Burying Mass Murderers: The Problem of Tamerlan Tsarnaev

The Worcester, Massachusetts funeral director with possession of Boston Marathon bombing suspect Tamerlan Tsarnaev has reported that cemeteries in multiple states have refused to permit burial of his body.

This situation raises several important questions regarding the disposition of human remains. After a person dies, we clearly need to make decisions regarding final disposition, for public health reasons as well as closure for the family and community. But what happens when the remains are those of a person believed to have committed a horrific, recent crime?

The answer to the legal questions depends in large part on what state hosts the remains. There is very little federal law on this subject. In this case, Tsarnaev died in Massachusetts and his body is apparently currently located in Massachusetts, so that state's law is most relevant.

Like most states, Massachusetts law provides that "every dead body of a human being dying within the commonwealth ... shall be decently buried, entombed in a mausoleum, vault or tomb or cremated within a reasonable time after death." (M.G.L.A. 114 § 43M) The person having custody of the remains is charged with carrying out this obligation. In Tsarnaev's case, his uncle appears to have taken responsibility for his remains after Tsarnaev's wife refused.

Although the law requires that bodies be decently disposed of within a "reasonable" time after death, it does not provide clear answers about how to accomplish that. For example, no Massachusetts statute requires a cemetery to accept a body for burial. In 2003, in LaCava v. Lucander, the Appeals Court of Massachusetts held that there is no fundamental right to be buried in the cemetery of one's choosing. In that case, a man who had been convicted of killing his wife asked to be buried in the same Westminster, Massachusetts town cemetery where his wife rested. The cemetery commission denied his request, but offered him a plot in another town cemetery.

Massachusetts law does provide that each town shall provide one or more "suitable places" for people dying within town limits (M.G.L.A. 114 § 10). Although no case interprets this statute to provide that town cemeteries must accept the remains of any person who died within town limits, it is a reasonable interpretation. Tsarnaev's death certificate indicates that he died at 1:35 a.m. It is unclear whether he died on the street in Watertown, in the ambulance, or at the hospital in Boston. If the funeral director can confirm where he died, his strongest argument is that Massachusetts law requires that town's cemetery to accept Tsarnaev's remains. Of course, the communities in Massachusetts least likely to want to bury Tsarnaev are Watertown and Boston. Regardless, he did not die in Worchester, so there appears to be no legal requirement that the town cemetery in Worchester, or certainly any private cemetery in Worchester, accept his burial.

Tsarnaev's are not the first infamous set of remains posing these questions. Before Timothy McVeigh's 2001 execution in Terre Haute, Indiana, Congress enacted 38 USC § 2411, which prohibits those convicted of certain capital crimes from being buried in "federally funded cemeteries" like Arlington National Cemetery. This legislation was deemed necessary because, as a veteran, McVeigh otherwise had a right to be buried in a national cemetery. Representative Joseph Knollenberg of Michigan explained the reasoning behind the legislation: "Our Nation's cemeteries are sacred ground. They are a solemn and sad reminder of the price our Nation has paid for the freedom that we enjoy every day. It is not fitting to allow the likes of Timothy McVeigh or any other death penalty convict in the company of our fallen heroes." McVeigh was cremated after his execution, and his cremains were released to his attorney.

Of course, all cemeteries are sacred places. But we do not generally require a moral litmus test before remains are accepted for burial. For those who die while incarcerated, many state prisons have their own cemeteries for inmates whose bodies go unclaimed. But Tsarnaev died before he could be convicted, so a prison cemetery is not an option. If no cemetery in Massachusetts will take Tsarnaev, what happens to his remains? They cannot simply stay in the funeral home forever. Something must be done.

Many infamous mass murderers like Adam Lanza, Dylan Klebold, and Ted Bundy have reportedly been cremated. That is not a likely option in this case. Most observant Muslims do not believe that cremation is an acceptable method of disposition for human remains. If the family of Tamerlan Tsarnaev rejects cremation as an option, then it will likely find that Massachusetts law will provide little assistance in securing a burial place for him.