Most Americans would not have any question about charging Dzhokhar Tsarnaev with several federal crimes for the Boston Marathon terror attack. However, the rationale for actually treating this crime as a federal one is rather complicated.
Tsarnaev has been accused of bombing the Boston Marathon. He was formerly charged yesterday with two federal crimes. The first was using a weapon of mass destruction, and the second was the malicious destruction of private property that caused death.
The charge on the weapon of mass destruction includes a possibility of being sentenced to death. This is something that prosecutors could not seek under the laws of Massachusetts. The state abolished capital punishment 30 years ago.
There is no doubt that the attack was terrible and most likely was committed with the idea of terrorizing the population. People are sickened and outraged. But these facts are not enough to make it a federal crime.
There are thousands of acts that are federal crimes, but not every terrible, violent act will qualify as a federal crime. What most federal crimes have in common is that the crime had an effect on interstate or foreign commerce.
The US Supreme Court ruled in US vs. Lopez that the connection to commerce was a real limit on an expansion of federal criminal law. It stated that Congress had overreached in passing the Gun Free School Zones Act. The reasoning is that the possession of a firearm near a school is a matter for the local government. The federal government did not show that having a gun in a school had an effect on interstate commerce.
The law under which Tsarnaev is being charged for the first count - use of a weapon of mass destruction - was made law in 1994 as part of the Violent Crime Control and Law Enforcement Act.
When the law was passed, it was the biggest federal crime bill ever. It had federal funding for new police officers and prisons, and many new crimes were described, including crimes related to sex crimes, gangs, terrorism and immigration.
The WMD part of the law is very specific on interstate requirements. A person is only guilty of violating this part of the law if he goes out of state or out of the country as part of the plot, or the mail is used, or the offense has an effect on interstate or foreign commerce.
There is not much evidence to date that Tsarnaev, who is a resident of Massachusetts, did any extensive amount of traveling to carry out the Boston bombing. Rather, the prosecution is going to pin the charge on the concept that the attack had a major effect on interstate and foreign commerce.
Here is how the FBI is making its reasoning. The Marathon has a major effect on interstate and foreign commerce. The runners and their families will usually spend tens of millions of dollars at hotels, shops and restaurants every year. Also, many of the stores and restaurants near the finish line have many special events for people coming to the event.
The other charge is the deadly destruction of property. Under the law, a federal crime occurred only if the property that was destroyed was used in interstate commerce. There was much business nearby where the bombs went off, including hotels and restaurants, so that is almost certainly plenty to charge the suspected bomber with a federal crime.
It may seem strange to the layman that the surviving bomber will be charged mainly in how the bombing affected interstate commerce. However, that is how federal prosecutors are able to charge him with a federal crime and to seek the death penalty.