What’s worse – being sentenced to be executed or to spend the rest of one’s life in prison?
Dzhokhar Tsarnaev’s defense team includes two attorneys famous for ensuring that the former is replaced with the latter: Judy Clarke from San Diego, who has brokered many high-profile plea deals, and her frequent litigation partner David Bruck of Virginia. During the jury selection process, which is wrapping up in Boston this week, they have focused on drawing out jurors’ views on the death penalty, and with some regularity have elicited the response that life imprisonment is the harsher of the two options while the death penalty is “the easy way out.”
These potential jurors may have a point. Tsarnaev, 21, has been in solitary confinement for a year and a half. Like a handful of other inmates in the U.S., he has also been subjected to “special administrative measures,” or SAMs, while in pretrial detention; if he is sentenced to life imprisonment, SAMs will almost certainly remain in force.
SAMs are a bit like the rules in the movie “Fight Club”: One of the rules imposed by SAMs is not talking about SAMs. But in Tsarnaev’s case, because his lawyers have moved – unsuccessfully – to have SAMs revoked, the provisions of SAMs are a matter of public record: court documents include the U.S. attorney general’s August 2013 memorandum to the director of the Federal Bureau of Prisons imposing SAMs on Tsarnaev.
The memorandum gives the prison authority to limit Tsarnaev’s contact with other inmates. According to a Human Rights Watch report, inmates under SAMs are usually fully isolated from other prisoners. Solitary confinement usually means spending 23 hours a day alone in a cell; SAMs often mean that this cell is in a special block from which the inmate can never see or hear other prisoners, even by knocking on a wall or peering through a window.
Under SAMs, Tsarnaev can make phone calls only when allowed to do so by the prison authority, and only to immediate family members – in his case, this would include his parents, living in Dagestan, and his two sisters, living in New Jersey. He has been calling his mother once a week, on Wednesdays (I should specify that she did not tell me this, for telling me anything about their phone calls may be a violation of SAMs). All phone calls are monitored by an FBI agent, so the participants are required to speak English. Tsarnaev’s mother, Zubeidat, speaks fluent English, but his father, Anzor, barely knows the language; they generally spoke Russian at home. The relatives are not allowed to record the conversations or “disseminate” them in any way. The FBI, on the other hand, is ordered to record and preserve these phone calls.
The same rules apply to visits and correspondence: immediate family only. Tsarnaev’s sisters have visited him – his parents have not entered the United States since he was arrested, though one or both of them may travel here for the sentencing phase of the trial. A prison employee or FBI agent is always present during the visits, which include no physical contact – meaning they talk using telephone receivers, through glass. They have to speak English (Tsarnaev’s sisters, who came to the United States as teenagers, are fluent). Tsarnaev can write one letter a week, limited to three pages, addressed to a single member of his immediate family.
Before the SAMs were put into place, Tsarnaev received nearly 1,000 pieces of unsolicited mail – indeed, the attorney general’s memo cited this as one of the reasons for imposing the restrictions: “Tsarnaev has … gained widespread notoriety while incarcerated.” Another reason was the fact that Zubeidat Tsarnaeva had recorded her son’s first phone call from prison, on May 24, 2013, and released portions of it to the media “in an apparent effort to engender sympathy for Tsarnaev.” A third reason was that two of his friends had been indicted on obstruction-of-justice charges for attempting to conceal evidence “at Tsarnaev’s behest.” One of them has since been convicted and the other pleaded guilty, but there was no allegation that they did what they did because Tsarnaev had asked them to. (A third friend has been convicted of lying to investigators.)
Tsarnaev’s communication with his lawyers is also limited by the SAMs, but not nearly to the extent that his other communication is: His lawyers can visit without restriction, they can have physical contact with him, and their communication is privileged, which means that no one else is present. If Tsarnaev is convicted and sentenced to death, these visits will continue for the many years the appeals process is likely to last.
On Wednesday, as the court continued to interview potential jurors, the Boston Bar Association issued a statement calling on the Justice Department to take the death penalty off the table and arguing that a plea agreement in exchange for a life sentence would be in the interests of justice. If a plea agreement were to happen, Tsarnaev would stay alone in his cell, under SAMs: He could never have physical contact or a private conversation with anyone except a prison guard for the rest of his life.