Junk Psychology and Courtroom Islamophobia: A Breakdown of Motive as Presented in the Tsarnaev Trial

I’ve been thinking a lot about motive lately.

When I was in school for creative writing, I was taught all characters need motivation. Without it, they act in wanton and unbelievable fashion, and you will lose your readers because depicted events just won’t feel “real.” That’s the trick to being a good fiction writer: you have to understand the human condition well enough to simulate how things would happen, even if they haven’t happened at all. Characters have to make choices, and need to have good reasons present – in their environment and in their minds – in order to pick the inevitable choice for the furtherance of the plot. It’s a common mistake in beginning writers to force characters along a plot trajectory without proper motivation simply because the writer wants or needs them to do so. It results in a sloppy, artificial narrative that offends readers because we all know, consciously or not, that people just don’t act that way.

I say all this because this is precisely the mistake the prosecution made when they presented a motive for Dzhokhar Tsarnaev.

The process that motivates humans to action tends to be more complicated than you might think.

I promised I would continue writing about Dzhokhar’s case, but as this summer wore on, I found myself struggling to find a good starting point. There are so many issues on so many levels that, for awhile, it all seemed too overwhelming to tackle. But as I tried to let the dust settle on the trial and its harsh verdicts, my mind would circle the whole debacle like a vulture, trying to find its fatal core. In the end, I always came back to one element.


The Single Most Important Thing

This case, as messy and tragic as it is, hinges entirely on Dzhokhar’s motive. The prosecution and defense didn’t disagree on the hows, but the whys. Yes, he was involved, but why?

Some might say it doesn’t matter, that murder is murder and a terrorist is a terrorist. I would congratulate them, because I know that means they undoubtedly sleep better at night than I do. But neither is true, on a variety of levels, particularly legally. Murder, for instance, is not simply murder: there are several degrees of murder, all pointing to different levels of culpability and appropriate punishment. There are also times when legally, killing another human being isn’t murder at all. A person can be found not-guilty on grounds of self-defense, insanity, or – the all-important condition to this case – duress. (Legally, a terrorist is not simply a terrorist either, but the implications of this are far murkier and, as I have learned, not well-defined.)

Here’s why motive is so important to this case: it changes, entirely, the nature of the crimes. If Dzhokhar wanted to commit the bombings, if he was eager to end human life, giddy to maim and traumatize, then he’s guilty, unequivocally. He’s worse than guilty; he’s beyond the pale – evil, a monster, less than human. Something so abhorrent is easy to want to put out of its misery, which is why the prosecution, in pursuit of the death sentence, pushed this narrative so hard.

But what if he didn’t want to be involved?

As I have discussed in a previous post, I believe there are valid, troubling reasons why the defense wanted to offer a duress defense but were either afraid to, or weren’t allowed to. Instead, they had to frame their argument in more watered-down terms, stating Dzhokhar acted under the “influence” of his brother. I’m not going to revisit those reasons here, but for the purposes of this post, I’ll go ahead and say that this is indicative of duress, even though it was never officially stated. The fact remains: either he wanted to be involved, or he didn’t. Crimes of this magnitude simply don’t allow for halfway.

At trial, two versions of Dzhokhar’s motive were presented. The defense described him as a reluctant accomplice due to, while not excusable, at least understandable circumstances – love of his brother and an obligation to listen to his eldest sibling, instilled by the cultural upbringing of a Chechen family. The prosecution offered something different: that Dzhokhar acted eagerly and of his own volition with no outside influence (of his brother or otherwise) because of one reason: radicalization. Not just radicalization, but self-radicalization. In short, nothing pushed him along this path; he wanted to become an evil monster, so he sought out the materials that would turn him into an evil monster, took them to heart, and acted accordingly.

I have been vocal about this before, and I will continue to be: I just don’t buy this. Not only does it fly in the face of all accepted human psychology, but it reads like the pages of a poorly written paperback thriller. The prosecutors lost me as an audience with this explanation and never got me back. In fact, it shocked me that the jury appeared to believe it so readily – in the sentencing poll, nine of twelve stated they believed Dzhokhar still would have acted if Tamerlan had been removed from the picture.

The inherent injustice present in a skewed story told about someone unable to properly speak up for himself – and worse, for the few scraps of truth to fall upon deaf ears – disturbs me on such a fundamental level I cannot even rightly describe it. I would concede many things in this case if that, at least, had been left alone. It was the drive not only to portray Dzhokhar as a monster, but the eagerness of everyone – jury, media, and the general public – to believe it in the face of so much contradictory evidence that drove me to speak out and start looking into what could have really happened. Along the way, I became obsessed with the idea of what I would have done if the courtroom was mine and I could present the argument I wanted. In the last few weeks, this has become a thought experiment for me, in an attempt to give Dzhokhar a fair venue, even if it exists only in the confines of my mind. I asked myself: could I, using the evidence and testimony that was given at trial, disprove the prosecution’s theory of motive and accusation of radicalization?

The answer is yes, I can. And doing so illuminates not only the illogic of the junk psychology involved, but reveals exactly how much anti-Muslim prejudice was allowed to run rampant inside the Boston federal courthouse this spring.

The Non-Existent Legal Standard of Radicalization

If you’ve been reading my previous posts, this talk of radicalization probably sounds familiar. Shortly after the death sentence verdict came in, I wrote a long entry about my observations in the courtroom and my conclusion that the trial, start to finish, was inherently biased; Dzhokhar did not receive the fair chance he is guaranteed as an American citizen. I talked about radicalization then as well, but it is so crucial to the heart of this matter I believe it warrants an even closer look. Previously, I defined radicalization on a psychological level, referring to a book written on the subject by experts. I went through each defined “mechanism” to radicalization to explain why I did not think Dzhokhar had been truly radicalized. I’m not going rehash that argument either (you can review it here under “Part Three”), but I would like to reiterate radicalization’s definition by the psychologists Clark McCauley and Sophia Moskalenko:

Radicalization is the development of beliefs, feelings, and actions in support of any group or cause in conflict… Radicalization is not something that happens only to others – the mentally ill person or the evil character. It is a psychological trajectory that, given the right circumstances, can happen to any person, group or nation. The trajectory is not right or wrong: it is amoral in the sense that radicalization can occur for causes both good and bad. (4)

I repeat this because it is the best and clearest explanation of radicalization I have found, written by psychologists studying the phenomenon for years, who illustrated their argument with several case studies. In their book Friction, published in 2011, they cite not only recent examples but return all the way to nineteenth century Russian revolutionaries, from which the term “terrorist” was first coined.

Admittedly, this sort of psychology is extremely cutting edge: there is still a lot we don’t know. That being said, in lieu of actual psychological information, the word “radicalization” – along with other blanket terms like “terrorist” and “jihadist” – have been tossed around casually since the early 2000s, by law enforcement, prosecutors and the media without any regard for what they actually mean. So too was radicalization used in this case to explain Dzhokhar’s motive. Why did he do it? Oh, well, he was radicalized. Done and done, no need to look further into his psyche, his environment, or his emotions. Radicalization, the prosecution asserted, superseded all of that, making him into a terrorist thirsty for blood. In fact, for a word meant to encompass the entirety of his motive, the government offered no meaningful definition of it. When they asked their expert witness to describe radicalization, he only stated that it happens when you “adopt radical ideas and then do something about them”(Boston Globe). He gave no explanation as to what constitutes a radical idea, thus leaving it upon the death-qualified jury – already statistically likely to be more conservative and trusting of the government than your average citizen – to draw their own conclusions.

When I was discussing all of this with my father a few weeks ago, given his lawyerly sensibilities, he posed this question to me: “Is there a legal standard of radicalization?”

He explained that in law, there are uniform standards that are put in place so that it can be determined if each case meets them, so as to ensure that the law can be applied fairly and equally. For example, there is a legal standard of insanity, so that if a defendant, such as in the recent James Holmes case, claims innocence on account of mental illness, there is a standard that needs to be met in order to deem said defendant unaccountable for the crimes. The Legal Information Institute at Cornell University covers the history of the insanity defense, but consider the most recent terms of the standard put forth on the federal level:

The federal insanity defense now requires the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts” (18 U.S.C. § 17).

Definitive standards are put forth here: it must be evident through provable facts that the defendant not only suffers from a mental disorder, but that it caused him (or her) to be unable to understand right from wrong. Obviously there is still a lot that can be argued – having a diagnosable disorder, for instance, does not automatically mean you are rendered morally defunct – but at least there is a rule in place that draws a clear line. My father wondered, since so much attention was placed by the prosecution on Dzhokhar’s radicalization, if there must be a legal standard of such they needed to reach in order to prove he was willingly involved with the crimes.

This sounded so logical, measured and fair – qualities I have learned through experience not to expect from this case – that I thought I might already know the answer. “Probably not.”

“See if you can find out,” my father said. “I’d be interested to know.”

If I could figure out what the legal standard of radicalization is, maybe I could prove that justice is blind… or not as blind as it should be.

I realized I would be, too. If I knew exactly what radicalization meant on the legal level, I could weigh the evidence in the case against it, and prove for certain whether Dzhokhar met the criteria needed in order to be definitively called a “terrorist” and a “jihadist,” labels applied to him from the moment he was first identified as a suspect. This sent me on a quest through scholarly legal articles and government documents, all in the pursuit of one clear, simple definition of radicalization as applied to the law.

Perhaps unsurprisingly, the answer is no, there is no legal definition. In fact, my findings were even more unsettling than learning evidence of Dzhokhar’s motive was measured against a non-existent rule containing an arbitrarily decided-upon definition. Although the aspects of radicalization have been studied by psychologists, law enforcement counter-terrorism practices since the early 2000s are based not on expert findings, but their own internal and limited intelligence assessments. These practices have been thoroughly criticized for racial and religious profiling of Muslim-Americans, but are still in use today, despite widespread concerns about their ineffectiveness. Prosecutors rely on these standards as well, explaining why in Dzhokhar’s case, in lieu of actual involvement in the conspiracy to commit the bombings, the government almost exclusively presented evidence of his religion.

Let me say that again: because of well-established discriminatory practices among government agencies, the prosecution tried to pass off evidence that Dzhokhar is a Muslim as evidence that he intended to commit acts of terrorism.

And it worked.

Defining the Undefinable 

While I couldn’t find anything that set forth a legal standard of radicalization, I did find scholarship discussing the hazards presented by not having one. In December 2013, Amna Akbar published the article, “Policing Radicalization” in the UC Irvine Law Review, and her analysis has become essential to my understanding of this issue. Akbar, a law professor whose specialities include national security and its impact on criminal law, takes issue with the strategies put in place by the authorities to combat terrorism. Right away, she addresses the lack of an agreed-upon definition of radicalization:

There is no singular, official, government-wide understanding of radicalization. Indeed, more often than not, government officials and documents refer to “radicalization,” “radical” and “radicalized” Muslims, “radical Islam,” “violent extremists,” and so on, without explanation of what precisely these terms mean. Importantly, however, these references assume causal connections between radicalism, extremism, Islam, and terrorism. (814)

What this does, Akbar explains, is put undue pressure on Muslim communities, because the government has assumed, without conducting proper studies or consulting experts, that radicalization to terrorism is fostered within these communities. This has created a damned-if-you-do, damned-if-you-don’t effect on Muslims in America, who have found themselves under surveillance and regarded with a general sense of distrust by law enforcement. Akbar adds:

Herein lies the larger problem with radicalization. While in some ways it offers only a thin veneer over suspicion of Muslims and Islam (or conflations between Muslims, Islam, and terrorism), the veneer is thick enough to change the terms of the debate. Law enforcement’s concern with mosques, antiwar sentiments, hijabs, and niqabs is now cloaked in expertise about the process by which Muslims become terrorists. In a colorblind world where intent defines our understanding of discrimination, the language of justification for government action can make all the difference. (817)

To return to McCauley and Moskalenko’s definition, it should be noted that religion plays no part in the trajectory of radicalization. It is a condition of humanity, not any particular religious or ethnic group. Treating it as a problem with Muslims, as the American government has, can only result in unfair profiling and faulty grounds for arrest. This is the thrust of Akbar’s argument.

She cites in particular two government-issued documents that have become the cornerstone for counter-radicalization policing in post-9/11 America. One is a twelve-page FBI report entitled “The Radicalization Process: From Conversion to Jihad,” issued in 2006. The other is a much longer assessment, published by the NYPD in 2007, called “Radicalization in the West: The Homegrown Threat,” written by analysts Mitchell D. Silber and Arvin Bhatt. Akbar is highly critical of both. About the FBI assessment, she says,

In addition to proposing what on its face seems a reductionist view of how someone might decide to commit any crime—let alone a crime of great magnitude—the twelve-page document includes almost no citations, sourcing, or indication of methodology. (820)

Despite Akbar’s astute criticisms, I tracked down the documents, hoping that reading them would at least give me an understanding of the government’s take on radicalization, and how it might have shaped the prosecution’s theory of Dzhokhar’s case. I thought that since there is no legal standard of radicalization, I could use these documents to craft a theoretical one, and use it as a standard against which to weigh the evidence that had been presented at trial.

I soon realized, however, that this was impossible, because neither document defines radicalization in any useful way.

The FBI’s practically worthless chart on the trajectory of radicalization.

Consider this chart included in the FBI’s assessment, which summarizes their hypothetical “phases” of radicalization. I could not get past the “pre-radicalization” phase, since it seems to preclude everyone who has a pulse. If the opportunities for radicalization occur on the internet, in schools, workplaces, places of worship and prisons, the inevitable conclusion is that to avoid the risk of being radicalized, one would have to never leave the house, and certainly never turn on a computer. I’m also not sure what the purpose of including the “Stimulus” section was, as “self” and “other” cover every single possibility. I realized that if I wanted to use this as a measuring stick, I would be reduced to posing the question, “Did Dzhokhar spend most of his life prior to the crimes locked in a closet?” Since the answer is no, then yes, I guess he was at risk for radicalization. But it also means that I’m at risk for radicalization, and you’re at risk for radicalization, and everyone we’ve ever met is at risk for radicalization.

I could, perhaps cynically, also state that the FBI’s assessment makes a presupposition that it is only Muslims living their everyday lives who are at risk for radicalization – indeed, as they list examples of employment opportunities as “bookstores, halal meat markets, and so forth” and academic opportunities as “Islamic groups on campus”(7). However, the document also has the curious habit of referring to those who are radicalized as “converts” and makes specific references to newcomers to Islam. Therefore, the larger implication is that everyone is at risk for radicalization, whether they started out as a Muslim or not. While this continues to unfairly point the finger at Islam as essential to radicalization, it also makes it even more useless as a measuring tool.

I moved on to the NYPD document, which is almost one hundred pages long and has a defined authorship: Mitchell D. Silber and Arvin Bhatt, credited as “senior intelligence analysts.” I hoped that the detail involved would provide a better picture for the standard of radicalization I needed to craft. Unfortunately, in terms of actually defining the phenomenon, it was even less helpful. Which should hardly be surprising, as it was revealed in 2012 that departments using this intelligence failed to generate a single lead on terrorism. But upon reading it, an eerie sense of familiarity settled over me. I realized that in following Dzhokhar’s case, I had seen all this before – and not because the profile set forth by the NYPD had any accuracy to it. However, I now suspect that the prosecution either consulted this document directly, or with government agents who have been operating off of its flawed findings.

The even less useful radicalization chart in the NYPD report.

In her own article, Akbar spends a good deal of time identifying the major problems in this assessment. For example, Silber and Bhatt  have also divided radicalization into four major steps: “pre-radicalization,” “self-identification,” “indoctrination” and “jihadization.” Once again, in the pre-radicalization phase, nailing down any specific signals – aside from being Muslim – becomes difficult. About this, Akbar says:

Rather than articulate anything nearing a description of a discrete stage in a multi-step process, the report defines preradicalization’s circumference as spatial and cultural, gendered, classed, and aged. The immigrant Muslim neighborhood becomes a site of suspicion. Silber and Bhatt hypothesize that “[m]iddle class families and students” are of greatest concern, including “the bored and/or frustrated, successful college students, the unemployed, the second and third generation, new immigrants, petty criminals, and prison parolees.” (834)

As in the FBI report, this rules out almost no one, although it is focused more specifically on those who are Muslims due to heritage and not recent converts. In particular, young Muslim males are singled out, although the age range, 15-35 years old, is still hardly specific enough to establish a useful theory about patterns of behavior.

Moving ahead to the second stage, things start to veer even more off course. Silber and Bhatt attempt to explain the motivating factor to radicalization, which Akbar immediately calls out as being inaccurate:

The second stage, “self-identification,” involves gravitation toward “Salafi Islam” and a “Salafi mosque.” (In the United States, Salafism tends to be understood as a homogeneous “fundamentalist” strain of Islam—indeed the primary strain of concern. To the contrary, Salafism is a mode of interpretation with various geographical and historical iterations.) (835)

Indeed, the NYPD document refers consistently to something called “jihadi-Salafi ideology” as the root cause of homegrown terrorism in the Western world. Silber and Bhatt put it in these terms:

What motivates young men and women, born or living in the West, to carry out “autonomous jihad” via acts of terrorism against their host countries? The answer is ideology. Ideology is the bedrock and catalyst for radicalization. It defines the conflict, guides movements, identifies the issues, drives recruitment, and is the basis for action. In many cases, ideology also determines target selection and informs what will be done and how it will be carried out.

The religious/political ideology responsible for driving this radicalization process is called jihadist or jihadi-Salafi ideology and it has served as the inspiration for all or nearly all of the homegrown groups including the Madrid 2004 bombers, the Hofstad Group, London’s 7/7 bombers, the Australians arrested as part of Operation Pendennis in 2005 and the Toronto 18, arrested in June 2006. (16)

Aside from the fear-mongering present in the authors’ opinion that ideas by themselves are dangerous, the lumping together of Jihadism and Salafism as synonymous is, as Akbar pointed out, factually inaccurate. Their claim about deadly ideologies is quite bold when they are unable to identify what they are. It is worth noting what the differences are and how they relate to each other. Indeed, considering Dzhokhar himself has been labeled a “jihadist,” I think, at the very least, we should know exactly what the word means.

To define Salafism and Jihadism, I turn to the scholar Reza Aslan, who has two degrees in Religious Studies and a PhD in Sociology, in which his dissertation focused on Global Jihadism (the longer name for Jihadism; both names are, in this case, synonymous for the same movement). In his book How to Win a Cosmic War: God, Globalization, and the End of the War on Terror, he discusses several Islamic movements, including Salafism, and how they eventually gave rise to Jihadism. He explains:

Jihadism is a relatively new phenomenon. Jarret Brachman, the director of the Combating Terrorism Center at West Point, traces its current incarnation as a global force to about 2003, though its roots go back to an early-twentieth-century Islamic revivalist movement known as Salafism (the term salaf refers to the original Companions of the Prophet Muhammad). Salafism began as a progressive movement in colonial Egypt and India whose adherents advocated reform and liberalization of traditional Islamic doctrine. The movement was founded upon the writings of two of the century’s most renowned Muslim intellectuals, the Iranian scholar/activist Jamal ad-Din al-Afghani (who began his career in India) and the Egyptian reformer Muhammad Abdu. Al-Afghani and Abdu believed that the only way for the Muslim world to throw off the yoke of colonialism and push back against Western cultural hegemony was through a revival of Islam. These “modernists,” as they were called, blamed the clerical establishment – the ‘ulama – for the sorry state of Muslim society. They sought to challenge the clergy’s self-proclaimed role as the sole legitimate interpreters of Islam by advocating an individualized, unmediated, and highly personal reading of the Qur’an and the Hadith (the collected sayings and actions of the Prophet Muhammad). (24-25)

Right here it becomes evident that Silber and Bhatt’s term “jihadi-Salafi ideology” makes no sense, as it is asserting that jihadists are adhering to a movement that began in the early 1900s, which addressed a specific political conflict in a specific geographical location: Egypt and India, in response to Western colonialism. This is simply not the case. The strict interpretation of Islamic doctrine (which is also a recent one, throwing off the suspicion that is now so commonly cast on Islam as a traditionally violent and oppressive religion) of the Salafis has inspired the Jihadist movement of today, but by no means are they interchangeable.

The West would like to think all Islamist, Salafist and Jihadist movements are the same, but they actually look more like this. Click image for more info.

So Salafism isn’t Jihadism, but what is Jihadism? Again, enlightenment on this movement comes from Reza Aslan. He defines it as follows:

Despite its fixation on jihad, Global Jihadism is less a religious movement than it is a social movement, one that employs religious symbols to forge a collective identity across borders and boundaries. Social movements arise when relatively powerless people band together under the banner of a collective identity in order to challenge the existing social order. Such movements are, almost by definition, utopian in character, in that they are fervently engaged in reimagining society. This is particularly true of so-called transformative social movements, such as Global Jihadism, which seek a complete upending of the social order through violent revolution, often in anticipation of cataclysmic global change. (Xvii – xviii)

Herein lies the fatal flaw with current American domestic counter-terrorism measures. In assuming the problem lies within the Muslim community, they have failed to see the bigger picture. Jihadism has nothing to do with actual Islam. To place suspicion on Muslims, and to define their inherent behavior as signs of possible radicalization, is missing the point entirely. It isn’t those who are religious who are vulnerable to the Jihadist movement. It’s people who, due to a slew of factors in their everyday lives, are looking for answers. It’s the same type of psychology that lures people into joining cults – this cult just happens to be wearing the mask of a major world religion.

Islamophobia in the Courtroom, Part I: The Unfathomable Terrorist

I find it unacceptable that none of these measured explanations from experts made it to the courtroom for Dzhokhar’s trial. Instead, the case against him was built on one faulty definition after another. Through them, it was purported that Dzhokhar was an adherent to the Jihadist movement, and evidence of his religion was presented as sufficient to prove that he was radicalized enough to willingly commit acts of terrorism. The standard of radicalization given – “you adopt radical ideas and then do something about them” – was so vague that it left the jury to decide for themselves what it all meant. Considering their demographic skewed toward white, older, and most likely non-Muslim, it’s probably inevitable that they took the prosecution at their word.

So what exactly did the prosecution tell them?

While I believe the NYPD assessment laid the template for their case, interestingly the erroneous term “jihadi-Salafi ideology” never made it into the courtroom. However, “Global Jihadism” and “radicalization” did. On March 23, the prosecution called a witness, Matthew Levitt, to define the phrases and discuss the cache of “extremist materials” found on Dzhokhar’s computer. Levitt holds a PhD from Tufts in International Relations, and has consulted the government on terrorism cases before, but his personal specialty is the Israeli-Palestinian Conflict. According to his Wikipedia page, he’s written many books on the Palestinian group Hamas, and also Hezbollah, the Islamist political party and military wing in Lebanon.

While I’m sure Levitt is a knowledgable person, I confess I find the choice to have him testify about Global Jihadism and radicalization baffling, as they are both topics outside his specific sphere of expertise. Organizations like Hamas and Hezbollah are a different beast from Jihadism, as they are tied politically to one geographic area, and have both been integrated into the government structure of those countries in some form. In fact, Hezbollah has long been under debate as to whether it is an actual terrorist organization, only having been added to the EU’s list of such in 2013. Jihadism, as explained above, doesn’t have its roots in politics or religion so much as social ideology, and is considered a worldwide movement without borders or territories.

Because of this, I must evaluate Levitt’s overall usefulness to this case with a critical eye. Let’s start with his explanation of Global Jihadism. Unfortunately, I don’t currently have transcripts for this portion of the trial, but I did return to the Boston Globe’s live tweet coverage to recover the gist of his testimony. According to two separate reporters, Levitt defined Global Jihadism as the following:

[The] Global Jihad movement [is] not a place w[ith] an office, but an idea in which even supporters may disagree on strategy. But they share a need for global effort on behalf of Muslims to unite as a nation to defend itself [and] do through acts of violence. It doesn’t mean we’re talking about an organization. … Once you had to travel to train. The world is flat through social media. You can get your indoctrination… just online. What ties them together [is] ideology… the how, the what they do. You don’t have to have met with an individual or pledged an oath. For most people, the killing of innocents is forbidden… This movement often authorizes killing of innocents as praiseworthy, even a personal obligation, to serve the cause. These types of ideas have motivated a whole host of characters… from groups to lone offenders. (compiled by me from tweets by reporters Patricia Wen and Kevin Cullen)

While this is all technically true, already Levitt is setting up a certain mysticism about Global Jihadism: that it exists somewhere abstract, out there on the Internet, where innumerable quantities of people are indoctrinating themselves with no outside pull. This is simply inaccurate. People seek out social movements like Jihadism because of unfulfilling circumstances in their own lives, and while these circumstances vary, Reza Aslan has a specific take on why young Muslims in the West are particularly vulnerable. He explains clashing ideologies from their parents’ generation with modern society – aided by the general distrust of Muslims by law enforcement and the general public, but more on that later – results in an identity crisis, in which they must choose between being Muslim or being a Westerner. He continues:

The crisis of identity faced by these young Muslims, many of whom feel they belong in neither the West nor the East, drives them to seek out new identities that cannot be contained by any culture or society, that in fact reach all boundaries of race, ethnicity, and nationality. In other words, they seek a deterritorialized identity to match the deterritorialized world in which they live. And they find that identity online. Indeed, thanks to the Internet, the worldwide community of faith that the Jihadists have long envisioned has become a virtual reality. (147-148)

This provides a much more reasoned explanation for why Jihadism might be appealing to a certain set of people. In fact, there’s even a sense of inclusion to it that understandably most humans would find welcoming. This goes a long way to dispel two myths set up by the prosecution at Dzhokhar’s trial: that only inhuman monsters would find this sort of thing desirable, and that we, as regular decent people, are at a loss to ever understand it.

Levitt’s testimony also puts undue emphasis on the ability of “radical materials” – namely the reading, listening and video material found on Dzhokhar’s laptop deemed to be Jihadist propaganda – to cause radicalization. He describes the ideal conditions of radicalization to be a “cognitive opening… which is part personal grievance and exposure to political ideology.” This is already a misleadingly simplistic way of putting it. According to McCauley and Moskalenko’s definition, political ideology is not necessarily a critical component to radicalization (again, see Part Three of this post for a breakdown of their six mechanisms and how they apply to this case). So this statement might not be completely true, but it certainly sets out the welcome mat for the prosecution to parade any political opinion of Dzhokhar’s as a radical one.

Levitt does appear to imply that extremist materials alone aren’t enough to radicalize a person to action – “someone has to be able to hold your hand and pull you across that dividing line” – but he also seems to think that this can still be done entirely online. He described “full-fledged radicalization” as something that can happen “sometimes thr[o]u[gh] [the] Internet,” and that the triggering material “could be a long treatise, could be a Tweet.” He also warns about the evolving propaganda materials of Jihadists: “Ten years ago, mostly theological treatises were put online. Now you have glossy magazines, Twitter and Facebook accounts.” He goes on to correlate Islamic nasheeds, traditional religious songs, with terrorism: “Chants can be devotional, but many groups use them to advocate violent ideas.” He states that “It’s removed barriers to entry,” which I can only assume means that he thinks listening to nasheeds brings a person closer to crossing “that dividing line” to violent action. He apparently considers the same about Jihadist propaganda audio and video files targeting a Western, English-speaking audience: “You can hear people who speak your own colloquial English. That removes barriers to entry.”

Ostensibly, this provides the foundation for the prosecution to conflate the materials on Dzhokhar’s laptop – namely the Inspire Magazine issues, Islamic nasheeds, and Anwar al-Awlaki sermons – as huge factors to his radicalization. On an interesting note, although much emphasis was put on the Anwar al-Awlaki sermons as radicalizing, Amna Akbar specifically names him as a scholar commonly overused by law enforcement on a kind of radicalization checklist, thus throwing the veracity of the prosecution’s claim about him into question:

Consistent with governmental focus on the Internet as a hub for terrorist activity, the FBI and NYPD monitor Internet activity as part of their counterterrorism efforts. This includes monitoring what people consume and post on the Internet about their opinions and activities via email listservs, blogs, websites, and chatrooms. These efforts seem to focus on those who download content by particular Muslim scholars, like the late Anwar Al-Aulaqi; post on Muslim-identified websites or participate in Muslim-identified online chat and discussion forums focused on religious discourse and U.S. foreign policy; and watch “jihadi” videos. (865-866)

Also, this was during the guilt phase of the trial, where the government mentioned Tamerlan as little as possible and the defense was not allowed to bring him up. The jury was given no evidence about where the material came from until the penalty phase, when the defense was finally able to prove it was all dumped there from Tamerlan’s computer, not downloaded independently from the Internet by Dzhokhar. There was also no evidence presented to prove how many times he perused these materials – or if he perused them at all. Considering that they were put there in one fell swoop from Tamerlan, that indicates he had an overwhelming wealth of material to digest, not a collection he stockpiled himself over time. This was in January of 2012, when Dzhokhar was 18 years old, shortly before a school semester started back up, and the very same day Tamerlan left the country for six months. Considering his easily distractible age, his transitioning environment, and the absence of the person wanting him to engage with the material – plus a distinct lack of evidence that he actually did engage with the material – I highly suspect he forgot entirely about them shortly after they were given to him.

But all of that aside, even if Dzhokhar did seek out extremist materials on the Internet – despite his search history showing no evidence of such activities, replaced with sites of social media, cars, anime and porn (yep, normal teenage boy behavior here) – the assertion by Levitt that Internet usage leads to a deeper and faster radicalization has some problems. Regardless, he seems to reinforce this erroneous idea when the prosecutor asks, “Does the length of time that someone consume[s] material make a difference?” to which he replies, “No. Each person [is] different. Time doesn’t matter. Some people only need brief immersion.”

Honestly, I’ve been struggling to make sense of this statement for days. I confess having to rely on media approximation of testimony is less than ideal, and I would like to give Levitt the benefit of the doubt that his words were condensed and perhaps misconstrued by those reporting them (although media slant surrounding this case is a separate issue). But any way you slice it, there is just no psychology to back up the claim that a person can have a “brief immersion” in online extremist materials and end up as a full-fledged terrorist shortly thereafter. McCauley and Moskalenko don’t mention the Internet as a magnifying factor at all, and Reza Aslan addresses his own reservations:

Although the Internet provides Jihadist leaders with an invaluable tool for communication, it is debatable what role their online offensive actually plays in radicalizing Muslim youths. (The official British inquiry into the 7/7 attacks concluded that there was little evidence that Khan, Tanweer, and Hussain were big Internet users.) That is because the overwhelming majority of participants in social movements comprise what sociologists refer to as “free riders” – people who share the movement’s grievances, who associate with the movement’s goals, and who have absorbed the movement’s symbols into their own identities, but who do not take part in the movement’s actions. In the case of Global Jihadism, free riders are those who join chat room discussions and download Jihadist videos but who are attracted to Jihadism as they would be to any other anti-establishment movement – casually, and as a form of rebellion. (148)

Exh 1142-149 – These guys might be excited to be Jihadists, but that doesn’t mean everyone who watches them will be.

So the downloading and digestion of Jihadist materials doesn’t even serve as a good marker for who will follow the so-called radicalization process to violence. Much like the scares of ages past – that reading Communist literature makes one a Communist, and listening to goth music and playing violent video games will make kids come to school with guns – such thinking assumes an inaccurate simplicity of the human psyche. If our heads were completely empty, it might be feasible that filling them with propaganda could be enough to compel us to action. Instead, such propaganda needs to be weighed against what we already know, or think we know, about the world. For example, seeing an ad for an Apple Watch is not likely to compel me to buy one, unless I was already looking for the benefits that it fulfills. Maybe I didn’t know the Apple Watch could fulfill my needs until I saw the ad for it, but that doesn’t mean I wasn’t predisposed to wanting one. However, as I’m already chock full of tech gadgets that serve the same purpose as an Apple Watch, I’m going to pass every time. Propaganda of all types attempts to predict what people are already looking for and play off of it. It’s why marketing is so important to any business, and why many terrorist groups have marketing departments as well: to keep themselves appealing to the people already looking for them.

Perhaps most disturbing, however, is that Levitt’s testimony actually encourages the idea that radicalization to terrorism is a completely unfathomable phenomenon, and so the jury shouldn’t try to understand it. The prosecutor asks him, “Is there a way to measure how radicalized someone is?” to which he replies there is “no clear way until someone acts” and that there isn’t a quantifiable system of measurement, such as, “This a 3.2 radicalization.” While it’s true that you can’t get a numerical measurement – as if a blood test could determine the level of radicalization in someone’s system – the idea that no one can tell someone is radicalized until they’ve already committed terrorism is so ignorant it borders on dangerous. Still, Levitt reinforces this opinion when the prosecutor asks, “Can you predict who can become a terrorist?” by saying, “No, and I don’t know anybody who has.”

This assertion isn’t just baffling, it’s insulting. There are whole government agencies dedicated to combating terrorism, not to mention several think tanks worldwide studying the phenomenon. To claim that decades of energy, money, and intellectual manpower has not resulted in a single working theory about who can become a terrorist either means our counter-terrorism measures are in even worse shape than I thought, or – more likely, considering I’ve been able to present on this blog a number of ways to determine actual radicalization – Levitt simply travels in circles in which no one cares to know what can make someone a terrorist. In fact, it doesn’t even take an expert. In this very case, the defense presented a number of witnesses who testified that Tamerlan’s behavior scared them so much they were afraid of him, and afraid of what he might do. Relatives had to talk him out of joining a rebel group in Dagestan, and upon hearing about the bombing of the Marathon, certain family and friends immediately thought he might be involved. So to say that it’s impossible to know until it’s too late is perpetuating two dangerous myths about terrorists: that they are so beyond our comprehension not only should we give up on trying to understand them, but because of this, we are forever at their mercy.

Neither of which is true, unless we let it be.

Islamophobia in the Courtroom, Part II: Guilt by Muslim Association

Exh 1341 – This otherwise innocuous Instagram photo became one of many attempts to link Dzhokhar’s religion to a propensity for violence.

With this unsound foundation laid, the prosecution lurched forward with their “evidence” of Dzhokhar’s radicalization. In addition to the propaganda materials found on his laptop, they presented a number of information that not only struck me as pointless and downright biased, but falls right in line with the findings of the NYPD intelligence report, criticized so extensively by Amna Akbar. The jury was subjected to strings of Tweets and texts from Dzhokhar containing any hint of a religious or political opinion. This is likely because commonly accepted – although erroneous – signals of radicalization are religious expression and political opinions. About this, Akbar says,

The associated factors [to radicalization] are widespread expressions of Muslim identity or religiosity: “pilgrimage to Mecca,” “[g]rowing a beard,” and “pa[ying] off the mortgage on [one’s] house because Islam forbids paying interest on loans.” Here, Muslim religious practice—core First Amendment activity, unconnected to any suspicion of criminal activity— becomes a predictor for criminality.

Equally troubling, Silber and Bhatt situate dissent with mainstream American political discourse, and identification with other Muslims, as integral to radicalization. “[A]lienation, discrimination, racism[—]real or perceived”—and “exposure” to “international conflicts involving Muslims,” trigger this stage. “Becoming involved in social activism and community issues” is a signature factor. (835)

This last part especially harkens back to Matthew Levitt’s testimony, in which he claimed those most susceptible to radicalization contain a “cognitive opening” because of their politics. The prosecution pushed as much evidence of Dzhokhar’s religious and political opinions as they could, often to absurd proportions. I’ve discussed a few of his Tweets before, pointing out how the government picked standard Islam-themed statements about prayer and fasting for Ramadan to present as radical. However, there were plenty more entered into evidence that seemed to serve no purpose other than to establish two ideas: one, that he is Muslim and therefore dangerous, and two, that any political expression points to his radical ideals. Take, for example, this Tweet:

Exh 1293 – That’s it, that’s the exhibit.

Two words written at 3:30 am – about what is objectively a big issue in which many people, not just radicals or Muslims, believe Palestine should have its own state – are presented as somehow being indicative of his radicalization. The government goes a step farther, lumping in any mention of his native country in what I can only assume was an attempt to make him look anti-American. For instance:

Microsoft PowerPoint - J_Tsar Master Exhibit.pptx

Exh 1276 & 1289 – In which heritage pride becomes a sign of villainy.

This certainly illustrates the idea that in the eyes of law enforcement, any hint of a dissent from a blind American patriotism is viewed with suspicion, and in this case, used as evidence against the defendant. It presupposes that pride in one’s heritage – which for Dzhokhar means being Chechen, indeed a Muslim people – somehow makes him less American. I cannot overstate how this is, on many levels, both ludicrous and downright bigoted. Yet it points to another criticism of law enforcement tactics by Akbar. She says:

The logic of radicalization imposes on Muslims a rigid hierarchy of social relations, or, more plainly, a loyalty question. American and Muslim identities become an either-or proposition: they cannot exist simpatico. By choosing to commune with or feel sympathy for other Muslims, Muslims are seen to choose Islam over America, Muslim identity over American identity. (874)

Further still, I recall one of the few victories granted to the defense in this case came when it was deemed that the prosecution could not use the fact that Dzhokhar is a naturalized American citizen against him. This means that the prosecution would have, if they could, claimed that being born outside the country somehow makes him more likely to turn against America. I can’t help but think that the inclusion of Tweets such as these is a faint echo of that strategy, hoping to incite xenophobia in the jury.

Finally, and perhaps most egregiously, the prosecution moved outside social media in an attempt to paint Dzhokhar’s politics as radical. In the effort to make his “path” to radicalization seem longer – in their opening statements, they claimed evidence showed it went back years – they presented a homework assignment from his senior year of high school. A lot of attention was given to this assignment in the guilt phase, as it sported the foreboding title “The Predator War” and was about US drone strikes in Pakistan. Again, this matches the pattern of counter-terrorism strategy condemned by Akbar, the painting of any political dissent as inherently suspicious. When it was first brought up at trial, I thought that really all this proved was interest and perhaps concern for a real, controversial government practice. I was also skeptical of the title, as it seemed a little too poetic for a seventeen-year-old of Dzhokhar’s apparent writing level. It turns out I was right to find it odd: in the penalty phase, the defense called the teacher who gave him that assignment as a witness. She testified that the assignment was not written on an independently picked topic, but merely responses to reading questions she had given about an article in the New Yorker, titled – wait for it – “The Predator War.”

Let me reiterate in different terms. The prosecution, trying to prove Dzhokhar’s radical politics, used a high school homework assignment, on a reading about US drone strikes given to an entire class of students by the teacher, to prove that he was radicalized, even though he had no control over the assignment’s topic or the questions he had to answer. No attention was given to any particular line he had written in the paper – the evidence was solely that he had written it at all. So in fact, this proves nothing about his interests or political leanings. All it proves is that he participated in a class in which the teacher cared to teach her students about real world issues. If I were to use the prosecution’s logic, I’d be surprised she didn’t come under fire for teaching a Muslim student such dangerous, potentially radicalizing ideas. (But the non-Muslim students in the class are, of course, off the hook.)

While I’ve really only scratched the surface of instances in which the government unfairly used Dzhokhar’s religious or political statements against him, in the interest of time I must move on. (I hope to break down more evidence to this effect in supplementary posts at a later date, such as when they attempted to construe a Koran quote tweeted the day of the 2012 Boston Marathon as proof that he was casing the location for next year.) However, these aren’t even the only strategies from the NYPD intelligence report used to target Muslims that found their way into the prosecution’s theory of this case. Yet another flaw pointed out by Akbar sounded all too familiar to me when I read it:

…Certain quintessentially American activities, when engaged in by Muslims, are signs of radicalization. Of course this is the case at higher levels of abstraction for mosque going (church) or protesting the Iraq war (dissent). There are also certain activities that will have heightened significance, especially for young Muslim men: for example, paintball, target practice, and white-water rafting. (878)

Upon reading this, so much became clear to me. For months, I had wondered why, of all things, the prosecution had harped so much on the fact that on one day for an hour, Dzhokhar and Tamerlan had gone to a New Hampshire shooting range. I couldn’t figure out the significance to the case in any way – other than it happened on March 20, so it was about a month before the bombing. The media had certainly run with it, claiming it was evidence they had been “preparing for jihad.” But trust me, I’ve gone shooting at ranges; you’re going to need longer than an hour at it to be prepared for more than completely missing your target. There was no evidence presented of any previous or subsequent trips, suggesting this was more likely an isolated attempt at brotherly bonding when Dzhokhar was home for spring break. Additionally, there was nothing linking this trip to the commission of the crimes. They rented two nine millimeter handguns, suggesting that the Ruger P95 (also a nine millimeter handgun) used by Tamerlan to kill Sean Collier and carjack Dun Meng was either not yet in his possession or had been forgotten. (A curiosity, considering that Dzhokhar was convicted on charges that claimed the Ruger was intended to be used in the bombings and the subsequent April 18th escape attempt.) The icing on this bizarre cake is the surveillance footage presented of the brothers at the shooting range, in which I assumed we would at least see the fearsome young men honing their deadly craft. Instead, we are treated to Dzhokhar milling about the parking lot in a silly hat, kicking at snow while waiting for Tamerlan, not looking especially excited to be there.

Still from Exh 1165 – Holding the door open for his brother implies impeccable manners, if not quite the menacing persona the prosecution was going for.

Of course, attending a shooting range is a completely legal activity, and there are those in this country who consider the right to bear arms one of the most fundamental American freedoms there is. However, in this case, since the brothers attending the range were Muslim, immediately the correlation to terrorism was made. And while there is evidence that by March 20, 2013, Tamerlan was already collecting and compiling bomb components, there is none that Dzhokhar was helping, or even knew about it. Nothing presented in the exhibits about their trip to the shooting range suggests that he did, either. It is only with the confirmation bias of assumed guilt that anyone can conclude their trip must be linked to the commission of the crimes the following month.

What It All Means

By now, I hope I’ve shed some light on the fallacies present in the prosecution’s argument about Dzhokhar’s motive. Evidence of his religious and political opinions simply cannot stand in for radicalization, nor can the propaganda found on his computer and mobile devices prove that he was a dedicated Jihadist. In fact, I would go so far as to suggest the evidence of this sort actually works against the prosecution, since all they managed to truly showcase was that before the crimes Dzhokhar was a regular teenager who also happened to be a Muslim. If they had to scrape the bottom of the barrel so hard, showcasing tweets and homework assignments with the vaguest Islamic and political tinge instead of evidence of participation in the bombing plot, this likely indicates Dzhokhar was never as eager about Jihadism or committing terrorism as the prosecution wanted us to believe.

This brings me back to my original assessment about his two possible motives. If he wasn’t radicalized – and I hope this post shows he wasn’t – then this means he’s not a cartoonish villain, but a regular human being. This regular human being has been described by friends, family and teachers as amiable and well-meaning, so he possesses what we can probably assume is a standard moral center. What would make such a person fall in line with his tempestuous older brother and mutely follow him down a crowded sidewalk, carrying a backpack loaded with explosives? Many things, unfortunately, most of which have been mentioned by the defense: familial and cultural obligation, love for his brother, the passive role in their sibling dynamic, an immature adolescent brain unable to determine what the longterm consequences of his actions might be. But I go a step farther, and advocate what I will continue to believe until someone can prove otherwise: fear. When I wrote my previous post directly after the trial, I was filled with certainty that Dzhokhar was afraid of his brother, afraid of his physical strength, afraid of his temper, afraid of what might happen if he stepped out of line, not just to himself but perhaps Tamerlan’s wife and child as well. But it wasn’t until I started doing research for this entry that I realized it’s likely he was scared of more than just Tamerlan.

One of the main arguments I’ve gotten when trying to propose that Dzhokhar acted under duress is that there is no evidence he tried to get out of the conspiracy and committing the crimes. (This is already a flawed argument to me, because it reminds me of asking, “Why didn’t you fight back?” to a rape victim, but I digress.) While I agree it’s unlikely Tamerlan held a gun to his head (at least not on camera or with witnesses around), taking this as evidence of willing involvement bothers me for a lot of reasons. One question I’ve posed in response is, “What was he supposed to do instead?”

Others have replied, “Say no. Refuse to be involved.”

This seems like an unlikely turn of events to me. One, given the size and strength difference between Dzhokhar and Tamerlan, I can imagine refusal could have easily led to violence or overt threat of violence. Two, as extensively covered at trial, cultural reasons probably would not have welcomed direct resistance. However, this brings me to another option, which would be to agree to Tamerlan’s face, but report him to the authorities when no longer under direct threat. This might even be the most logical possibility to occur to someone of Dzhokhar’s temperament, as it’s been well established that he’s not prone to anger or confrontation.

However, I’ve always thought doing such a thing would be more difficult for someone in his position than most of us coming from an adult and non-Muslim point of view would think. Turning on your own brother, regardless of age and cultural background, is a huge, heart-wrenching thing to do. Considering his brother was the only authority figure left in his life, that sort of upset to the remainder of his family structure – especially while Tamerlan had a wife and two-year-old daughter – would undoubtedly be a big, scary, guilt-ridden decision for a nineteen-year-old to make.

Not only that, but given the current state of terrorism laws in America, handing Tamerlan over to the cops would pretty much guarantee a lifetime of hurt for him, even if technically no crime has been committed yet. Personally, that alone would be enough to keep me silent and just hope that somehow my brother decided not to go through with it on his own. I also wondered if Dzhokhar called up the cops and said, “My brother is building bombs and says he wants to blow up the Marathon,” would this guarantee his own immunity from criminal charges?

I suspect he would be afraid the answer is no, especially coming from a Chechen background where the authorities are always suspect, and living in a post-9/11 America where Muslims are constantly under suspicion. Amna Akbar even places his demographic right at the height of government targeting:

American Muslims—young Muslim men in particular—are likely to find themselves within the ambit of law enforcement scrutiny if they are openly critical of American foreign policy, attend their local mosque or hookah bar, partake in their university Muslim student association, or travel to Muslim majority countries. While they may draw scrutiny by affiliating with other Muslims, the scrutiny follows them as individuals. (872)
She goes on to discuss the inevitable actions taken by Muslim-Americans to avoid undue suspicion in such an openly hostile atmosphere:
A recent community-and-interview-based report documented just such harms stemming from the NYPD Intelligence Division’s surveillance program. Muslims reported feeling pressure to signal their Muslim identity less visibly or differently, to cover, or to pass, in order to avoid state scrutiny. This signaling takes shape in relation to religion, politics, and geography. Muslims do not want to seem too religious: Men shave their beards and women remove their hijabs or niqabs. Or too political: Students stop talking politics in their Muslim student association office and switch out of political science majors. Muslims do not organize or organize differently. They “feel the need to repeatedly emphasize their peaceful position,” or to change how they inhabit Muslim geographies: Muslims go to the mosque less frequently, or only for prayer and not for other community and spiritual activities. (878)
Reza Aslan also agrees, criticizing the counter-terrorism strategies put in place in Europe (upon which the United States has based their practices, so they are largely similar):
To make matters worse, new antiterrorism laws throughout Europe have resulted in what some human rights group term “institutional discrimination.” Such laws have poisoned relations between religious groups and law enforcement officials so that young European Muslims often bluntly admit that they would not cooperate with the police under any condition for fear of being “databased,” that is, put under surveillance themselves. (146-147)
Based on all this evidence, I started to think that if Dzhokhar had been afraid to turn in Tamerlan, not only because he feared harsh punishment for his brother, but for himself, he probably had good reason to. I suppose it’s possible he wasn’t aware of the extent of the hostile political climate, but I also think a fatal mistake to make in this case, which I have seen done over and over, is to assume Dzhokhar is stupid. I don’t believe this is true at all. Although he was naive and immature at the time of the crimes, I’ve seen plenty of evidence to indicate he’s actually pretty intelligent. As such, I have a hard time believing he was completely ignorant to the general attitude and political undercurrent in this country toward Muslims. On the contrary, the government’s exhibit of a text message he sent on the eve of the 2012 presidential election suggests that he was all too aware:
Exh 1385 – Based on everything I’ve learned, I can’t even fault him for thinking so.

Putting this all together, I can imagine discovering Tamerlan’s intentions put Dzhokhar in an impossible position, in which each option seemed worse than the one before it. Direct mutiny against his brother might result in his own harm, or the harm of Tamerlan’s wife and daughter. However, reporting the plot to the authorities would undoubtedly rain down terror on himself, his family, and anyone else the authorities might have reason or whim to suspect. (And considering what did happen to a number of people associated with the Tsarnaev brothers, most of whom are currently serving prison sentences for very tangential involvement, I’m not even sure he would have been wrong to worry.) This likely fed his fear about making any attempt to remove himself from the plot, which put him at the mercy of Tamerlan’s inclinations. Due to this combination of factors, it was inevitable for Dzhokhar, like any person with proper motivation, to pick the role he ultimately played in this tragedy: the unhappy but obedient accomplice.

Works Cited

Akbar, Amna. “Policing Radicalization.” UC Irvine Law Review: 3.809 (2013): 809-883.

Aslan, Reza. How to Win a Cosmic War: God, Globalization, and the End of the War on Terror. New York: Random House, 2009.

McCauley, Clark and Sophia Moskalenko. Friction: How Radicalization Happens to Them and Us. New York: Oxford University Press, 2011.

The Radicalization Process: From Conversion to Jihad.” The Federal Bureau of Investigation, 2006.

Silber, Mitchell D., and Arvin Bhatt. “Radicalization in the West: the Homegrown Threat.” The New York City Police Department, 2007.

Wen, Patricia and Kevin Cullen. “The Boston Marathon Bombing Trial Live.” The Boston Globe 23 March 2015: Testimony of Matthew Levitt.

13 thoughts on “Junk Psychology and Courtroom Islamophobia: A Breakdown of Motive as Presented in the Tsarnaev Trial”

  1. Thanks so much, Heather, for writing this. It’s amazing! I too have been focused on motive. You focus on Jahar’s relationship to Tamerlan. I have been interested in the whole family dynamic.

    I have related to this family because of certain life experiences that I have had that seem, if not similar in details, similar in feelings and reactions. I could be totally off-base, but Dzhokhar’s family life reminds me of what it’s like to live in an alcoholic home.

    Some thoughts:

    What if Tamerlan WAS involved in the Waltham murders? How did Tamerlan obtain money? Was he at some point acting as muscle-for-hire for some drug gang? What was his relationship to the guy he called the night of the escape – that real estate guy?

    Anzor had been beaten up – by whom? What if the family had some connection to the Russian mob? What if they were sort of loosely connected to underground criminal activities?

    What if Jahar was exposed to criminal activities at a young age and was sort of used to it? Steven Silva’s testimony on Jahar’s reason for wanting to borrow the gun was that Jahar wanted to scare some kids from another school related to some pot dealings. This shows me that Jahar wasn’t the totally innocent, sweet kid that some thought he was. He had a “wild” side, a petty criminal side. After all, he was dealing pot. The people you encounter in that world would not necessarily be the best people.

    To me, Dzhokhar really wanted to fit in with his American friends, but his home life made him feel different than those kids at school. He did have long-time friends – Junes and that other guy (can’t think of his name right now) who knew his whole family and spent time at his family home. But the kids he hung out with from school never came to his home. Hardly anyone knew what his family or home life was like. This was emphasized by the defense at trial. This tells me that he felt a certain level of shame about his background and family. He definitely was embarrassed by his brother’s religiosity, and also by his mother’s volatile personality (story about the brown/blue pants).

    It appeared that he had a wide circle of friends from different types of backgrounds. Robel Phillippos came from humble circumstances. His mom was a single mom. (But how did they know the Dukakis family?) Anyway, in high school, everyone sort of blends in – the poor kids and the kids from more well-to-do families. But once you go to college and start thinking about your future and how you’re going to support yourself, get ahead and succeed in life, the differences in economic circumstances become more noticeable.

    Dzhokhar started smoking A LOT of pot. He was known for it. His behavior around marijuana signaled to me – addiction – either already an addict or becoming one. He was tuning out – probably because he had no structure at home (by this time his parents were gone), his brother was a religious fanatic, and he undoubtedly wondered how he was going to continue in school and what the hell he was going to do with his life. He was on the verge of flunking out yet told people he was going to major in marine biology (or some other subject) and transfer to a tougher, more prestigious school. He was trying to cover up his failure.

    Tamerlan knew all this about Dzhokhar – the pot-smoking, the failure in school, and he likely took advantage of it. He had already been haranguing Dzhokhar about religion for years. It would be like if you were close to someone who was a born again Christian and was a fanatic about it and was always trying to convert you. Well, Jahar already was a Muslim, and was somewhat observant. He obviously felt a pull toward the structure and spirituality of Islam. He was critical of U.S. foreign policy toward the Muslim world, and probably felt a kinship with the Muslim people. Certainly he had a nationalistic feeling toward his home country. He was hanging out more and more with Russian guys – the ones who ended up getting in trouble trying to help him. He told the guy who went to the gym that day with DT and TT that he was thinking about going to Russia – that he was getting turned off by the U.S. Wouldn’t this turning against the U.S. make sense if you were failing to make it here (and maybe missing his parents)?

    So, I think Jahar was starting to feel resentment toward the U.S. and his American friends. It may not have even been a conscious feeling. Tamerlan’s proselytizing and persuasions may have presented a possible pathway out of his current aimlessness. He said that he had become involved in the planning for the bombing just a few months before the bombing. I think Tamerlan persuaded Jahar to go to the shooting range to prepare for their mission. So, I disagree with your theory about that. Working out at the gym, likewise, would have been a way to get in shape for their “jihad” life. But, like their planning for after the bombing, the shooting practice and gym workout were totally half-assed measures.

    I basically think Jahar did the bombing to please his brother, get him off his back, and possibly to give his life some direction. I don’t think he thought through the consequences of their actions. I think Tamerlan was completely dominant in their relationship and that the only way Jahar could rebel was to be passive aggressive about it. He may have been afraid of Tamerlan. But he also really loved him. He could not directly confront his brother. He acted so passive around him (e.g., at gym, he was almost a noodle, he was silent in car with Danny, putting food back at convenience store!!??). Whether this was a cultural thing or was unique to their relationship and personalities, I don’t know. Maybe both.

    If you look at the photos of the brothers at the Marathon, Tamerlan looks resolute, focused. Jahar looks like he doesn’t want to be there. Those photos were very convincing to me about Jahar’s lack of real “radicalization.”

  2. Hi Tychesd, great to hear from you again! I hope you are doing well.

    I think you make a REALLY astute observation about comparing Dzhokhar’s homelife to living in a family with an alcoholic. I definitely think considering the family dynamic in psychological terms such as that is on the right track. At trial, I saw plenty of evidence that suggested to me that given various tumultuous factors and the strong personalities of other family members, mainly his mother and brother, his method of coping was keeping his head down and his mouth shut (which I wouldn’t even call an unwise choice). It lends credibility to the idea that he did the same in following Tamerlan’s orders when it came to the plot – if that was how he always coped, it makes sense he wouldn’t break the pattern, instead ultimately viewing his participation as something unpleasant he could get through and move on from. (Which with a more developed brain, per Dr. Geidd’s testimony, perhaps he could have realized was a monumentally bad idea.)

    Many of these other ideas are interesting, but I hesitate to say too much about some of them because I really want to stay away from speculation I can’t back up with facts. Others I have ideas about and do want to expand up in future posts. For example, I do find the Waltham Triple Murders to be a fascinating (and tragic) side plot to the larger story, and I do plan to talk about them one day, especially in the context of the wrongful death of Ibragim Todashev. But I’m fairly confident that whatever Tamerlan’s role may or may not have been, Dzhokhar had no knowledge of it, and he’s my focus for now. (I was also not aware Tamerlan made a call to a real estate agent the night of the escape? Is that in the phone records?)

    Also, although I can’t speak to what specific incidents may have befallen Anzor, some cultural context might be helpful. To my understanding, tensions between Russians and Chechens have long been a problem, and it was especially bad in the 90s after the collapse of the Soviet Union, leading up to the Chechen Wars. It was not uncommon for physical violence to break out between them for ethnically motivated reasons. Also, in the early post-Soviet days, corruption did run pretty rampant in Russia (and still does). I know some media speculation has been made about black market dealings and such, but I can’t parse if this was anything specific or just day-to-day inevitabilities of that particular time in Russian history. I kind of lean toward the latter due to lack of evidence and the general US-centric slant I’ve noticed in media coverage that tends to sensationalize allegations like that, when people from Russia probably wouldn’t even bat an eye… but without more information I can’t say for sure.

    I also have a lot of problems with Steven Silva’s testimony in general (I didn’t find him very trustworthy), and admittedly the whole business with obtaining the gun is still one of the biggest question marks about this case to me. I hope to look into it further and write more about it in a future post. But I think it’s clear that whatever reason Dzhokhar may have claimed for needing it, he didn’t use it in any other criminal activity – no evidence was given of such, and honestly it strikes me as extremely inconsistent with all other established aspects of his character and temperament.

    Additionally, I have long suspected the reports of his “wild” side to be exaggerated, by both the media and the prosecution. I’ve mentioned this before, but I need to stress that marijuana is looked upon VERY laxly around here. Possession of up to an ounce is decriminalized and only results in a $100 fine. Selling is a bit worse, but considering medical marijuana became legal in 2012, everyone I know is just waiting for it to be legalized completely – I think it’s planned for the 2016 ballot. If there was evidence he was dealing harder drugs I might suspect a deeper criminal involvement, but as is it always seemed to me he was just dealing on campus for some extra pocket money… it can’t have been a hugely lucrative operation if he was supplementing it with summer lifeguarding. This seems to be backed up by the fact that he only had $952 in his bank account upon arrest, which seems about right for a broke college student, not a drug kingpin. Unless he had wads of cash stuffed in his mattress or something, but I suspect we would have heard about that. (On cross exam, the defense witness basically just kind of rolled her eyes and sounded annoyed when the prosecution tried to ask her about it, indicating to me his peers didn’t think it was a big deal either.)

    I should probably also talk about Cambridge and what it was probably like for him growing up there. Cambridge has been a major haunt of mine for over ten years now; I lived nearby for some time and even worked in the school system there. In my experience, the demographic is EXTREMELY diverse, with immigrant families from all over the world; the community strives to promote tolerance and equality. Considering he moved there so young, I imagine he absorbed this tolerant attitude fairly quickly – I know I did, even being ten years older when I first moved to the area – as is supported by testimony and media reports from friends. I have a hard time believing he felt alienated in a community like that at any time, so the whole America vs. home country crisis I’ve heard bandied about never really rang true to me.

    I agree that the transition to UMass Dartmouth was clearly a problem for him, but I’ve gone back and forth on whether that has a tangible causal link to his involvement in the bombings or not. I’ve not heard exciting things about the school in general, and demographically it looks a lot less diverse than Cambridge, so I can imagine it was kind of a let down for him. I don’t know if it necessarily made him resent much more than the school, though – he still saw plenty of friends from high school, and it doesn’t surprise me that he made friends with the Kazakh students because they all spoke Russian (I work in a school with a lot of immigrant students and it’s common to see them make friends when they share a native language and/or country). Not to mention that as a college prof who teaches incoming freshmen I nearly had a heart attack when I saw his transcripts; he was signed up for SIX classes his first semester, including two chemistry classes and an engineering class! I want to know what advisor in their right mind let him do that. Even Einstein himself couldn’t handle a workload like that as a freshman. No wonder he was doing so poorly there – it looks like he got off to a bad start, lost his confidence and never recovered. (Although considering he knew he was on academic probation and it seemed he was focused on transferring, I’ve been really curious about whether his grades actually improved that last semester or not. Since he was in custody before it was over, no grades were filed. I think it would actually go a long way to indicate state of mind if we could know whether he buckled down and had specific, non-terrorism-oriented goals – which might account for behavior such as quitting drinking and smoking pot that were mentioned, which instead were used as more “indicators” of “radicalization.”)

    I could go on and on, but I think I’ll stop here. These are all things I hope to be able to put more stuff together on and report at a later time, but this is just my general thinking on them for now.

  3. One thought that I have after reading your discussion of the unpersuasive theories of “radicalization” used against Dzhokhar is that the government wasn’t just seeking out some theory, however sophisticated or crude, to explain the crimes, or at least to allege for him some believable intent that could lead the jurors to a confident verdict of guilty.

    No, the theory had to be tailored not just to explain the crime and support a persuasive case for guilt, but to support a death sentence. And at least for the last 30 years or so, it’s been a common understanding that the prosecution has two big allies in the quest for a verdict of death: anger and fear.

    Not only must the jurors despise the crime, they must at some level feel that it is “inexplicable,” without any kind of explanation that causes them to empathize with the defendant even while feeling an imperative to inflict a severe punishment — for example, life without parole. The idea of “radicalization” as sometime which can happen to anyone, or at least any Muslim, and can happen without any network of human contacts merely by spontaneous “self-radicalization through the web,” is a formula to maximize both anger and fear.

    There’s anger (“He wasn’t coerced or seduced into the bombings in any way, he just decided to `radicalize’ and start killing people”) and also fear, “If Dzhokhar, a student beloved by his teachers and friends, could become a willing terrorist and murderer just by reading the right sermons and manifestos, then any Muslim could pose a deadly threat, and we’re all in danger! Something has to be done to deter others!”

    Logically, of course, someone seeking martyrdom is hardly likely to be “deterred” by the death penalty — and indeed participants in various armed and nonviolent resistance movements against ruthless military occupations or other regimes who would much prefer to live but are ready to die if necessary have not been so “deterred,” with the events of Lexington and Concord celebrated by Massachusetts on Patriots’ Day as an example. Given the English law of treason, the saying “Either we all hang together, or we shall all hang separately” was a bit more than a figure of speech, especially for the leaders of the rebellion.

    However, this also gets into the ugly psychological purpose of the death penalty, unacknowledged but evident to some observers including myself: to function as a kind of exorcism, saying, “We as organized society are showing that we are in control of killing, not some upstart terrorists.” It’s a feeling of security and power, however temporary and illusory. And it’s a temptation of power, as when then Attorney General Janet Reno, herself a death penalty skeptic, gave assurances after the Oklahoma City bombing on April 19, 1995 (also Patriots’ Day, as it happened) that the nation could take “comfort” from the prospect of the death penalty for the bomber or bombers.

    In short, given that pursuit of the death penalty tends to be an all-out thing, as it was in this case on the part of the prosecution, I wonder if the whole unpersuasive “radicalization” paradigm wasn’t in good part designed to obtain, not only convictions of Dzhokhar for all of the alleged offenses, but a death verdict.

    The exclusion or extreme limitation during the guilt phase of defense evidence concerning Tamerlan’s role would be part of that strategy, both to promote the “self-radicalization” narrative (and maximize jury anger and fear), and to preclude the possibility of jurors making Tamerlan’s influence a part of their own narratives of the crime they were creating as a guide for the penalty phase also. Tamerlan’s influence, of course, would make Dzhokhar’s involvement more explicable, and thus subject to a reasoned consideration of mitigating factors.

    By the time that the defense was permitted to focus more on Tamerlan’s role during the penalty phase, the jurors had already formed their impressions of the crime story; and the prosecution was ready and able to saturate the jury with enough graphic replays of the bombings, and victim impact testimony, to overshadow any fine points about Tamerlan’s influence which, as you say, may very well have risen to the level to duress and coercion, enough to constitute a powerful statutory mitigating factor even if falling short of an outright defense against conviction.

    If the tailoring of a “radicalization” concept to the needs of a death penalty prosecution is what happened, it wouldn’t be the first time that junk science, or junk psychology, was used in a courtroom for this purpose. The case of Dr. James Grigson in Texas, known also as “Dr. Death,” has become a grim legend: he willingly testified that a given capital defendant was a “total sociopath” and would, of course, be likely to commit future acts of violence posing a threat to society (this prediction being a main aggravating factor required for a death verdict under Texas law).

    In 1995, Dr. Grigson was expelled by the American Psychiatric Association and the Texas Society of Psychiatric Physicians for his unethical and unfounded predictions about capital defendants he had not himself examined. .

    The “radicalization” theory you address in Dzhokhar’s case may, as you suggest, be just about as spurious — and it’s critical that we prevent it from being as deadly as Dr. Grigson’s testimony was for some Texas capital defendants.

    More generally, how the death penalty can shape, or rather warp, the prosecution’s presentation and explanation of the facts in a criminal case is a topic that your “radicalization” discussion makes very concrete and relevant to our efforts to save Dzhokhar’s life.

    1. Hi Margo,

      Apologies again for the delay in my comment. The end of August is always a mess for me, trying to get preparations for fall semester classes under way. But I think you raise several excellent points here that I would like to address.

      First, I absolutely agree with you that the narrative presented by the prosecution wasn’t solely to get a conviction, but rather a death sentence. I’ve had several legal discussions with my father debating the admissibility of much of the information the prosecution presented of Dzhokhar’s “motive,” and my father has wondered why most of it was necessary if the charges under which Dzhokhar was indicted did not require proving motive. (In his experience, most prosecutors don’t bother that much with motive, because they don’t need to prove WHY a defendant acted, just that he or she did act.) I’m interested in admissibility of evidence of this case in general, because it could point to more instances of prosecutorial and judicial misconduct, but it’s still a topic I’m learning about, so I’ll have to report more definitively on it at a later date.

      This idea is further corroborated by the reveal from Judy Clarke at Dzhokhar’s sentencing hearing that he would have plead guilty and even issued a letter of apology that was then sealed by the government as part of the SAMs. The prosecution not only deliberately ignored this mitigating evidence in pursuit of the death penalty, they actively suppressed it from being known by the public. In a trial where so much emphasis was put upon the capability of remorse from the defendant, I find this action akin to stuffing a gag in someone’s mouth and then condemning him for not expressing remorse.

      I also absolutely agree with your assessment about invoking anger and fear in the jury. The appeal to emotion was overwhelming at times – harping on the severity of the injuries, the attack on a sacred public event in a city with history of hysteria over such things (i.e. Red Sox fever) undoubtedly meant to play on righteous indignation and city pride – and the assertion that self-radicalizing through the internet could happen so fast and easily is certainly meant to invoke fear. I should note that I’ve looked into the term “self-radicalization” and there is no psychological basis for it. I could find no scientific studies that even acknowledge it as an actual phenomenon. It seems to be chiefly a construction of media, government and prosecutors to keep pushing that narrative of fear.

      Finally, while it saddens and angers me that this isn’t the first time junk science has allowed a prosecution to obtain a death sentence, your example of Dr. Grigson is compelling and gives me more reason to think I’m on the right track with this line of thought. I plan to continue it as I go forward – and thanks to an amazingly kind reader, I do now have the full transcript of Dr. Matthew Levitt’s testimony. I’m hoping I can address the claims made there with more accuracy in an upcoming post.

      All in all, I certainly understand how the pursuit of the death sentence can – and in this case, certainly did – alter the course of the trial itself. I’ve thought many times in my research that if the death penalty had been off the table, it would have been a very different trial, and that the defense could have perhaps focused on duress as an actual defense, given the circumstances. But with the very real chance of losing Dzhokhar’s life, they were forced to scale it way back (not even considering the unfair limitations put upon them by judicial rulings), forcing them to bank everything on the penalty phase, as if the guilt phase didn’t even matter. A law professor who visited the trial with me even commented, “The defense threw the case.” This confused me at the time, but now I understand her meaning. I think the distinction should be made, however, that “throwing the case” implies that they did so voluntarily, when the truth is that they were forced to, in order to make a desperate gambit to save Dzhokhar’s life. Knowing what I know now, I suspect they knew long before it was over that the death sentence was inevitable, and they were saving as much as they could for the appeal. I also suspect (and pray) that they’ve told him as such, to give him some hope in such bleak circumstances. The real work is just getting started, and I’ll do everything I can to help.

  4. A couple relevant news articles that I thought were worth posting here:

    One, regarding the Missouri man who was executed a couple days ago: http://www.bbc.com/news/magazine-34120745

    Although they were unable to grant him a final stay of execution, I thought that the lawyers’ argument including the assertion that the death penalty itself is unconstitutional was an interesting choice – and particularly illustrates the changing attitudes in the country regarding capital punishment. There was also discussion of Missouri as a state carrying out so many swift executions, averaging one a month, and discussion of the toll that takes on defense lawyers and affects their ability to represent their clients competently.

    Two, on a much more optimistic note, California prisons have agreed to change how they handle solitary confinement in their facilities: http://www.npr.org/sections/thetwo-way/2015/09/01/436628891/californias-prisons-will-change-solitary-confinement-rules

    This is part of a settlement in a human rights lawsuit that could have ripple effects elsewhere. Apparently they were keeping gang members in indefinite isolation with no oversight as to when they could be allowed out – very reminiscent of how SAMs inmates are treated. Definitely a step in the right direction. They won based on the claim that long term isolation is in violation of the 8th Amendment’s ban on cruel and unusual punishment, which I find to be very encouraging.

    More soon!

  5. Very long article about Judy Clarke in the New Yorker. http://www.newyorker.com/magazine/2015/09/14/the-worst-of-the-worst I have not read the article except to skim certain passages. I found Nancy Gertner comments at the end interesting.

    “Gertner offered a hypothesis for why the Justice Department was intent on a death sentence: it might relate to the politics of Guantánamo. Supporters of the detention facility have long argued that American federal courts are not equipped to try terrorists. But here was a case in which a civilian federal court could deliver not just a guilty verdict but the death penalty. Numerous people have been convicted of terrorism in civilian courts since September 11th, but Tsarnaev is the first to receive a death sentence. Gertner said that the trial should not have been held in Massachusetts. If relocating was not appropriate in this case, she observed, when would it be? ‘They’ve essentially eliminated change of venue for anyone in the country,’ she said. The whole trial, she concluded, ‘was theatre, as far as I was concerned.;”

    1. I did find this quote from Gertner very powerful, and it echoes what my father has said to me numerous times, during the trial and after: “It’s a political show trial.”

      I didn’t think we had those in America, I really didn’t. Originally I thought I must be wrong, or overreacting, but when numerous legal professionals come together and all say the same thing, I think it’s everyone’s responsibility to sit down and listen. “Miscarriage of justice” doesn’t even begin to cut it, but the more I learn about the sorry state of American counterterrorism policy and practice, the more sense it makes. In twelve years since 9/11, there was no real, tangible, demonstrative “terrorist threat.” They absolutely wanted to parade Dzhokhar around as an example that we should still be afraid of a threat that has been badly conflated in the last decade and a half. The scary part is how readily everyone believed it, when to me it’s clear as day he doesn’t fit the role at all.

  6. I don’t know that it would be helpful, but people should write to Obama to ask for clemency before he leaves office. It’s a long shot, but it can’t hurt. I think it would be useful if diplomatic people or leaders of the countries Chechnya and Dagestan ask Obama to grant clemency. Do you think that sounds far out, like pie in the sky?

    1. Not to dive too deeply into the murky waters of Russian politics, but I doubt Ramzan Kadyrov, the president of Chechnya, would want to bother. He’s already very publicly distanced himself from the bombing a number of times, and honestly, he’s not exactly known as a kind and benevolent leader. He’s been called Putin’s puppet (Putin put him in power after the second Chechen war ended, when Kadyrov was super young, like 29) and is linked to corruption and political assassinations in the area. From what I understand, he also has the region under semi-oppressive “Islamic” law, although that just seems to be an excuse to keep the people under his thumb in the name of religion while he rolls around in splendor… kind of a common story for any country trying to call itself a theocracy, really. (He did build a really gorgeous mosque in downtown Grozny, though! … and modestly named it after his dad.)

      I don’t know anything about the leader of Dagestan, but to my knowledge the political climate is similar, if not quite as bad as Chechnya. I suspect both regions have their own problems, and Russia isn’t exactly known as a bastion of human rights victories in general.

      I find all of this fascinating and it’s a field of study without a lot of unbiased, empirical scholarship (which I would love to change!), but as an avenue to request clemency I doubt turning to these places would yield any positive results.

      And – not to dive too deeply into American politics! – writing to Obama may at least alert him to the issue, and he does seem dedicated to working on prison reform in his final time in office. However, I keep turning my eyes forward to the 2016 election and who would be the most sympathetic candidate. I suspect any Republican is out, as right now the race for the nomination has turned into a comedy variety show and I don’t even know who the least of several evils is. I really think a democratic candidate like Bernie Sanders would be the best bet, as he is very openly anti-death penalty and he has the straightforwardness and clout to do something about it. I’m just not sure he’s got it in him to beat out Hillary Clinton, although I am rooting for him, honestly. I would vote for him in a heartbeat. I fear Hillary is going to stay the course more so than Bernie Sanders would, and knowing that “staying the course” in regards to American terrorism policy would be sticking to a horrifically broken system, I’m skeptical, to say the least. But perhaps she would be all right; she definitely has a lot of experience. Maybe she’s just playing the centrist game to appeal to a large voter base and will become more liberal when in office. But I’m kind of sick of the BS, as are many of my generation and younger, which is perhaps why Bernie Sanders’s popularity is growing so steadily.

      Now that I’ve espoused far too much political opinion for an early Tuesday afternoon, I think I’ll leave it at that. 😉

      1. Heather, this is a bit of an aside on the question you raise about Bernie Sanders and Hillary Clinton. I’ll try to give a fair picture of their recordss, and why people sharing our general values against the death penalty might respond in different ways.

        My apologies for the length, but thinking this out as I wrote led me to an interesting conclusion that since the Supreme Court is likely to be of central importance, either Bernie or Hillary look like good news in practice from this point of view.

        First, Bernie Sanders is an excellent candidate on this issue: he’s a consistent opponent of the death penalty, and is about the best person I can imagine, especially among those who might actually be elected, as far as both legal and de facto abolition, as well as clemency to save Dzhokhar’s life and, last but not least, the Supreme Court appointments that could help us get the landmark decision that Justices Breyer and Ginsburg have now invited in their Glossip dissent.

        With Hillary Clinton, it’s a lot more complicated. Fairness demands that we note her successful efforts as a young Arkansas attorney to save the life of Henry Giles by bringing forth evidence of a mitigating mental impairment. She was at the time the head of the legal aid clinic at the University of Arkansas. Maybe that would have remained her position on the issue, had not other considertions intervened.

        Unfortunately, later on she and her husband Bill Clinton became definite death penalty supporters. In her 2000 campaign for the Senate, Hillary Clinton characterized herself as a “moderate Democrat,” and saw her support for the death penalty as part of that stance.

        It’s also important to note that in recent years she hasn’t said much on the subject, and that I sense there’s a high probability that if she concludes the death penalty is falling out of favor (especially with Democrats), her views may “evolve,” as they did on marriage equality.

        From my perspective, I would gladly vote for Bernie Sanders, and would be unable to vote for any candidate who doesn’t clearly oppose the death penalty. The last Democratic candidate for President whom I supported was Michael Dukakis in 1988, for this reason; John Kerry lost my vote in 2004 when he said he opposed the death penalty except for “terrorists.” That’s me, not necessarily where you or anyone else should be.

        There is a very reasonable argument, for anyone who doesn’t share my specific scruples, that if Hillary gets the nomination, her ability to appoint future Supreme Court justices could be the key to abolition.

        As a pragmatist, which she certainly seems to be (as sadly ready as she is to support militarism and adventures such as the 2003 Iraq war, not to mention her talk about being able to destroy Iran in 2008), she might well see the death penalty as ultimately futile and nominate Supreme Court justices ready to end it.

        Right now the vote, in an appropriate case, might be very close. We know that Justices Breyer and Ginsburg consider the death penalty very likely unconstitutional. With Justices Sotomayor and Kagan, we likely have two more votes.

        Justice Kennedy is the great mystery: his record is mixed, but in a number of cases he’s expressed a sense that the death penalty always runs a risk of our descent into barbarism (e.g. Kennedy v. Louisiana, 2008); and that international law and opinion are requiring more and more restrictions, at least (e.g. Roper v. Simmons, 2005, banning the execution of people for crimes committed before the age of 18).

        If he stayed on the Court long enough to hear an appropriate case, then possibly he might provide the swing vote for a 5-4 decision; that’s optimistic, but not impossible. Personally, I think a good, solid, case for the Founding Era roots of such a holding might make a real difference with him: he’d want to be seen as enforcing the Constitution, not just acting on his own personal doubts about executions.

        However, if even one appointment comes up, that could make all the difference in the world. Hillary, I think, almost as much as Bernie, would be likely to appoint a reasonably progressive jurist who could make it a clear 5-4 (or, with Kennedy, 6-3).

        The grim scenario is if a Republican got in and made even one bad appointment, from the viewpoint of this issue. The danger is that not only would it mean that we could wait decades for that landmark ruling against the death penalty; if Justice Scalia’s views were to prevail, we could be going effectively back not only to 1976 but to 1950, say, when a mandatory death penalty or death penalty for sexual assaults not involving the killing of the victim was constitutional and sometimes actually got carried out (especially for African-American defendants!). Or, less dramatically, the Court might pretty much stay with post-1976 case law, but simply be even more ready to expedite executions and decline to impose any more restrictions, for example, on the execution of the mentally ill.

        So while Bernie would be ideal, electing Hillary would likely lead to abolition (for Dzhokhar and others) in practice, while there are Republican candidates who could do immense harm. Maybe I’m fortunate to live in California, which is generally not a swing state, so that what I do is unlikely to affect the electoral vote.

  7. Just popping in to say hi and link another article. Thanks to Margo for her great political analysis – I’ll respond to that in more detail soon. But I wanted to share this, although it’s a couple weeks old, about Pope Francis’s visit to America:


    I know he’s come up as a topic of discussion on this blog before and I thought this was worth sharing. He’ll be visiting a prison in Philadelphia on the 27th. The article is quite enlightening, and I particularly like this summation of his stance on prisoners’ rights:

    The pope has expressed his concern for prisoners in starkly personal terms, telling a journalist recently, “I think to myself ‘I, too, could be here.’ That is, none of us can be sure that we would never commit a crime, something for which we’d be put in prison.”

    That’s about all I have time for now, sadly, but I’m working up on some follow-up material to my last post, so stay tuned!

  8. I’m almost done with a new post, but since this is relevant to a topic I covered here, I thought I would share:


    As I discussed the multitude of ways in which the NYPD’s intelligence assessments led to discriminatory implementation of radicalization policing among the community’s Muslims, I think this is excellent news.

    More to come!

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