Several weeks after the harrowing events that engulfed the Boston Marathon this year, Dzhokhar Tsarnaev is set to face in federal court two counts that encompass the scope of his barbarous acts: one count of using and conspiring to use a weapon of mass destruction resulting in death, and one count of using an explosive device in the malicious destruction of property. He will and should be tried in federal court for this act of terror, but that reality should not allow Massachusetts, a state well equipped to try terrorism cases, to be excluded from the scene.
A Massachusetts Jury Should Have State Law at Its Disposal
While innocent until proven guilty, the younger Tsarnaev was found in large part thanks to the FBI’s diligent work in using surveillance cameras and photographic evidence. The odds of acquittal here appear slim. Although there certainly is a federal case to be made against anyone who uses a weapon of mass destruction to kill Americans, the people of Massachusetts should have their day in court, too—especially given the legal infrastructure in the state against terrorism.
Massachusetts State Law is Armed to Fight Terror
In the wake of the heartbreaking events of September 11, 2001, the Massachusetts legislature convened and passed an anti-terror bill a year later. The statute, An Act Providing Against Terrorism, amends a number of areas within the statutory code to allow for broader definitions various items. It puts tighter restrictions on fireworks manufacturers, adding provisions for “hoax substances” in addition to explosive devices. It also provides for incarceration of individuals for use or development of biological, chemical, or nuclear weapons. The relevant provision in this case, should prosecutors choose to go forward, would be section 148 of the General Laws §12, which, after this amendment, reads: “No building or structure shall be used for the manufacturing or storage of explosive materials without a permit issued by the marshal.” There is certainly no reason to believe that the Tsarnaev household had a permit to be manufacturing explosives. With that clear, this provision allows for, in the event of conviction, two years imprisonment or $5,000 in fines just for having one explosive. The provisions also allow for a charge to someone who causes another to believe that an explosive device is in a public area—a potential charge depending on what authorities discover about the recently arrested associates of Dzhokhar Tsarnaev.
Beyond Terrorism: Murder Charges
But these provisions are merely proof that Massachusetts’s legislators intended to provide for the judiciary to be able to handle such complex terrorism cases. That does not make their intent that this be the exclusive means of prosecution. Here, the major crime to be tried is the murder of several individuals, children, and the battery of nearly one hundred more. These charges are state charges, and as such will not get to go before a federal jury. There may not be a significant difference in outcome here, but symbolically, there appears to be no reason to deprive the people of Boston the chance to try Tsarnaev for mass murder.