In an op-ed for the Boston Globe, three legal experts, includ­ing retired fed­er­al judge and Harvard Law School pro­fes­sor Nancy Gertner (pic­tured), wrote about the ben­e­fits of allow­ing accused Boston Marathon bomber Dzokhar Tsarnaev to plead guilty in exchange for a sen­tence of life with­out parole. If Tsarnaev is con­vict­ed, they write, the penal­ty phase of his cap­i­tal tri­al will put all atten­tion on Tsarnaev’s life and back­ground, rather than on the vic­tims of the bomb­ing. ​“Tsarnaev’s lawyers are duty-bound to bring every kind of mit­i­ga­tion before the jury; the judge is bound by law to let them do so; but should the sur­vivors and the fam­i­lies of those who were mur­dered have to suf­fer through it?,” they ask. Rather than sen­tenc­ing Tsarnaev to death and accept­ing decades of appeals and atten­tion, the authors sug­gest, ​“he can be sen­tenced to spend the rest of his life in iso­la­tion, nev­er to be heard from again, in a super­max cell in a max­i­mum secu­ri­ty fed­er­al prison built espe­cial­ly for those pris­on­ers who are deemed the most dan­ger­ous, as has been the case with Unabomber Ted Kaczynski, 9/​11 con­spir­a­tor Zacharias Moussaoui, and Richard Reid, the shoe­bomber.” The op-ed con­cludes, ​“This community’s response to the Marathon attacks set an exam­ple of courage and uni­ty for the nation and the world. Now we’re reach­ing the last chap­ter. That chap­ter doesn’t have to be one of bit­ter­ness, divi­sion, and re-traumatization…Let’s write a last chap­ter that guar­an­tees just pun­ish­ment for Tsarnaev while putting the vic­tims and the com­mu­ni­ty at the cen­ter of the legal system’s con­cerns.” Read the full op-ed below.

Tsarnaev trial: Let’s not relive the Marathon bombings

ON JAN. 5, we are set to relive the Boston Marathon bomb­ing when Dzhokhar Tsarnaev’s tri­al begins. For months after that, a cast of thou­sands — lawyers, court offi­cials, jurors, police offi­cers, sur­vivors, evi­dence tech­ni­cians, and an army of pho­tog­ra­phers and reporters — will gath­er at the fed­er­al cour­t­house in South Boston to recre­ate those days in April 2013. Prosecutors will show pho­tos and videos of the bleed­ing, dazed vic­tims. The wound­ed sur­vivors at the fin­ish line and the brave fam­i­lies of the four who died that week — two young women, an 8‑year-old boy, and an MIT police offi­cer — will be asked to re-expe­ri­ence the trau­ma that they (and we) can nev­er for­get. And round-the-clock news report­ing will rekin­dle the emo­tions the event engendered.

But the fact is, it is not inevitable: There need not be a tri­al at all.

According to press accounts, this case is like­ly to be main­ly about the penal­ty phase, the hear­ing that would fol­low con­vic­tion, if any, when jurors will be asked whether Tsarnaev should be sen­tenced to death or to life in prison with­out the chance of parole. At that stage, atten­tion nec­es­sar­i­ly rotates away from accu­sa­tions against Tsarnaev and the suf­fer­ing of his vic­tims to Tsarnaev’s life: on his back­ground, his upbring­ing, the influ­ence of his old­er broth­er, Tamerlan — what­ev­er ​“mit­i­gat­ing fac­tors,’’ as the law calls them, that his lawyers will argue should spare him from the death sen­tence. Tsarnaev’s lawyers are duty-bound to bring every kind of mit­i­ga­tion before the jury; the judge is bound by law to let them do so; but should the sur­vivors and the fam­i­lies of those who were mur­dered have to suf­fer through it?

If Tsarnaev is con­vict­ed of the crimes charged, he will die in prison. The only real issue is where and when. He can go to fed­er­al death row, where lawyers will bring appeals and post-con­vic­tion motions for years, where only three defen­dants have ever been exe­cut­ed, and where, as a pris­on­er slat­ed for exe­cu­tion, he will con­tin­ue to occu­py the atten­tion of the pub­lic, the judi­cial sys­tem, and extrem­ists. Or he can be sen­tenced to spend the rest of his life in iso­la­tion, nev­er to be heard from again, in a super­max cell in a max­i­mum secu­ri­ty fed­er­al prison built espe­cial­ly for those pris­on­ers who are deemed the most dan­ger­ous, as has been the case with Unabomber Ted Kaczynski, 9/​11 con­spir­a­tor Zacharias Moussaoui, and Richard Reid, the shoebomber.

Usually it doesn’t take a months-long tri­al and mil­lions of tax dol­lars to make that choice. In most death penal­ty cas­es, the fed­er­al gov­ern­ment agrees to accept a guilty plea, and the defen­dant, on advice of coun­sel, agrees to waive his right to a tri­al, accept respon­si­bil­i­ty for his crimes, and agrees to be sen­tenced to life impris­on­ment with no chance of parole.

When that hap­pens, the gov­ern­ment presents in pub­lic a detailed descrip­tion of the evi­dence it has gath­ered against the defen­dant as part of a guilty plea pro­ceed­ing — but that process takes place in a day, not months. The case then goes to court for a final sen­tenc­ing hear­ing, but this hear­ing is not like an ordi­nary tri­al or a con­test­ed penal­ty phase fol­low­ing con­vic­tion for a death penal­ty-eli­gi­ble crime. The only voic­es heard are like­ly to be those of every sur­vivor and every fam­i­ly mem­ber of a mur­dered son or daugh­ter who wants to speak. Each can speak to the judge, to the pub­lic, and — if he or she choos­es — direct­ly to the defen­dant, who has no choice but to sit there and lis­ten. The final hear­ing belongs to the sur­vivors, not the lawyers — and cer­tain­ly not to the defen­dant. There are no more bat­tles between lawyers over tech­ni­cal­i­ties, no fights over what evi­dence should stay hid­den, and no appeals after­wards. No strug­gles between those of us who sup­port the death penal­ty and those who oppose it. Everything is sim­ple and final.

Why can’t the Boston Marathon bomb­ing tri­al be like that?

It takes both sides — the gov­ern­ment and the defense — to agree. The defen­dant has to agree to plead guilty, and the gov­ern­ment has to agree to accept a sen­tence of life impris­on­ment with­out parole, like it did with the Unabomber, the Olympic Park bomber, and many oth­ers who com­mit­ted acts of vio­lence in which peo­ple were killed and injured.

This community’s response to the Marathon attacks set an exam­ple of courage and uni­ty for the nation and the world. Now we’re reach­ing the last chap­ter. That chap­ter doesn’t have to be one of bit­ter­ness, divi­sion, and re-trauma­ti­za­tion. This is our city, as David Ortiz said in the first Red Sox game after the bomb­ing, and what hap­pens over the next sev­er­al months will have a deep and abid­ing impact on all of us. Wouldn’t it be bet­ter if the Justice Department and Tsarnaev’s defense attor­neys got past the legal tech­ni­cal­i­ties and found com­mon ground? Let’s write a last chap­ter that guar­an­tees just pun­ish­ment for Tsarnaev while putting the vic­tims and the com­mu­ni­ty at the cen­ter of the legal system’s concerns.

Nancy Gertner is a retired fed­er­al judge who teach­es at Harvard Law School. Michael B. Keating is a part­ner at Foley Hoag. Martin F. Murphy, also a part­ner at Foley Hoag, is for­mer first assis­tant at the Middlesex District Attorney’s office.

(N. Gertner, M. Keating, and M. Murphy, ​“Tsarnaev tri­al: Let’s not relive the Marathon bomb­ings,” Boston Globe, December 10, 2014.) See New Voices and Federal Death Penalty.