Skip to main content

Vengeance shouldn't guide prosecution

By David Frakt, Special to CNN
updated 11:07 AM EDT, Mon April 22, 2013
Dzhokhar Tsarnaev was arrested on April 19, 2013, after a massive manhunt following an overnight shootout with police in suburban Watertown that left his 26-year-old brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead. Authorities say Tsarnaev and his brother were responsible for the Boston Marathon bombing on April 15, 2013. Dzhokhar Tsarnaev was arrested on April 19, 2013, after a massive manhunt following an overnight shootout with police in suburban Watertown that left his 26-year-old brother Tamerlan Tsarnaev -- the other man wanted in the bombings -- dead. Authorities say Tsarnaev and his brother were responsible for the Boston Marathon bombing on April 15, 2013.
HIDE CAPTION
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
Boston bombing suspect Dzhokhar Tsarnaev
<<
<
1
2
3
4
5
6
7
8
9
10
11
>
>>
STORY HIGHLIGHTS
  • Many say bombing suspect's trial should be in federal court due to death penalty
  • Former prosecutor David Frakt says that's a poor basis for a decision on where to try him
  • He says the case seems more focused on state matters, belongs in Mass. court
  • Frakt: Don't treat Tsarnaev as "enemy combatant"; don't deny him civil liberties

Editor's note: David Frakt is a visiting professor at the University of Pittsburgh School of Law, a lieutenant colonel in the U.S. Air Force Reserve JAG Corps and a former lead defense counsel with the Office of Military Commissions. He also previously served as a military prosecutor and special assistant U.S. attorney.

(CNN) -- The Boston Marathon bombings were horrific and senseless crimes. Thus far, all the publicly released evidence suggests that the crimes were the work of just two individuals, the Tsarnaev brothers.

The elder brother, Tamerlan, is dead, and the younger brother, Dzhokhar, is in serious condition at a Boston hospital.

Assuming that he recovers and is mentally fit, Dzhokhar Tsarnaev must face trial. The question is where: in state court or federal court? Both are legitimate possibilities. As with the Oklahoma City bombing in 1995, the acts of which he is accused constitute a variety of crimes under both state and federal law.

David Frakt
David Frakt

There have been numerous calls to prosecute Tsarnaev in federal court because federal law offers the possibility of the death penalty, but Massachusetts law does not. This would be a very poor basis upon which to make the choice.

The decision of where to prosecute should be based on which jurisdiction has a greater interest in the case, not where the potential for vengeance is greater.

In the Oklahoma City bombing, the federal prosecution was given priority because Timothy McVeigh was motivated by hatred of the federal government to directly attack it, destroying a federal building and killing scores of federal employees and their children in the process.

Did one brother brainwash the other?

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



There does not appear to be a similar federal interest here. The Boston Marathon is the quintessential Boston event, and the victims were predominantly Massachusetts residents. Those killed by the blast were a local restaurant manager, a schoolchild and an international student attending Boston University. The law enforcement officer victims were an MBTA Transit Police officer and an MIT campus police officer.

The crimes, in addition to the bombings, included an attempted convenience store robbery and a carjacking, crimes typically prosecuted in state court.

The elected representatives of Massachusetts have rejected numerous attempts to reinstate the death penalty since it was invalidated by the state's Supreme Judicial Court in 1984.

Events leading up to Boston manhunt
The questions Tsarnaev should be asked

Gov. Deval Patrick and other state authorities should resist allowing the passion and grief of the moment to override the will of the people of Massachusetts not to execute its citizens by turning the case over to the feds.

Comments by Mayor Thomas Menino expressing a hope that the U.S. attorney will "throw the book" at Tsarnaev, although understandable after what his city has been through, do not represent the sober reflection we expect of our leaders.

Of course, we do not yet know what motivated the bombers. If investigation reveals that the attack was an attempt to terrorize the United States as a whole as part of some jihadist ideology, then the federal interest in prosecution would be stronger. But at the moment, the Commonwealth of Massachusetts has a much stronger claim to prosecute.

Opinion: Nine questions about the bombers

One option that clearly should not be on the table is any effort to treat Tsarnaev as an enemy combatant. He is an American citizen. Just like McVeigh, he is entitled to all the rights and privileges afforded citizens under the U.S. Constitution and does not forfeit them because he appears to have committed heinous crimes.

We must resist the tendency to treat every act of violence as an act of war just because we are in a "war on terror" and to reflexively label every criminal of foreign origin or Muslim faith as a terrorist.

And if and when Tsarnaev is well enough to be questioned, the interrogation should start with a Miranda warning. Now that the crisis has passed, there is no urgent need to invoke the New York v. Quarles "public safety exception" as a means of circumventing this young man's constitutional rights.

Boston is the cradle of American liberty and is justifiably famous for its rejection of oppressive and tyrannical government. Let us not sully that reputation by sacrificing Tsarnaev's civil liberties in the heat of the moment.

Follow us on Twitter @CNNOpinion

Join us on Facebook/CNNOpinion

The opinions expressed in this commentary are solely those of David Frakt.

ADVERTISEMENT
Part of complete coverage on
updated 9:42 PM EST, Fri December 19, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
updated 2:51 PM EST, Thu December 18, 2014
Jeff Yang says the film industry's surrender will have lasting implications.
updated 4:13 PM EST, Thu December 18, 2014
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
updated 7:55 AM EST, Wed December 10, 2014
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
updated 12:34 PM EST, Thu December 18, 2014
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
updated 8:42 AM EST, Thu December 18, 2014
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
updated 12:40 PM EST, Tue December 16, 2014
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
updated 11:00 AM EST, Wed December 17, 2014
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
updated 4:54 PM EST, Tue December 16, 2014
Gayle Lemmon says we must speak out for the right of children to education -- and peace
updated 5:23 AM EST, Wed December 17, 2014
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
updated 1:39 AM EST, Wed December 17, 2014
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
updated 3:20 PM EST, Fri December 12, 2014
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
updated 9:56 AM EST, Mon December 15, 2014
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
updated 4:01 PM EST, Mon December 15, 2014
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
updated 9:53 AM EST, Mon December 15, 2014
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
updated 5:53 PM EST, Sun December 14, 2014
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
updated 10:50 AM EST, Sun December 14, 2014
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
updated 4:23 PM EST, Sat December 13, 2014
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
updated 9:26 AM EST, Fri December 12, 2014
Anwar Sanders says that in some ways, cops and protesters are on the same side
updated 9:39 AM EST, Thu December 11, 2014
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
updated 12:38 PM EST, Sun December 14, 2014
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT