The benefit of the doubt: Why we give it to the worst of us

A friend of mine from my hometown asked me this yesterday: “Why don’t you write about this? If we’ve got Tsarnaev on film planting a bomb and shooting at police officers, he should be made to talk by any means necessary and then executed. We know he’s guilty, so why should we waste tax money on a trial?”

I don’t mean to set my friend up as a straw man proponent here. He’s a good husband and father, an honest businessman, and a valued member of the community. Like the rest of us, he’s angry and frustrated. Also, I think he raises a fair question. Why is a trial necessary when we already know Tsarnaev is guilty? What are our goals?

Right to a fair trial

The same folks who wrote the 2nd Amendment were also clear on how we should treat criminal defendants:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury… nor be deprived of life, liberty, or property, without due process of law….” U.S. Const. amend V

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI

Keep in mind that these amendments were ratified in 1791, which means they were born of revolution. The framers were reacting to overzealous prosecutions by the Crown. They were rejecting the inquisitorial system, where guilt is determined by the court’s interrogation of the accused—in favor of accusatorial system, which requires the State to prove its case. 

Innocent until proven guilty

Generally speaking, in any court case, the party who is making the accusation must prove that the accusation is true. In a civil case, if I sue you for breach of contract, say, it’s my responsibility to prove that we had a contract, that you breached the terms of the contract, and that you damaged me in doing so.

Similarly, in a criminal case, the government—also known as the People, you and me—is bringing the suit. Until we make our case against the defendant, who is presumed innocent. While this idea sounds uniquely American somehow, it is an ancient concept of jurisprudence—with roots in the Bible, the Magna Carta, and the sixth century Roman Digest of Justinian. Many modern nations have embraced it as a fundamental ideal of procedural fairness—including, it should be noted, Iran and Colombia.

In many cases, such as Tsarnaev’s, this requires us to suspend disbelief. The right to life, liberty, and property are so important to us as a society that we are unwilling to deprive Tsarnaev of these things unless we clear some very high due process hurdles. We’ve got to be sure.

Beyond a reasonable doubt

Similarly, we’re not just asking ourselves to show that a criminal defendant is guilty—we’re holding ourselves to the highest possible standard of evidence. We’re asking the prosecution to overcome the presumption that the defendant is innocent beyond a reasonable doubt. In other words, has the prosecution proven that the only logical conclusion for a reasonable person to make—based on the facts before the court—is that the defendant committed the crime?

In contrast, civil cases have lower standards of evidence. Depending on the matter, we may ask the plaintiff to prove something by “clear and convincing evidence” (more highly probable such that we can have a firm belief in its truthfulness) or by a “preponderance of the evidence” (more likely true than not). (Now you know why O.J. Simpson was acquitted at his criminal trial but found “responsible” at the civil trial.)

“Beyond a reasonable doubt” is a high standard, of course, but we’ve decided as a society that it’s better to release a guilty person than to imprison an innocent person. See In Re Winship, 397 U.S. 358 (1970) Again, we’ve got to be sure. Our commitment to due process requires it.

What are we trying to prove?

Now that we know that we’re required to prove Tsarnaev’s guilt beyond a reasonable doubt, what exactly are we trying to prove?

We’re already pretty sure that Tsarnaev is a bomber, a terrorist, a bad citizen—perhaps a terrible person, a loser, a sociopath.

All of these things may be true, but the law demands specificity and clarity. Fifth Amendment due process requires that a law must be specific enough so that those who are expected to follow it can understand what the law asks of them—and what it means to violate it. See Connally v. General Construction Co., 269 U.S. 385 (1926).

A criminal statute must define explicitly what conduct is prohibited; otherwise, it is “void for vagueness.” This requirement promotes equal justice under the law—the police can’t show up at your door and arrest you for being a “troublemaker,” “agitator,” “Communist sympathizer,” etc. The law must have been drafted by the legislature—without a specific person or group in mind—and must spell out the elements of the crime. This promotes due process and prevents arbitrary application.

Elements of the crime

All statutes are said to have “elements.” They can be broken down into a list of requirements for breaking them, and all elements must be met or the statute has not been violated.

For example, common law residential burglarly is defined as: “Breaking and entering the dwelling of another with intent to commit a felony therein.”

The elements, then, are:

1) Breaking

2) And entering

3) The dwelling

4) Of another

5) With intent to commit a felony therein

If you haven’t done ALL of these things, you haven’t committed burglary. (You may have committed other crimes, such as trespassing, theft, breaking and entering, etc., but not residential burglary.)

To take this concept to its ridiculous conclusion, this is what constitutes residential burglary:

            1) Breaking (the door can’t be standing open)

            2) And entering (Even if you just stick your arm through the window)

            3) The dwelling (Not a commercial building, say)

            4) Of another (Can’t burglarize your own home!)

            5) With intent to commit a felony therein (Can’t mistakenly enter the wrong house; it’s got to be on purpose. Also, contrary to popular belief, burglary doesn’t require theft—any felony will do.)

If you’ve done every single one of these things, congratulations; you’re a burglar. Seriously, though, no reasonable person could read this statute and fail to understand what it means to commit burglary.

If the prosecution can prove to a jury beyond a reasonable doubt that the alleged burglar’s actions have met all of these elements, the government has met its due process requirements and can proceed with the business of depriving the criminal of his freedom.

Tsarnaev’s crimes

So far, the federal government has charged Tsarnaev with the following crimes (the State of Massachusetts will charge him with a separate set of crimes based on their state’s law):

(NOTE: I’m omitting the parts of the statutes that do not apply OR are not in question.)

1) Use of a weapon of mass destruction 18 U.S.C. § 2332a(a)

“…A person who, without lawful authority, uses… a weapon of mass destruction

…against any person or property within the United States…

...shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for… life”

2) Malicious destruction of property resulting in a death 18 U.S.C. § 844(i)

            “…Whoever maliciously damages or destroys… by means of fire or an explosive, any building, vehicle, or other real or personal property… if death results to any person… shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.”
 See how the elements of these crimes are clearly stated? Anyone can read these statutes and understand what it means to violate these laws and what penalties await those who do. Now, the prosecution can use those videotapes, witnesses, etc., to prove these elements beyond a reasonable doubt. Once you’ve read the elements of the crimes, though, you can see how specific they are—and how far away we are from the very general statement of: “He killed people with a bomb.” The punishment fits the crime My friend is right in this respect: With the wealth of evidence that we have against Tsarnaev, proving that he violated all of the elements of these laws shouldn’t be too difficult. Still, before we impose the maximum penalties (life in prison or even death), we’re going to go one step further and decide what the punishment should be. Should Tsarnaev be sentenced to life in prison or death (be deprived of his 5th Amendment rights to “life, liberty”) or is there any reason to impose a lesser sentence? In other words, are there mitigating circumstances? In this case, frankly, probably not. Tsarnaev is not mentally ill, mentally disabled, underage, etc. While he was probably influenced by his older brother, the influence likely didn’t rise to the level of coercion or duress. In rare cases, we make allowances for criminals who didn’t know any better or couldn’t help it, but Tsarnaev appears to be more like the guy who steals for the sport of it and less like the guy who steals a loaf of bread to feed his starving children. A moot point? It’s too early to speculate, but the case may not go to trial. Most criminal cases don’t. One possible outcome: The prosecution may approach the defense and offer to spare Tsarnaev the death penalty if he pleads guilty and accepts life in prison without possibility of parole. Given the nature of the crime, the high quality of the evidence against Tsarnaev, and the likelihood of a death sentence, he may choose to bargain for his life. As my friend would likely say, at least he was given that choice. It’s a shame his victims were not.