A state murder case, by contrast, would be a slam dunk.

T he Justice Department has filed a charge against Decarlos Brown Jr., the suspect in the brutal murder of Iryna Zarutska in a Charlotte train car. I hope the FBI and DOJ can make the case, but it seems very uphill — in terms of both federal jurisdiction and whether the penal provision cited truly applies.

In marked contrast, a state murder charge would be straightforward, and a conviction would be virtually certain. And to be clear, the federal charge, even if it fails, does not preclude a state murder prosecution.

The Justice Department is relying on a statute by which Congress targeted terrorist attacks against transportation infrastructure — Section 1992 of the federal penal code (Title 18, U.S. Code). It is a broad provision that, in the course of criminalizing obvious terrorist crimes — e.g., bombing, burning, attacking with chemical or biological substances, and otherwise sabotaging railroad systems — also sweeps in (under subsection 7) the commission of “an act, including the use of a dangerous weapon, with the intent to cause death or serious bodily injury” to any person who, at the time of the act, is on certain specific railroad property. When death results from the commission of the prohibited act, as it did in this case, potential sentences include the death penalty.

Above, I italicized “railroad property” because I think the concept, and the way it is defined in the statute, could cause the Justice Department problems. But let’s start with the more general problem.

Federal Jurisdiction and Interstate Commerce

Whether the federal authorities have jurisdiction to prosecute does not depend on how horrific the crime in question is; what matters is whether there is a recognized federal constitutional interest. We all have an interest in seeing violent criminals brought to justice. But the federal government is one of limited, enumerated powers; if one of those powers is not triggered, there is no federal jurisdiction.

Despite the metastasis of federal criminal law over the last century, the vast majority of crime in America is a concern of state law. Indeed, Madison, Hamilton, and other advocates for adoption of the Constitution went to great lengths to assure skeptics that it would not snuff out state sovereignty. Public welfare within a state’s jurisdiction, law enforcement in particular, would remain a state responsibility.

Modern federal law enforcement is night and day different from what it was in the late 18th century, when there were few federal crimes, no Justice Department, no FBI, and no established, multitiered system of federal courts. But the underlying principle hasn’t changed: Federal prosecutors still need a jurisdictional hook — a recognized federal interest — to bring a case. Some hooks are obvious: an assault on a federal officer, for example. But the most common federal jurisdictional hook is Congress’s power to regulate interstate commerce.

The federal courts’ highly elastic interpretation of interstate commerce in the 20th century sometimes seems to have transmogrified every quotidian state crime into a federal offense (and everything that used to be local, private activity into grist for federal regulation). Even if the conduct is entirely intrastate, small-time drug distributions are deemed federal because illegal narcotics (or their precursor components) are imported. Or because there is a national market that is seen as somehow affected if, say, A hands B a vial of crack on a city street.

When I was a boss in the Southern District of New York’s U.S. attorney’s office, new federal prosecutors would occasionally ask me if we could indict push-in robberies — a classic state crime — on the theory that the Treasury Department’s Bureau of Engraving and Printing does not produce paper currency in New York, meaning the stolen cash must at some point have traveled in interstate commerce. Thankfully, we didn’t do such cases, but I can’t say the theory is without foundation.

The objective of defining interstate commerce capaciously is not to eviscerate state law enforcement and the distinction between federal and state jurisdiction. It is to vindicate patent federal interests, such as prosecuting organized crime syndicates that operate across state lines, financial frauds that affect national markets, and international terrorist organizations that exploit interstate and international facilities in conducting attacks on civilian populations or infrastructure vital to interstate commerce.

Now, I’m the opposite of a babe in these woods. I don’t blame the DOJ for wanting to take the reins of the Charlotte case, which involves egregious crime about which the public deeply cares. I was once an ambitious federal prosecutor, too, and I’ve still got scars from turf wars with my state counterparts. But those turf wars were mainly over the crimes of interstate syndicates, which are better handled by the feds (state jurisdictional strictures impede state prosecutors from uncovering and reaching the full breadth of interstate and international criminal organizations).

There is a difference between having an expansive view of interstate commerce, which is often justifiable in the modern world, and having a view that would federalize every crime, which is antithetical to federalism. The Constitution guarantees state sovereignty, of which law enforcement authority is at the core. And in any event, with the government $37 trillion in hock, the feds already lack the resources to supplant state law enforcement: There are, for example, fewer FBI agents (less than 14,000) than state and local police agencies (close to 18,000) across the U.S.; the latter employ about 700,000 police officers.

To be sure, technology has made the world much smaller, especially in terms of transportation and communications. The regularity with which people and facilities move through state boundaries makes it easier to establish federal criminal jurisdiction. Still, such jurisdiction has to be established for there to be a federal case — again, with the caveat that the aim is to vindicate federal interests, not federalize state crime.

That brings us, head-on, to the first problem with the DOJ’s Charlotte case. Iryna Zarutska was murdered while riding as a passenger on the Lynx Blue Line. It is a light rail system that operates locally. It is not merely intrastate, but rather interstate; its entire route of less than 20 miles is within Charlotte’s city limits.

The Justice Department’s complaint against Brown tries to tiptoe around this inconvenience by referring to the Lynx line as a component of the large “Charlotte Area Transit System” (CATS), which is further described as “the largest transit system between Atlanta and Washington, D.C.” But the Lynx line doesn’t go from Georgia to North Carolina to Washington; it goes from point to point in Charlotte, period. If we adopted the DOJ’s theory of federal jurisdiction, then riding a skateboard would be interstate commerce, too. After all, you can glide it to the bus stop, take the bus to a subway station, and maybe take a train to the Air Tran that gets you to JFK Airport. By DOJ’s lights, skateboard, bus, train, tram, or jumbo jet — they’re all spokes in the same “mass transit” wheel.

The Statute Relates to Terrorist Attacks on Rail Infrastructure

Now, as to the second problem, let’s go from the top-level constitutional concern (interstate vs. intrastate) to the more granular statutory inquiry (does the text of the law apply to this situation?).

Under the DOJ’s construction, Section 1992 would transform every assault on a local train car into a federal crime. Congress, however, intended to target people who attack mass-transportation systems: disrupting commerce, endangering life and property indiscriminately, all on a massive scale.

Above, I referred to railroad property. There can be no violent crime prosecution under the provision the DOJ has invoked (Section 1992’s subsection (7)) unless the victim was situated on railroad property as such property is defined in the statute. On that score, Section 1992 sets forth two categories of property (in subsections (4)(A) and (4)(B)). Here’s the first category’s definition of relevant property:

tunnel, bridge, viaduct, trestle, track, electromagnetic guideway, signal, station, depot, warehouse, terminal, or any other way, structure, property, or appurtenance used in the operation of, or in support of the operation of, a railroad carrier[.] [Emphasis added.]

Patently, this category targets terrorists who attack railroad infrastructure. That is why the title of the statute is “Terrorist attacks and other violence against railroad carriers and against mass transit systems on land, on water, or through the air.” Subsections (4)(A) and (4)(B), whose property definitions are incorporated in the violent crime provision that the DOJ invokes (subsection (7)), principally criminalize attacks using mass-destruction weapons by which terrorists intend to “derail, disable, or wreck” railroad infrastructure.” If Congress’s objective had been to protect individual passengers riding in train cars, lawmakers could easily have said that. They didn’t.

Here is what the DOJ is hoping: If you squint a bit, you might be able to derive a train car out of the terms I’ve italicized from the list above, to wit: “any other structure used in the operation of a railroad carrier.” But to figure out what kind of “other structure” Congress had in mind, a court would look at the other terms on the same list — tunnels, bridges, tracks, etc. (The germane canon of statutory construction is noscitur a sociis, the idea that the meaning of a broad or ambiguous term can be discerned by looking at the terms with which it is associated.) The full list elucidates that Congress’s objective was to protect the property and interconnections that make a railroad system work, not to protect passengers from being assaulted by other passengers.

Now, I freely concede that the provision (subsection (4)(a)) outlining property category one includes the term “railroad on-track equipment,” and that Section 1992 specifically defines that term as including a “passenger car.” (See subsection (9).) This doesn’t solve the DOJ’s problem.

The reason I didn’t include “railroad on-track equipment” in the list of property to which the violent crime provision applies is because Congress didn’t put it in the property list. Rather, it was made part of the mens rea element. That’s the part of the statute that defines the criminal state of mind the government must prove beyond a reasonable doubt — and not if it charges someone with using a dangerous weapon to commit a violent act (the subsection (7) crime the government has charged against Brown), but if it charges the subsection (4) crime of using a mass-destruction agent (which is not pertinent to the case against Brown). For the latter, the prosecutor must establish the defendant’s intent to “derail, disable, or wreck” a passenger car (i.e. “railroad on-track equipment”).

This tells us that Congress did not inadvertently fail to include passenger cars on the list of property applicable to the violent crime that the DOJ has against Brown. The omission was logical: Congress was clearly thinking of passenger cars, but only in the context of terrorist attacks on infrastructure; it was focused on the destruction of passenger cars by bombing or sabotage, not assaults that occur on passenger cars and that are unrelated to terrorist attacks. Regrettably, as Congress well knew, assaults on train cars happen frequently; state laws address them, and they are routinely investigated and prosecuted by municipal police and district attorneys. Federal muscle was needed to combat terrorism, not everyday state crime.

Here’s Section 1992’s second property category:

garage, terminal, structure, track, electromagnetic guideway, supply, or facility used in the operation of, or in support of the operation of, a mass transportation vehicle.

Same problem: The property listed is railroad infrastructure. Congress was seeking to protect the facilities that make rail vehicles travel, not passenger cars themselves.

Tellingly, the federal complaint against Brown says his barbaric act was committed “on a terminal, structure, track, and facility”; as demonstrated above, that is not how Section 1992 defines the pertinent railroad property. The complaint neither cites the definitions in subsections (4)(A) and (4)(B), nor tries to fit them into the charging narrative.

It couldn’t be more clear: Congress undertook to protect mass transit systems from terrorists. Lawmakers included the provision about using a dangerous weapon with intent to cause death or serious injury, not to reach assaults on trains, but to ensure that terrorists who killed or maimed people in the course of sabotaging railroad infrastructure would face the death penalty or a potential life-imprisonment penalty.

Capital Crime

I point all of this out because, like most Americans, I would like to see Brown convicted and punished with the harshest sanction the law allows. The best case here is a straightforward state murder charge, not a complicated federal terrorism charge that, at best, is a stretch and could well be thrown out.

A state murder case would be a slam dunk: the only issue would be whether Brown was insane and should be committed to a mental institution rather than a penal institution (something that will have to be litigated regardless of whether it’s a state or federal case). The state prosecutors would not have to worry about proving whether the Lynx Blue Line is a facility in interstate commerce, whether the state’s murder statute was meant to apply to murders in train cars, whether the atrocity alleged against Brown involved cognizable railroad property, or whether the logic of the prosecution is to turn every assault on every train in America into a federal offense.

A final thought. I appreciate that the Trump DOJ is trying to enforce the law vigorously. The signal that crime must be punished is overdue and valuable. In this vicious murder case, the alleged perpetrator deserves capital charges and, if convicted, a death sentence. The DOJ is straining to achieve that outcome; it may be beyond the capacity of federal prosecutors, but they’re giving it their best shot in a case that’s worthy of any prosecutor’s best shot.

Why don’t they just leave it to North Carolina’s authorities? Because by its actions, the state has shown indifference to public safety, and certainly has not prioritized vigorous law enforcement. Nominally, North Carolina has the death penalty; but as in other Democratic-run states, there is a moratorium on executions based on the narrative that capital punishment is racially discriminatory or targets the mentally infirm. It has been 19 years since the last execution of a death row inmate in North Carolina, and murders are not charged as capital cases. Charlotte is run by progressive Democrats, whose anti-enforcement policies explain why Brown, a violent career criminal, was at liberty to commit murder and mayhem. North Carolina’s last Democratic governor, Roy Cooper, commuted death sentences; that’s because he’s ambitious — likely eying a 2028 presidential bid — and progressive anti-enforcement policies are popular with the Democratic base. There is no reason to believe the state’s new Democratic governor, Josh Stein, will be any different.

If Brown could be convicted of murder in the federal system, it is probable that he would be sentenced to death, which is what he deserves. I assume that is the main reason the DOJ wants the case — although there is plainly a desire to drive the political message that, on crime, President Trump is strong and Democrats are reckless.

Alas, there is also a good chance that federal charges would be invalidated because Brown’s conduct, while unspeakable, is not what the statute invoked by the DOJ is meant to target. By contrast, it is highly likely that, even if not indicted on capital charges, Brown would be sentenced to life imprisonment after a state murder conviction. The objective here cannot be to serve a political narrative. It has to be justice for Iryna Zarutska. That demands the surest route to the severest sentence available under the circumstances.