“Refugee Status” as a Mitigating Factor in Death Penalty Cases

by Jason Dzubow on February 13, 2014

The U.S. Department of Justice recently gave notice that it would be seeking the death penalty in the case of Dzhokhar Tsarnaev, the surviving Boston Marathon bomber. Mr. Tsarnaev and his brother allegedly killed three people in the bombing and one more person during their flight. Over 260 people were maimed or injured.

Dzhokhar Tsarnaev

Dzhokhar Tsarnaev

The DOJ determined that the death penalty is appropriate in the case because of the “heinous, cruel and depraved manner” that the murders were committed, that there was “substantial planning and premeditation,” multiple victims, and a “vulnerable victim” (a reference to Martin Richard, an eight year old boy killed in the attack). The notice also mentions several “non-statutory aggravating factors,” including the fact that Mr. Tsaenaev–

received asylum from the United States; obtained citizenship and enjoyed the freedoms of a United States citizen; and then betrayed his allegiance to the United States by killing and maiming people in the United States.

Other “non-statutory aggravating factors” are that Mr. Tsarnaev targeted the “iconic” Boston Marathon and that he showed a lack of remorse for his crimes.

I must admit that I have mixed feelings about the death penalty. I don’t believe it serves as a deterrent, and I do think there are serious racial and class disparities in its application. In addition, there is a real danger that innocent people or people with mental disabilities will be put to death. On the other hand, if the death of the murderer brings comfort or closure or a sense of safety to the victim’s friends and family, I believe those feelings are legitimate and should be given considerable weight.

In some ways, the Tsarnaev case is less complicated than the average death penalty case. There are no issues (at least I don’t see any) regarding race, class or mental health, and there seems to be no doubt that Mr. Tsarvaev is guilty. But what about the fact that Mr. Tsarnaev is a refugee?

In its death penalty notice, the DOJ mentions Mr. Tsarnaev’s asylum status as an aggravating factor–We helped him by granting him asylum, and then he betrayed us by bombing the marathon. Mr. Tsarnaev’s attorneys will, no doubt, view his asylum status quite differently, and could try to use that status as a mitigating factor. The relevant U.S. Code section (18 U.S.C. § 3592) lists several possible mitigating factors, including the following:

Impaired capacity.— The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.

Duress.— The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.

Disturbance.— The defendant committed the offense under severe mental or emotional disturbance.

Other factors.— Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

The first three factors seem like a bit of a stretch, but you can imagine some type of argument tying Mr. Tsarnaev’s mental state to the trauma of being a refugee. Indeed, I would guess that there are at least two types of trauma that refugees suffer: The trauma of the events that led them to flee their country, and the trauma of the refugee/resettlement process itself. There are certainly examples of refugees who engage in self-destructive behavior (I’ve written about that issue here), but without something more–such as a diagnosed mental illness–I doubt refugee status alone would qualify Mr. Tsarnaev for mitigation under one of the first three factors listed above.

The fourth factor–the catch all–provides the most likely opportunity for Mr. Tsarnaev to demonstrate how his status as a refugee might mitigate his punishment. He could argue that he was young, isolated in a new country, heavily reliant on his older brother (who participated in the bombing and was later killed), and influenced by terrible events in his homeland. While I can believe that Mr. Tsarnaev’s refugee status helped shape, and perhaps distort, his worldview, I have a much harder time accepting these problems as a mitigating factor here.

Had his crime been substance abuse, or even some type of impulsive, violent act, I could see how refugee status might be viewed as a mitigating factor and how there might be opportunities for positive intervention in his life. But in this case, Mr. Tsarnaev and his brother planned, prepared, and carried out a terrorist attack. This is not the type of crime that results from a traumatic past. It is the type of crime that comes from having a distorted world view and a total disregard for human life.

I have known many refugees, and many people who have suffered severe trauma–much more severe than anything I have heard about in the Tsarnaev case. While most such people work hard to overcome their past difficulties, some turn to drugs or alcohol; others commit crimes. But none are like the Tsarnaevs. Their’s was a carefully planned and orchestrated act. To allow Dzhokhar Tsarnaev to use his refugee status as a mitigating factor would be an insult to the many refugees who have overcome their terrible past. While there may be other factors that allow Mr. Tsaenaev to avoid the death penalty, his status as a refugee should not be one of them.

{ 5 comments… read them below or add one }

Margo Schulter April 26, 2014 at 4:04 pm

To address the main question of asylum first, I would note that the procedure for the penalty phase in a federal death penalty trial requires the jurors to sign a statement that they were not influenced by unconstitutional factors such as race, sex, or national origins in their life or death decision. So, if he is found guilty of the alleged crimes, the national origins of Dzhokhar Tsarnaev would seem to me, in itself, a factor neither aggravating nor mitigating.

Attempting to use refugee status as an aggravating factor in a death penalty case seems to me fundamentally misguided — although no more so than the death penalty itself, which should be struck down as cruel and unusual under the Eighth Amendment.

To counter the Government’s claimed logic in advancing refugee status as aggravating, one could argue that a person who goes through the ordeal of giving up their native country under conditions leading to refugee status is less culpable if found guilty of a terrorist act like the Boston Marathon bombings than a person who has enjoyed the “blessings of liberty” in our country for their entire life.

To me, not discriminating on the basis of “national origin” means exactly what it says.

But the specific family and social history of Dzhokhar Tsarnaev, with the refugee experience as one aspect of that individualized picture, could and likely does present all kinds of weighty mitigating factors militating against the death penalty. Family dysfunction, and the domination or influence of his older brother, are some of the factors being ably investigated by the defense. As the Supreme Court of the United States has held, mitigating factors encompass “the diverse frailties of humankind,” see Woodson v. North Carolina, 428 U.S. 280, 304-305 (1976), and may include any aspect relating to the circumstances of the offense(s) or the character and record of the offender that may call for a sentence of less than death, see Lockett v. Ohio, 438 U.S. 586, 604-605 (1978).

Very briefly, in response to Patti, deterrence means that threat of punishment dissuades someone from future criminal acts which they might otherwise commit, while incapacitation by either execution or a sentence of life without parole in a Supermax facility leaves the person unable to commit the crime. If Dzhokhar Tsarnaev were to be convicted as charged, then life without parole in a federal Supermax like Florence ADX would incapacitate him very effectively. As Pennsylvania Supreme Court Justice William Bradford noted in one of the first state studies on the death penalty, published in 1793, “perpetual imprisonment” has the advantage over execution that it can be put into effect more speedily, while protecting society just as effectively.

Finally, the idea of carrying out a state-sponsored execution as a form of “therapy” to “comfort” murder survivors — who deserve real help from society with better services and a stronger voice in the criminal justice system — seems both to me and many of these survivors as highly counterproductive in practice. Kathleen M. Garcia, herself a murder survivor as well as a grief therapist and victim advocate, does not oppose the death penalty in principle, but has actively campaigned for its abolition because of the harm done to victims. One such harm is the years or decades of appeals required by due process before the long-awaited execution, which repeatedly reopen the wounds of family members. Another harm is the diversion of both public funds and human resources from effective victims’ services to the quest to kill a subdued prisoner. Life without parole closes the case, and can be served even while any appeals proceed; it at least lets the family members of murder victims turn to other aspects of coping and healing than the criminal justice system.


Jason Dzubow April 26, 2014 at 9:49 pm

Thank you for that comment. I don’t think the gov’t intent was to use national origin as an aggravating factor, but rather to say that since we (the US) helped DT by giving him asylum, and he turned around and hurt us, the penalty should be enhanced. But it seems to me that you are right when you list possible mitigating factors that relate to DT’s situation, including having lived in a difficult environment. As to whether the death of DT would comfort survivors or make them feel safer, I suppose that depends on the particular survivor. Certainly the long drawn out process of a death penalty case won’t help anyone, but that is more of a problem with our slow court system than a problem with the death penalty itself.


Oleg Ghersimov March 9, 2014 at 12:45 am

the fact that he received derivative asylum status (if that actually is the case), rather than being the applicant, will not help him


Jason Dzubow March 9, 2014 at 9:36 pm

He did receive derivative asylum, but that still makes him a refugee. And I don’t think it will help him….


Patti Lyman February 14, 2014 at 5:49 pm

Actually, Jason, the death penalty is quite an effective deterrent. Did you know that no convicted criminal upon whom it has been carried out has EVER killed anyone afterward?

As to your subject…..I would be suprised if the refugee status factor succeeds as either an aggravating or mitigating factor when all is said and done.


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