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 9:05 AM EDT, Tue September 16, 2014
LZ Granderson says Congress has rebuked the NFL on domestic violence issue, but why not a federal judge?
updated 7:49 AM EDT, Tue September 16, 2014
Mel Robbins says the only person you can legally hit in the United States is a child. That's wrong.
updated 1:23 PM EDT, Mon September 15, 2014
Eric Liu says seeing many friends fight so hard for same-sex marriage rights made him appreciate marriage.
updated 3:38 PM EDT, Mon September 15, 2014
SEATTLE, WA - SEPTEMBER 04: NFL commissioner Roger Goodell walks the sidelines prior to the game between the Seattle Seahawks and the Green Bay Packers at CenturyLink Field on September 4, 2014 in Seattle, Washington. (Photo by Otto Greule Jr/Getty Images)
Martha Pease says the NFL commissioner shouldn't be judge and jury on player wrongdoing.
updated 9:15 AM EDT, Tue September 16, 2014
It's time for a much needed public reckoning over U.S. use of torture, argues Donald P. Gregg.
updated 8:25 AM EDT, Tue September 16, 2014
Peter Bergen says UK officials know the identity of the man who killed U.S. journalists and a British aid worker.
updated 7:28 AM EDT, Tue September 16, 2014
Joe Torre and Esta Soler say much has been achieved since a landmark anti-violence law was passed.
updated 4:55 PM EDT, Fri September 12, 2014
David Wheeler wonders: If Scotland votes to secede, can America take its place and rejoin England?
updated 8:41 AM EDT, Tue September 16, 2014
Jane Stoever: Society must grapple with a culture in which 1 in 3 teen girls and women suffer partner violence.
updated 4:36 PM EDT, Fri September 12, 2014
World-famous physicist Stephen Hawking recently said the world as we know it could be obliterated instantaneously. Meg Urry says fear not.
updated 6:11 PM EDT, Fri September 12, 2014
Bill Clinton's speech accepting the Democratic nomination for president in 1992 went through 22 drafts. But he always insisted on including a call to service.
updated 6:18 PM EDT, Fri September 12, 2014
Joe Amon asks: What turns a few cases of disease into thousands?
updated 1:21 PM EDT, Thu September 11, 2014
Sally Kohn says bombing ISIS will worsen instability in Iraq and strengthen radical ideology in terrorist groups.
updated 6:31 PM EDT, Tue September 16, 2014
Analysts weigh in on the president's plans for addressing the threat posed by the Islamic State of Iraq and Syria.
updated 9:27 AM EDT, Thu September 11, 2014
Artist Prune Nourry's project reinterprets the terracotta warriors in an exhibition about gender preference in China.
updated 9:36 AM EDT, Wed September 10, 2014
The Apple Watch is on its way. Jeff Yang asks: Are we ready to embrace wearables technology at last?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT