On successive days last week, a grand jury indicted Donald Trump and a petit jury sentenced Robert Bowers to die. Something 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 how we use the criminal law and what we hope it will accomplish. I hope readers will excuse the tentativeness in my writing.
At one level, the two events seem so different as to make comparisons insulting. Donald Trump 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 killing eleven worshippers 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 something 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 illustrations 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 assaults. Trump (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 house of worship. 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 constitutional democracy, with a kind of religious reverence, producing what the sociologist Robert Bellah famously called our civil religion. It is not too much to say that the ballot box and the house of worship (at least, the house of Judeo-Christian worship) are foundational symbols of American identity. When a person steps into each place, they are imagined as doing something integral to their condition as Americans.
For many people, therefore, the two prosecutions are more than mere criminal trials. In Trump’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 Trump administration. If, in other words, Bowers had been a “mere” white supremacist mass murderer (pause to reflect on the fact that in the United States today we have different grades of white supremacist mass murderer), 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 who killed 23 Latinx shoppers and injured dozens more at an El Paso Walmart in 2019. Crusius, like Bowers, was seduced by white supremacist drivel. Crusius’ case, like Bowers’, began as a potential capital prosecution during the Trump 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 something particularly egregious about killing worshippers because of their religion that cannot be said about killing shoppers 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. Though 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 killed worshippers 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 who killed 10 African-American shoppers 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 assuming the United States views attacks on democracy and worshippers as qualitatively different from other crimes—that is, as though they were not merely unlawful, but also an assault on national identity—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 Trump and Bowers are socially understood as attacks on “us,” or perhaps, on “us-ness.” At the very least, this qualitative difference has to be somehow 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 against Bowers and the indictment against Trump 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 though of course the case against Trump is not a capital crime, if we are honest, at least part of its social meaning is to render him politically dead—that is, to purge him from the body politic. We detect this impulse, for instance, in the eager speculation that a conviction in the new case could disqualify Trump from the presidency. Section 3 of the Fourteenth Amendment disqualifies from public office anyone who “shall have engaged in insurrection or rebellion” against 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 Trump if he is convicted of the new charges. Even if he were convicted, prison is off the table for Trump 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 horrible crime and should be punished. Donald Trump (if he is convicted) committed a qualitatively different but also serious crime and should 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 who 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 should have the social or legal power to decide who is a member. That gives the law an authority it does not deserve and has never earned. Worse, it steals that authority from society—from all of us—who alone are fit to exercise it.
