Massachusetts does not have a death penalty. It has not had one for over thirty years — since the Massachusetts Supreme Judicial Court ruled in 1984 that the state’s death penalty violated the state constitution. Yet, we have the spectacle of Charlie Baker, the state’s Republican governor, proclaiming on Wednesday that Dzhokhar Tsarnaev, who a United States district court trial jury had that day found guilty of counts related to the Boston Marathon bombing, should be executed in contravention of Massachusetts law.
Executing Tsarnaev is an option only because the United States Department of Justice decided to prosecute him in the US court system. Had that decision to intervene not been made, prosecution would have surely been pursued in the Massachusetts state court system where Tsarnaev would face incarceration upon a guilty verdict, but not execution.
It is bad enough that US government politicians and bureaucrats routinely stomp on state and local decisions to restrict the exercise of government power via criminal law, as seen in the ongoing conflict between the US government enforcing US drug laws and state and local governments rolling back various aspects of the drug war. Must we also endure governors like Baker cheering the US government crushing their own states’ limits on government power, including the power to terminate a person’s life?
Boston attorney and Three Felonies a Day author Harvey Silverglate sums up the problem with the US government seeking the death penalty in the Tsarnaev case. Silverglate wrote in a Wednesday Boston Globe editorial, “Regardless of the jury’s sentencing decision, this trial has starkly illustrated a decline in Massachusetts’ state sovereignty in deciding — literally — life-or-death matters.”
The US government’s circumvention of the Massachusetts death penalty prohibition is a disturbing contravention of American states’ historic dominion over criminal law matters, including murder trials. Years back people used to say, “Don’t make a federal case out of it!” You do not hear that phrase much anymore. The expansion in recent decades of both the US criminal code and prosecutions in the US court system has made the phrase become virtually meaningless. The US government can make a federal case out of just about anything now and thus uproot state and local governments from their historic role in administering criminal cases and defining procedures and punishments. This abrogation often happens, as it has in the Tsarnaev case, with state politicians failing to defend their states’ limits on government power. Sometimes, as with Baker, state politicians even applaud the US government’s toppling of those limits.
