On consecutive days last week, a grand jury indicted Donald Trump, and a small jury sentenced Robert Powers to death. Something about the direct juxtaposition of these two events was on my mind. I can’t really explain it, and unlike my other articles, I don’t have a specific claim I want to prove or an argument I want to make in these 1300 words. It is rather an occasion to reflect on how we use the criminal law and what we hope it achieves. I hope readers will excuse my hesitation in writing.
On one level, the two events seem so different that it would be insulting to compare them. Donald Trump has been accused of attempting to sabotage the democratic process by interfering with the outcome of the 2020 presidential election; Robert Powers was sentenced to death for the murder of eleven worshipers of the Tree of Life Synagogue in Pittsburgh, the deadliest anti-Semitic attack in US history. Even as I write these words, I recognize and acknowledge the obvious differences. But there is something that disturbs me in the way in which both events are conceived in the public domain, or at least seem to me worthy of investigation.
Many people view both cases as a great success. But more than that, they seem to regard them as supreme illustrations Same kind of success. Of course, some might say, it represents a victory for the rule of law. But you can say this about all criminal prosecutions—at least, if you look at the rule of law as a mechanism for punishing lawbreakers—that this alone provides no basis for tying these cases together. What binds them, I think, lies in the common interest that every crime threatens (and every prosecution protects).
Think about the purpose of both assaults. Trump (let’s remember that qualifier) has attacked the democratic process; Powers attacked a synagogue. No other place in American life is sanctified in the same way as ballot boxes and houses of worship. The intertwining of the religious and the secular in American life is an ancient story. Many people assume, for example, that God has specially blessed our political forms and many others treat our shared values and beliefs, including belief in constitutional democracy, with a kind of religious reverence, producing what the sociologist Robert Bella has called. Our civil religion. It is no exaggeration to say that the ballot box and the house of worship (at least, the Judeo-Christian house of worship) are essential symbols of American identity. When a person steps everywhere, they are imagined to be doing something essential to their status as Americans.
Therefore, for many people, the two trials are more than just a criminal trial. In the case of Trump, the adjective “more than” does not require special elaboration. But I think this is also true in the Powers case, which may help explain why the Biden administration has continued to move forward with capital charges originally brought by the Trump administration. In other words, if Powers was just a white supremacist mass murderer (pause to reflect on the fact that in the United States today we have different degrees of white supremacist mass murderers), then I think the Biden administration might have been more inclined to offer him a prison sentence. forever.
This is what I did, for example, with Patrick Crusius, the guy who killed 23 Latino shoppers and injured dozens more at an El Paso Walmart in 2019. Crusius, like Powers, was lured by white supremacist nonsense. Crosius, like Powers, began as a potential death penalty trial during the Trump administration. However, the Biden administration allowed him to plead guilty in exchange for 90 consecutive life sentences. One explanation for this difference might be that the US government assumes that there is something particularly egregious about killing shoppers because of their religion, which cannot be said about killing shoppers because of their ethnicity.
(I could certainly be wrong about this. The Biden administration may have allowed Crosius to plead guilty simply because it understands that he will likely be sentenced to death and ultimately executed by the state of Texas, which would mean a federal death trial would be unnecessary. By contrast, For Robert Powers, this outcome is much less certain, and although Pennsylvania retained the death penalty, it did little. Three people were executed Since the death penalty was reintroduced in 1976, it currently has the death penalty Stop executions. So, perhaps the death sentence in Powers’ case has nothing to do with him killing the congregation, but rather with the desire to see him executed. by someone.
That question will be settled when the department decides whether to offer a life sentence to Payton Gendron, the young man who killed 10 African-American shoppers in a Buffalo grocery store. On the one hand, his crime is almost indistinguishable from that of Patrick Crusius, which may indicate that the Biden administration may offer him a life sentence. On the other hand, there is no death penalty in New York, and Gendron was already sentenced to life in prison in state court, which may make Gendron more like Powers.)
But assuming that the United States views attacks on democracy and worshipers as qualitatively different from other crimes – that is, as if they were not only illegal, but also an attack on national identity – then criminal law is resorted to to protect and enforce the crimes committed. It means to be American. Even more so for other crimes, the crimes in which Trump and Powers are implicated are socially understood as attacks on “we,” or perhaps “ourselves.” At the very least, this qualitative difference should be reflected in one way or another in the sentence. The only appropriate punishment for an attack on us is to expel us.
Perhaps this is the crux of the matter. The death sentence against Powers and the indictment against Trump are attempts to spread criminal law to achieve what can be conceived of as a particularly urgent ritual social cleansing. It is not enough for Powers to be convicted and sentenced to prison for the rest of his life. It must be cleansed. He attacked what it means to be “us” and therefore cannot be allowed to remain a part of us, even behind bars.
And although the case against Trump is not a capital offense, if we’re being honest, at least part of its social meaning is to make him politically dead — purging him of the body politic. We discovered this motive, for example, in Keen speculation Conviction in the new case could deprive Trump of the presidency. Section 3 of the Fourteenth Amendment denies public office to anyone who “engages in insurrection or rebellion” against the United States, “or renders aid or comfort to its enemies.” great a lot commenters They began discussing whether the provision would bar Trump if he was convicted of the new charges. Even if convicted, prison is not on the table for Trump because of his Secret Service details. But at least for many people, prison is not the goal. The goal is to impose a kind of social and political negation. They want him gone.
Robert Powers has committed a terrible crime and must be punished. Donald Trump (if convicted) has committed a qualitatively different but equally serious crime that must be punished. Ultimately, however, the purpose of punishment is reinstatement, not expulsion. I do not believe in expelling people, no matter who they are or what they have done, and I am particularly appalled when the criminal law is used as a weapon to create and strengthen social cohesion. No criminal case should have the social or legal power to determine who is a member. This gives the law an authority it does not deserve and never acquired. Worse still, it steals that power from society—from all of us—and only we can exercise it.