THE PENALTY PHASE of Dzhokhar Tsarnaev’s trial began Tuesday in a federal courtroom in Boston. Already convicted of 30 felony counts relating to the 2013 bombing of the Boston Marathon, an attack that killed three people and maimed dozens more, the 21-year-old will now have the jury effectively decide whether he should spend the rest of his life in a maximum security prison without the possibility of parole, or be executed. Federal prosecutors are vehemently arguing for the death penalty.
Paying even casual attention to media coverage of yesterday’s proceedings was surreal. What dominated headlines and journalists’ commentary was the above still photograph of Tsarnaev, taken by prison authorities in July 2013 (roughly three months after the bombing), as he waited alone for hours in a holding cell.
The photo captured the then-teenager extending his middle finger up — flipping the proverbial bird — to the surveillance camera in his cell. The graininess of the photo, and the proximity of his face to the lens, created an image at once menacing and dehumanizing: This encaged, orange jumpsuit-clad monster was in your face, full of unbridled rage and hatred directed right at you. The photo was used to show that, even three months after committing such an atrocity, he lacked any remorse or other redemptive human emotions.
CNN’s melodramatic “news” description was typical: “He glares into the camera defiantly, his middle finger raised in a profane salute.” Glares defiantly, a profane salute. A reporter with CBS’ Boston affiliate, Jim Armstrong, described how prominently the bird-flipping photo was being used by prosecutors to argue for Tsarnaev’s execution:
The Murdochian id of American journalism, the New York Post, asked: “Could a photo of Dzhokhar Tsarnaev giving the finger ensure his death penalty?” The reporter for Fox’s Boston station, Catherine Parrotta, observed that “a collective gasp was heard in the overflow courtroom as the photo of Tsarnaev giving the camera the middle finger was shown.”
It was, explicitly, the prosecutors’ intent to provoke exactly this reaction: This one photo, standing alone, was designed to produce a visceral, bottomless contempt for Tsarnaev that even disgust at his actual crime could not achieve. The expectation was that it would irreversibly establish the jury’s and public’s view of him as not just evil but sub-human, deserving of state-imposed death. “This is Dzhokhar Tsarnaev: unconcerned, unrepentant, and unchanged,” said the federal prosecutor as she touted the photo. “Without remorse, he remains untouched by the grief and the loss that he caused.”
It worked. All over the TV airways and the internet, all sorts of people cited the photo to argue that he should be killed. The Washington Free Beacon’s Lachlan Markay’s reaction was common:
Like most things that happen in a U.S. criminal court, and like most dominant narratives propagated by the American media, the message created by exploiting this photograph was completely misleading. All anyone has to do in order to see that is watch the 37-second video from which the screen shot was grabbed:
Rather than some sort of calculated, sustained display of evil scorn for America and his victims — CNN’s “defiant salute” — the actual video shows a 19-year-old prisoner bored from sitting alone for hours in a jail. The middle finger was preceded by other gestures that he maintained longer. He was using the camera as some sort of mirror and appears to be occupying and mildly amusing himself. The still photo was shown by prosecutors rather than the video because the former is menacing and the latter is not. Long-time criminal attorney Jeralyn Merritt noted how banal the actual behavior was:
I don’t see any anger, just boredom. Who wouldn’t be bored sitting alone in a holding cell all day?
What a big to-do about nothing. The reporter who said his face showed huge anger should cover something other than criminal trials.
Beyond that, it seems clear that to the extent this was an expression of hostility, it was directed to his captors and not to “America” or his victims: hardly evidence of some sociopathic lack of remorse but rather a predictable and very common sentiment on the part of those who are imprisoned. And then there’s the fact that someone’s emotional posture two years ago does not prove they hold the same one today.
The jury was allowed to see the full video only yesterday, a full day after having the photo paraded around in front of their faces. While the prosecutor used the photo to make all sorts of claims about Tsarnaev’s death-deserving character, “the judge did not allow [his lawyer] to characterize the fleeting gestures.” It will be left to the jury to use their rational faculties to process the potent emotions that have been purposely stoked in them with the manipulative use of the photo — something most human beings are not very good at doing.
BUT LET’S ASSUME that he really had stuck his middle finger up in anger and contempt. Why would such a trite and common gesture — one that not just every teenager but most adults use — be so meaningful, so powerful? Why was there an expectation on the part of the prosecutors — well-grounded, it turns out — that this image could provoke a level of contempt for Tsarnaev among the jury and the public that not even the gut-wrenching testimony of the grieving relatives of his victims could generate?
The idea seems to be: It’s one thing to commit premeditated mass murder. But flipping the bird? That is beyond the pale. Off to the electric chair! At first glance, this seems absurd to the point of being laughable, like some sort of caricature of Victorian morality. He isn’t just murderous but gauche! It’s tempting and easy to scoff at the indignation produced by the photo, to dismiss it as vapid and shallow group-think. That was certainly my initial reaction upon seeing all of this unfold yesterday.
But the more I thought about it, the more I realized that the reaction that Tsarnaev’s middle finger provokes says a great deal about our penal state, the purposes of these punishment rituals, and the primal collective impulses that shape how the American criminal justice system tries to impose the maximum degree of suffering. There’s a reason the U.S. imprisons more of its citizens than any other country on the planet by far, and does so under the most oppressive and merciless conditions at least in the Western world.
In the U.S., it isn’t enough that dangerous criminals be removed from society for protection of innocents. It isn’t enough that a criminal be imprisoned long enough to be rehabilitated. It isn’t even enough that punitive justice or vengeance be fulfilled by putting the criminal into a cage for decades or the rest of his life.
Much more is needed. At least as important is that the criminal must be debased. He must be seen to suffer not just from a deprivation of liberty, but also to be emotionally, psychologically, mentally anguished. The punishment can’t just physically restrain his body, but must inflict suffering in his mind, on the deepest level of his soul.
That’s why there is a craving to see not just debasement, but a specific species of it: self-abasement. The criminal process demands — in exchange for tiny amounts of leniency (we’ll imprison you for life instead of killing you) — that the guilty party prostrate himself before the judicial authority, before all of us. He must condemn himself at least as much as he’s condemned by the court. He must declare his internal pain, his self-contempt, his complete and utter submission.
Through that self-abasement process, we get to enjoy the satisfaction of seeing the condemned drowning in pain in the deepest part of his mind. But it also affords the benefit of self-vindication: Even those who have this extreme suffering imposed on them agree that this is just, right, and deserved.
The overwhelming majority of criminal cases in the U.S. conclude this way: with the accused publicly confessing his own guilt and declaring his “remorse,” which must translate as convincing mental anguish if it is to be accepted and rewarded with small amounts of humane treatment. As long-time federal judge Jed Rakoff wrote last November, “While 8 percent of all federal criminal charges were dismissed … more than 97 percent of the remainder were resolved through plea bargains, and fewer than 3 percent went to trial. The plea bargains largely determined the sentences imposed.”
As Judge Rakoff details, the U.S. criminal justice system is desperately dependent upon the accused’s willingness to declare his own guilt. The system would collapse without that. So all the rules have now been shaped to coerce — one could say compel — criminal defendants to be their own confessors. The system is so pro-prosecution, and punishment is so severe for those who refuse to cooperate — for those who insist on their constitutional right to a jury trial and then lose — that every rational person, by definition, would strongly consider declaring his own guilt even when he isn’t guilty. As Judge Rakoff put it:
The prosecutor-dictated plea bargain system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.
The reason? “Though there are many variations on this theme, they all prove the same basic point: the prosecutor has all the power.”
WHAT THE U.S. criminal justice system demands most from those who plead guilty is a showing of remorse: a willingness to stand up and condemn oneself, to declare that one is already suffering internally from the crime. There is ample legal scholarship demonstrating that “judges tend to use their discretion to impose lighter sentences on remorseful defendants” and “even capital juries seem to factor in the remorsefulness of the defendant in deciding between a life sentence or the death penalty.” Clearly, “empirical studies have shown that remorse plays an important role in observers’ judgments of defendants.”
It’s far from obvious that a willingness to publicly condemn oneself this way should be relevant at all to punishment, let alone predominant. The view that remorse is largely irrelevant to guilt and punishment was once pervasive in the U.S. and is still dominant in other Western nations’ justice systems. But now, in America, a form of extreme self-flagellation is demanded if any minimal degree of mercy is to be shown.
As a byproduct of the most primal aspects of human nature, none of this, of course, is new. The 20th-century French philosopher Michel Foucault devoted years to demonstrating the central importance of mental suffering and gruesome debasement in the history of the West’s penal schemes. In Discipline and Punish, he emphasized the vital role self-condemnation plays in this ritual:
Though the law strictly speaking did not require it, this procedure was to tend necessarily to the confession. And for two reasons: first, because the confession constituted so strong a proof that there was scarcely any need to add others, or to enter the difficult and dubious combinatory of clues; the confession, provided it was obtained in the correct manner, almost discharged the prosecution of the obligation to provide further evidence (in any case, the most difficult evidence). Secondly, the only way that this procedure might use all its unequivocal authority, and become a real victory over the accused, the only way in which the truth might exert all its power, was for the criminal to accept responsibility for his own crime and himself sign what had been skillfully and obscurely constructed by the preliminary investigation. “It is not enough,” as Ayrault, who did not care for these secret procedures, remarked, “that wrong-doers be justly punished. They must if possible judge and condemn themselves” (Ayrault, r. I, chapter r4). …
Through the confession, the accused himself took part in the ritual of producing penal truth. As medieval law put it, the confession “renders the thing notorious and manifest.” … The confession was therefore highly valued; every possible coercion would be used to obtain it.
While the “Civilized West” now largely hides its penal brutality behind clinical processes and the pretense of humane treatment (using our elevated scientific mind and capacity for great mercy, we privately inject people’s veins with fatal poison instead of publicly drawing-and-quartering or beheading them like those primitive fanatics Over There), the primal desire to impose suffering is at least as thriving.
If you doubt that, just read James Ridgeway’s harrowing account yesterday at The Intercept about the very pervasive American scheme of putting people in cages for life without the possibility of ever being released until death, or descriptions of the even-worse widespread use of the insanity-inducing torture called “solitary confinement.”
There are reasons the U.S. is the world’s largest penal state, and among its most oppressive, and those reasons reside in the political and cultural character of the country, and specifically in its desire to impose maximum amounts of pain and suffering under the guise of justice. That’s why even opponents of the death penalty frequently argue that life in prison is worse: It’s always a contest as to how the most suffering can be inflicted.
Tsarnaev’s middle finger provoked seemingly as much disgust as the murders for which he has been convicted because it represented his refusal to submissively play the role assigned to those who are to be punished. The gesture is depicted as a challenge to — a “defiance” of, as CNN put it — proper authority, a crime worse than any murders. As the media tale tells it: rather than prostrating himself before us all and the mighty judicial system we’ve created to justify our imposition of suffering, he’s expressing anger over it, a contempt for it. He’s thus depriving us of the satisfaction and self-validation we crave, and for that he must be punished even further: with death.
There are all sorts of other dynamics at play here. To begin with, the criminal justice system excels at reducing the condemned to their single worst act so that limitless punishment feels warranted. The Intercept’s criminal justice senior editor, Liliana Segura, who has observed countless trials, put it this way to me:
Having the media seize on this single gesture to fan outrage and vengeance is the perfect microcosm of the way in which we reduce prisoners to one bad act, their worst act, no matter what else they achieve later or went through before, thereby completely dehumanizing them. And it is by dehumanizing them, obviously, that we are able to condemn them to the worst cruelty and punishment.
Then there is the powerful cultural marker this is designed to signal, much the way the media loves to circulate pictures of African-American or Latino teenagers who are killed by the police, showing them in “rebellious” poses that are innocuous and common for teenagers but designed to tell us to think that they probably were doing bad things and thus deserved what they got. Conservative sites used pictures of Trayvon Martin with his middle finger extended and smoking pot to suggest that he deserved to be killed by George Zimmerman.
Jingoism — an incomparably powerful tribal drive — also takes center stage here. “A middle finger to America,” declared the British tabloid Daily Mail. The NY Post caption underneath the video proclaimed: “The unrepentant bastard has pure contempt for America.”
That Tsarnaev is a Muslim accused of politically motivated terrorism makes the image even more outrage-producing. Instead of bowing his head in repentance and submission to a more powerful America, he’s using what CNN called a “salute”: a demonstration of military-like strength and defiant power that cuts deep at the core of the American psyche in profound and visceral ways, much the way that the collapse of the Twin Towers did.
None of this is about the crime itself (which I’ve written about before), nor about whether there are mitigating factors for it. One can think Tsarnaev committed an atrocity quite independent of his fleeting bird-flipping gesture. It’s about why the image of Tsarnaev’s middle finger produced such potent reactions and dominated media coverage, at the expense (as usual) of compelling substantive questions that have been almost completely ignored. And the explanation says a great deal about the primitive, brutal, and quite definitively American views of the purpose of the criminal justice system and how and why punishment is administered.
Top photo: U.S. Attorney’s Office/AP
Update/Correction: An earlier version of this article suggested that, in his tweet declaring “defense loses,” Armstrong meant to convey that the photo, by itself, would ensure Tsarnaev’s execution. That was based on a misreading of the tweet, and the article has been updated to reflect the correct reading.