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Tsarnaev and Subsidiarity
If you take a look at the charges Dzhokhar Tsarnaev was convicted of in federal court earlier this week, you’ll notice something odd: each and every one of them occurred within the Commonwealth of Massachusetts and each is thoroughly punishable under its laws. This begs a question that been bugging me for nearly two years: why on earth is this a federal case?
The obvious answer is that the Obama Administration saw a risk-free way to look tough on terrorism, while Massachusetts’s elected leaders were happy to pass the trouble onto the feds. Basically, a federal trial was politically advantageous to everyone involved and legally permissible. Done deal.
This is both absurd and offensive. The purpose of a federal government—such as ours was conceived to be—is to do only those things that the states are either incapable or ill-equipped to do on their own. Hence, its enumerated powers were limited to such matters as interstate commerce, national defense, etc. Not a single one of the charges against Tsarnaev directly refers to anything beyond the purview (or borders) of Massachusetts, unless one wishes to count the fact that his brother traveled abroad during his radicalization and that the duo purchased their fireworks in New Hampshire (private fireworks are, unbelievably, illegal here). Here’s how nuts the whole thing is: not only are the bombings being prosecuted as federal offenses, but so is the murder of Officer Collier, whom they shot, and the carjacking they perpetrated later that evening with the same gun. So is the use of additional bombs in their shootout with Watertown police.
Massachusetts should, frankly, be humiliated by this tacit acknowledgement that the feds are better suited than the state to try someone who murdered four Massachusetts residents on Massachusetts soil. You’d think state officials would have scrambled for the honor of convicting this murderous little ingrate, while also using the opportunity to object to the federal government’s use of capital punishment. That none of the state’s elected officials—all of whom are deeply opposed to the death penalty—made a peep of objection to Tsarnaev being tried for a capital offense should be a further embarrassment.
Alas, it is not. As this case demonstrates, our government’s slow transformation from a federal government with limited powers to a fully-nationalized one isn’t always a matter of overreach and abrogation: more often than not, the states are happy to pass the buck as far as it will go.
Published in General
To expand a little on Tommy’s (correct) comment, the federal double jeopardy clause does not prohibit two prosecutions by different “sovereigns.” This is well-established law.
It is possible that Massachusetts could have a more restrictive state double jeopardy rule, either in its constitution or statutes, though I’ve not heard of such a provision in the law of any state.
Yes. A majority of Massachussens and — even more so — Bostonians are opposed to the death penalty. I think that’s stupid of my friends and neighbors, but I’m just one vote.
I confess I just don’t find this persuasive. If I go on a shooting spree at a major downtown hotel — likely to be filled with non-residents and non-citizens — I don’t see why that would make it better handled by the feds.
Murder is not necessarily a federal case. There typically has to be some federal connection. For example, 18 USC 1114 makes it a federal crime to murder any officer or employee of the United States. 18 USC 1116 makes it a federal crime to murder any “foreign official, official guest, or internationally protected person.” 18 USC 1111 makes it a federal crime to commit murder “[w]ithin the special maritime and territorial jurisdiction of the United States” where such special maritime and territorial jurisdiction is defined to include a variety of places including US lands and buildings and aircraft.
When a murder violates both state and federal criminal law, neither takes “precedence” in the sense that one case proceeds while the other must be dropped. Both can proceed.
The legal issue is one of “jurisdiction”. State’s have jurisdiction for anything the state laws criminalize that occur within their borders and which are not on lands that have been taken by the federal government (e.g. military reservations). The federal government has jurisdiction for anything federal laws criminalize, which in turn requires either that it be committed on federal land, accomplished at least in part through interstate commerce, or (since the 1960s) be a violation of an individual’s civil rights. This last category was created to ensure criminal prosecution/conviction for race-based murders in the South where it was believed that state courts could not be relied upon to do justice.
This means that a single event can be both a state and federal crime. The OP is raising the question as to why the state is not acting when its jurisdiction is clearer than the feds. It is not unusual for prosecutors in multiple states and the feds to coordinate their prosecutorial decisions. The prosecution by a state does not preclude the federal government from conducting their own prosecution for the crimes under their own jurisdiction. And that case may be based on the same facts.
Update: Arizona Patriot beat me to it, so this comment may be a bit redundant.
I’m not insinuating a backroom deal; I think it’s been done quite widely in the open. It’s not really much better for it.
Thank you. I did not realize that. Comment withdrawn on that point.
< devil’s advocate mode = on >
Something is only illegal if somebody complains.
If somebody takes something from me and I don’t call them on it, that makes it a gift rather than a theft.
If the State of Massachusetts doesn’t object to having its jurisdiction infringed upon, then there’s no infringement.
< devil’s advocate mode = off >
Again, stipulating that I misunderstood the application of double-jeopardy (my apologies) in such cases:
If the state and feds had split the crimes up that way, that would be much more defensible, even if I didn’t really like it.
I agree there’s no legal infringement. It just strikes me as offensive.
Resources and cost is my guess. A federal case is paid for by the federal government. And the feds are accountable for the costs of incarceration, which will likely be quite high. Ironically, if he gets the death penalty the costs will be even higher.
The death penalty should probably be renamed the Lawyers Employment Act.
I should have mentioned this earlier, but the prosecution of the Beltway Snipers strikes me as model of how this might have been done.
Despite having committed their crimes in three jurisdictions — and with the same degree of randomness as a bombing — they were tried in VA and MD courts (I’m not sure about what happened in the case of the one DC resident whom they murdered; to my knowledge, they were never charged with a federal crime).
I recall I was impressed with how quickly the Feds put Timothy Mc Vey to death, no Mumia style hero worship from the ultra-right for him. I don’t expect the sentence, if imposed, to be carried out that quickly this time even if both perps wanted martyrdom.
Wow. That there is no “deal,” and that the State is free to pursue its charges is still no where in your points conceded.
No one gets called first, last or otherwise. The state is free to prosecute whenever it wants.
The premise of your objections is just non-existent.
Except the state is not bothering to do so, and has no plan to, either.
We complain constantly — and rightfully! — that the federal government has taken on responsibilities more befitting a national government than a federal one. As conservatives, we think this is a bad idea as we think it’s best for decisions to be made locally, both to allow people to operate under different systems and to ensure better feedback between government and the governed.
Despite the fact that all of the crimes Tsarnaev has been charged with took place within Massachusetts and are highly, highly illegal under its laws and committed against its residents (at least in terms of those killed), it seems rational and best for the state to handle the problem itself. Instead, the state has taken a pass on the matter entirely, leaving it wholly to the feds to pursue.
That seems absolutely nuts to me.
Addendum: if the feds had tried him after the state had had its go at him in order to get a death sentence, that would be fine with me.
Tsarnaev clearly wants to live; his attorney tried to get a plea deal and the defense strategy has been “I did it, but my brother made me. Please don’t kill me.”
“Alas, it is not. As this case demonstrates, our government’s slow transformation from a federal government with limited powers to a fully-nationalized one isn’t always a matter of overreach and abrogation: more often than not, the states are happy to pass the buck as far as it will go.”
Your point is well taken. Police powers, under the Constitution, were exclusively powers of the several states. The intended federal government lacked the power – as it was not an enumerated power – to prosecute murder. Over the years, as part of its metastasis, the feds have clearly usurped states’ police powers through thousands of small steps. These intrusions have become normalized in publicly-educated minds to such an extent that the general public now expects the federal government to routinely exercise police powers. Most of the damage was justified under the commerce clause with the legal fiction that virtually any act defined as criminal “affects interstate commerce.”
We have a federal system today in name only. Federal=sovereign; state=vassal; citizen/subject=serf. This case is but a tiny example.
My apologies. That was terrible for me to say.
^This.
Tommy DeSenno #42
I don’t recollect anywhere that the federal government has the power to prosecute murder – at least by my copy of the constitution. So while you make the case that the state can still prosecute, I see actually that this whole trial is illegal. It should have been the state that did the prosecution. Once you take that view, then, indeed, there can be no “double jeopardy”. This business of several “sovereigns” prosecuting for the same crime ought to be baloney, no matter how much the lawyers claim there is a “basis” for it.
Excellent observation of constitutional erosion.
It is ironic that the Tsarnaev case has stood many things on its head. (Though standing things on head seems to be a feature of the Obama administration.) The main impetus for expanded federal criminal jurisdiction was the failure of certain states to prosecute or punish severely white on black crime before the mid 1960s. Today in Massachusetts you don’t have a death penalty, so local officials now welcome a federal prosecution to ensure the necessary and sufficient punishment of a particularly heinous murderer. Federal jurisdiction was expanded in the 1960s to overcome the personal prejudices of local juries. Today, a federal case is brought to enable a locally-selected jury to overcome the prejudices of the broader electorate with respect to capital punishment.
Rodin #50
Is it not ironic that one of the bigger causes of the Revolution in 1776 was Britain’s attempt to correct the colonies’ failure to prosecute of punish acts THEY thought were inappropriate. Britain tried to impose Crown Courts, but the colonies refused to allow that.
Thanks for the link. I think you might be correct about being a federal crime in this instance. This might help support jurisdication for the federal crime of terrorism.
I’m pretty sure I remember during the original coverage that the exploding pressure cookers were referred to as weapons of mass destruction. I questioned that at the time, but if appropriate, then it fits under 2332a. Any kind of bombing of public places and facilities fits under 2332f. Any potential involvement of assistance or training from overseas seems to fit under acts of terrorism transcending national boundaries (2332b).
Nor have they prosecuted murder in this case.
“Murder” is a state crime and the federal government has not charged nor convicted this terrorist of murder.