Tuesday, May 7, 2013
Property Prof's very own Tanya Marsh has a great piece on the Huffington Post about the law surrounding the disposition of the body of Tamerlan Tsarnaev (the Boston Marathon bomber who died in a firefight with police). The whole piece is fascinating. Here's a taste:
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.