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 5:01 PM EDT, Wed October 22, 2014
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
updated 12:19 PM EDT, Thu October 23, 2014
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
updated 6:35 PM EDT, Tue October 21, 2014
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
updated 9:48 PM EDT, Sat October 25, 2014
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
updated 6:08 PM EDT, Thu October 23, 2014
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
updated 5:54 PM EDT, Thu October 23, 2014
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
updated 12:21 PM EDT, Fri October 24, 2014
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 10:14 AM EDT, Thu October 23, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 6:07 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:05 AM EDT, Wed October 22, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT