Did Dzhokhar Tsarnaev Deserve the Death Penalty?

Capital punishment and the psychology of revenge

Posted May 15, 2015

wikipedia
The Magpie on the Gallows, Pieter Bruegel (1568)
Source: wikipedia

Last month, 21-year old Dzhokhar Tsarnaev was convicted of multiple counts of murder for the Boston Marathon bombings that occurred in April 2013. During the past week, jurors deliberated about sentencing as they listened to arguments both for and against the death penalty. Today, the jury concluded those deliberations, sentencing Tsarnaev to death by lethal injection.

This was a predictable result when one considers the details of the case along with the psychology that underlies our intuitive judgments about mortality, justice, and revenge.

According to an account provided by the Huffington Post, the prosecution spent the past week urging the death penalty, highlighting in graphic visual detail the suffering and tragedy of the 4 people who died, the 264 who were injured, and the many others who have been deeply affected by the terrorist act. Prosecutor Steve Mellin said of Tsarnaev, “There is no just punishment …other than death. His actions destroyed so many families.  He and he alone is responsible for his actions.”

In contrast, the defense argued that Tsarnaev grew up in a broken family and was unduly influenced by his older brother Tamerlan, who conceived and orchestrated the bombing. Defense attorney Judith Clarke, who has represented the likes of Ted Kacynski, Zacarias Moussaoui, and Jared Loughner, emphasized Tsarnaev’s youth and lack of previous criminal activity. “If not for Tamerlan, this never would have happened, " said Clarke, “Dzhokhar Tsarnaev is not the worst of the worst and that is what the death penalty is reserved for — the worst of the worst.”

Meanwhile, those of us outside the courtroom have been presented with competing views about the death penalty for Tsarnaev in the popular press. For example, the editorial boards of the Boston Globe and New Jersey’s Star-Ledger both argued that Tsarnaev should be spared the death penalty, whereas editorials at the National Review opined that Tsarnaev “deserves death” and “if this one fries, I’m not sure how much I can care.

This apparent divide on the issue of capital punishment is reflected in Gallup Polls in the US dating back some 80 years. On the question, “Are you in favor of the death penalty for a person convicted of murder?”, Americans have varied in their responses from the lowest approval rate in 1966 (42%) to the highest rate in 1994 (80%). The latest poll, taken in 2014, found that 63% favor the death penalty, 33% are opposed, and 4% have no opinion. Those in favor of the death penalty consistently cite “an eye for an eye” and “the punishment fits the crime” as the most common moral justification for capital punishment, whereas opponents most frequently cite that it’s “wrong to take a life.”

If opinions on capital punishment vary so widely, why was the jury’s death sentence for Tsarnaev so predictable? To understand this, let’s begin by reviewing how capital murder trials work. First, “death qualified” juries are selected that exclude anyone who is categorically against capital punishment as well as anyone who would insist on it in all cases of capital murder at the expense of life imprisonment. With no death penalty opponents present, it has been found that capital juries tend to be composed of those who hold punitive attitudes towards disobedience of authority [1]. This skews a jury towards those more likely to impose the death penalty than the general population.

Second, as with Tsarnaev’s case, both aggravating and mitigating factors are presented by the prosecution and defense respectively. Aggravating factors are used to portray a crime in a more severe and negative light. These include characteristics of the offender (e.g. past criminal behavior, future dangerousness), the crime (e.g. premeditation, multiple victims, elements of cruelty, lack of remorse), the motive (e.g. killing for money), and the victims (e.g. multiple victims, peace officers, children) [2]. Mitigating factors are not intended to provide an excuse or justification for a criminal act, but rather are used to reduce jurors’ perceptions of a defendant’s moral culpability or blameworthiness. Typical mitigating factors include the lack of past criminal behavior, acting under duress, evidence of remorse, the presence of a mental illness including drug use, a history of abuse, and age, with youth suggesting both vulnerability as well as a potential for rehabilitation [3].

Now let’s take a look at the psychology of justice. From a psychological standpoint, it could be said that aggravating factors are intended to increase a juror’s urge to exact punishment and revenge, whereas mitigating factors are used to increase feelings of mercy and forgiveness. But while only the aggravating factors must be proven beyond a reasonable doubt in capital cases, the psychological deck nonetheless is stacked against mitigation strategies.

Studies from both psychology and neuroscience suggest that our brains are hard-wired for revenge. Psychology experiments have consistently found that people tend to choose retributive options in response to those who violate social rules of fairness. More recently, neuroimaging studies have revealed that when carrying out such acts of retribution, brain areas governing the experience of pleasure and reward are activated. These findings paint a picture in which we tend to opt for retribution because it feels good to do so. Similar patterns have been detected in primates, suggesting that making decisions that support our intuitive sense of fairness are deeply rooted within our evolution as social beings [4].

According to this view, the impulse for revenge is literally in our DNA. That shouldn’t come as a surprise to anyone who remembers what it felt like as a child to hit someone back after they hit you. Or what it feels like now to shout obscenities at drivers who have cut you off in traffic. Or what it felt like to hear that Osama Bin-Laden had been killed. Psychologically speaking, justice means revenge, and revenge is sweet [5].

Of course, human beings do have the ability to act mercifully. And inasmuch as neuroscience would argue that any human behavior has a brain correlate, forgiveness and mercy can also be mapped out within brain circuitry. But the brain areas that appear to be activated in acts of mercy seem to involve those that govern inhibitory processes [6]. Forgiveness therefore seems to require that we rise above instinctual and emotional responses towards unfairness, such that it’s much harder to “turn the other cheek” than to take “an eye for an eye.”

In my last blogpost about suicide, I noted that moral judgments are emotional, gut reactions based on rules of social behavior that are experienced as absolutes. In contrast, forgiveness seems to be more of a rational decision with emotional components. Within the neural calculus of revenge and mercy, feelings of moral outrage predict retribution, whereas feelings of empathy towards the offender predict forgiveness [7]. But for most of us, outrage is a more powerful emotion than empathy, and empathy often applies more to victims than perpetrators.

This helps to explain how even an opponent of capital punishment feels at best indifference towards Tsarnaev’s sentence. Furthermore, as I suggested in another article on mass shootings last year, American culture in particular reveres the archetypal hero who metes out justice — that is, revenge in the form of violence — to an aggressor. No surprise then that the US is a world leader in capital punishment, whereas our cultural counterparts in Canada, Europe, and Australia have abolished the death penalty. The legal system in Sweden for example, operates on a model of consequentialism, in which sentencing is based on a rational analysis of the greatest good for society [8]. Our legal system operates on the more traditional and emotional morality of retribution, which aims to punish criminals with “just deserts.”

How then did jurors likely decide Tsarnaev’s fate? On the one hand, they may have felt some sympathy, and even empathy, for a young man led astray who cried when his relatives testified on his behalf. But the moral repulsion we all felt when we saw an otherwise joyous day disrupted by violence and injury, alongside the lasting image of 8-year old Martin Richard who was killed by Tsarnaev’s hand, no doubt trumped any of that. And quite possibly, when Tsarnaev raised his middle finger to a camera while incarcerated, appearing “unconcerned, unrepentent, and unchanged,” he sealed his own fate.

References
1. Barnett ME et al. When mitigating evidence makes a difference: Effects of psychological mitigating evidence of sentencing decisions in capital trials. Behavioral Sciences and the Law 2004; 22:751-770.

2. Acker JR et al. “Parsing this lexicon of death”: Aggravating factors in capital sentencing statutes.  Criminal Law Bulletin 1994; 30:107-153.

3. Fabian JM. Mitigating murder at capital sentencing: An empirical and practical psycho-legal strategy. Journal of Forensic Psychology Practic 2009; 9:1-34.

4. Greene J et al. For the law, neuroscience changes nothing and everything. Philosophical Transactions Royal Society of London B 2004; 359:1775-1785.

5. Knutson B. Sweet revenge?  Science 2004; 305:1246-1247.

6. Brüne M et al. “An eye for an eye”? Neural correlates of retribution and forgiveness. PLOS One 2013; 8:e73519.

7. Hu Y et al. Helping or punishing strangers: Neural correlates of altruistic decisions as third-party and of its relation to empathic concern.  Fronters in Behavioral Neuroscience 2015; 9:1-11.

8. Juth N, Lorentzon F. The concept of free will and forensic psychiatry.  International Journal of Law and Psychiatry 2010; 33:1–6.