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Professor Tanya Marsh says Boston Marathon bombing suspect’s family, funeral home caught in legal Catch 22

Professor Tanya Marsh

Tanya Marsh joined the Wake Forest faculty in 2010, following a ten-year career practicing real estate and corporate law in Indianapolis, Indiana, including nearly five years as the Vice President of Legal for Kite Realty Group Trust, a real estate investment trust traded on the NYSE. Tanya teaches real estate transactions and property.

The family of the Boston Marathon bombing suspect Tamerlan Tsarnaev killed in a shootout with police can’t find a place to bury him, even as his body is being prepared for just that purpose, The Associated Press and other news organizations are reporting. This raises issues about laws regarding human remains, according to a Wake Forest Law Professor Tanya Marsh.

An uncle of Tsarnaev arrived in Worcester, Mass., on Sunday to “prepare the body” of his nephew for burial and met with the director of the Graham Putnam & Mahoney Funeral Parlors. Funeral director Peter Stefan told the AP that he and the family have been unable to find a cemetery in Massachusetts willing to take the body. Still, though he’s had “no offers” of a cemetery, he expects the suspect will be buried in the state.

“The Tsarnaev burial situation raises some interesting questions about the law of human remains,” Marsh says. “In the United States, unlike many countries, we place the obligation and cost of disposing of a body on the family. Protesters have argued that his body should be ‘sent back to Russia,’ but the reality is that the government has no jurisdiction over the remains of Tsarnaev. It has no power to compel Tsarnaev’s family to do anything except follow their legal obligation to give Tsarnaev a ‘decent burial.’”

Of course, that’s the problem, Marsh continues. “The law requires a decent burial, but does not have a mechanism to make sure that happens. Towns in Massachusetts are required to provide suitable places for burial, but no law explicitly compels a cemetery to take a body.”

Marsh teaches property law and is an expert in the American law regarding the status, treatment, and disposition of human remains.

The one public cemetery in Massachusetts that could potentially be compelled to accept Tsarnaev’s body for burial is the one in Cambridge, since he was a resident in that community. Over the weekend, the city manager issued a statement that he would not sell a burial plot to the Tsarnaev family because it would disturb the peace of the city.

That leaves Tsarnaev’s family and the funeral director caught in a legal Catch-22, according to Marsh.

“They have a moral and legal obligation to give Tsarnaev a decent burial, but no means to ensure that happens. The funeral director has stated that he will ask the government to help him resolve the issue, but there seems to be little that the Commonwealth or the FBI could possibly do besides politely ask cemeteries to take the body. There seem to be two possible outcomes.

The Tsarnaev’s family could ask a court to force the Cambridge cemetery to take his body. That seems unlikely. The most likely outcome is that Tsarnaev’s remains will stay in cold storage until the public furor dies down.”

A small number of demonstrators protested at the funeral home over the weekend, holding signs that read “Do not bury him on U.S. soil” and chanting “USA!” According to The Associated Press, several people drove by the funeral home Sunday and yelled, including one man who shouted, “Throw him off a boat like Osama bin Laden!”

Marsh added the outcry over what to do with Tsarnaev’s remains is really fascinating because it has attracted far more attention than other recent mass murderers. “For example, there were no protesters outside the funeral home that handled Adam Lanza’s remains,” she said.

Marsh joined the Wake Forest faculty in 2010, following a 10-year career practicing real estate and corporate law in Indianapolis, Indiana, including nearly five years as the Vice President of Legal for Kite Realty Group Trust, a real estate investment trust traded on the NYSE.

Marsh is available for interviews regarding this subject. She can be reached at marshtd@wfu.edu or 317-966-3257.