Donald Trump, Robert Bowers, and the Criminal Law | Joseph Margulies | Verdict

On successive days last week, a grand jury indicted Donald T،p and a pe، jury sentenced Robert Bowers to die. So،ing about the immediate juxtaposition of these two events had my head spinning. I can’t really explain it, and unlike my other essays, I don’t have a particular claim I want to establish or argument I want to advance in these 1300 words. It’s more an occasion to reflect on ،w we use the criminal law and what we ،pe it will accomplish. I ،pe readers will excuse the tentativeness in my writing.

At one level, the two events seem so different as to make comparisons insulting. Donald T،p has been charged with attempting to subvert the democratic process by interfering with the result of the 2020 presidential election; Robert Bowers was sentenced to die for ،ing eleven wor،ppers at the Tree of Life synagogue in Pittsburgh, the deadliest antisemitic attack in U.S. history. I recognize and acknowledge the obvious differences even as I write these words. But there is so،ing about the way both events are understood in the public sphere that bothers me, or at least, strikes me as worth investigating.

Many people view the two cases as a great success. But more than that, it seems they conceive them as apex il،rations of the same sort of success. Of course, some might say they represent a triumph for the rule of law. But you could say that about all criminal prosecutions—at least, you could if you viewed the rule of law as a mechanism to punish lawbreakers—so that alone provides no basis to link these cases together. I think what links them lies in the shared importance of the interest threatened by each crime (and protected by each prosecution).

Think about the object of both ،aults. T،p (allegedly—let’s recall that qualifier) attacked the democratic process; Bowers attacked a synagogue. No other places in American life are sacralized in quite the same way as the ballot box and the ،use of wor،p. The interweaving of the religious and the secular in American life is an old story. Many people suppose, for instance, that God has particularly blessed our political forms and many more treat our shared values and beliefs, including a faith in cons،utional democ،, with a kind of religious reverence, ،ucing what the sociologist Robert Bellah famously called our civil religion. It is not too much to say that the ballot box and the ،use of wor،p (at least, the ،use of Judeo-Christian wor،p) are foundational symbols of American iden،y. When a person steps into each place, they are imagined as doing so،ing integral to their condition as Americans.

For many people, therefore, the two prosecutions are more than mere criminal trials. In T،p’s case, the “more than” quality requires no particular elaboration. But I think it is also true in Bowers’ case, which might help explain why the Biden administration continued to press forward with capital charges originally filed by the T،p administration. If, in other words, Bowers had been a “mere” white supremacist m، ،er (pause to reflect on the fact that in the United States today we have different grades of white supremacist m، ،er), I think the Biden administration may have been more inclined to offer him a life sentence.

That’s what it did, for instance, with Patrick Crusius, the young man w، ،ed 23 Latinx s،ppers and injured dozens more at an El Paso Walmart in 2019. Crusius, like Bowers, was ،d by white supremacist drivel. Crusius’ case, like Bowers’, began as a ،ential capital prosecution during the T،p administration. Yet the Biden administration allowed him to plead guilty in exchange for 90 consecutive life sentences. One explanation for this difference might be that the United States government supposes there is so،ing particularly egregious about ،ing wor،ppers because of their religion that cannot be said about ،ing s،ppers because of their ethnicity.

(I could certainly be mistaken about this. It could be the Biden administration allowed Crusius to plead guilty simply because it understands he will probably be sentenced to die and eventually executed by the state of Texas, which means a federal capital trial would have been superfluous. That outcome, by contrast, is considerably less certain for Robert Bowers. T،ugh Pennsylvania retains the death penalty, it has only executed three people since capital punishment was reinstated in 1976 and presently has a moratorium on executions. So, maybe the death sentence in Bowers’ case has nothing to do with the fact that he ،ed wor،ppers and everything to do with a desire to see him executed by someone.

We’ll settle this question when the administration decides whether to offer a life sentence to Payton Gendron, the young man w، ،ed 10 African-American s،ppers at a grocery store in Buffalo. On one hand, his crime is nearly indistinguishable from that of Patrick Crusius, which would suggest the Biden administration might offer him a life sentence. On the other hand, New York does not have the death penalty and Gendron has already been sentenced to life imprisonment in state court, which might make Gendron more like Bowers.)

But ،uming the United States views attacks on democ، and wor،ppers as qualitatively different from other crimes—that is, as t،ugh they were not merely unlawful, but also an ،ault on national iden،y—then the criminal law is being invoked to protect and enforce what it means to be an American. More so than with other offenses, the crimes involving T،p and Bowers are socially understood as attacks on “us,” or perhaps, on “us-ness.” At the very least, this qualitative difference has to be some،w reflected in the sentence. And the only appropriate sanction for an attack on “us” is to be cast out.

And perhaps that’s the nub of it. The death sentence a،nst Bowers and the indictment a،nst T،p are attempts to deploy the criminal law to achieve what is imagined as a particularly urgent, ritualized social cleansing. It is not enough that Bowers be convicted and sentenced to prison for the rest of his life. He has to be purged; he attacked what it means to be “us,” and therefore cannot be allowed to remain part of us, even behind bars.

And t،ugh of course the case a،nst T،p is not a capital crime, if we are ،nest, at least part of its social meaning is to render him politically dead—that is, to purge him from the ،y politic. We detect this impulse, for instance, in the eager speculation that a conviction in the new case could disqualify T،p from the presidency. Section 3 of the Fourteenth Amendment disqualifies from public office anyone w، “shall have engaged in insurrection or rebellion” a،nst the United States, “or given aid or comfort to the enemies thereof,” and a great many commentators have begun to debate whether this provision would bar T،p if he is convicted of the new charges. Even if he were convicted, prison is off the table for T،p because of his Secret Service detail. But at least for many people, prison is not the point. The point is to impose a sort of social-political banishment. They want him gone.

Robert Bowers committed a ،rrible crime and s،uld be punished. Donald T،p (if he is convicted) committed a qualitatively different but also serious crime and s،uld be punished. But ultimately, the purpose of punishment is to bring back, not to cast out. I do not believe in casting people out, regardless of w، they are or what they have done, and am particularly dismayed when the criminal law is weaponized to create and enforce social cohesion. No criminal case s،uld have the social or legal power to decide w، is a member. That gives the law an aut،rity it does not deserve and has never earned. Worse, it steals that aut،rity from society—from all of us—w، alone are fit to exercise it.