Professor Tanya Marsh writes in Huffington Post the Tsarnaev burial saga highlights a fundamental legal flaw
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May 13, 2013
The Worcester (Massachusetts) Police Department reports that Tamerlan Tsarnaev’s body was buried in an undisclosed location in the middle of the night, bringing an end to a sad, unprecedented soap opera. This controversy has been resolved — but what happens next time? The Tsarnaev burial saga highlights a fundamental flaw in the American law regarding the disposition of human remains.
Despite the calls of protestors to “feed [Tsarnaev] to the sharks” or “toss him in the landfill,” it is a basic premise of American law that we treat human remains with respect. In fact, it is a general principal of law that every person who dies in the United States is entitled to the decent treatment and disposition of their remains. “Abuse of a corpse” is a crime in many states. A number of state even have statutes forbidding cursing in the presence of a corpse. But while the law promises that remains will be treated with respect, the government has very little power to enforce that promise.
In the United States, the next of kin of the deceased are tasked with the obligation and financial responsibility to properly dispose of their remains. In most states, the decedent himself has the right to have his remains disposed of in the manner and location that he prefers.
But this system assumes two things. The first assumption is that someone will take responsibility for the remains of every person. Although this assumption is generally correct, sadly, bodies are also found from time to time which cannot be identified. Some people die without family, friends, or funds. In those cases, government often has the authority and responsibility to make burial or cremation arrangements.
The second assumption is that the private parties integral to the process (primarily funeral homes and cemeteries) will cooperate and provide needed services.
Since the government plays little to no role, these private parties are essential. Bodies are normally taken from the place of death, or from the coroner’s office, by a funeral director who voluntarily agrees to take custody of the body. Although funeral directors are licensed by the state, in the United States they are private actors and are not government officials. Funeral directors generally prepare bodies for burial or cremation, and make arrangements for final disposition.
There are a wide variety of cemeteries in the United States. In some states, like Massachusetts, state law requires each town to have a municipal cemetery. But most cemeteries are owned by private parties — religious organizations, nonprofit organizations, families, fraternal organizations, as well as for-profit enterprises. The law recognizes cemeteries as essential public services. They are exempt from property taxes (even if owned by a for-profit company) and generally may not be mortgaged. But with the exception of cemeteries owned by municipalities, cemeteries are not under the management or control of the government.
The assumption that these private parties would play their role every time was so ingrained that no one had cause to question it before the Tsarnaev burial saga began. After all, many people have committed heinous acts in American history, and there was little controversy about the disposition of their remains. But this time, we discovered, the system absolutely breaks down when nearly everyone refuses to provide services.
The assumption that people will cooperate is so essential that the law does not even contemplate what happens if they do not. This incident has highlighted this fundamental flaw in the law. The government has no power to force a funeral director, cemetery, or crematory to accept a body. Tsarnaev’s family was lucky that Peter Stefan agreed to take the case in the first place, although his business has undoubtedly suffered a heavy price for his willingness to do what he considered to be the right thing. “I’m not burying a terrorist, I’m burying a dead body,” Mr. Stefan said at the beginning of the debacle. “We’re trying to exercise some character here.”
People have every right to be angry with Tamerlan Tsarnaev. He took deliberate action to cause death and misery, to terrorize the people of Boston. But Tamerlan Tsarnaev is dead. Protesting the disposition of his remains did nothing but cost the taxpayers of Worcester money and fed several news cycles. Nothing positive resulted.
It is sad that a system that is dependent upon everyone exercising character has shown such a fatal weakness. It is also sad that the only way to ensure that this will not happen in the future is for state legislatures to adopt laws which give the government power to interfere with what has always been the exclusive province of families, religious communities, and other private actors: the treatment and disposition of human remains.