a Defence.
posted by clavdivs at 11:40 PM on April 1, 2015 [4 favorites]


Of course you don't have to only pick one, but I would suggest any sympathy you might have for Tsarnaev is better spent on the victims.

So you don't have to pick one but you recommend it.
posted by the agents of KAOS at 11:41 PM on April 1, 2015 [13 favorites]


Of course you don't have to only pick one, but I would suggest any sympathy you might have for Tsarnaev is better spent on the victims.

The thing about compassion is that, unlike money, you have an unlimited supply of it. If you are willing to tap into it, that is...
posted by mikeand1 at 11:45 PM on April 1, 2015 [43 favorites]


The reason I don't believe in the death penalty is simple: miscarriages of justice are all too common.
posted by walrus at 11:50 PM on April 1, 2015 [9 favorites]


If there's a time and place for the death penalty I think it is for those times when you have somebody unquestionably too sick, to depraved to be allowed to exist (and I question further whether any legal system can ever really satisfy that to the degree needed, but that's a side issue.)

What I don't think the death penalty ought to be for is for the feeling of "somebody just has to pay", where the outcry is not coming from a place of fear or danger, but anger.

It's not my impression that Dzokhar is somebody too sick to be allowed to live. But I am seeing plenty of the latter case in this thread.

People who want the satisfaction of seeing somebody exterminated for this ought to take solace that the guy who did this thing already was exterminated.
posted by anazgnos at 12:07 AM on April 2, 2015 [7 favorites]


The guy was 19, not 9. Some people in this thread are talking about him as if he were a middle-schooler led on by his college-age brother. 19 is old enough, absent mental health issues, to be able to make and be responsible for your own decisions. I don't think he should get the death penalty, but this infantilizing of him is just weird.

That's why he can rent a car, right? Because 19 year olds are perfect models of judgement and responsibility and have huge amounts of life experience.

As soon as we want to throw the book at someone the expectation of people involves them being paragons of judgement immune to all emotional manipulation. Hell, if humans as a species weren't fucking stupid and subject to said emotional manipulation the entire timeshare business wouldn't exist.
posted by Talez at 12:09 AM on April 2, 2015 [3 favorites]


Vacapinta, I don't know your nephews, but I'm making a guess (I hope I'm not wrong) that you are not the uncle or aunt of men who created and deployed bombs intentionally for the purpose of killing 9 year olds and anyone else nearby who were having a nice day watching a sporting event and cheering on people who were testing their physical endurance.

As the article noted, support for the death penalty for murderers has declined over the past couple of decades. Gallup says that it down to 63% last year (it had been 80% in 1994).

Maybe it is the exoneration of death row inmates by DNA testing or other means or maybe it is the clear overrepresentation of African Americans in a biased system. Or maybe it is something else. Whatever the reasons, it is a positive trend.

But, but...sometimes I feel like a third of Mefi comments are written by people from a different planet than the one I live on. We get it: you are a super-smart super-liberal who can stake out territory to the left of anyone's left. Awe-inspiring.

I fear one way to reverse the positive trend is to start acting as if the game has been won and it is now time to start question life in prison for people who blow nine year olds to bits. I'm all for the chance for someone to spend their life trying to make up for the horrendous things they've done--but they can do that in prison.

How about some mercy for the hundreds of lives altered forever by this act? If Tsaernev killed my child or sister or best friend they would need too keep him in jail for life not too protect us from him, but to protect him from me (and me from myself). I am also 99% sure I'd be terrible at hunting him down and dispatching him, but as long as I was mobile, I'd be dedicating my life to making it happen.
posted by Cassford at 12:12 AM on April 2, 2015 [15 favorites]


What if indefinite jail time is more like exile, in which people are sent to an island colony where they are safely removed from the rest of society but aren't locked up in a box for the rest of their lives
posted by Apocryphon at 12:25 AM on April 2, 2015 [3 favorites]


When I was a kid, I was at least sort of conceptually in favor of the death penalty, and then I learned that sometimes, the justice system gets a false positive, ever.

Of course, having since also found out how horrifically bad Americas prisons tend to be (hi there profit motive taking priority over human decency), there's obviously no intention of rehabilitation, reformation, or anything other than institutionalization and abstraction of eye-for-an-eye vengeance at play even for comparatively "humane" life sentences. And then there are things like solitary confinement, which is literally a war crime, yet considered acceptable in American prisons.

So yeah, we're back where we often are after high-profile crimes, especially in America (though in this case, because it was a bombing, we're skipping the usual outcry of people decrying the politicization of guns and conveniently forgetting the "in a way that fails to glorify them" that they actually mean): a guy did a horrible thing, and it absolutely makes sense that he should be brought to task for it, but given the choice, which do you think reflects better on you, and your society? To demand that he be effectively tortured to death, or to demand that efforts be made to try to point him in the right direction so that he might have a chance to make a positive impact on someone, somewhere, some day? Does the suffering of a criminal somehow negate the suffering of the victims in some sort of Christ-like sacrificial lamb sense? What possible motivation is there to suggest that sympathy for the victims necessarily negates any shred of humanity toward the criminal, but simple vengeance?

The moral standing of a society is found not in the stories that it tells itself, but in the truths it tries not to.
posted by DoctorFedora at 12:31 AM on April 2, 2015 [22 favorites]


Apocryphon: What if indefinite jail time is more like exile, in which people are sent to an island colony where they are safely removed from the rest of society but aren't locked up in a box for the rest of their lives

Well, it'd be Lord of the Flies within a week. The absolute worst prisoners would live like kings and all of the not-so-bad ones would be way worse off than they'd be in a regular prison. Aside from all of the major practicality problems that exist with that plan.
posted by Mitrovarr at 12:31 AM on April 2, 2015 [1 favorite]


But, but...sometimes I feel like a third of Mefi comments are written by people from a different planet than the one I live on. We get it: you are a super-smart super-liberal who can stake out territory to the left of anyone's left. Awe-inspiring.
Repay no one evil for evil, but give thought to do what is honorable in the sight of all. If possible, so far as it depends on you, live peaceably with all. Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, “Vengeance is mine, I will repay, says the Lord.” To the contrary, “if your enemy is hungry, feed him; if he is thirsty, give him something to drink; for by so doing you will heap burning coals on his head.” Do not be overcome by evil, but overcome evil with good. --Romans 12:17-21
“You have heard that it was said, ‘An eye for an eye and a tooth for a tooth.’ But I say to you, Do not resist the one who is evil. But if anyone slaps you on the right cheek, turn to him the other also.
"And whenever you stand praying, forgive, if you have anything against anyone, so that your Father also who is in heaven may forgive you your trespasses.”
Out left what? I thought this was supposed to be a Christian fucking nation.
posted by Talez at 12:32 AM on April 2, 2015 [40 favorites]


The bible also says that the love of money is the root of all evil, and you can see about how well that's been reflected throughout American society.
posted by DoctorFedora at 12:33 AM on April 2, 2015 [6 favorites]


If Tsaernev killed my child or sister or best friend they would need too keep him in jail for life not too protect us from him, but to protect him from me (and me from myself).

ooh, tough guy. It's ok, we'll hold you back so you don't have to demonstrate that you wouldn't actually ever do anything.
posted by the agents of KAOS at 12:40 AM on April 2, 2015 [41 favorites]


It's not supposed to be a Christian nation.
posted by thelonius at 1:06 AM on April 2, 2015 [33 favorites]


The more appropriate word here is "mercy." He doesn't deserve that either.

Some days, I wonder if there should be a lottery for Americans to be the ones in death row prisons, who flip the switch and carry out the death sentence. Would they be so blood-thirsty?
posted by a lungful of dragon at 1:09 AM on April 2, 2015 [6 favorites]


It's normal to feel those vengeance-y feelings, but that's why the whole justice and keeping the law thing is not in the hands of individuals, but the supposedly impartial State. I feel those angry thoughts too. But when you find yourself thinking things like fuck him! let him burn! you must consider the possibility that the monster that lives in the heart of wrong doers, is maybe paying a visit to yours, too.

I think anyone who does terrible harm to others must be allowed the chance to atone, and killing them, or imprisoning them in a system that exists solely for retribution and punishment creates no sum good. Never mind the terrible effect those punishments have on the person experiencing them. What happens to the people forced to mete out punishment? To their families? The families of the imprisoned? The sick and corrosive effects flow ever outwards.
posted by mythical anthropomorphic amphibian at 1:13 AM on April 2, 2015 [72 favorites]


The article in the FPP is a fascinating profile of an admirable person doing good work. There is a lot of great information there, and I do recommend anyone reading this thread to RTFA. I'll just pull this one paragraph out, from the first quarter of the lengthy (and again worth reading!) article:
We are more willing to impose death when the killer is painted in monochrome—if we can define him or her by the horror of the crime. Many think this is just; that is what blame and punishment are about. But in rare public comments to the magazine of Washington and Lee University’s law school, where she has taught, Clarke argued that no person should be defined “by the worst moment, or worst day” of his life. She laboriously constructs a complex and sympathetic portrait of the accused, working with a far more varied palette, sketching out the good and the bad, unearthing the forces that drove a killer to the terrible moment, and insisting that judges and juries and prosecutors see the larger picture, weighing not just the crime but the whole person. She seeks not forgiveness but understanding. It takes only a small spark of it to decide against sentencing someone to death.
posted by hippybear at 2:09 AM on April 2, 2015 [18 favorites]


Serious question: what should you do with a guy like Tsarnaev? Like, what would be an appropriate yet merciful punishment?

I don't support the death penalty, for him or anyone, but I don't think it's unreasonable to want to see him imprisoned for the rest of his life either.
posted by seymourScagnetti at 2:11 AM on April 2, 2015 [4 favorites]


I don't support in the death penalty in general, but I can't spare an ounce of concern for this mass murderer and have no doubt he did the things he did.
Supermax for life suits me.
posted by spitbull at 2:15 AM on April 2, 2015 [9 favorites]


The appropriate reaction here is sympathy.

There are those who say that the appropriate reaction is always sympathy. There have been a few major religions founded on this idea. It's known not to be easy.

What I don't understand is how this sympathy is insulting to the victims, how it can be twisted into something negative. If I would deny others their pound of flesh, how is it that I become the one doing injury?
posted by cotterpin at 2:31 AM on April 2, 2015 [24 favorites]


I imagine myself a family member of the victims listening to some long speech by Camus and other assorted theorists.

I don't particularly care to elaborate on personal details and obviously I can't speak for these families, but if someone sent me this excerpt by Camus years ago maybe I wouldn't be quite the same person today.
posted by polymodus at 2:46 AM on April 2, 2015 [2 favorites]


Serious question: what should you do with a guy like Tsarnaev? Like, what would be an appropriate yet merciful punishment?

I don't support the death penalty, for him or anyone, but I don't think it's unreasonable to want to see him imprisoned for the rest of his life either.


I'm not a fan of justice for the sake of punishment. I don't believe punishment either mitigates the crime or prevents further occurrence.

Justice for me should seek the action of reparation through rehabilitation and preventation, not revenge.

So what to do with a guy like Tsarnaev? If he can't be redeemed, he should be prevented from the opportunity of committing further crime.

In some cases, lifetime imprisonment may be the best we can achieve.
posted by walrus at 2:59 AM on April 2, 2015 [3 favorites]


If he can't be redeemed, he should be prevented from the opportunity of committing further crime.

I didn't word my reply above as best as perhaps I could, so I want to clarify my position. I don't think lifetime imprisonment is appropriate in the case of, say, a burglar, but we should seek to prevent the opportunity of a murderer taking another life or a rapist ruining another.
posted by walrus at 3:04 AM on April 2, 2015


I guess I find it hard to imagine that a 19/21 year old is beyond rehabilitation or redemption.
posted by bardophile at 3:09 AM on April 2, 2015 [15 favorites]


I quite agree bardophile. I'm not suggesting a fixed life sentence, but his future freedom should depend fully on the outcome of regular psychiatric evaluation.
posted by walrus at 3:14 AM on April 2, 2015


Love me some Camus, and Hannah Arendt too:
And just as you [Eichmann] supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations…we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang.
I do think it's notable how simple and straightforward the arguments against the death penalty are, and how convoluted and twisted the arguments in favor of it are. It seems we must go to considerable cognitive trouble to justify what we know is wrong (and we know it is wrong because murder is so often what we are punishing in the first place.)

I'm sympathetic to Arendt here, but I worry that the great mass murders and our outsized vengeance justifies a whole system of lesser punitiveness (like the supermax) that we ought to rein in. Maybe we can't.

Anders Breivik got 21 years, though. So clearly it's possible.
posted by anotherpanacea at 3:15 AM on April 2, 2015 [4 favorites]


And perhaps Breivik's sentencing swings too far in the direction of mercy, in that if he is released after 21 years or less and commits further murder then justice has failed. I would not be against locking murderers up until we're pretty damn sure that rehabilitation can succeed, rather than for some arbitrary number of years.
posted by walrus at 3:20 AM on April 2, 2015 [2 favorites]


Anders Breivik got 21 years, though. So clearly it's possible.

He got the maximum allowed by Norwegian law, which also says that he can remain imprisoned for as long as he's deemed a danger to society. It's very likely that he will never be released.
posted by seymourScagnetti at 3:23 AM on April 2, 2015 [17 favorites]


I worry that the great mass murders and our outsized vengeance justifies a whole system of lesser punitiveness (like the supermax) that we ought to rein in.

I don't think supermax prison is less punitive than the death penalty. It's arguably worse (see linked FPP in the 3rd reply to this thread).
posted by Pseudonymous Cognomen at 3:27 AM on April 2, 2015


I find it worth mentioning, every time it's brought up, that the entire car chase/lockdown/horrible fuckmess situation that ended in the boat was pretty much entirely reddits fault.

Never forget. Their stupid speculation and fingering of the wrong guy lead the FBI to leak this guys name, and created that entire chase and shootout and all that. People got shot, other than this guy, it was a mess.
posted by emptythought at 3:27 AM on April 2, 2015 [15 favorites]


I am so glad to see he has a good lawyer. I hope he gets the fairest possible trial. He's been in my thoughts ever since the bombings, and the epic MeFi thread I practically stayed up all night reading, until he was caught.
posted by ipsative at 3:27 AM on April 2, 2015 [1 favorite]


seymourScagnetti: "Serious question: what should you do with a guy like Tsarnaev? Like, what would be an appropriate yet merciful punishment? "
Since you're asking, I'd say about 16 years with plentiful options for education and/or vocational training.
posted by brokkr at 3:36 AM on April 2, 2015 [3 favorites]


"I find it worth mentioning, every time it's brought up, that the entire car chase/lockdown/horrible fuckmess situation that ended in the boat was pretty much entirely reddits fault.

Never forget. Their stupid speculation and fingering of the wrong guy lead the FBI to leak this guys name, and created that entire chase and shootout and all that. People got shot, other than this guy, it was a mess.
"

So now we're rewriting history to blame reddit? The chase and lockdown happened because they killed the MIT cop. Their names were announced later.

And Reddit was speculating based on photos and videos of the event. The cops figured out who did it also based upon photos and videos of the event but they had access to a larger pool. Most of the speculation on Reddit started off with the line "This is pure speculation but". A lot of other stuff posted on reddit was taken directly from the police scanner feed. On 4chan they even figured out that Tsarnaev's friends knew about them being the bombers almost as soon as the names were announced. As soon as news of the MIT cop's death hit the news, one of Tsarnaev's friends changed his VK profile pic of himself (the friend) wearing an Iron Man mask to him sitting at a dinner table with Tsarnaev. This was before the brothers' names were given out by the police and made known. People speculating as we all tend to do did not create the "entire chase and shootout and all that." The brothers did that. That's even why they killed the MIT cop, they wanted to steal his gun.
posted by I-baLL at 3:37 AM on April 2, 2015 [15 favorites]


Sympathy? Sympathy? He looked at this kid and decided to put a fucking bomb on the ground next to him. Sympathy? For this fucker? Let him rot. The death penalty is barbaric.
posted by waitingtoderail at 3:50 AM on April 2, 2015 [10 favorites]


Way worse decisions than setting down a bomb in a crowded area, joking with friends later, having a shoot out with police and then scrawling jihadists propaganda with your own blood in a boat you're hiding in?

Um, I don't see any errors with my phrasing there, so I did say, way worse decisions when you were 19 than when you were 9, which was the comparison being made as to when you were responsible for your actions.
posted by Sequence at 4:00 AM on April 2, 2015 [5 favorites]


The interesting part of this article is that she works against her clients' wishes. She didn't represent the unabomber, she defended him against his own wishes and desires as much as the state's. That's really strange.
posted by srboisvert at 4:02 AM on April 2, 2015 [7 favorites]


Serious question: what should you do with a guy like Tsarnaev? Like, what would be an appropriate yet merciful punishment?

well, if this were Afghanistan and he was the US, we would have him pay about $15k per body...
posted by ennui.bz at 4:07 AM on April 2, 2015 [16 favorites]


This was a very well-done article. It's rare that I find something that seems worth reading about death penalty issues; the arguments are all so familiar. I'm glad to have had this brought to my attention, to know more about Judy Clarke. Thanks, likeatoaster.
posted by not that girl at 4:23 AM on April 2, 2015 [10 favorites]


ennui.bz: "if this were Afghanistan and he was the US, we would have him pay about $15k per body..."
The government would pay. He'd get a medal.
posted by brokkr at 4:25 AM on April 2, 2015 [2 favorites]


"Hands up, everybody who made WAY worse decisions and was WAY more easily influenced by others at 19 than when they were 9"

Really? Like, you're saying that not only were you making worse decisions at 19 than at 9, but you're so confident that you're sure there's a whole mass of other similar idiots on Metafilter?

And if that's actually true, and most of y'all made worse decisions at 19 than 9...what the hell was wrong with you?
posted by Bugbread at 4:41 AM on April 2, 2015 [4 favorites]


And if that's actually true, and most of y'all made worse decisions at 19 than 9...what the hell was wrong with you?

Most of us didn't get to make many decisions at the age of 9?
posted by srboisvert at 4:43 AM on April 2, 2015 [11 favorites]


Repercussions of bad decisions are worse when you're 19 than when you're 9.
posted by I-baLL at 4:44 AM on April 2, 2015 [6 favorites]


Y'all should have sympathy because clearly he had a raging case of Teenfluenza and didn't realize blowing up a bunch of people was an No-No.
posted by Metafilter Username at 4:52 AM on April 2, 2015 [9 favorites]


As an Australian, I cannot stand the death penalty. It is a contradiction, a paradox, to uphold life as sacred on one hand while deliberately extinguishing it with another. There is an old quote from the Russian writer Fyodor Dostoevsky: “You can judge a society by how well it treats its prisoners”. I think any country that kills its own citizens needs to take a long look at what principles it truly wants to uphold.

I truly hope that one day, within my lifetime, the US will wake up to itself and abolish the death penalty. It simply doesn't gel with the greater ideals that the US is known to aspire to. And when it finally happens, history will reflect upon the work Dzhokhar Tsarnaev, who made it increasingly untenable for the US legal system to rightfully kill its own.

Personally, I find this woman fascinating. Thanks for posting!
posted by kisch mokusch at 4:55 AM on April 2, 2015 [10 favorites]


Death is so horrible that if you cause it, we'll kill you. Wait. What?
posted by Mental Wimp at 4:58 AM on April 2, 2015 [3 favorites]


srboisvert: "Most of us didn't get to make many decisions at the age of 9?"

I-baLL: "Repercussions of bad decisions are worse when you're 19 than when you're 9."

Exactly. The comment about "He was 19, not 9" was not talking about how damaging his actions were, it was about his decision-making capabilities. Countering that with the fact that 19 year olds can make more decisions, and their decisions can have greater repercussions, and that this is somehow a reason for leniency, is as ridiculous as saying rich people deserve more leniency because they can make more decisions, and their decisions can have greater repercussions, or that police deserve more leniency because they can make more decisions, and their decisions can have greater repercussions.
posted by Bugbread at 5:00 AM on April 2, 2015 [3 favorites]


...as Ted listened to Burrell deny his request, Clarke raised one hand and rested it gently on his shoulder. She knew, as David did, what a blow this was to him. Within hours he would attempt to hang himself in his cell. Two weeks later he grudgingly pleaded guilty—not to avoid the death penalty, but to avoid Clarke’s insanity defense. He is still complaining about it—that was the point of his letter to me.

But it was Clarke’s kind gesture that impressed David. “Her instinct in that moment is not to turn a cold shoulder to him or express frustration or anger, all of which would have been understandable,” David said, “but it was to put her hand [on him]. To touch him.”
a few hours after which, because of her "kindness" he tried to kill himself. it's a kind of Hannibal Lecter moment that the author seems to miss (and Ted's brother)...
Judy Clarke grew up one of four children in Asheville, North Carolina, part of an extended family of Republicans fond of spirited disputation. Parents, grandparents, and siblings would gather for supper around a large custom-built oak table, where opinions kept easy pace with the corn bread and gravy. Her parents, Harry and Patsy, sometimes hosted John Birch Society meetings in their living room.
the apple doesn't fall far from the birch tree...
To her, this devotion to civil liberties is deeply rooted in her conservative upbringing. Clarke bristled in that 1990 interview at being characterized as a liberal. “I don’t know but what my opinions have been the most conservative in the world,” she said. “What does it take to be an absolute supporter of what the Constitution says? That’s hardly liberal...”
bingo. this lady isn't your friend.
posted by ennui.bz at 5:03 AM on April 2, 2015 [3 favorites]


Also, I don't see any way an insanity defense would've worked for Kaczynski. He wouldn't met the federal definition of the word. He obviously knew what he was doing and he was well aware of the seriousness of his actions and of their effects.
posted by I-baLL at 5:07 AM on April 2, 2015


Mental Wimp: "Death is so horrible that if you cause it, we'll kill you. Wait. What?"

Yeah, and don't get me started on fining people for theft. Or putting people in jail for holding people hostages.
posted by Bugbread at 5:12 AM on April 2, 2015 [9 favorites]


You know it's Metafilter when there's lots of sympathy for a murderous bomber but someone describes his defense attorney as having indulged in "a Hannibal Lecter moment" when she showed some personal compassion to a defendant and says she is "not your friend" because her excellent work opposing the death penalty is motivated by a politically conservative philosophy.
posted by Pater Aletheias at 5:18 AM on April 2, 2015 [108 favorites]


Y'all should have sympathy because clearly he had a raging case of Teenfluenza and didn't realize blowing up a bunch of people was an No-No

You and others are mocking sympathy as if our sympathy is a kind of left-wing incitement to try to understand him. Like if we could put ourselves in his shoes we could understand what he did, and that would minimize it.

But it's just the opposite. I see the monstrosity of what Tsarnaev did and it makes me feel sorry for him. What kind of poison must have been in his mind, and how much he had to hate the world and himself to blow up innocent people and kids because of some ethnic conflict half a world away, and how these utterly insane and horrifying ideas made sense to him. How can a person be so fucked up? I see a person whose mind became consumed by hatred and evil.

Compassion as a response is hard. Whatever you all might think about how I feel about compassion in the face of evil, don't confuse it with me treating his crime too lightly.
posted by cotterpin at 5:32 AM on April 2, 2015 [70 favorites]


the apple doesn't fall far from the birch tree.

You seem to have missed the part where she voted for McGovern...
posted by bardophile at 5:33 AM on April 2, 2015


Does it matter if someone does the right thing ( defending the otherwise indefensible ) for ( what might be called ) the wrong reasons?
posted by mikelieman at 5:36 AM on April 2, 2015


We should be better than the worst of us, not worse.
posted by FauxScot at 5:45 AM on April 2, 2015 [5 favorites]


Sympathy? For this fucker? Let him rot.

What I'll never understand about this attitude is the total absence (or, more likely, vigorous repression) of something Clarke seems to have a huge amount of: a felt sense of "there but for the grace of God go I". Some combination of genetic, familial and societal influences, plus random chance, caused Tsarnaev to end up as who we was. They also forged his decision-making faculties, of course. And yet you have the monumental self-assurance to imply that – had you drawn Tsarnaev's lot, in terms of environmental influence and luck – you know you would have made a different decision, at the moment it counted? That just seems deeply irrational to me, never mind any ethical arguments about compassion. That's why empathy (I wouldn't say sympathy specifically, myself) has to be the starting-point for figuring out what to do with people like him.
posted by oliverburkeman at 5:47 AM on April 2, 2015 [32 favorites]


It's perfectly possible to feel great sympathy and still think he should die. Arguably it takes him seriously: it recognises his agency and awards him more human respect than pretending he was confused or child-like and averting our eyes from the sincere hatred he meant for us.
posted by Segundus at 5:49 AM on April 2, 2015 [7 favorites]


The State should never, ever execute anyone. Full stop.
posted by Sphinx at 5:51 AM on April 2, 2015 [15 favorites]


I agree with you 100% oliverburkeman, but I think people get stuck in the disney fantasy of there being "good people" and "evil people who are evil because they love evil". There are always mitigating circumstances, and most people are where they are because of valid reasons. He may have made horrible choices. He might be even a sociopath, but are sociopaths to blame for being born without a capacity for empathy?

When are we going to move past the thought that other people are caricature villains and need to be punished, when it's clear that more often than not it's a matter of nurturing, mental illness, brainwashing or who knows what?

I for one know that at 19 I was totally susceptible and naive enough to be brainwashed by terrorist groups, because I didn't understand nuance and was too eager to solve the injustices of the world. Luckily no terrorist recruiters crossed my path.
posted by Tarumba at 5:57 AM on April 2, 2015 [16 favorites]


I would not be against locking murderers up until we're pretty damn sure that rehabilitation can succeed, rather than for some arbitrary number of years.

Rehabilitation is not that easily quantifiable, and of course, you can't force someone not to be a murderer again when you release them. But, human beings are social animals, and so what you do with them can give you a chance to influence their likely behavior.

Unfortunately, all we do in prison is stick people in there, abuse them, and then let them out (or not). Or kill them. We don't really do much rehabilitation, except in a scattershot way.

But to even talk about changing that, you are up against people accusing you of having mercy for rapists and murderers and being a soft-headed liberal who doesn't understand the suffering of victims' families. Because rehab would mean education, and training, and counseling, and good medical/psychiatric care, and society paying for those things. So we mostly don't do it.

I have a child the age of the boy that got blown up, and while I can't know exactly how I would feel in such a terrible situation, I cannot see how taking another person's life would do anything to mitigate that pain. I would certainly feel rage and maybe a desire for vengeance but I can't imagine that blood on my hands, metaphorical or otherwise, would do anything but make me feel worse. It would pull me down into the place that the murderer was in. Of course, I have no idea what state of mind that child's actual parents are in, so I don't presume to speak for them.

Mostly, I just feel that killing the person who killed someone you love is presented as some sort of healing act, which seems nonsensical. Even in movies, the relief we feel when the bad person is killed is because, being a movie villain, they are otherwise going to keep killing/are impossible to stop any other way. In real life, most murderers are easier to stop than that. Real-life murderers are much more inconvenient. They are people with histories, and traumas, and sympathetic as well as monstrous characteristics, and who started out just as innocent as their victims.
posted by emjaybee at 6:02 AM on April 2, 2015 [19 favorites]


My only problem here is that she seems to take on the big-profile cases. What about all the guys on Texas's death row? What of the low profile, circumstantial-at best-evidence, prosecutor-withholds-exculpatory-evidence trials?

You don't get rid of the death penalty by keeping the Unabomber out of the chair; no-one pro or con is gonna change their minds based on *that* prick. It's the borderline-retarded guy or it's the father railroaded by false experts that's going to turn the tide.
posted by notsnot at 6:03 AM on April 2, 2015 [8 favorites]


It's a shame Bowden wasn't able to get an interview with her -- if only to hear her take on the Kaczynski story. It would have been a much stronger article. But I guess as is it sort of mirrors Burke's career of constructing sympathetic personas with narratives pieced together from the recollections of bystanders and the record of the subject's comments and actions.
posted by notyou at 6:09 AM on April 2, 2015


So Tsarnaev truncated the lives of three people. A 29 year old woman, a 23 year old woman, and an 8 year old boy. During the chase after the bombings, a 27 year old man was killed. Assuming that they would have lived to roughly the "expected" age, that is 53 years, 59 years, 69, and 50 years of life removed from the world. 231 years of productive life for four people, wasted. That ignores, of course, the pain, suffering, and likely shorter lifespans of the other 264 people who were injured.

No matter how productive Tsarnaev's life would have been—or might be, given rehabilitation—there is no way that he can atone for his actions. The cost was too high. Releasing him in the future would overall be a lose-lose proposition: giving him his life back has small value next to the time he stole, and he has already demonstrated a willingness to kill and maim that means he is more likely than average to do the same again. It's also likely that one of the loved ones of the victims would seek their own revenge, thus ruining their life for no good reasons.

Of course, there's another solution. One of the dead was Lu Lingzi, a Chinese citizen. Extradite Tsarnaev to China and see how much sympathy Xi Jinping demonstrates.
posted by sonic meat machine at 6:12 AM on April 2, 2015 [10 favorites]


[Comment deleted. Guys, it's a subject folks may have strong feelings about, and it's incredibly easy for even benign misunderstandings and minor friction to escalate. Seeing as how it's been mostly civil in here so far, steering away from snark/sarcasm etc. just to make a point will go a long way towards keeping it that way. Sorry to be a bother, and thanks.]
posted by goodnewsfortheinsane (staff) at 6:17 AM on April 2, 2015


I feel like I want to just say, in this thread, that empathy is not weakness but strength.
posted by walrus at 6:18 AM on April 2, 2015 [17 favorites]


oliverburkeman: " And yet you have the monumental self-assurance to imply that – had you drawn Tsarnaev's lot, in terms of environmental influence and luck – you know you would have made a different decision, at the moment it counted?"

I think you're assuming a lot there. If I had drawn Tsarnaev's lot, in terms of environmental influence and luck, I might have made the same decision. But that doesn't change whether or not I think he should be punished. Advocating harsh penalties for crimes isn't based on an assumption that I wouldn't do that crime, it's based on the assumption that even if I did that crime, I should receive that harsh punishment as well.

There are good reasons to oppose harsh sentencing, but the idea of "Penalties shouldn't be harsh because hey maybe that could happen to me and I wouldn't like it" is not one of those good reasons.
posted by Bugbread at 6:19 AM on April 2, 2015 [13 favorites]


Sphinx: "The State should never, ever execute anyone. Full stop."

The State should sometimes execute people. Full stop.
posted by Bugbread at 6:21 AM on April 2, 2015 [4 favorites]


You can rent a car before age 25 (but only after age 18). They just either charge an extra fee or require you to buy the insurance or something.

In general, I think the death penalty is badly applied, mostly because the people in charge, for some strange reason, don't feel the need to make sure it is done right every time (probably because their view of right means not admitting mistakes, grrrrr.)

For this guy, I don't really care whether it's the death penalty or life in prison. Just remove him from society. All this talk about him being young, being influenced...the world is a land of contrasts, and that means that sometimes young people do horrible things too.
posted by LizBoBiz at 6:23 AM on April 2, 2015 [1 favorite]


She started in the San Diego Public Defender's office, notsnot, and had a long, successful career there. She's been the defense in hundreds or thousands of low profile cases.

Her strategy goes much deeper than the technical stuff you note, which, after all, can always be improved so that capital punishment becomes more fair and precise, but not eliminated. She's going right at the core of it -- "sick minds are not evil minds." If even the worst, most clearly guilty can be saved from the guillotine with that strategy, then surely those you mention ought to be spared as well.
posted by notyou at 6:23 AM on April 2, 2015 [6 favorites]


First off: Judy Clarke previously on Metafilter, thank ya very much.

I am truly amazed at how many people in this thread don't seem to think life imprisonment is a punishment. If you don't want this man dead, then you must be a bleeding-heart child-killer-lover.

I think murderers should be locked up to keep them away from other people who they might murder. That's just pragmatic. Once you've done that, the rest is up to your personal philosophy. Some people want the death penalty because, I guess, 'fair is fair.' Some people want it to be a deep dark rape hole where society can toss its metaphorical trash in the metaphorical garbage disposal and forget about it.

Apparently, buy saying "why not treat these people humanely and try to rehabilitate them after we imprison them for life," I am placing myself in the 'ridiculous hippie' camp.

Well, fine. But as a human who lives in an imperfect system, I don't really relish designing an entire apparatus just meant to torture and/or kill people once they've been deemed bad. Once they're safely out of society, treat them with more respect than they treated their victims, because doing so is the humane thing to do, and because 'prisons suck' is clearly not a deterrent to crime.
posted by showbiz_liz at 6:25 AM on April 2, 2015 [46 favorites]


Some combination of genetic, familial and societal influences, plus random chance, caused Tsarnaev to end up as who we was. They also forged his decision-making faculties, of course. And yet you have the monumental self-assurance to imply that – had you drawn Tsarnaev's lot, in terms of environmental influence and luck – you know you would have made a different decision, at the moment it counted?

and this

but I think people get stuck in the disney fantasy of there being "good people" and "evil people who are evil because they love evil". There are always mitigating circumstances, and most people are where they are because of valid reasons.

Basically the question here is one of free will. Descartes posited some nebulous external "spirit" that imparted weight to the human decision-making process via some organ within the brain (he claimed the thalamus, if memory serves). This toxic notion that body and mind are somehow separate has poisoned the tradition of Western jurisprudence ever since.

People make the decisions they do because of electrochemical signals input into their brains by their sensory organs, which pass through a vast landscape of neurotopography, and eventually output again as actions. That topography is dictated by their genetics and experiences. Everything else is just incredibly complex organic chemistry and the same minor quantum mechanical background white noise as the rest of the universe. The "feeling" of making a decision is nothing more than the subjective experience of neurochemical potentials stacking up against one another, until one side or the other reaches its activation threshold. To claim otherwise is to literally believe that we are all puppets pulled by the strings of an invisible ghost. It is a foolish, laughable, and socially noxious belief that hopefully someday in the far future will be conclusively proven false.

Given the above, punishment of criminal - or really any - behavior for purposes other than correcting anti-social neurotopography (translation: curing mental illnesses whether they stem from genetically-induced chemical imbalances or simply bad neurotopography generated by toxic experiences and ideologies) is overt, nakedly barbaric behavior. It is a sickening artifact of mankind's ignorance regarding the wellspring of our own thoughts and actions. There is no excuse given modern understanding of the mind for society at large or any educated individuals in particular to give in to rote animal instincts urging us to respond to harm with further harm.

We should be better than that. For the long term survival of our species we must become better than that.
posted by Ryvar at 6:26 AM on April 2, 2015 [12 favorites]


My only problem here is that she seems to take on the big-profile cases. What about all the guys on Texas's death row? What of the low profile, circumstantial-at best-evidence, prosecutor-withholds-exculpatory-evidence trials?

You don't get rid of the death penalty by keeping the Unabomber out of the chair; no-one pro or con is gonna change their minds based on *that* prick. It's the borderline-retarded guy or it's the father railroaded by false experts that's going to turn the tide.
Her point as I understand it is that if unrepentant mass-murderers don't get the death penalty, but other lesser crimes do, what does that say about the death penalty? We apply it based on how good or bad your lawyer is, and that's inherently unfair.
posted by cotterpin at 6:27 AM on April 2, 2015 [12 favorites]


I mean, its extraordinary, isn't it? In 2014, the United States killed 35 people, many whose names won't be recognizable to most a few years down the line, or outside of their locale of the crimes committed. And yet, we didn't execute the incredibly high-profile individuals she has represented, and that is directly a result of their attorney. That is astounding to me, and a damning indictment of the justice system if there ever was one.

Also, bingo. this lady isn't your friend.

This lady is a warrior, is what she is. She's not trying to be anyone's friend; she is trying to systematically undermine the death penalty, and she is doing a better job at it than anyone currently breathing at the moment (with the exception of maybe Bryan Stevenson, who incidentally has also described himself as conservative). She is doing what it takes to formidable, including the way she carries herself publicly, the way she dresses, and the way she describes her actions. Look

You might suspect a lawyer with a record like that to be a publicity seeker, but Clarke is the opposite. She shuns attention. She almost never gives interviews and does not stand before cameras and microphones on courthouse steps. She cultivates invisibility, right down to the muted way she dresses for court appearances. There is a deeper logic at work in her predilection to defend those who have achieved a monstrous notoriety...

Her manner, like her choice of clothing, is deliberately understated. In photos she often looks pensive, even severe, eyes averted, mouth pursed, but her friends say she is the opposite in private: animated, with a warm sense of humor, someone who enjoys lifting a beer and telling a story, someone who laughs often. In court she is more earnest than clever. She impresses more with impeccable preparation and sincerity than with oratory. With judges and juries and before a classroom, her tone is conversational, genuine, and direct. She is, all in all, more inclined to listen than to speak.


These are strategic choices. And they are effective ones.
posted by likeatoaster at 6:28 AM on April 2, 2015 [36 favorites]


On another note- Judy Clarke's husband, who is also a defense lawyer, is a consultant for my organization. Hell of a guy in his own right. He told me that their law firm (which is basically just the two of them) gets incredible piles of hate mail pretty much daily.
posted by showbiz_liz at 6:29 AM on April 2, 2015 [7 favorites]


You don't get rid of the death penalty by keeping the Unabomber out of the chair; no-one pro or con is gonna change their minds based on *that* prick. It's the borderline-retarded guy or it's the father railroaded by false experts that's going to turn the tide.

The article addresses that. There are lots of people who are generally pro-death penalty who can agree that it shouldn't be applied in any given sympathetic instance. Supporters will say, "You're right, this sixteen year old with an abusive upbringing doesn't deserve the death penalty, but that doesn't mean we should BAN it - but there are cases where it's appropriate, for truly terrible people who don't deserve our sympathy, like Hitler or the Unabomber." If she took on those more sympathetic cases, she might save individual lives, but that is emphatically not her goal. Her goal is to demonstrate the fundamental intellectual and ethical bankruptcy of the death penalty. So, she takes on the Unabomber's case and wins it. As soon as she does, she creates a situation in which lots of poor black teenagers and survivors of abuse are being put to death, and the sadistic, cold-hearted killers with absolutely no excuse - who do not deserve our sympathy - are not. And this creates a system so indefensible, so self-evidently unjust, that in the end it cannot be sustained.
posted by pretentious illiterate at 6:31 AM on April 2, 2015 [29 favorites]


Advocating harsh penalties for crimes isn't based on an assumption that I wouldn't do that crime, it's based on the assumption that even if I did that crime, I should receive that harsh punishment as well.

Well, my argument is precisely that deep down the motivation for seeking the harshest penalties is (for most people, perhaps not you) based on the assumption that they wouldn't do the same thing, because they're not evil. It's not that I "wouldn't like" a harsh sentence in Tsarnaev's position – it's that, in the absence of "that fucker deserves it", there's really no good, evidence-based argument left for the death penalty, or for being left to rot for life in appalling jail conditions with no hope of rehabilitation, etc.
posted by oliverburkeman at 6:32 AM on April 2, 2015 [10 favorites]


in the absence of "that fucker deserves it", there's really no good, evidence-based argument left for the death penalty, or for being left to rot for life in appalling jail conditions with no hope of rehabilitation, etc.

Yes! Exactly!
posted by showbiz_liz at 6:33 AM on April 2, 2015 [5 favorites]


I'm all for the chance for someone to spend their life trying to make up for the horrendous things they've done--but they can do that in prison.
I'm pretty sure you meant "they can also do that in prison", but I think the statement is still true if strengthened to "they can only do that in prison".

Imagine yourself as a truly reformed mass murderer. You know that your personality is extremely malleable (else the reform would have been impossible), and you know that in one of its metastable states you're capable of personally slaughtering innocents and even children. Do you want yourself released from jail? If the answer is "yes" then either your moral sense isn't quite as reformed as you'd hoped or your epistemology is corrupted by gross overconfidence.
posted by roystgnr at 6:34 AM on April 2, 2015 [4 favorites]


You know what I think? I think if we started making our prisons anything less than absolutely torturous, Those In Charge worry that America's tons and tons of desperately poor people would start committing crimes to get into them, so that they could access food, shelter, and medical care. I mean, we could do a better job of providing that stuff pre-prison, but, eh
posted by showbiz_liz at 6:38 AM on April 2, 2015 [21 favorites]


Great article! Thanks for posting it.
posted by Going To Maine at 6:42 AM on April 2, 2015 [1 favorite]


Perhaps for the victims and the victims' families.

Sympathy is not a zero-sum game.
posted by aught at 6:48 AM on April 2, 2015 [3 favorites]


At 9, your bad decisions are, like, "snuck into the pantry and ate all the Halloween candy at once". Is it bad judgment? Well, obviously. But your parents protect you from the ability to do things that are going to result in you getting seriously hurt. The repercussions of decisions at 9 could easily be worse than at 19. But you can't run up a credit card and end up bankrupt because nobody gives you a credit card. You don't have a car. It's not just the repercussions, it's the power you have to enact change on your world. You don't have much of it as a child. You have a lot of it at 19, but you don't have a fully-developed brain. 9-year-olds rarely binge drink, end up in abusive romantic relationships, spend all their money moving cross-country only to not be able to get a job. If you never did anything like that, great, good on you, you're the outlier in brain development. Most of us never do anything anywhere near this horrible, but it seems to me ridiculous to posit that this means that someone has the level of control over their behavior to warrant killing them. I didn't kill anybody at 9, either, which says nothing about whether 9-year-olds should get the death penalty, so why is that an argument at 19?
posted by Sequence at 6:52 AM on April 2, 2015 [3 favorites]


I may disagree, but I understand the people blinded by rage a hell of a lot better than I do the Tsarnaev brothers. That rage is why we don't let victims decide the punishment.
posted by wierdo at 6:59 AM on April 2, 2015 [4 favorites]


. It's also likely that one of the loved ones of the victims would seek their own revenge, thus ruining their life for no good reasons.

I'm really not sure I've ever heard a weaker justification for jailing someone. Perhaps we should also lock up prostitutes and make the remaining women wear a burqa so they can't tempt decent men into crimes? Or perhaps we could agree that people are responsible for not committing their own crimes and if someone is a serious risk for committing one then they are the ones who get to be locked up, not their potential victim?
posted by the agents of KAOS at 7:02 AM on April 2, 2015 [4 favorites]


to put her hand [on him]. To touch him.”
a few hours after which, because of her "kindness" he tried to kill himself. it's a kind of Hannibal Lecter moment


Is your line of thinking that this mirrors Lecter convincing Multiple Miggs to kill himself after Clarice visits him in Silence Of The Lambs? Are you saying she, with a mere shoulder-touch, is able to induce self-harm? It seems like that would be an immensely powerful talent - far greater than any law degree.
posted by Greg Nog at 7:10 AM on April 2, 2015 [6 favorites]


As I've said before, a belief that some people deserve to die for what they have done is in no way incompatible with the belief that a nation's government shouldn't be in the business of killing its citizens.

There is a meaningful question to be asked, it seems to me, whether our government should reflect the best of us or the worst of us. I would argue that bloodlust for revenge falls in the latter category. By presenting winning arguments in high profile trials why we should not execute those among us who seem the most deserving of severe punishment, Clarke can hopefully help to demonstrate why this is a practice that should no longer be countenanced in an enlightened society. As to the efficacy and ethics of long-term solitary imprisonment... one step at a time.
posted by slkinsey at 7:10 AM on April 2, 2015 [5 favorites]


We need lawyers like Judy Clarke, and she does a valuable and courageous service by defending these people. For all of the flaws of our justice system, the fact everyone is entitled to a defense is something that we can be proud of as a society. When that defense is flawed, as it is far too often, we all lose. Overall, I strongly oppose the death penalty (but my opposition is less vigorous for a crime like this).

It's fairly easy to see how a young man can fall under the sway of an older relative and make some very bad, even heinous decisions. In that regard, I am sympathetic to the defendant.

But I am far more sympathetic to the people who lost loved ones, the others who were maimed, and still others who were psychologically traumatized and continue to fear attending public events like the Boston Marathon. They (and I) need to know that their suffering and their peace of mind matter. For that reason, if convicted, life imprisonment is appropriate for protecting society, deterring future acts by others, and providing a sense of justice to the victims.
posted by haiku warrior at 7:11 AM on April 2, 2015 [4 favorites]


Some days, I wonder if there should be a lottery for Americans to be the ones in death row prisons, who flip the switch and carry out the death sentence. Would they be so blood-thirsty?

[lana] Yuuuuuuup. [/lana]
posted by ROU_Xenophobe at 7:18 AM on April 2, 2015


You have a lot of it at 19, but you don't have a fully-developed brain.

There are millions and millions of 19 year olds without fully developed brains, and yet, only one has set off a bomb and terrorized a city. He didn't get handsy with a girl in his dorm room. He killed and maimed people for fun.

He was smart enough to get into college. He was smart enough to know what he was doing.

The death penalty is wrong and misapplied in 99% of the cases it is used in. This aint one of them.
posted by Pogo_Fuzzybutt at 7:19 AM on April 2, 2015 [8 favorites]


if convicted, life imprisonment is appropriate for protecting society, deterring future acts by others, and providing a sense of justice to the victims.

I don't think it is or should a meaningful obligation and purpose of our judicial system to provide a sense of justice to the victims. The judicial system should represent the interests of society, not individuals. Indeed, this is why there can be some rulings and decisions that may be "wrong" as to a particular individual but "right" for society.

Looking at your example, who is to say that life imprisonment of the accused will be sufficient to provide the victims with a sense of justice? Perhaps a victim who lost a limb in the Boston bombings will not feel that his or her personal justice will have been served unless the accused has a leg blown off. Presumably we agree that this is not what we want to be doing as a society, and that our government should not be doing this on our behalf.
posted by slkinsey at 7:21 AM on April 2, 2015 [3 favorites]


—and yet few were as willful and egregious as those committed by Judy Clarke’s clients. Meanwhile, Kaczynski is hard at work on his next book. Smith has advertised for pen pals from her cell. And Rudolph writes essays defending the bombing of abortion clinics, essays that his followers post on the Internet.

Now what is the moral situation if some of these "people" manage to encourage others to follow in their footsteps and commit murders?

My impression from bits of new articles is that Tsarnaev is an unrepentant radical terrorist that would continue to do just that. Should he be silenced or is freedom of speech greater than the potential for more maimed and killed children?
posted by sammyo at 7:22 AM on April 2, 2015 [2 favorites]


Now what is the moral situation if some of these "people" manage to encourage others to follow in their footsteps and commit murders?

My impression from bits of new articles is that Tsarnaev is an unrepentant radical terrorist that would continue to do just that. Should he be silenced or is freedom of speech greater than the potential for more maimed and killed children?


This seems like a separate question from whether or not he or anyone else should be killed by the state. That said, do you get the impression that others have followed in the steps of, say, Charles Manson?
posted by slkinsey at 7:25 AM on April 2, 2015


A couple of thoughts on political left/right on the death penalty...

Most of the western democracies (all, except the US?) have abolished the death penalty. For those countries (which include a ton of readers on this site) the death penalty isn't left vs. right, it's been decided as a society that it's just wrong. The US is not in the 'mainstream' on this topic, and a partisan issue in most democracies (just as abortion rights aren't on the table for discussion in most democracies).

Also, when she describes herself as conservative, she's not talking about the current republican platform, she's using the word in a way that it isn't often used (these days); in a non-partisan manner. That's why she also has talked about voting democrat (one could argue that many or most democrats are actually conservative, but that's a whole other derail).
posted by el io at 7:25 AM on April 2, 2015 [8 favorites]


I find Clarke's approach incredibly interesting, especially this:

"So she had Kaczynski’s tiny cabin disassembled and shipped to Colorado, and had he gone to trial, she planned to have it reassembled so that jurors could literally walk around inside her client’s starkly isolated home, if not his mind."

At the same time, I'm uncomfortable with the idea that we need to understand this defendant or that in order to reject the death penalty as it exists in the US today. I think no one has pointed out better than Scott Turow how broken and unfixable the system is. It seems to me that Clarke needs to lead juries to an understanding of the defendant, since the idea that the death penalty may be wrong, period, seems to be off the table at that point.
posted by BibiRose at 7:26 AM on April 2, 2015 [1 favorite]


Now what is the moral situation if some of these "people" manage to encourage others to follow in their footsteps and commit murders?

I also believe those "others" are immoral. They are fucking awful and should stop murdering IMO
posted by Greg Nog at 7:27 AM on April 2, 2015 [2 favorites]


We don't have to redeem every sociopath.

I hope he gets solitary confinement for life. The death penalty would be far too kind.
posted by Renoroc at 7:28 AM on April 2, 2015 [1 favorite]


While he does deserve the best defense our money can buy, because I would like to think something similar would be available to everyone, He does not however deserve mercy, he does not deserve sympathy, he does not deserve to go to prison and be "rehabbed". By his own admission he planted one of two bombs which in total killed three and wounded hundreds, and terrorized thousands. By his own admission he executed an MIT cop and was willing to kill as many others as necessary. By his own admission, written whist hiding in a boat he would continue to do more of the same, Allah willing. The soft and coddling types would think there is some hope for this person to go to prison, read lots of books, see lots of therapists and emerge a whole person, a member of society...Sorry, he had that chance and blew it up.

My mother always said Just because Jimmy Johnson jumps off a bridge, doesn't mean you should. Coercion, hypnosis, mind control, actual, or threats of, physical harm are no excuse.
posted by Gungho at 7:30 AM on April 2, 2015 [2 favorites]


Map of death penalty use around the world. Spoiler: The US is not in great company.
posted by el io at 7:31 AM on April 2, 2015 [10 favorites]


There are millions and millions of 19 year olds without fully developed brains, and yet, only one has set off a bomb and terrorized a city. He didn't get handsy with a girl in his dorm room. He killed and maimed people for fun.

This--seems to be seriously suggesting that the campus rape problem is just "kids being kids" but that this is totally different? No, most 19-year-olds don't do this. 19-year-old college students, despite being smart enough to get into college, do routinely hurt themselves and others because of bad decision-making. I don't support the death penalty for campus sexual assault, either. That doesn't mean I don't support there being consequences, but if college students are notorious for doing stupid things that often do get people hurt, then maybe that's a sign that it is in fact normal for college students to have impaired judgment compared to where they will be in five or ten years.
posted by Sequence at 7:34 AM on April 2, 2015 [4 favorites]


This--seems to be seriously suggesting that the campus rape problem is just "kids being kids" but that this is totally different?

Except no one is suggesting that he be let off scott free. I think most folks would be thrilled to see severe prison sentences for rapists. The choices aren't death penalty or let him walk the streets. The debate is extremely long/forever prison sentence or kill him. See my map above to see what company the US is in with regards to the death penalty.
posted by el io at 7:37 AM on April 2, 2015 [2 favorites]


One interesting case of a person who committed horribly evil acts and went to jail and is now out and seems rehabilitated is Karla Homolka.

She actively participated in the murder-rape of several women and pretty much played the police and prosecutors for fools and yet as near as I know she is now just an ordinary person living an ordinary life.

I'm not sure justice was done (I think she could have served more time as punishment) but the outcome doesn't seem completely awful.

I'd be curious to know if there were any recidivist mass murders.
posted by srboisvert at 7:49 AM on April 2, 2015


There are millions and millions of 19 year olds without fully developed brains, and yet, only one has set off a bomb and terrorized a city.

In the name of God and country -- so, just "country" short of Tsarnaev -- millions of American teenagers have set off bombs and terrorized cities all over the Middle East, in Afghanistan and Pakistan and Vietnam and I can keep going.
posted by a manly man person who is male and masculine at 7:54 AM on April 2, 2015 [16 favorites]


Well, maybe not millions, but definitely a whole hell of a lot.
posted by a manly man person who is male and masculine at 7:55 AM on April 2, 2015


> The death penalty is wrong and misapplied in 99% of the cases it is used in. This aint one of them.

What a peculiar argument this is.
posted by rtha at 7:55 AM on April 2, 2015 [12 favorites]


I hope he gets solitary confinement for life. The death penalty would be far too kind.

It's sad that the best hope of getting rid of the death penalty in the US is to get everyone hyped about the idea that what criminals really need is 50-60 years of existential torture in a supermax prison where you slowly go insane and are constantly monitored to prevent you from killing yourself.
posted by the jam at 8:05 AM on April 2, 2015 [19 favorites]


She seems like a super interesting character. Thanks for the article link!
posted by latkes at 8:09 AM on April 2, 2015 [1 favorite]


Providing a sense of justice for victims is serving the interests of society, slkinsey, and it is most definitely a function of our judicial system. There is a reason why we have a "Department of Justice" and not the "Judicial Department."

Cruel and unusual punishment is forbidden by the Constitution. I believe that most people in this country would agree that amputating limbs is cruel and that it is definitely unusual. Your argument about that option is a red herring. There is however a legitimate debate as to whether "cruel" applies to life imprison without parole (I do not) and to the death penalty (I do).
posted by haiku warrior at 8:10 AM on April 2, 2015


Clarke is not my ally in the fight against the death penalty because I find her argument to be a very dangerous one for any society which believes in free will and free thought - that the alien is the insane. While some of her clients did have mental issues, like Smith and Loughner, others like Kaczynski and Rudolph were very much sane. (Her forcing the former into a plea bargain through the threat of an insanity defense was a rather reprehensible and unethical move, in my opinion.)

As was pointed out, she is very much a zealot in the cause of attacking the death penalty. And like many other zealots, her single-mindedness with regard to the issue blinds her to the dangers of her acts.
posted by NoxAeternum at 8:14 AM on April 2, 2015 [2 favorites]


I'd just like to say here that survivors and families of victims can speak for themselves about this stuff and it's presumptuous and can be hurtful for others to speak on their behalf, even implicitly. My (then) girlfriend's brother was killed in the WTC on 9/11 and it made her very unhappy to hear people agitating for war and such on the basis of what they claimed she wanted, without knowing a damn thing about her. Some survivors and families will feel one way, others a different way, and there's something really wrong and distasteful about other people appropriating survivor's pain and grief for their own rhetorical purposes.
posted by Ivan Fyodorovich at 8:15 AM on April 2, 2015 [46 favorites]


The article makes me curious what Clarke will bring to light about Tsarnaev. Many of the posts here standing in judgement and advocating the harshest possible response (opposed to the death-penalty but not in this case; solitary' too good for him etc.) seems to assume we already have a good sense of who he is and how rational he was/is. Clearly Clarke will present a wealth of information that will demonstrate that there is a lot we don't know. All her previous high-profile clients were also guilty of utterly heinous crimes.

In fact, if we stop to listen to the families of victims in virtually any murder trial or capital case I think people's emotional dials will sway towards vengeance-seeking. How did Susan Smith's kids deserve death? How were the six killed by Jared Loughner deserving, just doing their jobs, going about their day? If justice is meant to be blind and fair I don't see how we can justify treating Tsarnaev differently than those other cases.

I remember as a kid seeing a courtroom on TV; it may have been court drawings with narration but I remember it as actual footage: a skinny young white man on the stand. He had somewhat long hair and glasses, kind of like a young Bill Gates, and he was feverishly trying to explain his part in a botched murder in which he killed an elderly woman. Then a heavy-set, somewhat obese woman was on the stand, the defendant's mother, looking like the mom of a kid I knew at school. She was blubbering, taking halting breaths, desperately trying to convey that she knew what her son had done was wrong and to give a sense of how she raised him, what a sweet boy he'd been etc. Then the verdict came back: death. None of us deserves to see a loved one die, so I kept thinking what did that mom do to deserve her fate?
posted by callistus at 8:22 AM on April 2, 2015 [1 favorite]


So...am I the only namby-pamby in this thread who is neither strongly in favor nor strongly against the death penalty? If they got rid of it, that'd be fine by me. If they kept it (but reduced its application to more clear-cut cases than its currently applied), that'd be fine by me as well. I'm kinda getting the impression I'm the only one in the middle zone, but that may just be my wrong impression.
posted by Bugbread at 8:23 AM on April 2, 2015 [1 favorite]



I'd just like to say here that survivors and families of victims can speak for themselves about this stuff and it's presumptuous and can be hurtful for others to speak on their behalf, even implicitly.


The idea that we are also somehow serving the victims directly is part of another problem we have, which is making it more of a crime-- or at least a different kind of crime-- to kill someone who has family to speak up at the trial and sentencing. This is on top of other demographic things which seem to make some victims more important than others in the eyes of the public.
posted by BibiRose at 8:28 AM on April 2, 2015 [9 favorites]


callistus: "None of us deserves to see a loved one die, so I kept thinking what did that mom do to deserve her fate?"

I'm not saying this in a "pro-death penalty" sense, but in a more general sense: Things don't necessarily happen because they are "deserved". And in the real world it's often impossible to make sure that everyone gets only what they deserve. No one deserves to have a loved one torn from them and prevented from seeing them, but that's what happens to the spouses and parents and children of felons. Or, heck, even little tiny things: nobody deserves to lose their birthday presents, but when their birthday presents turn out to be stolen merchandise, that's what happens.

Again, not saying "and therefore that kid you saw on TV deserved to die". Maybe he did, and maybe he didn't. All I'm saying is that whether his mom did anything to deserve it is orthogonal.
posted by Bugbread at 8:30 AM on April 2, 2015 [1 favorite]


Providing a sense of justice for victims is serving the interests of society, slkinsey, and it is most definitely a function of our judicial system.

I disagree with both of these assertions. Providing a sense of justice for victims may serve the interests of society, but does not necessarily do so. There can be plenty of instances where satisfying a victim's sense of justice would be contrary to the interests of society. Notwithstanding the naming of the U.S. Department of Justice, I also don't find any support of your assertion that it is a meaningful obligation and purpose of our judicial system to provide individual victims with a sense of justice. Indeed, there are plenty of instances in which the judicial system most certainly did not act to provide individual victims with a sense of justice. Just ask everyone who was victimized by all the financial shenanigans that led to the 2008 financial collapse whether they have been provided with a sense of justice. It is of course equally unclear that the judicial system acted in the interests of society in this case, but that's another discussion. What's clear is that the judicial system was not acting under a mandate to provide victims with a sense of justice.
posted by slkinsey at 8:31 AM on April 2, 2015 [3 favorites]


Haiku warrior you said it much more eloquently than I did in the middle of the night. Sometimes I get frustrated by what seems to be obtuseness in our threads.

Why is it that many of us who most stridently preach in the thread sympathy or empathy for Tsarnaev evince the least amount of that for fellow posters in their rebuttals here? Some of it reads like almost willful misunderstanding or honing on a tiny piece of a statement to make some kind of point or personal "one-upping?"

If we can't avoid that in a little Mefi thread with people who have done nothing wrong other than post their opinion, why in the world do we think our criminal justice system would be a bastion of empathy for people who have done terrible, terrible things? It seems perverse.

Bugbread, that's pretty much how I felt for a long time, but I've been convinced that there really is no way to practically "educed its application to more clear-cut cases." I heard Dennis Lehane say recently, (I'm paraphtrasing) the first time the courts convict and execute a wealthy white man for murder, I'll start to change my mind about the wrongness of death penalty. Philsophical abstractions aside, that seems to be make sense to me.
posted by Cassford at 8:31 AM on April 2, 2015 [3 favorites]


Yeah, and don't get me started on fining people for theft. Or putting people in jail for holding people hostages.

Yeah, those are all pretty analogous to death, in some strange world far from here.
posted by Mental Wimp at 8:31 AM on April 2, 2015 [1 favorite]


"You know what I think? I think if we started making our prisons anything less than absolutely torturous, Those In Charge worry that America's tons and tons of desperately poor people would start committing crimes to get into them, so that they could access food, shelter, and medical care. I mean, we could do a better job of providing that stuff pre-prison, but, eh"

This. So much this.

The best punishment in terms of revenge or rehabilitation is regret. Somebody can go out and murder a thousand people and then go to jail and then be executed but it's not much punishment if that person thinks that they did the right thing. Regret is the best punishment. The awareness that you did something wrong (taking somebody else's life) and that you can't undo it is pretty strong punishment. However in order to get to that point we need to improve our prison system. That would mean that our prison systems will have better facilities than the population on the outside. That means that we need to improve our society's facilities as we improve our prison systems.
posted by I-baLL at 8:32 AM on April 2, 2015 [6 favorites]


Bugbread, I might be in the same camp as you, if the death penalty were not such a mess. Intellectually, I am prepared to accept that some crimes might be deserving of the death penalty. But for me, the feeling that it should be abolished is overdetermined. There are too many problems with it for me to feel I even need to judge it on its abstract merits, so long as I live in the US.

I do feel that it gets a huge amount of attention considering how few people are put to death. But to me, that is just another reason to get rid of it and pay attention to the penal system as it affects most long-term inmates.
posted by BibiRose at 8:33 AM on April 2, 2015 [1 favorite]


The State should sometimes execute people. Full stop.

Even you? Even for something you feel you didn't do or don't feel guilty of? I know you believe you would never be in that situation, and this is a necessary fallacy for you to cling to your beloved death penalty, but the probability is never zero.
posted by Mental Wimp at 8:33 AM on April 2, 2015 [4 favorites]


I'm always a little surprised that every conversation about the death penalty goes the same way, down to the empathy, what about the victims, throw away the key, etc. It seems circular, always, no matter the perp or the crime. Fundamentally no agrees on what prison or the DP is trying to acomplish. What I do know is no 19 year old has a fully developed brain. I hope in the future we both have the science and the will to apply medical analysis to defendants to see exactly where on a spectrum they lie regarding impulse control, sociopathic tendencies, and ability to be rehabilitated. A woman can dream...
posted by agregoli at 8:35 AM on April 2, 2015 [2 favorites]


Which is cheaper? Putting him in a hole where he is locked up for the rest of his life with no external communication with the outside world, or locking him up while we go through years and years of appeals where he is continually paraded in front of the American people every few years - where the press periodically reruns the same footage again and again.

Let's be clear: the people who organized the bombing of the WTC are locked up but still alive. If the death penalty were some form of swift justice, we wouldn't know that because the person would be dead already.

I'm not anti- death penalty, I am against the agreed upon laws in MA being ignored for some random political statement that further polarizes those that wish to perform acts of terrorism. Moreover, knowing that every appeal will put him back in front of the cameras and drive the cost above what just jailing him for life will be is absurd. If people wanted actual swift justice they would just want him in a maximum security general population prison where everyone knows exactly what he did.

That would be a barbaric end to him, but it would be swift, cheap, and the apparent quick vengeance so many people want but fail to recognize is not possible within the context of the judicial system.
posted by Nanukthedog at 8:39 AM on April 2, 2015 [1 favorite]


Hands up, everybody who made WAY worse decisions and was WAY more easily influenced by others at 19 than when they were 9, and never got killed for it?

He planted two bombs and tried to kill hundreds of people. Personally, that's where I draw the line. Three people died. 170 were wounded. The bombs were made to scatter shrapnel everywhere. That goes way beyond something we can dismiss as poor judgment or kids being kids. And no, most 19 year olds don't make "WAY worse decisions" or even attempt mass murder. What decisions does the average 19 year old make that are worse than premeditatively trying to slaughter a crowd of people?

Let him stand trial. If he's convicted, he'll be sent to prison.
posted by zarq at 8:41 AM on April 2, 2015 [2 favorites]


agregoli -- this one has gone a different way than a lot of the ones I've been involved in. I fear your dream is in the realm of science fiction. But that would open up a whole mind-body dualism derail! :) What do you think we should do now? It sounds like abolish the dealth penalty (which i agree with). Can we sentence his to life in prison, even if prisons are lousy places?
posted by Cassford at 8:42 AM on April 2, 2015


All I'm saying is that whether his mom did anything to deserve it is orthogonal.

In the other examples you cite I can see some benefit to the harm that is caused, that we choose. In death penalty cases, as others have said, I don't see it. In addition to the fact that it is not a deterrent to crime, is applied unjustly and massively disproportionately on racial and economically disadvantaged lines, that it runs the risk of being perpetrated on the innocent, has been shown to take a psychological toll on the prison staff who have to administer it, it also irrevocably compounds the tragedy for parents, children and anyone else who loves the killer. Life in prison, as a way of protecting society, punishing the criminal by depriving him of freedom, and offering at least the opportunity for rehabilitation (and correction in the growing number of cases of false convictions) seems good enough for many horrible crimes so why not all of them? The case I cited also shows just how arbitrary (and thus unfair) justice is, given that mass murderers have been given life.
posted by callistus at 8:45 AM on April 2, 2015 [2 favorites]


Why is it that many of us who most stridently preach in the thread sympathy or empathy for Tsarnaev evince the least amount of that for fellow posters in their rebuttals here?

This is a very odd thing to say, and a bit of a strawman. I have gone through this entire thread, and so far as I can tell none of the few posters who have suggested that Tsarnaev be viewed with any kind of sympathy have been the least bit disrespectful towards any other viewpoints expressed here.

As for myself, I don't have any sympathy for Tsarnaev whatsoever. Or, rather, I don't have any basis to have or not have any sympathy for him. I believe that society should respond to people who have done things like he has done. I believe that punishment is merited, although I also believe that it benefits society to strive for rehabilitation. Mainly, though, I don't want my government killing my fellow citizens in my name.
posted by slkinsey at 8:47 AM on April 2, 2015 [3 favorites]


I have had a lot of respect for Judy Clarke for over a decade, but I'm at a loss why she would be called "the most ferocious lawyer in America." The label doesn't fit at all. She might be the "the most effective death penalty-avoiding lawyer". But nothing about her presentation, tactics, or demeanor lends itself to the "ferocious" label. There are lawyers (we call them "Rambo" lawyers) who will say and do anything to win. They'll go after judges, file crazy pleadings, personally attack lawyers and try to get them in trouble, dig up dirt to destroy witnesses, anything and everything to scorch the earth and then salt it... those kind of lawyers are "ferocious" and not very effective.

The article itself describes her in very non-ferocious terms: "Her manner, like her choice of clothing, is deliberately understated...In court she is more earnest than clever. She impresses more with impeccable preparation and sincerity than with oratory. With judges and juries and before a classroom, her tone is conversational, genuine, and direct. She is, all in all, more inclined to listen than to speak." Those are describing the opposite of a ferocious attorney.

Judy is committed to a very specific practice of defending people in death penalty cases with the sole goal avoiding the death penalty, not walking her clients to freedom. Over the years, she has mastered that specialty and developed an effective playbook. I respect her because she takes on cases for principled reasons and serves her client well, even though 99.99% of lawyers wouldn't give those clients even a thought of assistance. She does something I could not bring myself to do but something that must be done for our profession, and I respect the hell out of her for it.
posted by dios at 8:50 AM on April 2, 2015 [26 favorites]


Bugbread I agree with your lack of a firm answer too. Some people we're just better off without, but I hesitate to say how our government is the best at deciding when to take that action. I feel sympathy for everyone involved in the bombing but as a culture we need to punish those who commit crimes. It is an ancient dilemma, and there are no easy solutions, and probably there never will be.

ATHENA chanting

Behold, with gracious heart well pleased
I for my citizens do grant
Fulfilment of this covenant:
And here, their wrath at length appeased,
These mighty deities shall stay.
For theirs it is by right to sway
The lot that rules our mortal day,

posted by Potomac Avenue at 8:52 AM on April 2, 2015


Science is getting very close to being able to tell us quite a.bi5 about an individual's brain and capacity for harm/rehab, etc. But the judicial system is so far behind in applying science that we still have a ridiculous standard for insanity pleas - you basically have to be babbling nonsense for mental illness to apply in court. I really do hope for a better use of science outside forensics in court in the future. As for now. I don't think the State should ever kill anyone. And our prisons are disgusting and shameful - we should be embarassed of them...I know I am.
posted by agregoli at 8:53 AM on April 2, 2015 [1 favorite]


Even you? Even for something you feel you didn't do or don't feel guilty of? I know you believe you would never be in that situation, and this is a necessary fallacy for you to cling to your beloved death penalty, but the probability is never zero.

Watch how you sling around phrases like "I know". I don't believe it would be impossible for me to be in that situation. I've explicitly said that here in this thread. And yes, even me. I've also explicitly said that, here in this thread. And I'm not clinging to the death penalty, nor is it beloved. I've explicitly said that, too, here in this thread. I'm in favor of the death penalty for Hitler and Pol Pot. And Genghis Khan. I'm opposed to the death penalty for Mister Rogers. And Ghandi. Everyone else falls somewhere else in the middle. So the death penalty is neither beloved or despised, neither clung to our shunned.
posted by Bugbread at 8:55 AM on April 2, 2015 [1 favorite]


at 19 than when they were 9
Seriously, you even quoted the relevant part, here. It's not a comparison to his actions, it's a comparison between "what everybody agrees to be too young for the death penalty" and "this arbitrary point some people think counts as adult judgment despite evidence that 19-year-olds do not have adult judgment".

I absolutely want him to stand trial. I think he almost certainly is going to end up in prison and deserves it. But, "if convicted", prosecutors are in fact asking for the right to kill him, not just to put him in prison. And I have a problem with killing people for their bad decisions, even if they're awful decisions, if they aren't able to make decisions like mature adults.
posted by Sequence at 8:56 AM on April 2, 2015 [4 favorites]


This is on top of other demographic things which seem to make some victims more important than others in the eyes of the public.

In fact, the single most reliable factor for predicting whether someone will be sentenced to death is the race of the victim.
posted by melissasaurus at 8:59 AM on April 2, 2015 [15 favorites]


From my old post:

Said David Kaczynski, who turned his brother Ted in to the authorities, “[Judy Clarke] had a real sense of Ted’s humanity. To me that was extremely meaningful and validating. I thought, ‘Oh my gosh, she understands my brother as a human being who has significant issues and challenges and mental problems, who’s done something terrible but is still on the level of a human being.’ ”

Did Ted Kaczynski deserve that kindness? Well, it depends on your definition of 'deserve.' But the way I see it, putting that level of empathy into the world cannot possibly be anything other than a good thing. The guy is in prison for life, but it seems like there are people who think that small bit of kindness from his lawyer means we aren't 'really' punishing him. That's crazy talk.
posted by showbiz_liz at 9:01 AM on April 2, 2015 [16 favorites]


Well, I don't want to derail the thread, slkinsey. I may be reading in a tone that isn't there. To me, empathy is about trying hard to understand the thoughts and feelings of another person or group of people. I feel like some of the responses here have been purposely missing the main thrust of what the poster said and latching on to one small part of it to disagree with. But I could just have that wrong. I really didn't mean to make a strawman argument (I'm not sure my personal observation counts as such, but ok). We're in agreement -- we don't think the gov should kill people. And although prison sucks, he needs to be locked away for a long time--perhaps for the rest of his life. But he can possibly make a contributionto society from there.

We haven't yet figured out a way to cure some pretty straightforward human diseases. I'm not sanguine that anytime soon we'll figure out a way to rehabilitate human hearts and minds reliably. Doesn't mean we shouldn't be trying hard in both cases, but we need also to be practical about what is possible today.
posted by Cassford at 9:03 AM on April 2, 2015 [1 favorite]


Oh, and as for her 'conservative upbringing':

In 1987, [Judy's father] Harry Clarke was killed in a private-plane crash outside the Asheville airport. [Jesse] Helms called [Judy's mother] Patsy to offer his condolences and sent the family a flag that had been flown in the 60-year-old father’s honor over the Capitol.

Seven years later, the Clarkes’ younger son, Mark, died of AIDS. Helms was reported in the newspapers during this period as suggesting that those who died of the disease had only brought it on themselves for what he considered ungodly behavior.

“Mom, you ought to write to Senator Helms about Mark,” Patsy Clarke quotes Judy as saying. “You ought to stand up for your son and others like him, and for AIDS research. You could make a difference because Senator Helms knew Dad. Dad was his friend. I don’t see how you cannot write to him.”

The mother sat down with a pad and a pen.

“Harry and I had a son, Mark who was almost the image of his father, though much taller,” she wrote to Helms. “He was blessed with great charm and intelligence, and we loved him. He was gay. On March 9, 1994, exactly seven years to the day that his father died, Mark followed him—a victim of AIDS. I sat by his bed, held his dear hand, and sang through that long, last night the baby song that I had sung to all our children, ‘Rock-a-bye and don’t you cry, rock-a-bye little Mark. I’ll buy you a pretty little gold horse to ride all around the pasture.’”

Her letter quoted her son saying near the end: “This disease is not beating me. When I draw my last breath I will have defeated this disease—and I will be free.”

She went on, “My reason for writing to you is not to plead for funds, although I’d like to ask your support for AIDS research; it is not to accept a lifestyle which is abhorrent to you; it is rather to ask you not to pass judgment on other human beings as ‘deserving what they get.’ No one deserves that. AIDS is not a disgrace, it is a TRAGEDY.”

She closed by saying, “I ask you that share his memory with me in compassion.”

Two weeks, later, the mother received a letter in reply. Helms wrote: “I wish he had not played Russian roulette in his sexual activity. I have sympathy for him—and for you. But there is no escaping the reality of what happened.”

The mother would recall crying and agonizing for two or three days.

“Then I got mad.”

Patsy Clarke joined with Eloise Vaughn, another mother whose son had died of AIDS in forming MAJIC, Mothers Against Jesse in Congress. They failed to keep Helms from being reelected in 1997, but it was certainly not from a lack of trying, as is duly recorded in a book they wrote about the effort, Keep Singing; Two Mothers, Two Sons, and Their Fight Against Jesse Helms.

posted by showbiz_liz at 9:04 AM on April 2, 2015 [50 favorites]


Thanks likeatoaster for the post--I never would have run across that in my regular reading. And thanks to fellow mefites for the discussion -- I gotta go do some work!
posted by Cassford at 9:05 AM on April 2, 2015 [1 favorite]


The State should never, ever execute anyone. Full stop.


Clark is a remarkable, well-focused woman with an understandably complex agenda. Compassion is always complicated. The death penalty, as a legal option, contains quite a few premises that are hard to reconcile, mostly because they have both moral and technical aspects, some of which exclude others. Prison itself presents paradoxes that seldom are addressed.

Can you deny the validity of using the death penalty, yet support the use of military force? How about cops carrying guns? Of course you can, but your position must contain barely complimentary clauses, and take the "ooops" factor into account. When we try to support the "common good" we always will lose some individuals through shortcomings in any system we deploy.

We are not agreed on the role of either prison or the death penalty. No humane argument can be made for either. Some of us would like to see prison as an opportunity for a person to reevaluate himself, in the hope that when he is released he will turn away from a life of crime. This of course is a terribly precious notion on several grounds, which I hope to be excused from having to enumerate, because, in general, prison is a terrible experience that does everyone associated with it no good. Okay, the contractors and other entrepreneurs come out the other side with buckets of money, but the rest suffer in one way or another.

The death penalty is simply a distillation of all the things wrong with out justice system: when it's successful it becomes an upside-down feature that cuts short a prisoner's suffering. It does give some folks the illusion of closure, which, to me, is a sorry way to get perspective.

Justice, mercy and revenge. In my secret heart I see myself visiting the bowels of a prison if I am allowed to feed certain of its inmates through the bars with a slingshot: dead rodents. Or I could be among the family of a dead person who gets to execute the offender with a baseball bat. I suppose I could shout "I forgive you" while loading the slingshot or swinging the bat.

In real life a decent person can always look at the desperately ruined lives of certain criminals and feel genuinely sympathetic to a life spent enduring such misery that they rise above their ambient pain only when they are hurting or killing. It's easy enough to let fear morph into hate, harder to hate a person you know, even when they are cravenly dangerous. Easy enough to kill them or put them in a box forever, so that you can maintain the fiction that by doing so you are safer.

In my rational mind lethal force has only a narrowly justified application. For just one example, I wouldn't shoot someone I caught looting my car, but I would shoot a burglar I believe is about to do me harm. In my world cops get guns and rules of engagement that define their use: protect and serve. Soldiers get guns and bombs and bayonets and tanks with rules of engagement: stand on that wall and keep me safe.

But in my world cops don't get to punish wrongdoers and soldiers don't get to buttress political shenanigans. So, justice and revenge are forever linked, and mercy is what happens when you decide not to swing the bat. All the rest is euphemism.
posted by mule98J at 9:12 AM on April 2, 2015 [3 favorites]


I'm kinda getting the impression I'm the only one in the middle zone, but that may just be my wrong impression.
posted by Bugbread at 11:23 AM


Given the finality of death, it's a topic that lends itself to a much more polarized discussion than most of what we talk about around here. Given the rarity of the death penalty there's far less personal attachment than, say, Israel vs. Palestine so the threads also tend to stay fairly civil despite that.
posted by Ryvar at 9:23 AM on April 2, 2015 [1 favorite]


Science is getting very close to being able to tell us quite a.bi5 about an individual's brain and capacity for harm/rehab, etc.

As a scientist, this sounds like a terrible idea.
posted by maryr at 9:34 AM on April 2, 2015 [7 favorites]


Penological theories are notoriously hard to argue about in principled or moral ways because they always involve, at some point, drawing lines in the sand. And those lines end up looking arbitrary, but they have to be drawn. Either we punish nobody or we punish everybody convicted of a crime the same. Neither of those are workable, so we are then left as imperfect beings of endlessly trying to rationalize and improve upon where the lines are drawn. Some lines may see easier to draw (e.g., state should never use the death penalty) but the underlying rationale is important.

For instance, some in this thread seem to take a presumably principled position and argue that the state ought not use the death penalty because people lack agency sufficient for that penalty as they are just victims of their own circumstances and brain functioning and ought not be penalized for it. I wouldn't think people making that argument would also advocate from getting rid of all prison for all convicted criminals, but it's not clear to me why that one wouldn't be compelled to take that position. Surely the petty thief is a victim of their own circumstance and brain functioning in the same way the killer is, so should they be punished for their crimes? I presume the response is something about a matter of degree, and then we are just back to making judgments and drawing lines in the sand.

My only point here is that attacking these matters as if there is a principally or morally correct answer is not very helpful. This is mostly about drawing lines in the sand. I think Judy is doing good work helping us rethink where we draw the death penalty line, but I think we are also far away from convincing the majority that mass-murdering terrorists ought to be exempt from the most harshest punishments. Until the political will is there to legally eliminate the death penalty, it is nice to know there are good people like Judy and people like at the Innocence Project who will do their best to try to avoid the effects of being applied where it shouldn't.
posted by dios at 9:35 AM on April 2, 2015 [7 favorites]


Did Ted Kaczynski deserve that kindness? Well, it depends on your definition of 'deserve.' But the way I see it, putting that level of empathy into the world cannot possibly be anything other than a good thing. The guy is in prison for life, but it seems like there are people who think that small bit of kindness from his lawyer means we aren't 'really' punishing him. That's crazy talk.

But I don't see what she did as either kind or empathic. She was determined to get the death penalty off the table, and portraying him as insane was the effective route to that, no matter the problem with doing that. And it in fact showed an absolute lack of empathy, because it is clear that she did not try to understand his view.

Again, her argument is incredibly dangerous, because she is arguing that thought that is different, even alien is a sign of mental illness. If you believe in free thought, then that concept should scare you.
posted by NoxAeternum at 9:36 AM on April 2, 2015 [2 favorites]


Imagine yourself as a truly reformed mass murderer. You know that your personality is extremely malleable (else the reform would have been impossible), and you know that in one of its metastable states you're capable of personally slaughtering innocents and even children. Do you want yourself released from jail?
You know that your personality is extremely malleable
We know, from even a casual acquaintance with history, that this is a description of a very large percentage of human beings in general. Given the right circumstances, most people can be persuaded to accept mass murder. Most can be persuaded to participate actively in mass murder (unless, somehow, you think the Rwandans, the Germans, the British troops at Amritsar, the US troops at My Lai, the French Catholics on St. Bartholomew's Day, the Kurds employed by the Turks to exterminate the Armenians etc. etc. etc. were all somehow special deviants, radically unlike all the other human beings in the world).

There is, moreover, simply a mountain of evidence that the 19-year-old brain (particularly, alas, the 19 year old male brain) is particularly susceptible to these forms of moral suasion and to acts of thoughtless violence. This is a hot area in recent psychological research, and anyone in this thread suggesting that it is some sort of special pleading to suggest that 19 year olds are at much greater risk of perpetrating this sort of act than they will be just a few years later is simply betraying their ignorance of recent research in the field.

Telling ourselves that Tsarnaev is a radically "inhuman" being who has forfeited his right to sympathy and fellow-feeling is simply self-flattery. We would like to think that to act as he did is to brand himself as utterly unlike ourselves. But in our desire to exterminate him and to insist on the worthlessness of his life we show just how profoundly akin we really are.
posted by yoink at 9:37 AM on April 2, 2015 [31 favorites]


[lana] Yuuuuuuup. [/lana]

You're probably right. Milgram's experiment showed we're okay with doing barbaric acts, if we imagine that the arrangement lets us put the moral responsibility on some higher authority.
posted by a lungful of dragon at 9:41 AM on April 2, 2015


Again, her argument is incredibly dangerous, because she is arguing that thought that is different, even alien is a sign of mental illness. If you believe in free thought, then that concept should scare you.

What? Seriously? If I believe in free thought I should believe that everyone who commits an atrocity is a rational actor? I can't even formulate a response to this because it involves a logical leap that I truly do not understand.
posted by showbiz_liz at 9:41 AM on April 2, 2015 [1 favorite]


So...am I the only namby-pamby in this thread who is neither strongly in favor nor strongly against the death penalty?

No, I don't think so. I'm not a strong supporter of the death penalty. I think it is overused and poorly applied and in many cases it really ought not to be on the table. Still, I think we can all agree that there is a wide gulf between some kid who kills a clerk in a botched robbery and Tsarnaev.

What happens to Tsarnaev now is one of two things : He goes to a box, where we barely feed and barely care for him until he dies somehow, or the government kills him outright. Either way, it's the same effect - so my feeling is that we might as well just be done with it.

I'm not that emotionally invested in the death penalty though - I won't vote for a candidate based on it. And I won't shed Tear #1 for Tsarnaev on the chair or not. I contain multitudes, though.
posted by Pogo_Fuzzybutt at 9:44 AM on April 2, 2015 [2 favorites]


What? Seriously? I can't even formulate a response to this because it involves a logical leap that I truly do not understand. If I believe in free thought I should believe that everyone who commits an atrocity is a rational actor? What? What?

No, but you need to accept that committing an atrocity is not in of itself a sign of irrationality. Which is, as the article points out, at opposition with what Clarke is trying to argue.

I get that it's an uncomfortable idea to deal with, but if you believe in free thought, it's something you need to confront.
posted by NoxAeternum at 9:46 AM on April 2, 2015


At the end of the day, I believe that Dzhokhar Tsarnaev knew what he was doing would kill people. He knew that killing people was wrong. He deserves to be punished for that. I do not believe in the death penalty and I wish that the trial had been moved out of Boston. I believe that he was likely influenced by and afraid of and in awe of his older brother. I believe that he never would have instigated something like this on his own, that he followed his brother until his death. He is young and impressionable. That should be taken into account in his sentencing. But it should not exempt him from punishment.

Yes, prisons are a place where we hope to redeem and rehabilitate criminals. But they are also a place of punishment. Criminals are sent there both to make society safer, by isolation and by example, and as punishment. Call it revenge if you like, but when you don't follow the rules society has set, you are penalized for it. There are a lot of edge cases, especially in drug policy, where punishments do not fit the offense. There are laws that we can be penalized for that we don't necessarily agree with. There are laws that are not applied fairly across the population. Our prisons are under-funded. I don't deny that our justice system has deep flaws. But this is not an edge case and it is not a trial of the judicial system. This is a young man who knowingly killed indiscriminately at a peaceful gathering. And it is my belief that he should be deprived of his liberty for a very long time for it.

I am not on the jury for this case so my opinion doesn't matter a whit, but it's a bit scary to realize that I could have been. There but for the grace of the jury lottery go I.
posted by maryr at 9:51 AM on April 2, 2015 [7 favorites]


What justice is served by killing Tsarnaev as opposed to locking him up forever? Do the people he killed come back to life? Do people's legs and arms and hearing grow back? What possible benefit is there to anyone for killing this man?
posted by KathrynT at 9:55 AM on April 2, 2015 [11 favorites]


When are we going to move past the thought that other people are caricature villains and need to be punished

Around the time we stop being creatures with primarily mythology-based psychology. Which brings me to:

None of us deserves to see a loved one die, so I kept thinking what did that mom do to deserve her fate?"

We'd be way better off if we removed the word "deserve", and its ancient ideological origins, from our society. They cause way more total suffering than the odd sociopath does.
posted by busted_crayons at 9:56 AM on April 2, 2015 [4 favorites]


I get that it's an uncomfortable idea to deal with, but if you believe in free thought, it's something you need to confront.

Please don't patronize me. I am capable of forming rational opinions that do not align with yours, thank you very much.

And, hey,

Clarke argued that no person should be defined “by the worst moment, or worst day” of his life. She laboriously constructs a complex and sympathetic portrait of the accused, working with a far more varied palette, sketching out the good and the bad, unearthing the forces that drove a killer to the terrible moment, and insisting that judges and juries and prosecutors see the larger picture, weighing not just the crime but the whole person. She seeks not forgiveness but understanding. It takes only a small spark of it to decide against sentencing someone to death.

This does not equal "he's totally insane and had no idea what he was doing and no control over his actions"
posted by showbiz_liz at 9:59 AM on April 2, 2015 [4 favorites]


" I believe that he was likely influenced by and afraid of and in awe of his older brother."

People keep mentioning this as if it was a fact. Is this true?
posted by I-baLL at 10:00 AM on April 2, 2015


People keep mentioning this as if it was a fact. Is this true?

Good question. Maybe we should have a trial and find out!
posted by showbiz_liz at 10:02 AM on April 2, 2015 [20 favorites]


It says a lot about our society that we are debating whether or not to spare Tsarnaev's life, when two days after Tsarnaev killed 3 people, Donald Adair was responsible for an explosion that killed 15 and injured around 160 more, and yet as far as I can tell, there is no effort to fine him, much less imprison him or kill him.
posted by TedW at 10:05 AM on April 2, 2015 [30 favorites]


mythical anthropomorphic amphibian: It's normal to feel those vengeance-y feelings, but that's why the whole justice and keeping the law thing is not in the hands of individuals, but the supposedly impartial State.

And because of that, you should be even more concerned about the death penalty as a system, where any citizen with qualms about inflicting death can be disqualified from jury duty. The decks are further stacked in death penalty cases, so real justice is less likely than one would hope.
posted by filthy light thief at 10:08 AM on April 2, 2015 [6 favorites]


What decisions does the average 19 year old make that are worse than premeditatively trying to slaughter a crowd of people?

At age 19, Abigail Smith married John Adams, who was drawn to her because he felt her judgement was better than his own.
posted by ocschwar at 10:20 AM on April 2, 2015 [1 favorite]


Clarke argued that no person should be defined “by the worst moment, or worst day” of his life. She laboriously constructs a complex and sympathetic portrait of the accused, working with a far more varied palette, sketching out the good and the bad, unearthing the forces that drove a killer to the terrible moment, and insisting that judges and juries and prosecutors see the larger picture, weighing not just the crime but the whole person. She seeks not forgiveness but understanding. It takes only a small spark of it to decide against sentencing someone to death.

This does not equal "he's totally insane and had no idea what he was doing and no control over his actions"


Except she has made that argument herself:

In her Los Angeles talk, Clarke seemed to expand the definition further when she suggested that the most terrible killings are themselves an expression of deep mental damage: insanity is inherent in the crime, because only someone with “severe cognitive development issues” would commit it.

That, to me, is a very dangerous argument to make.
posted by NoxAeternum at 10:20 AM on April 2, 2015


There's a massive difference between "this person is damaged and is making bad choices because of that damage" and "this person is insane and is doing things he has no control over."
posted by hippybear at 10:23 AM on April 2, 2015 [5 favorites]


I don't believe in hell (and don't support the death penalty), so I don't think we as a society can dish out a worse punishment than life in prison, which is why I'm glad that Paul Bernardo is still alive.

I honestly don't know what I'd consider the ideal punishment in this case, but I do know that other people have committed what I'd consider worse crimes and have not received the death penalty or a life sentence.
posted by The Card Cheat at 10:24 AM on April 2, 2015


There's a massive difference between "this person is damaged and is making bad choices because of that damage" and "this person is insane and is doing things he has no control over."

Again, read the comment she made in LA - she argues that the most terrible murders are in of themselves a sign of insanity, because only someone with a severe cognitive defect could commit such an act. For all her attempts to understand Kaczynski, that one belief precluded her from doing so.
posted by NoxAeternum at 10:31 AM on April 2, 2015


It says a lot about our society that we are debating whether or not to spare Tsarnaev's life, when two days after Tsarnaev killed 3 people, Donald Adair was responsible for an explosion that killed 15 and injured around 160 more, and yet as far as I can tell, there is no effort to fine him, much less imprison him or kill him.

Yeah, what it says is that society understands the concept of criminal intent. Why would we compare an intentional act of murder/terrorism/mass casualty like bombing, where there is the requisite mens rea or culpable mental state to cause many death, with an unintentional explosion at the West Fertilizer plant, where the most that can be said is that the company showed a conscious or reckless disregard for an extreme degree of risk (what the law in Texas calls gross negligence) and then that risk occurred? There is no indication the loss of life at the West plant was the result of specific intent to cause harm or malice. It is just gross negligence. I say this as someone who supports the civil cases pending against the plant and hopes there are ruinous punitive damages awarded to shut down the plant and send a message. In that way, the civil case will give the plant the death penalty such that the company will be extinguished. So there are going to be legal consequences, but it strikes me as odd to suggest that a particular individual is as criminally culpable as Tsarnaev. Not a very helpful derail to bring that issue up.
posted by dios at 10:35 AM on April 2, 2015 [8 favorites]


I guess I don't equate "severe cognitive defect" with "insanity" as a 1:1 correlation.

Also, she wasn't trying to understand Kaczynski. She was trying to keep the state from killing him, and she was quite effective in doing that.
posted by hippybear at 10:36 AM on April 2, 2015 [4 favorites]


The words 'insanity' and 'defect' aren't her words. What she said was 'cognitive development issues.' She also used the word 'many' as a qualifier, as in 'not all'. She also has not put forth a claim that Tsarnev is 'insane'.
posted by showbiz_liz at 10:36 AM on April 2, 2015 [2 favorites]


NoxAeternum: As far as I know, we can't read the comments she made in Los Angeles, only the author's characterization of them. However, I'm not sure I would disagree that people who perpetrate the sorts of killings to which she alludes are those who have experienced deep mental damage. I don't get the impression she is arguing that they are compelled to act as they do or should be judged "not guilty by reason of insanity," however.
posted by slkinsey at 10:38 AM on April 2, 2015


dios wrote:
I wouldn't think people making that argument would also advocate from getting rid of all prison for all convicted criminals, but it's not clear to me why that one wouldn't be compelled to take that position.

Re: my post above about the neurological basis of human behavior and the myth of mind-body dualism that warps Western jurisprudence: I am in favor of ending imprisonment for the sake of punishment, intimidation, coercion, or revenge.

I am not at all opposed to the continuation of imprisonment for the sake of rehabilitation (under much better conditions than typically seen in the USA). Because the actions of all people are ultimately an expression of their genetics and circumstance, I expressly deny that there exists any possible humane motive for sentencing outside rehabilitation.

Adjusting our incarceration infrastructure to match the implications of neuroscience would require an investment far beyond what we are likely to permit for the sake of "mere" ethics. Never mind the almost impossible task of overcoming our basic tribalistic revenge-seeking id on a societal scale.
posted by Ryvar at 10:44 AM on April 2, 2015 [4 favorites]


I have a feeling that the more we learn about the brain, the idea of "deserving punishment" is going to become meaningless.
posted by the jam at 10:47 AM on April 2, 2015 [9 favorites]


Imprisonment is not only about punishment versus rehabilitation. It is also about incarceration: taking dangerous people off of the streets, irrespective of whether or not we would consider them to be personally, morally blameworthy.
posted by Sticherbeast at 10:53 AM on April 2, 2015 [2 favorites]


I guess I don't equate "severe cognitive defect" with "insanity" as a 1:1 correlation.

In this context you should, because that's the actual legal argument - "not guilty by reason of severe mental defect".

Also, she wasn't trying to understand Kaczynski. She was trying to keep the state from killing him, and she was quite effective in doing that.

At what cost? Again, I think that the argument that the commission of an atrocity is a sign of mental illness is opening a door that we don't want to open again. Or have we forgotten the aftermath of Columbine?

I think it's telling that the two of her clients whom I would argue were sane (in that they presented an understanding for the crimes they committed based on a roughly consistent worldview), Kaczynski and Rudolph, ultimately took plea deals. In light of Kaczynski's statement, I have to wonder how often that happens with her.
posted by NoxAeternum at 10:54 AM on April 2, 2015


I have a feeling that the more we learn about the brain, the idea of "deserving punishment" is going to become meaningless.
Basically, yeah.

My hope, but not expectation, is that centuries from now criminal intent and negligence will be considered broad categories of mental illness, and treated as such. Completely effective treatment won't be possible without several decades or even a few centuries of studying how the brain gives rise to the subjective mind and developing the means to tailor treatments to individuals based on their individual chemical balance and neurotopology. Until then we have no choice but to continue chipping away with chemical sledgehammers and crude behavioral therapies. Sometimes that means, realistically, life imprisonment by virtue of treatment exceeding any possible lifespan - but that needs to be evaluated on a case by case basis with the goal fixed at the minimum possible harm for the fewest possible people.
posted by Ryvar at 10:57 AM on April 2, 2015


Ryvar: I very much understand where you are coming from, old friend. And I have seen this contention before. I don't really have any issue with that point of view, as I think it raises a valid argument. But I don't really think I personally can adopt its logical conclusion. One note I would make is that position is a good response to the retributivism (e.g., must have a punishing consequence) penological theory, and it embraces the rehabilitative theory. It is less clear how that theory responds to the "deterrence" penological theory broadly and specifically, the incapacitation theory: we can deter crime from a particular person by preventing him from being able to commit crime. Doing that is neither punitive or motivated by retribution, nor is it rehabilitative, but it is a penological theory some advance in support of prison sentences. That's the only thought I have on your point.
posted by dios at 10:57 AM on April 2, 2015 [2 favorites]


In this context you should, because that's the actual legal argument - "not guilty by reason of severe mental defect".

No, her argument is "not deserving of death penalty because past experiences and circumstances caused damage that led them to do things a healthy person would not do." I don't think she's ever argued for "not guilty" in any of the cases talked about in the article linked in the FPP.
posted by hippybear at 10:58 AM on April 2, 2015 [6 favorites]


dios: it's a fair counter, but once you've finished rehabilitating a person you by definition no longer need to shield society from them.

Depending on how many people in broader society are desperate to inflict retributive harm on the individual in question (and Tsarnaev's as good an example as any), it may be necessary to continue shielding them from society.
posted by Ryvar at 11:01 AM on April 2, 2015 [1 favorite]


I would highly encourage everyone to read this Atlantic article ,"The Brain on Trial." It's a few years old at this point, but I think it does a very good job of looking at how our current understandings of the brain might inform our approach to the criminal justice system.

One thing the article argues is that based on our present understanding of neuroscience and behavior, it doesn't make sense to try to separate a person from the combination of biology and circumstances that ultimately leads to their actions:

The crux of the problem is that it no longer makes sense to ask, “To what extent was it his biology, and to what extent was it him?,” because we now understand that there is no meaningful distinction between a person’s biology and his decision-making. They are inseparable.

Based on this premise, the article then goes on to outline some ways in which we might make changes to our current approach to sentencing.

I believe that if we move away from value judgements (i.e. this person is immoral, evil, etc), then the system should not be focused on punishment but prevention. This shifts the question from what someone deserves to how we can best prevent future harm, whether that means locking someone away for life or finding a way to rehabilitate them. We already do this to a certain extent, but I think this is the direction we need to move towards even more strongly.

This article may seem tangentially related to this FPP, but I think it does start to address certain questions raised in this thread such as how developed the brain is at 19, the way early life experiences shape later decision making, and so on.
posted by litera scripta manet at 11:04 AM on April 2, 2015 [9 favorites]


In this context you should, because that's the actual legal argument - "not guilty by reason of severe mental defect".

As has already been pointed out, Clarke is not just notable for attaining not guilty verdicts; she is extraordinarily successful at keeping clearly guilty people from being executed. I think you may be oversimplifying her approach to Kaczynski's defense to make a point. It appears you see something morally important in Kaczynski's effort to have the ideological reasons for his crimes taken seriously. He might want to think of himself as perfectly sane and considered her evaluation of him patronizing, but the same could be said for many people who are not perfectly sane. Perhaps Tsarnaev would prefer the death penalty and the opportunity to be a "martyr", or perhaps Clarke has had other clients with that wish. I don't think she is dangerous for working to deny them the opportunity to make ideological points by killing people.
posted by callistus at 11:09 AM on April 2, 2015 [3 favorites]


but once you've finished rehabilitating a person you by definition no longer need to shield society from them

Logically that is correct. However, if rehabilitation means something like "getting their neurotopography in order", I wonder whether or when our brain sciences will find the key to unlock the brain in a way to allow us to determine when that task is complete.
posted by dios at 11:13 AM on April 2, 2015


Also, in the most severely warped individuals realignment with the socially compatible might not be much different than a death sentence for their identity. That's more a pure ethical concern than anything pragmatic, but it's still a sticky issue with my viewpoint.
posted by Ryvar at 11:15 AM on April 2, 2015 [1 favorite]


Maryr, care to elaborate? Just shooting down my thought doesn't let anyone know an opposing idea.
posted by agregoli at 11:15 AM on April 2, 2015 [1 favorite]


Its just that I don't see anything contoversial about the courts adopting more about brain development into consideration. Hopefully in the future we'll know tons more than we do now.
posted by agregoli at 11:22 AM on April 2, 2015 [2 favorites]


I'd also like to add that I am very much opposed to the death penalty, even in the case of Tsarnaev. I have a lot of qualms about life imprisonment without parole as well, although I recognize that based on the current system, it's hard to imagine how someone like Tsarnaev, whose professed hatred of America seems to have driven his actions, would shift his thinking after several decades in our prison system.

Ultimately, I don't think Tsarnaev should receive the death penalty if for no other reason than it would further his belief in himself as a "martyr," as also seemed to be true with someone like Ted Kaczynski. But cases like Tsarnaev and Kaczynski are rare and extreme. In so many circumstance in which the death penalty is considered, we have to take into account the very real chance of someone being wrongly convicted. When someone is locked away for a decade only to be proven innocent years later, that in and of itself is a tragedy, but even worse is the case of someone who has already been put to death when they are in fact innocent.

On this topic, I would like to recommend this New Yorker article, "Trial by Fire." It examines the case of Cameron Todd Willingham who was sentenced to death and ultimately executed largely based on testimony by arson "experts." After the trial, more rigorous and scientific examinations of the same evidence has brought to light the glaring inaccuracies and limitations of the original testimony, but Willingham has already been executed, so all of this does him very little good.

To my mind, even one innocent person being put to death is too many, and that alone is enough for me to be in favor of eliminating the death penalty.
posted by litera scripta manet at 11:25 AM on April 2, 2015 [5 favorites]


Something almost entirely un-germane to the thread: I love how janky her website is: http://jcsrlaw.net/

My brother worked for her husband for a while and really liked them both. As showbiz_liz has said upthread, he's no slouch himself; what truly excellent people.
posted by Aizkolari at 11:36 AM on April 2, 2015 [3 favorites]


I just want to throw out two more links, and then I promise I'm done. (In case it's not already apparent, I read a lot of longform articles about the criminal justice system.)

Both articles are from Texas Monthly. Here is the lead in summary for the more recent one, A Question of Mercy:

In 1998, when District Attorney Tim Cole sent a teenager named Randy Wood to prison for murder, he was convinced he'd given the boy the punishment that his brutal crime deserved. Now, more than fifteen years later, as Wood serves a life sentence, Cole is not so sure.*

It is actually a follow up to an earlier article, A Bend in the River which documented the original crime, trial, and convictions.

Both of these are highly worth reading, but the first one I link to is most relevant to this thread because of the concerns about convicting someone so young to life in prison. I don't mean to conflate the actions of Randy Wood to someone like Tsarnaev because they aren't remotely comparable, but I want to draw attention to this because I think Wood's case really puts a face to this idea that a young person can make one terrible decision without necessarily deserving to forfeit their entire future.

*I had to retype this to avoid the all caps in the original article, so apologies if I made any typos.
posted by litera scripta manet at 11:45 AM on April 2, 2015 [4 favorites]


Something I worry about is which exemplars we choose: the average death penalty case is not a terrorist or a mass murderer.

The median death row inmate was tried in the South. He killed a law enforcement officer or a woman, and could not afford his own attorney. Indeed he was living below the federal poverty line when he was arrested. He has a mental illness, though not one that would qualify him for the "insanity" defense. His IQ is well below average (bordering on mental retardation), and he did not finish high school. His victim was white (and so is he).

Of course, a lot of this is true of the overall prison population. And we incarcerate an outsized portion of our population. All of this suggests that the US is a problematic outlier in penology and that our approach to punishment needs serious reform.
posted by anotherpanacea at 11:48 AM on April 2, 2015 [4 favorites]


Like Doctors who treat ebola patients, I am glad good lawyers will defend the seemingly indefensible, to the best of their abilities. The viability of our system relies on this.

Our government puts all kinds of people to death via foreign policy, only inside the US do we seem squeamish, then we are exonerating a lot of people who were unjustly convicted. I wish our legal team, our legislators were as careful as Clarke, before commiting to murder in our nation's name.
posted by Oyéah at 11:48 AM on April 2, 2015 [3 favorites]


It appears you see something morally important in Kaczynski's effort to have the ideological reasons for his crimes taken seriously.

Well, yes, because I think that just dismissing them as the ravings of a madman is a dangerous approach. The biggest is that the argument that the different and alien is somehow a sign of mental illness is a very problematic one, because where do you draw the line? And while Kaczynski was alone in his views, Rudolph was far from being so - he had (and still has) supporting communities. Are all those people also mentally ill?

Building off of that, it also makes it harder to understand why someone might believe that they are justified in killing, which then precludes understanding how to stop that mindset.

Finally, coming back to the issue of the nonstandard, if we say that atrocities are the acts of the nonstandard, then this makes the nonstandard a threat. This is problematic in two ways - it makes those who don't conform into targets, while blinding us to those who do conform as a way to conceal themselves.

And mind you, I absolutely oppose the death penalty, and think that it is barbaric and applied unevenly. But I also think that treating atrocities as the acts of the mentally unwell is also problematic.
posted by NoxAeternum at 11:52 AM on April 2, 2015 [1 favorite]


if we say that atrocities are the acts of the nonstandard, then this makes the nonstandard a threat

But there's no getting around the fact that atrocities are nonstandard, in the sense that most people don't commit atrocities.

it also makes it harder to understand why someone might believe that they are justified in killing, which then precludes understanding how to stop that mindset.

This actually makes a lot of sense to me, and I think I get where you're coming from a bit more now. But I still don't agree that arguing that Tsarnaev may have experienced trauma or other developmental issues precludes exploring why he did what he did, because most people who experience trauma or developmental issues don't commit atrocities. Saying "the combination of his environment, biology, and socialization made this act more likely" just is not the same thing as calling his beliefs "the ravings of a madman."
posted by showbiz_liz at 12:09 PM on April 2, 2015 [1 favorite]


He was smart enough to get into college. He was smart enough to know what he was doing.

Here is an interesting read: "THE SOCIOLOGY AND PSYCHOLOGY OF TERRORISM:WHO BECOMES A TERRORIST AND WHY?"

It will ellucidate why this is not a matter of being smart or not. It's a matter of peer pressure, emotional maturity, and susceptibility (among many other things).

Millions of people will tell you how easy it is to go from decent shepherd to neighbor murderer in a couple of days. And most of them were normal people with normal families. Good people, even; until the right amount of indoctrination efforts got to them.

ex Yugoslavs of all sides
Hutus and Tutsis
Different branches of Islam against each other
Protestants against Jewish
Bhutanese against Nepalis
Amazonian tribes against each other
Afghani young men
Bhuddists in Myanmar
Students and the armed forces in Latin America
Pretty much every ethnic /religious group ever

These people were fundamentally decent, law-abiding people of average intelligence. Until they weren't.

Human beings are not fundamentally evil. We are just not as in control as we think we are. I am not saying Tsarnaev is not guilty. I am saying the death penalty or any brutal punishment like solitary confinement does not take into account that people are volatile, pig headed, easy to influence, self-blinded by cognitive biases, emotional, many times traumatized and even more likely mentally ill.

The only difference between us and them is that our buttons haven't been pressed. The very fact that it's so easy for some people here to enthusiastically call for brutal punishment against another group ("terrorists", "murderers") is an example that with the right kind of stimuli, we would all turn violent at some point.
posted by Tarumba at 1:11 PM on April 2, 2015 [22 favorites]


The only difference between us and them is that our buttons haven't been pressed. The very fact that it's so easy for some people here to enthusiastically call for brutal punishment against another group ("terrorists", "murderers") is an example that with the right kind of stimuli, we would all turn violent at some point.

This is precisely why the only bright-line which makes sense (to me, at least) is at the root. No calls for violence against *anyone*. No death penalty, no murder, no "He deserved it", nothing.
posted by CrystalDave at 1:28 PM on April 2, 2015 [4 favorites]


but once you've finished rehabilitating a person you by definition no longer need to shield society from them

No, but you have to shield them from society indefinitely, if this thread accurately tracks society's general vindictiveness level.
posted by busted_crayons at 1:55 PM on April 2, 2015 [5 favorites]


My hope, but not expectation, is that centuries from now criminal intent and negligence will be considered broad categories of mental illness, and treated as such.

This is in some ways terrifying to me. Think about who decides what constitutes a crime. Anyone whose moral compass does not conform to the letter of the law will be found and treated for the mental illness they have! hooray.
posted by auggy at 2:19 PM on April 2, 2015 [3 favorites]


Well, it'd be Lord of the Flies within a week.

They would have guards watching them, of course. It would be a modern and more humane take on those French colonial convict islands in the nineteenth century. Or Australia.
posted by Apocryphon at 2:52 PM on April 2, 2015


Dios: but I think we are also far away from convincing the majority that mass-murdering terrorists ought to be exempt from the most harshest punishments.

But they already are. There are much harsher punishments than the death penalty. Torture, then death, for example, or extending the punishment to include family members. The US doesn't do that (at least to its own). Rather, prisoners are executed as "humanely" as possible. Which means that the majority already support a degree of humanity towards death-row prisoners, including mass-murderers. It is really not such a great leap to one step further and simply abolish the death penalty altogether.

I agree with you completely on what cases will make it happen. The argument that the death penalty should be stopped because innocent (esp. mentally disabled) people can be unwittingly killed can't stand. You have to accept, as we have, that even if somebody murders 35 people and injures another 23, you still won't execute them.

I have faith that it will happen one day, truly.
posted by kisch mokusch at 3:06 PM on April 2, 2015


Thank you so much for posting this. I'd otherwise not learn about this extraordinary person. and thanks too, for linking to the other mefi post! ("A Clean Version of Hell")
posted by one teak forest at 5:45 PM on April 2, 2015


She's a total badass and I hope she gets him saved from the death penalty. I definitely want the kid to spend a good few decades in a supermax!
posted by ReeMonster at 6:08 PM on April 2, 2015


Most in this thread calling for Tsarnaev's head seem to be doing so out of anger. Which raises the question: Why did he do what he did? Same fucking reason, that's why.

Break the cycle, people. It's human to feel angry, but it's fucking stupid as hell to act out of anger.

If you kill him, then what happens? You pass your anger down the line to more people with more bombs, they retaliate, you retaliate, they retaliate, you retaliate, until the winners have drowned in the losers' blood and the rest of us start fighting about who should clean up the mess.

What happens if you don't kill him? Nothing. He becomes a footnote in history, just another guy in a cell. Another Sirhan Sirhan.
posted by Sys Rq at 6:32 PM on April 2, 2015 [15 favorites]


I have been moved by the strength, compassion and wisdom of those suffering from the actions of others, asin the recent Germanwings flight disaster, and the Norwegian massacre where those devastated by the actions of a criminal found sympathy in their hearts for the family of the criminal, or still rejected them death penalty as being unhelpful to their grief. We tend to think that we would all be vengeful if our loved ones were killed, but it is not always the way, it is not the only way.

If I had a magic wand, I would redistribute the resources of the planet so that every child was cared for, educated and had every opportunity to achieve their full potential. My public education facilities would promote ethics and compassion. My prisons would aim for rehabilitation and change. The homeless in my world would always have a safe place to sleep and good food to eat, and the ill (mentally or physically) would always find treatment.

I don't know why this man committed this horrendous crime, but if another could be prevented through the equitable sharing of humanity's resources, why wouldn't we do that? And I think the answer to that is symptomatic of a wider problem. Some of us are worth more than others of us. Both the criminals and punishes believe this, though they differ on who fits which category.
posted by b33j at 7:46 PM on April 2, 2015 [9 favorites]


I don't believe punishment either mitigates the crime or prevents further occurrence.
posted by shilimukh at 6:07 AM on April 3, 2015


What happens if you don't kill him? Nothing. He becomes a footnote in history, just another guy in a cell. Another Sirhan Sirhan.
posted by Sys Rq 12 hours ago [4 favorites +]


What happened to the Gitmo 5? They became pawns that the (Terrorists, enemy, opposition, freedom fighters, guerillas) can use in a prisoner swap. Without a live body, that's one less option.

To a certain generation Sirhan, Sirhan is a lot more than just a guy in a cell. However as the years pass and memories fade, I can see the day where he, and even Charles Manson, should they live long enough, could unfortunately, and by mistaking time served for actual redemption, get parole. A different generation will have to decide if the passage of time and the passing of people who were actually affected by the crime is enough to consider an end to inprisonment.
posted by Gungho at 6:45 AM on April 3, 2015


Back to the article for a moment: how does a lawyer like this get paid? Surely none of her clients have any money?
posted by latkes at 7:51 AM on April 3, 2015


Family of the accused I would guess in most cases.
posted by Drinky Die at 8:16 AM on April 3, 2015


What happened to the Gitmo 5? They became pawns that the (Terrorists, enemy, opposition, freedom fighters, guerillas) can use in a prisoner swap. Without a live body, that's one less option.

You understand prisoner swaps are generally a two-way thing, right? Without a live body, that's one less option for you.
posted by Sys Rq at 8:25 AM on April 3, 2015


latkes, regarding pay: first off, Judy certainly doesn't do this for the pay. She was appointed by the court, so there is some rather paltry fee that gets paid. As a general matter public defenders, appointed by courts, do get paid at a rate that is above the average median household income in this country, but is way below average pay of a lawyer. I recall reading at one point the average for public defenders was something like $60k. But, Judy probably will do what she has done in other circumstances and donate that money to legal defense groups. I haven't read this, but I wonder if there is some principled thing at play about her not wanting to accept money for having defended the people she has defended.

Judy has other sources of funds. She has been on law faculties (she was at Washington and Lee law school at one point, but I don't know if she still is). She also works through anti-death penalty foundations which are funded with donations and she makes some money that way as well. Also, she does have other clients other than death penalty cases, and I think some of them are paying clients. It is not uncommon for lawyers to take on charity or "pro bono" cases when they make money on clients. We do this at my firm. We have one case in which we will make more money than we need but that allows us to work on a civil rights case for the principle of the matter without having to look at the economics of it. For Judy, this is more than pro bono work, as I understand it. But I'm sure there is the same kind of thing at play: she can pursue these basically for free without being homeless and starving because she makes money on other things.
posted by dios at 9:12 AM on April 3, 2015 [2 favorites]


In addition to all that, her husband is still on the staff at W&L, as well as doing international legal consulting work. As a matter of fact, we just sent him to Palestine to do legal clinic demonstrations with Palestinian and American law students.
posted by showbiz_liz at 9:23 AM on April 3, 2015 [1 favorite]


Dzhokhar Tsarnaev Is Guilty of All 30 Counts in Boston Marathon Bombing
New York Times, 5:11pm (EST), April 8, 2015
posted by blueberry at 2:39 PM on April 8, 2015


...and WBUR won't shut up about it, making it a very long day in lab for me.
posted by maryr at 8:03 AM on April 9, 2015


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