Tsarnaev and Subsidiarity

 

tdy_tur_boston_130711If 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.

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  1. Devereaux Inactive
    Devereaux
    @Devereaux

    The irony is that Massachusetts was the first to stand up to Brit tyrrany.

    • #1
  2. Ryan M Inactive
    Ryan M
    @RyanM

    I think the most important part of this article is your 2nd paragraph… I think if we engaged in this sort of thinking in 2008, we’d (maybe even rightly) be accused of cynicism.  Today, Obama has earned it many times over.

    • #2
  3. MarciN Member
    MarciN
    @MarciN

    There may be another explanation. If the Democrats wanted a quick death penalty option, getting one passed in Massachusetts wasn’t an option. That would take a lot of time, and opponents would rightfully claim that this particular case (I refuse to learn how to spell the bombers’ names) was not a typical case and was more like an act of war than a crime against the state.

    As everyone else has, I’ve been scratching my head over how this became federal.

    Our politicians are corrupt, but I can’t imagine this was handled this way purely to make Obama look good. Possible, and I’d believe it, but I would be doubtful.

    The Democrats fought World War II and Truman dropped the atomic bomb. These are not doves. They are simply dangerously slow to act. And we have a big military presence in Massachusetts. These are not all stupid hacks.

    • #3
  4. Kay of MT Inactive
    Kay of MT
    @KayofMT

    Massachusetts does not have the death penalty so unlikely he will be put to death, as the Bostonians don’t want him to die. It would make a martyr out of him.

    • #4
  5. Tom Meyer Member
    Tom Meyer
    @tommeyer

    MarciN:There may be another explanation. If the Democrats wanted a quick death penalty option, getting one passed in Massachusetts wasn’t an option. That would take a lot of time, and opponents would rightfully claim that this particular case (I refuse to learn how to spell the bombers’ names) was not a typical case and was more like an act of war than a crime against the state.

    I don’t think we’re really disagreeing. State Dems were happy to kick this one upstairs and basically pull the Pontius Pilate routine.

    • #5
  6. MarciN Member
    MarciN
    @MarciN

    Tom Meyer, Ed.:

    MarciN:There may be another explanation. If the Democrats wanted a quick death penalty option, getting one passed in Massachusetts wasn’t an option. That would take a lot of time, and opponents would rightfully claim that this particular case (I refuse to learn how to spell the bombers’ names) was not a typical case and was more like an act of war than a crime against the state.

    I don’t think we’re really disagreeing. State Dems were happy to kick this one upstairs and basically pull the Pontius Pilate routine.

    Brilliant analogy. Wow. Yes. Exactly so. In every way. I knew this story sounded familiar. :)

    • #6
  7. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Kay of MT:Massachusetts does not have the death penalty so unlikely he will be put to death, as the Bostonians don’t want him to die. It would make a martyr out of him.

    I don’t think it’s a foregone conclusion either way at this point. Part of the reason it took so long to seat a jury was that the jurors in a capital case must be open to sentencing the accused to death.

    • #7
  8. MarciN Member
    MarciN
    @MarciN

    The death penalty creates a funny rift in this state. The state police have vigorously supported every Republican gubernatorial candidate since Bill Weld, the reason being that the state police want the death penalty and Republican governor candidates have wanted it also. These guys vote for Democrats for all of the other offices in the state. :)

    • #8
  9. Ricochet Member
    Ricochet
    @ArizonaPatriot

    It seems to me that there are several reasons for this to be a federal case:

    1. It is part of the war against radical Jihadism.
    2. One of the fatalities was a Chinese national.
    3. I don’t know for certain, but I would expect that many of the 260-odd non-fatal injuries were to citizens of other states, and perhaps other nations.
    4. The bombing occurred at an “interstate commerce” type of event, as the Boston Marathon draws people from across the country (and probably around the world).
    • #9
  10. Ricochet Member
    Ricochet
    @ArizonaPatriot

    MarciN:There may be another explanation. If the Democrats wanted a quick death penalty option, getting one passed in Massachusetts wasn’t an option. That would take a lot of time, and opponents would rightfully claim that this particular case (I refuse to learn how to spell the bombers’ names) was not a typical case and was more like an act of war than a crime against the state.

    As everyone else has, I’ve been scratching my head over how this became federal.

    Our politicians are corrupt, but I can’t imagine this was handled this way purely to make Obama look good. Possible, and I’d believe it, but I would be doubtful.

    The Democrats fought World War II and Truman dropped the atomic bomb. These are not doves. They are simply dangerously slow to act. And we have a big military presence in Massachusetts. These are not all stupid hacks.

    (1) Massachusetts could adopt the death penalty by legislation, prospectively, but the Ex Post Facto clause would prevent its application to the Tsarnaev case.  In other words, if a crime was not punishable by death when committed, the state can’t retroactively increase the punishment by imposing the death penalty by subsequent litigation.

    (2) The Democratic Party today is not the party of FDR and Truman.  For practical purposes, they now are doves.  There are plenty of Democrats who support a strong national defense, but their party is under the control of the other side.

    This was made clear during the Vietnam era, and again in 2004 (when Howard Dean’s primary bid had surprising early success, causing Kerry and other leading Democrats to turn against the war), and again in 2006 (when Joe Lieberman lost his Senate primary, though he later won the general election running as an independent).

    • #10
  11. user_88846 Inactive
    user_88846
    @MikeHubbard

    Actually, the Feds butt in relatively often.  Quite a few state and local judges and prosecutors are elected, and the standards are often nonexistent.  U.S. Attorneys and Judges must be nominated, go through a background check, and then get Senate confirmation.  That process isn’t always perfect—note that Sonia Sotomayor is on the SCOTUS and Robert Bork didn’t make it—but it does mean that the federal courts are less like to screw up.

    And when there’s a big case where the Feds don’t want a screw up they’ll try to take jurisdiction.  Remember how OJ Simpson walked after the LA County courts botched that case?  I’m pretty sure that if a Suffolk County court botched the Tsarnaev matter, there’d be a riot in Boston.

    • #11
  12. Tommy De Seno Member
    Tommy De Seno
    @TommyDeSeno

    I must respectfully protest.  This is practically conspiracy theory which is frowned upon at Ricochet.

    Let’s not be a website that finds a reason to blame Obama for everything we can think of like Mother Jones and HuffPo blamed Bush.

    There is NOTHING stopping Massachusetts from bringing charges against Dzhokhar Tsarnaev, including for the murder of the officer.  They can do it any time they like, so there is no reason for a deal for one or the other to prosecute.

    There is likely no weapons of mass destruction specific statute in the state law (I could be wrong) but the feds certainly have one and they are therefore correct to use it.  Most of the 30 charges center around that.

    For many the death penalty is a plus, and the Supreme Court has already rejected challenges by state governors with no death penalty in their state to the feds using it there.  Why wonder aloud why the governor of Massachusetts isn’t wasting money on something futile?

    I can imagine if there was no federal involvement a column  would be written about how the President doesn’t care. It’s just not the case.

    Good grief.  We’ve come a long way since Sacco and Vanzetti.   Federal money should be used when fighting international terrorists.

    • #12
  13. Rodin Member
    Rodin
    @Rodin

    Arizona Patriot

    It seems to me that there are several reasons for this to be a federal case:

    1. It is part of the war against radical Jihadism.
    2. One of the fatalities was a Chinese national.
    3. I don’t know for certain, but I would expect that many of the 260-odd non-fatal injuries were to citizens of other states, and perhaps other nations.
    4. The bombing occurred at an “interstate commerce” type of event, as the Boston Marathon draws people from across the country (and probably around the world).

    With respect to #1 — under Bush that would have meant Guantanamo, under Obama it would have meant a drone strike.

    With respect to #2, the nationality or residence of a victim does not preclude state prosecution.

    With respect to #3, see response to #2.

    With respect to #4, I don’t think that is a basis for federal criminal prosecution. You have to employ interstate means, not attack an event that has multi-state interest.

    So I am with the OP and the death penalty theory. And I am concerned with the nationalization of local policing.

    • #13
  14. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Arizona Patriot:It seems to me that there are several reasons for this to be a federal case:

    1. It is part of the war against radical Jihadism.

    I can see how that could be argued, but I don’t find it terribly persuasive, especially as its not referenced at all in the charges.

    Arizona Patriot:

    1. One of the fatalities was a Chinese national.
    2. I don’t know for certain, but I would expect that many of the 260-odd non-fatal injuries were to citizens of other states, and perhaps other nations.

    Correct me if I’m wrong, but I don’t believe its normal for the residency/nationality of the victims to be relevant in a murder.

    Arizona Patriot:

    1. The bombing occurred at an “interstate commerce” type of event, as the Boston Marathon draws people from across the country (and probably around the world).

    Again, I don’t doubt that this argument could be made — and no doubt was — but it strikes me a terrible one, nonetheless.

    • #14
  15. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Mike Hubbard:And when there’s a big case where the Feds don’t want a screw up they’ll try to take jurisdiction. Remember how OJ Simpson walked after the LA County courts botched that case? I’m pretty sure that if a Suffolk County court botched the Tsarnaev matter, there’d be a riot in Boston.

    Which might spur people to pay more attention to their local and state governments.

    • #15
  16. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Tommy De Seno:Let’s not be a website that finds a reason to blame Obama for everything we can think of like Mother Jones and HuffPo blamed Bush.

    I’m not sure how you took me to be doing that. My conclusion was:

    Tom Meyer, Ed.:

    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.

    • #16
  17. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Tommy De Seno:There is NOTHING stopping Massachusetts from bringing charges against Dzhokhar Tsarnaev, including for the murder of the officer. They can do it any time they like, so there is no reason for a deal for one or the other to prosecute.

    I would imagine — someone please correct me if I’m wrong — that that would count as double jeopardy for many of the charges.

    • #17
  18. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Rodin:

    Arizona Patriot

    It seems to me that there are several reasons for this to be a federal case:

    1. It is part of the war against radical Jihadism.

    With respect to #1 — under Bush that would have meant Guantanamo, under Obama it would have meant a drone strike.

    Actually, I think the most similar case was the D.C. Snipers, who were tried in state courts.

    • #18
  19. Tommy De Seno Member
    Tommy De Seno
    @TommyDeSeno

    Tom Meyer, Ed.:

    Tommy De Seno:There is NOTHING stopping Massachusetts from bringing charges against Dzhokhar Tsarnaev, including for the murder of the officer. They can do it any time they like, so there is no reason for a deal for one or the other to prosecute.

    I would imagine — someone please correct me if I’m wrong — that that would count as double jeopardy for many of the charges.

    No.

    • #19
  20. twvolck Inactive
    twvolck
    @twvolck

    A law imposing the death penalty for an act committed before the passage of the law would be an ex post facto law, and so forbidden by the U.S. Constitution, and, I’ll bet, by the Massachusetts Constitution as well.

    • #20
  21. MarciN Member
    MarciN
    @MarciN

    Arizona Patriot:

    (1) Massachusetts could adopt the death penalty by legislation, prospectively, but the Ex Post Facto clause would prevent its application to the Tsarnaev case. In other words, if a crime was not punishable by death when committed, the state can’t retroactively increase the punishment by imposing the death penalty by subsequent litigation.

    (2) The Democratic Party today is not the party of FDR and Truman. For practical purposes, they now are doves. There are plenty of Democrats who support a strong national defense, but their party is under the control of the other side.

    This was made clear during the Vietnam era, and again in 2004 (when Howard Dean’s primary bid had surprising early success, causing Kerry and other leading Democrats to turn against the war), and again in 2006 (when Joe Lieberman lost his Senate primary, though he later won the general election running as an independent).

    Excellent point about their not being able to make the law retroactive.  (Although I’ve seen Massachusetts politicians do much worse than that when they were so inclined. Don’t ask. :)

    That said, I disagree about the dovish nature of the Democratic Party, even though I grant you the point you make about the antiwar movement, which was still going strong when we were waging war in Iraq.

    If I had two set circles, I’d say most antiwar activists were Democrats, but not all Democrats are antiwar activists, not by a long shot, and certainly not in Massachusetts, which takes in a lot of money every year in Defense Department contracts.

    Wall Street and the military have a surprisingly high Democratic Party population.

    • #21
  22. Tommy De Seno Member
    Tommy De Seno
    @TommyDeSeno

    Tom Meyer, Ed.:

    Tommy De Seno:Let’s not be a website that finds a reason to blame Obama for everything we can think of like Mother Jones and HuffPo blamed Bush.

    I’m not sure how you took me to be doing that. My conclusion was:

    Tom Meyer, Ed.:

    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.

    I took it from this:

    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.

    • #22
  23. She Member
    She
    @She

    I thought murder was always a federal case?  How does that actually work, and which takes precedence?

    • #23
  24. Tom Meyer Member
    Tom Meyer
    @tommeyer

    Tommy De Seno:

    Tom Meyer, Ed.:

    Tommy De Seno:Let’s not be a website that finds a reason to blame Obama for everything we can think of like Mother Jones and HuffPo blamed Bush.

    I’m not sure how you took me to be doing that. My conclusion was:

    Tom Meyer, Ed.:

    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.

    I took it from this:

    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.

    Right. The feds were happy to take it and the state was happy to give it to them.

    • #24
  25. MarciN Member
    MarciN
    @MarciN

    Tommy De Seno:

    Tom Meyer, Ed.:

    Tommy De Seno:Let’s not be a website that finds a reason to blame Obama for everything we can think of like Mother Jones and HuffPo blamed Bush.

    I’m not sure how you took me to be doing that. My conclusion was:

    Tom Meyer, Ed.:

    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.

    I took it from this:

    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.

    But he is describing the types of deal-making negotiations that go on between the local and federal courts.

    This is not conspiracy talk. It’s real life in Boston. I don’t know about elsewhere, but the stories of Judge Garrity in relation to both the busing issue and later the Massachusetts Water Resources Authority case were two instances when the state used its friendly relationship with the federal court to accomplish its ends. The courts are not political in and of themselves, but there are politics involved in who takes which cases. For sure. It’s not conspiracy. It’s real life.

    • #25
  26. user_656019 Coolidge
    user_656019
    @RayKujawa

    Tom Meyer, Ed.: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.

    Despite personal objections to the death penalty, I think those elected officials would be conscious that, in the case of this heinous crime, few state citizens would object to the administration of the death penalty (have there been any polls in state?). Also there’s a matter of upon whom the crime was committed. For a major marathon like Boston’s, there would be persons attacked from several states, not to mention foreign participants, making this crime a deliberate attack bigger than it otherwise would be (e.g. if it were a local church bake sale). In this light, raising the stakes by involving the feds could be seen as both justifiable and a more appropriate means of exacting justice, instead of merely passing the buck.

    • #26
  27. Tommy De Seno Member
    Tommy De Seno
    @TommyDeSeno

    Tom Meyer, Ed.:

    Tommy De Seno:

    Tom Meyer, Ed.:

    Tommy De Seno:Let’s not be a website that finds a reason to blame Obama for everything we can think of like Mother Jones and HuffPo blamed Bush.

    I’m not sure how you took me to be doing that. My conclusion was:

    Tom Meyer, Ed.:

    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.

    I took it from this:

    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.

    Right. The feds were happy to take it and the state was happy to give it to them.

    No one “gave” anything to anyone. They are both free to pursue their own charges.  Your insinuation that there was some back-room deal making or ducking of  obligations is based on nothing that would indicate that, other than 9/11 truther-like conspiracy surmise.

    Why impose on the President some intention to find an easy way to “look tough on terrorism.”  He has not only the right but an obligation to pursue these charges.

    He should be congratulated rather than having his motives questioned.  We have 30 convictions in less than two years from the date of the crime.   That’s VERY fast and effective.

    Bravo, Mr. President.

    • #27
  28. user_656019 Coolidge
    user_656019
    @RayKujawa

    She:I thought murder was always a federal case? How does that actually work, and which takes precedence?

    Felons incarcerated and waiting for the death penalty to be administered in the several states that do have the death penalty are there because they were convicted for murder under the laws of the state in which they committed the crime. They obviously were tried and convicted for murder in their state without the federal government involvement.

    • #28
  29. user_158368 Inactive
    user_158368
    @PaulErickson

    MarciN:

    Tom Meyer, Ed.:

    MarciN:There may be another explanation. If the Democrats wanted a quick death penalty option, getting one passed in Massachusetts wasn’t an option. That would take a lot of time, and opponents would rightfully claim that this particular case (I refuse to learn how to spell the bombers’ names) was not a typical case and was more like an act of war than a crime against the state.

    I don’t think we’re really disagreeing. State Dems were happy to kick this one upstairs and basically pull the Pontius Pilate routine.

    Brilliant analogy. Wow. Yes. Exactly so. In every way. I knew this story sounded familiar. :)

    Not in every way.  In one of these cases the accused did not deserve death.

    • #29
  30. She Member
    She
    @She

    Ray Kujawa:

    She:I thought murder was always a federal case? How does that actually work, and which takes precedence?

    Felons incarcerated and waiting for the death penalty to be administered in the several states that do have the death penalty are there because they were convicted for murder under the laws of the state in which they committed the crime. They obviously were tried and convicted for murder in their state without the federal government involvement.

    Well, it may be obvious to thee, but it’s not obvious to me.  One of my former employees, in fact, is on death row in Ohio for murdering his wife, his father-in-law, his sister-in-law, and his niece, so I get that that was, apparently, a ‘State’ crime.  So, OK, murder is not always a federal matter.

    Looking around a bit myself, though, I see that murder that ‘crosses state lines’ can be a federal case.   And that ‘acts of terrorism’ that result in ‘murder’ may be ‘federal cases’ by default  That is the sort of question I was asking.  What are the boundaries and requirements for murder to be a federal matter?

    (And although the link I cited above is titled “Acts of Terrorism Transcending National Boundaries,” please note that the definition of these acts includes “conduct occurring outside of the United States in addition to the conduct occurring in the United States.”  That seems pretty comprehensive.

    The rest of the language in this link is highly convoluted and confusing, but the impression that I’m left with is that an act of terrorism that results in death is a federal matter.

    I’m not suggesting, if I am right, that this is a good thing.  I am asking, am I wrong?

    • #30
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