Saturday, March 31, 2012
The Unusual Case of Marvin Gabrion
Just over a decade ago, on March 16, 2002, Marvin Charles Gabrion made history. So far as I have been able to tell, Gabrion became the first person ever sentenced to death by the United States for a crime committed in a State that absolutely forbids capital punishment. In 1997, Gabrion committed murder in the Manistee National Forest in Michigan, over which the U.S. and the State of Michigan share concurrent criminal jurisdiction. He was prosecuted, convicted, and sentenced to death by the federal government.
Resolution of Gabrion's direct appeal to the U.S. Court of Appeals for the Sixth Circuit was delayed by an important question of subject matter jurisdiction that was ultimately decided against him. It was not until August of last year that a panel of the Sixth Circuit decided his appeal, reversing the death sentence on two grounds. First, it held that the jury instructions at the sentencing phase were erroneous under the Apprendi line of cases because they failed to inform the jury that it must find that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Second, the court held that the failure to instruct the jury that it could consider Michigan's lack of a death penalty to be a mitigating factor violated the Federal Death Penalty Act and the Eighth Amendment. However, both of these holdings were 2-1, and the court subsequently granted review en banc.
The supplemental briefs for both Gabrion and the U.S. have now been filed, and oral argument will likely be held this summer. Interestingly, Gabrion has not really pressed the second issue on which the Sixth Circuit panel would have granted relief. Instead, he casts it in somewhat different terms: he argues that the trial court erred by prohibiting his attorneys from arguing at the sentencing phase that the jury should consider as a mitigating fact any lingering doubt it had over whether the crime actually occurred on federal forest land. Both of the issues addressed in the supplemental briefs are not only interesting but are cert. worthy if either one is resolved in favor of Gabrion.
But my interest in this case relates primarily to my pet issue of the federal death penalty in non-death States. In January, I filed an amicus brief in the case setting forth the federalism arguments I have written about before on this blog. In essence, I advance a reading of the Cruel and Unusual Punishments Clause that measures the "unusualness" of federal punishments by whether they are consistent with the norms of the States. Since the Bill of Rights was demanded by the Anti-Federalists, who pushed hard for the preservation of state sovereignty and state autonomy in the face of the centralizing tendencies of the Constitution, it makes sense to read the Bill of Rights as having a strong federalism component. The Anti-Federalists were particularly concerned that the federal government would establish a parallel system of criminal justice that would both eliminate the need for state criminal justice systems and subject persons to criminal prosecution without the common-law protections guaranteed by state bills of rights. By tying the federal power to investigate, prosecute, convict, and punish to State norms, the Bill of Rights would eliminate any comparative advantage the federal government would otherwise have vis-a-vis state criminal justice systems. And because the constraints imposed by the Cruel and Unusual Punishments Clause stem from the common law, and because the Anti-Federalists understood the common law as varying by State, the Clause itself might impose constraints that vary by State. I spell out these thought in far greater detail in my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. ___ (forthcoming 2012).
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