What we want from the Marathon bombing trial
Boston expects a lot from the Tsarnaev prosecution. If things go right, we won’t get it all.
WITH CHARGES NOW formally filed by the Justice Department against Dzhokhar Tsarnaev, the surviving suspect in the Boston Marathon bombings, the city and the nation as a whole have entered a new phase of recovery.
What happened on Boylston Street on April 15 was not an ordinary crime. Beyond the three people killed, and the more than 200 wounded, the bombing felt like—and, evidently, was intended as—an attack on a whole society. We all feel a stake in the case, and rightly so. What the perpetrators did was meant to make all of us feel under threat.
And so, as the prosecution gets underway, we’ll be watching to see justice done not only in the name of those who were killed and injured, but for the scope and intent of the crime, for the fear and disruption and the countless people who might have been hurt if the crowd had been a little bigger or the bombs a little more powerful. In essence, we feel the suspect is being prosecuted on our behalf, and we want the response of our justice system to be as profound and severe as the attack itself.
You can see that desire reflected in how people are talking about the case—in the initial calls for Tsarnaev to be classified as an “enemy combatant,” as well as Mayor Thomas M. Menino’s statement that, despite being a longtime opponent of capital punishment, he would support the death penalty in this situation. Even the legal system classifies the crime differently: Unlike, say, James Holmes, who actually killed more people when he opened fire in a Colorado movie theater last year, Tsarnaev has been charged with using a weapon of mass destruction.
It is comforting to think that the justice system will be able to give us a sense of closure—that the right kind of prosecution, the right outcome, will dull our anger into something approaching calm. But thinkers who have looked carefully at the criminal justice system, and especially at horrifying cases like this one, suggest we’d be wiser not to hope for it. By depending too much on the prosecution to deliver relief or moral satisfaction, they say, we may be setting ourselves up to be disappointed. “People will expect the criminal process to provide that sense of catharsis, and...it won’t,” said Columbia Law School professor Daniel Richman, an expert on criminal law. “It will only provide a pale shadow of what people are looking for.”
If that happens, it will be tempting to see it as a failure of justice—a jarring reminder that our procedure-driven legal system is inadequate to the task of societal healing after a tragedy like the Boston bombing. But that might be the wrong way to think about it. Handled well, experience suggests, the legal process has great potential to help the people who were actually hurt that day, or had loved ones die. Meanwhile, for the rest of us, the fact that the justice system is not a very good vehicle for working though our emotions as a society might actually turn out to be one of its virtues.
The notion that all of us have a stake in the prosecution isn’t just psychology: It’s a legal fact. Every criminal case in the United States is prosecuted on behalf of “the people”—the implication being that regardless of who was victimized, all of society suffers for a crime that goes unpunished. In that sense, the case against Dzhokhar Tsarnaev is the same as any other.
But what actually happened the day of the Marathon obviously was not remotely run-of-the-mill violence: Setting off a bomb in a public place, killing or wounding whoever happens to be nearby, feels categorically different from other crime. “Random violence seems more unjust than violence in general,” said Grant Duwe, a criminologist for the Minnesota Department of Corrections and author of the book “Mass Murder in the United States: A History.” “It resonates more on an individual level....People think, ‘That could have been me. That could have been my child.’”
It’s partly because of these feelings that it makes such intuitive sense to approach terrorists as a special category, and to want to prosecute them not as mere murderers but as something more. In a case like Tsarnaev’s, a trial promises to serve as a grand, public assertion of values: a community action meant to give voice to the public’s collective denunciation of the perpetrator. “The trial becomes part of a process of taking back control from the terrorist,” said Jody Madeira, an associate professor at Indiana University Maurer School of Law and the author of a book on the prosecution of Timothy McVeigh.
Madeira has the rare distinction of being an expert on the role of the legal process in helping people recover from a mass murder. She spent years combing through the details of the McVeigh trial and interviewing survivors and loved ones of the 168 people who died in his 1995 attack on the Federal Building in Oklahoma City. Madeira ended up believing that it’s foolish to count on trials to provide public healing or catharsis after a tragedy—that while it is possible, it’s extremely unlikely. “It’s absolutely natural to think that the trial is what’s going to give us closure, and to want it to,” she said. “But it is not a cure-all.”
Madeira concluded from her interviews and research that the actual victims in the case—specifically, those who lost loved ones in the bombing—did get considerable satisfaction from seeing McVeigh declared guilty, and later executed. But above all, they benefited from getting a chance, during sentencing, to tell the court what they’d lost, and how their lives had been changed. “They got to tell their story in a form that mattered,” Madeira said. “They not only confronted McVeigh, but they got to play a role in holding him accountable.”
She emerged from her research impressed by what the trial did for the victims’ families, but wary of the impulse to turn the legal process into a public exercise in retribution, even when the crimes being prosecuted seem to demand it. “In some ways,” she said, “we can trip over ourselves if we go big....We can create this set of unrealistic expectations that go unfulfilled.”
With memorials and ritual acknowledgments of Boston’s losses already blossoming everywhere, there will be plenty of opportunities outside the courtroom for the public to come to terms with this month’s tragedy—among them next year’s Marathon, which is sure to be an occasion for remembrance and reflection. But what we’re watching for now will happen inside a courtroom, and what we see there will, in all likelihood, frustrate our sense of public justice. While Dzhokhar Tsarnaev is, in one sense, an unfathomable monster who brought a city to a standstill and disrupted the lives of millions, he’s also just one 19-year-old from Cambridge, and it’s hard to imagine punishing him in a way that would fully convey the weight of what he is accused of doing. “This is a situation that leaves people in anguish,” said Thane Rosenbaum, a professor at the Fordham University School of Law and author of a recent book on revenge. Even if he is sentenced to death, Tsarnaev has only one life to give for all those he took away.
There’s another reason as well, however, to keep our expectations in check: Doing so is a vote of confidence in how our legal system is supposed to work. A trial, after all, is intentionally not designed as an instrument of revenge, or even of healing. It’s designed to allow those who have been harmed to register their complaint and for the defendant to respond to the evidence against him. The more narrowly the process focuses on the facts of what happened, the more likely it is to be fair.
In a sense, the trial itself is our weapon—one that, by its very nature, can never be as sensational, spectacular, or emotionally penetrating as a bomb. “A trial,” wrote UCLA professor Mark A.R. Kleiman in an e-mail, “would show that we as a people know how to deal with murder, whatever the slogans behind it, and that these killers can’t force us to give up our treasured legal system.” Subjecting Tsarnaev to the particular power of our legal system carries its own symbolic victory, in other words, even if it doesn’t deliver the emotional release we might crave: By treating him the same way we treat everyone we prosecute, we will deny him whatever special status he sought in carrying out the attacks.
This requires letting go, somewhat, of the idea that what Tsarnaev did was extraordinary—that in committing his crime, he somehow made victims of all of us. Instead, it suggests that the proper focus now is on the people who actually lost something or someone that day—who were injured, whose lives were directly and immediately changed by what happened. “We can kind of look to these people as proxies,” said Madeira. “If these people get justice—if the survivors get justice—we’ll feel better, too.”