Last week, Carmen Ortiz, Boston’s top federal prosecutor, indicted Dias Kadyrbayev and Azamat Tazhayakov, two college buddies of Boston Marathon bombing suspect Dzhokhar Tsarnaev. They will be arraigned today.
Kadyrbayev and Tazhayakov are charged with conspiracy to obstruct justice (agreeing to destroy evidence) and obstruction of justice (actually destroying evidence) for allegedly having thrown out a backpack they took from Tsarnaev’s dorm room containing evidence relating to the marathon attack. If convicted, they face as many as 25 years in prison—five on the conspiracy charge and 20 on the obstruction charge. (I represented Tazhayakov when he was first arrested in May. His family has since hired a Russian-speaking lawyer.)
Given the heinous nature of the marathon bombing and the international spotlight on the attack, Ortiz must be under enormous pressure to go after Kadyrbayev and Tazhayakov with everything she’s got. The Boston community and local law enforcement are probably encouraging her to do so. But would locking two 19-year-olds up until their 30s or 40s, based on the facts of this case, be fair or just?
Federal prosecutors wield enormous power. They decide who should be arrested. They determine what crimes should be charged and, because every crime carries a different potential penalty, their charging decisions have a great deal of impact on the prison terms that defendants face. Prosecutors also choose who should be allowed to plead out to reduced charges. Given that roughly 97 percent of all federal cases end with a guilty plea, it is prosecutors—not defense lawyers, lawmakers, or even judges—who really control the federal criminal justice system.
That type of unchecked power sometimes leads to abuse. Nowhere is that concern more evident than in Boston, where Ortiz’s hard-nosed and uncompromising tactics have led to draconian outcomes.
For example, Ortiz charged John Nelson, a lawyer who did real estate closings, with mortgage fraud. After the government presented its evidence at trial, but before the jury got to consider the case, the judge stepped in and dismissed the charges, finding that no rational jury could believe the government’s key witness. It’s appalling that Ortiz’s office put Nelson through the ordeal and expense of a federal criminal case based on the word of someone a judge concluded no one could believe. It was also Ortiz who went after Internet activist Aaron Swartz, piling on charges and threatening a long prison term for allegedly downloading millions of articles from academic database JSTOR. Emily Bazelon described the case for Slate as “blatant prosecutorial intimidation—an egregious overcharging of crimes.” When Swartz committed suicide January, his family and girlfriend said that he did so in part because of the enormous pressure brought to bear by Ortiz’s office. One more example: In 2012, a judge gave Ortiz a drubbing in a case against Lorraine Henderson, a government worker who hired an illegal alien to clean her home. The judge said that Ortiz’s decision to bring federal charges against Henderson was “overkill” and an “improvident invocation” of prosecutorial authority.
The charges against Kadyrbayev and Tazhayakov are based mainly on statements they made during two days of FBI interrogation before they were arrested. According to authorities, they admitted that they took a backpack from Tsarnaev’s dorm room containing, among other things, emptied fireworks and Vaseline, and admitted that they agreed to “get rid of it” after seeing news reports with photographs identifying Tsarnaev as one of the marathon bombers.
Some commentators, including former New York Mayor Rudolph Giuliani, have suggested that, because Kadyrbayev and Tazhayakov didn’t go to the police after they figured out that Tsarnaev was one of the alleged bombers, Ortiz should seek to hold them accountable for the murder of MIT police officer Sean Collier, the shooting of transit officer Richard Donohue, and the carjacking believed to have been carried out by Tsarnaev and his older brother, Tamerlan. In other words, because Kadyrbayev and Tazhayakov didn’t do anything to stop the killings that followed the marathon bombing, they are complicit in it. It’s worth noting that they had no legal responsibility to report Tsarnaev to the authorities, even though most people would surely agree that they should have if they could have prevented additional violence.
Even if Kadyrbayev and Tazhayakov are convicted “only” of the obstruction-related charges, Ortiz’s past practices suggest she will ask the judge to impose the longest possible prison term—25 years. But this would go directly against Department of Justice policy. According to Attorney General Eric Holder’s instruction to all federal prosecutors, decisions on who to charge and what to charge them with should account for whether a defendant has helped the authorities, for example by providing evidence or testifying.
Kadyrbayev and Tazhayakov are said to have told investigators when and where they threw Tsarnaev’s backpack out. Because of the information they provided, government agents were able to recover the backpack and its contents from a local landfill. Kadyrbayev and Tazhayakov also took Tsarnaev’s computer from his dorm room—a potentially critical piece of evidence. The government doesn’t claim that Kadyrbayev and Tazhayakov threw it away, so authorities presumably have it. Their cooperation surely should count for something. It’s not clear from the indictment when the pair told the FBI what they did with the backpack, but they weren’t interviewed until after Tsarnaev’s photo was publicized.
Let’s also not lose sight of what really happened here. Two young and immature college students from Kazakhstan unfamiliar with the American criminal justice system allegedly exercised world-class bad judgment under the worst of possible scenarios. Lengthy prison terms just don’t “fairly represent” what they did. Such punishment would also be out of step with the efforts today by lawmakers and elected officials on both sides of the aisle to not only be “tough” but also “smart” on crime—the approach Holder outlined in a major speech Monday. Holder noted that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”
Ortiz’s office could argue that throwing the book at Kadyrbayev and Tazhayakov has the purpose of communicating a simple warning: Don’t mess with evidence. This is a legitimate and important law enforcement objective. But Ortiz doesn’t have to lock Kadyrbayev and Tazhayakov up for decades to get that message out. For crimes like those with which Kadyrbayev and Tazhayakov are charged, a long prison term just isn’t necessary to accomplish the traditional sentencing goal of general deterrence.
If Ortiz takes a page from the Nelson, Swartz, and Henderson playbook and brings the government’s full weight to bear against these two students, they may well spend years behind bars for making one very bad decision. And Ortiz will only reinforce her image as a wayward prosecutor who time and again goes too far.