In the days since 19-year-old Nikolas Cruz killed 17 people at Marjory Stoneman Douglas High School in Parkland, Florida, a narrative is unfolding: The shooting was not just a preventable tragedy, but the result of a series of missteps that let Cruz slip through the cracks. There were “warning signs” and “red flags.” Cruz was a “violent loner” who had “no friends.”
On one hand, it’s frustrating that neither the FBI nor the local police — which made 39 visits to Cruz’s house between 2010 and 2017 — could do anything to stop him. On the other, a “red flag” is not the same thing as a crime. But what would it look like if law enforcement somehow did intervene earlier, stopping Cruz before he had an opportunity to commit any crime at all? It turns out, we already know: law enforcement and prosecutors do intervene to arrest and prosecute people before any crime is even committed. But it doesn’t always work out the way we want it to.
Josh Pillault was 19 when the U.S. government accused him of being a domestic terrorist. A self-described troubled teen from Oxford, Mississippi who struggled with addiction issues, Pillault says that on Oct. 4, 2012, he was drunk and playing a video game online, when he got into a heated argument with another player. During the exchange, Pillault threatened to “level” local Oxford High School and turn it to “gravel.” “Its [sic] always a good time to talk about columbine,” he wrote, adding that he could not “wait to blow brains out of skulls,” according to court documents. The other gamer tipped off the feds. Four days later, a stoned Pillault was in his room playing World of Warcraft when a knock on the door that sounded like gunshots rattled the house.
Pillault looked up, surprised. He saw a flash of khaki outside the window to his bedroom. Friends, maybe. A prank? He got up off his bed, and walked toward the front door. Another loud knock. By then his mother, Stacey Harkins, had walked into the room. The two gave each other a confused look before Josh opened the door. On the other side was a team of federal agents, pointing assault rifles in his face.
What followed was a series of barked orders — “Freeze!” “Hands up!” “Get down!” “Turn around!” — as the agents swarmed, spun him around and searched him.
“It was terrifying, man,” Pillault told me over the phone from a federal penitentiary in 2016. (He is currently out on probation, and is in inpatient rehab as a condition of his release.) “They were on my roof, they were on the back porch, they had the house completely surrounded. They were knocking on floorboards, the bomb squad was there, the SWAT team, I mean full force. I was sitting there like, ‘man, what did I do?’”
Agents found no weapons in his home, nor any written plans indicating that Pillault intended to follow through on the alleged threats. A date for the alleged shooting mentioned in the transcripts from that online chat — April 20, 2013 — was a Saturday, when the school would be closed. He figured the whole incident was a misunderstanding that could be straightened out.
But federal prosecutors pushed for a conviction. After conferring with his lawyer, and after sitting in prison for more than a year, Pillault pleaded guilty in 2014 in the hopes of being released with time served, or some leniency. But the judge threw the book at him: six years in federal prison, 48 months more than the federal sentencing guidelines.
“I just feel like anybody who really looks at the case in an objective view, I don’t think anybody could ever truly believe I was going to do it,” Pillault said. “I personally don’t believe the prosecutors believed I was going to do it. But I’ve since learned that prosecutors, they take their jobs very, very seriously.”
Pillault’s case is a stark look at the tremendous leeway afforded to judges and prosecutors in working to stop serious crimes before they happen. In some ways, the push to stop serious crimes earlier in the process is a reflection of law enforcement’s stated purpose — to protect people. Two months after Pillault was arrested, 20-year-old Adam Lanza walked into Sandy Hook Elementary School in Connecticut and fatally shot 20 children and six adults. In 2017, there were 346 mass shootings in the United States, according to the Gun Violence Archive. There have already been 35 mass shootings in 2018.
But this push also creates ambiguity when it comes to prosecution and sentencing. For someone like Pillault, a judge often relies on a collection of circumstantial evidence to decide a proper punishment.
In Pillault’s case, agents discovered a teenager with an affinity for the macabre. A laptop in his house was filled with photos of serial killers and mass murderers, including Dylan Klebold and Eric Harris, the Columbine High School shooters. Pillault says he was a regular on 4Chan boards, where he would put together explainer packets about different high-profile murderers for others to read. It was a fascination he shared with his mother, a nurse and former political science major with an interest in true crime.
“That wasn’t weird to me,” Harkins told me of her son’s computer. “The same way other families discuss whatever their hobbies are, that was like our hobby.”
Feds also discovered a downloaded version of the Anarchist Cookbook, the 1971 William Powell book containing recipes for LSD and directions for creating explosives.
Like her son, when Harkins heard the charges, she assumed it was all a misunderstanding and that after a proper investigation, the truth would come out and her son could go home.
“I was relieved, actually, because I thought, ‘once this gets out, he’ll be fine. He’ll be home in a couple of days.’” she said. “He just said the wrong thing to the wrong person at the wrong time.”
A prosecutor's job is to make sure you're found guilty, and prosecutors are very good at their jobs. Roughly 97 percent of federal convictions and 94 percent of state convictions are from plea deals, the result of enormous pressure to convict, and leading to what the Atlantic called "spare oversight of the process invests prosecutors with broad, opaque powers."
While the government’s push to prosecute stunned Pillault, the report of the threat itself went about as well could be expected, said William Braniff, executive director for the National Consortium for the Study of Terrorism and Responses to Terrorism.
“I think this is an example of what you want to happen,” Braniff said. “You want people interacting with one another in the pre-criminal space to be vigilant of a potential threat, as opposed to the government having to take on that responsibility themselves, and violating civil rights and civil liberties in the process.”
That comes with a responsibility, however, to create options other than incarceration, he added.
“If you’re disrupting someone earlier and earlier in the process, perhaps when they articulated the threat and have made no other steps toward actually engaging in violence, then presumably, there is room still to divert that individual from a life of violence to a life of productivity,” he said.
“I just feel like anybody who really looks at the case in an objective view, I don’t think anybody could ever truly believe I was going to do it.”
What Braniff and others suggest in these cases is providing judges with options other than lengthy prison time. As an example, he points to U.S. District Judge Michael Davis of Minnesota, who has moved towards a process of deradicalization, rather than long sentences in which already radicalized prisoners are exposed to violent offenders, possibly making their issues worse. In 2016, Davis chose four Minneapolis-area men for an experimental deradicalization program after they were convicted of joining ISIS.
Providing new ways for judges to reform defendants would help them in ways the current system of incarceration does not. “Our criminal justice system is already overtaxed, so the idea that we’re going to conduct these reforms within the criminal justice system I think is probably naive, and I really think what we have to provide our cadre of judges is an alternative," Braniff said.
One of the issues with disrupting would-be plots in their early stages is that sentences are typically not of any significant length, as there haven’t been any significant crimes yet committed. For Pillault, that meant that even though he had to spend six years in prison, he would still have the rest of his life, albeit with a record.
But take the case of Nikolas Cruz, or any other proven school shooter. Arresting him earlier in the process might have delayed a violent outcome by a few years years, but likely wouldn’t have solved any underlying problem.
“You’re not actually getting the same level of societal safety as if this person had gone farther along in a conspiracy towards violence and was incarcerated for 30 years,” Braniff said. “And I’m not saying that’s the best outcome either. It’s just that that’s the second reality of this push to disrupt earlier and earlier: Sentences are shorter, and without any sort of rehabilitation or reintegration program, these people are coming back into society, but no better off, and maybe worse off, than when they went into prison.”
Providing new ways for judges to reform defendants would help them in ways the current system of incarceration does not.
Before prosecutors could get to a Nikolas Cruz, though, there needs to be some level of suspicion. There’s been plenty of criticism of the FBI and local law enforcement in this respect. And at the very least, it’s clear that the FBI should have intervened in some fashion, said free-speech advocate Ken Paulson of the Newseum’s First Amendment Center.
“Although there’s a very high bar to charge somebody with a crime for making threats, and that’s appropriate, there’s a very low bar for law enforcement to go and have a talk with someone,” Paulson said. ”And that’s the key here.”
But beyond that, despite all of the scrutiny on local Parkland law enforcement and the FBI, it still isn’t clear Cruz committed any actionable offense before Feb. 14, absent some specific threat. Irritating, insulting, and even unsettling speech is protected, and a prosecutor would have to be convinced he or she could successfully prosecute someone for using speech to threaten others.
“If he said to a classmate, ‘I’m going to come back and shoot up the school,’ then you’re in a different category,” Paulson said. “But they all seem to be pretty opaque, and general, and angry.”
It’s also worth considering how much power we’re willing to give police officers and federal agents in arresting American citizens — often young, stupid American citizens — for crimes they have yet to commit. Is it worth it to preemptively punish people, and if so, what should that punishment be? A system of arresting people earlier and earlier in the process is a system that arrests and charges a lot of innocent but troubled people.
On Tuesday, Harkins told me her son wants to go to school, though he’s not quite sure what he wants to study. His plan is to start out at community college, and work his way up from there. “Josh is forever the optimist,” she said.
In one of our last conversations from prison, Josh himself said he is trying to look at his time in prison as a wake-up call. He wants make good on the rest of his life, and escape the label of “domestic terrorist.”
“To this day I hold it in my heart that I can get that label taken off of me,” he said. “One thing I’ve learned from this experience is that humans thrive on hope, no matter how small it may be.”
