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Wednesday, April 04, 2012

The (Very) Unusual Case of Jason Pleau

Today, the en banc First Circuit heard oral argument in U.S. v. Jason Pleau, a potential federal death penalty case out of Rhode Island -- with a strange twist.

Pleau and his accomplices are accused of robbing and murdering David Main as he was about to make a bank deposit of the proceeds from a gas station where Main worked in Woonsocket, Rhode Island. As you may know, Rhode Island does not authorize capital punishment. Pleau was indicted by the U.S. for robbery, in violation of the federal Hobbs Act, which criminalizes a robbery that "affects commerce," and murder, in violation of 18 U.S.C. 924(c)(1)(A)(iii) and (j)(1). The latter charge carries a possible death sentence, although the federal government has not yet decided whether it will seek death. Following his indictment, the federal government sought to obtain custody of Pleau, who was then in the custody of the State, by filing a detainer under the Interstate Agreement on Detainers (IAD). Rhode Island Governor Lincoln Chafee said: "No."

You read that last part right.

For what appears to be the first time in the 40-odd year history of the IAD, a state governor refused to turn over a state prisoner to federal authorities under that agreement. Chafee, justifiably believing that the only reason the federal government was involved in the case was to seek Pleau's death -- Pleau had already agreed to plead guilty in state court in exchange for a sentence of life imprisonment without parole -- cited Rhode Island's longstanding opposition to capital punishment.

No fear, thought the federal government. They sought a writ of habeas corpus ad prosequendum, a common-law writ under the All Writs Act. The District Court granted the writ, ordering Gov. Chafee to turn Pleau over to the federal government. A panel of the First Circuit disagreed, accepting Chafee's and Pleau's argument that, once the federal government sought, and failed to obtain, custody under the IAD, it was prevented from doing so under the All Writs Act. The First Circuit then granted rehearing en banc.

I won't comment upon the merits of the issue currently before the en banc First Circuit, which involves the interesting intersection of the IAD and the All Writs Act, in part because I consulted with some of the amici in the case on their brief. But this little-known case implicates some very big issues.

First, there is the ever-present botched reporting by the media. Every news account I have read about this case claims that Pleau allegedly violated federal law because the killing took place outside, or near, or on the threshold of, a federally insured bank. Poppycock. There is no federal statute criminalizing robberies that take place outside, or near, or on the threshold of, a federally insured bank. To be sure, there is a federal bank robbery act, but of course Pleau didn't rob a bank. No, as I mentioned he allegedly committed a Hobbs Act robbery -- a robbery that "affects commerce" -- which has nothing to do with the fact that it was near a bank.

But that brings me to my second point which is that I doubt many people realize how broad the federal Hobbs Act is. Apparently, anyone who robs any commercial establishment violates the Act. Moreover, even if one forcibly steals the proceeds of a commercial establishment, one has likely violated the Act. There are cases upholding convictions under the Act where the defendant robbed a home, where among the stolen items were the proceeds from a commercial enterprise. Repeating a refrain from an earlier post of mine: there is lots of outrage these days over the federal government forcing people to buy health insurance; why is there so little over the fact that the federal government can put me in prison if I steal a Snickers Bar at gunpoint from the local gas station?

My larger point is about Gov. Chafee. It seems to me that his actions are exactly what the Anti-Federalist proponents of our Bill of Rights had in mind: use of state power to intercede between a citizen and the awesome power of the federal government. They contemplated that the States would act as barriers between the federal government and the people, to further the cause of human liberty. I have argued that the Cruel and Unusual Punishments Clause can be read to interpose state judgments about permissible punishments between the federal government and the people, so that the federal power to punish is limited in the same way that the States limit their own power to punish. Here, the interposition is more direct and more literal, but it serves the same end.

Of course, some such intercessions might take on a darker cast and work to defeat human liberty, such as where a racist governor protects a white supremacist from federal prosecution for violating the federal civil rights of racial minorities, where state authorities are unwilling to prosecute. But in such a case, the State is itself arguably violating a later-enacted provision of the Constitution by denying racial minorities within its jurisdiction "the equal protection of the laws." This is not such a case. Nor is this a case where a State is protecting one of its own in order that he may escape punishment for a crime altogether or, indeed, that he be treated more leniently than others similarly situated in the State. Pleau has already agreed to accept the harshest punishment possible under Rhode Island law. So long as a State is willing to forego capital punishment across the board, its determination about the acceptable bounds of punishment for crimes that occur within the State calls for deference from the federal government. If the federal government is unwilling to afford such deference, Gov. Chafee is within his rights in refusing to turn over Pleau.

Posted by Michael J.Z. Mannheimer on April 4, 2012 at 09:23 PM in Constitutional thoughts, Criminal Law | Permalink


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I said this before but I'll say it again. I can see the argument that the Hobbs Act is overbroad and this implicates a federalism interest. I cannot see why the fact that R.I. does not have capital punishment brings some additional federalism interest over and above this.

Take a hypothetical that distinguishes the former from the latter. Suppose that Mann did not just murder someone in interstate commerce (which is just about everyone) but committed a murder where the federal interest is indisputable, such as assassinating a federal officer. Then the Rhode Island governor shelters him from federal punishment because it exceeds the state's. Your logic that he is not being treated more leniently than any other Rhode Islander still applies. But I think it obvious that we cannot have federal officers being protected more strongly in some states and more weakly in others (let us stipulate that the death penalty deters, and so having the death penalty is a stronger level of protection). In your logic were consistently applied, I think you would have to say that the President must walk into Rhode Island and suddenly be a little more at risk of murder than if he were in Texas, and I just don't think that is right.

Posted by: TJ | Apr 4, 2012 9:51:30 PM

I agree with TJ, and I'll just add that I'm baffled by your (feigned?) surprise that people could think the mandate is unconstitutional whereas the Hobbs Act is not. To state the most obvious of all points: whether Congress is regulating commerce turns in absolutely no way on whether the states like it. You make a big deal about the fact that RI disagrees here, but the Hobbs Act, if unconstitutional as applied to robberies like this one, would be equally unconstitutional for an identical robbery in Texas. No matter how much Texans like capital punishment, the state cannot unilaterally consent to the expansion of federal power. For that, you need to consult Article V.

If your implicit premise were true--that Congress's power turned on a given state's acquiescence--then a State could waive the individual's right not to be subjected to punishment in the name of a law beyond Congress's power to enact. Ridiculous.

In general, this is an interesting problem, and I'm glad you're thinking about it. But why must you shoot yourself in the foot with an illogical ad hominem? People are much less likely to take you seriously if your gimmick is just that conservatives are hypocrites. Maybe they (we?) are, but not here.

Posted by: anon | Apr 4, 2012 10:42:35 PM

TJ, I think that is a good point and that may be the strongest case for use of a federal punishment that is harsher than that allowed by state law. Nevertheless, my argument is grounded in the history of the Cruel and Unusual Punishments Clause, and I cannot think of any principled basis by which to make exceptions for even "indisputable" cases of a great federal interest. We are just coming at this from two different angles: mine historical and yours pragmatic.

I would add this: assassination of the President was not a federal crime until 1965. Rhode Island abolished the death penalty in 1852. So, for over a century, the President WAS less safe in Rhode Island than Texas by your way of thinking. Yet Texas led Rhode Island 1-0 in presidential assassinations during that time period.

anon: I do not respond to anonymous comments.

Posted by: Michael J.Z. Mannheimer | Apr 4, 2012 11:39:13 PM

Well, acknowledging but not responding to my comment beats deleting it, so I'll thank you for that and hope you also read it. Perhaps someone else will, too, and perhaps they'll see fit to make the same points without the cloak of anonymity.

Posted by: anon | Apr 5, 2012 12:14:28 AM

No, as I mentioned he allegedly committed a Hobbs Act robbery -- a robbery that "affects commerce" -- which has nothing to do with the fact that it was near a bank.

He wasn't just killed because he was near a bank. I thought part of the issue is that "he was about to make a bank deposit of the proceeds from a gas station." Isn't the bank deposit a factor here?

This isn't a Snickers bar robbery. Let's grant, perhaps, an as applied challenge here, or something of that nature. This is not a trivial case of that sort. Health insurance requirements for millions of average Americans also might result in different emotions than a murderer. On the other hand, when a person had a handgun, see U.S. v. Lopez.

Federalism works both ways, itself furthering liberty. It includes the feds having their own criminal statutes, even if there is some overlap with local concerns. Thus, a murder of a post officer can breach local and federal law. If the state thinks that deserves a few years in a minimum level prison, should they not release the person to the feds because the ten year maximum sentence is deemed cruel and usual?

I am against the death penalty, but this is not a convincing case to afford it. The Supremacy Clause trumps here.

Posted by: Joe | Apr 5, 2012 1:20:00 AM

Oh, please. Your argument is "grounded" in your political dislike of the death penalty, and the desire to score cheap points against what you think conservatives believe. Are federal courts supposed to decide whether the lawless acts of state officials should stand based on each judge's view of what "defeats human liberty"? I doubt you have the slightest interest in federalism in any other context.

As Judge Boudin's dissent makes clear, the legal question borders on frivolous; the defendant was fortunate in the extreme to draw this panel.

And you don't respond to anonymous comments, but you do respond to those written by people who enter two random letters in the name box?

Posted by: Jay | Apr 5, 2012 1:48:28 AM

Michael, I'm not sure history-versus-pragmatism quite cuts it. Let me give another example where I doubt your theory of Cruel and Unusual Punishment would be sustained by the history, with the caveat that I am admittedly not an expert.

As far as I know the federal government has always provided that Treason can be punished with capital punishment. Art III provides that Congress shall have the power to declare the punishment for treason, but of course the 8th Amendment would trump that since it is the later enactment. So by your theory, it would seem that traitors who aid a foreign invasion in Rhode Island would get a lesser punishment than traitors in Texas, regardless of what Congress said. I don't think that is right as sensible policy. And I highly doubt it is right as a matter of original understandings of the Eighth Amendment (whether you go by original expected applications, original intentions, or original public meaning).

Posted by: TJ | Apr 5, 2012 2:26:01 AM

TJ (who is not anonymous but is Tun-Jen Chiang from GMU Law School, which anyone can figure out after scanning the right side of the screen for about 10 seconds),

Thanks again for the very cogent observations. Once again, you have posited one of the hardest cases for me to explain under my theory, but let me try. What the Anti-Federalists feared most was the federal government's creating a system of criminal justice that would simply replicate state criminal justice but without the constraints of the state bills of rights. So I would say that the federalism argument applies only where we are talking about the State and the U.S. punishing the same offense -- really the same offense, not the "same offense" in Double Jeopardy terms. When the U.S. seeks to punish a penny ante robbery that affects commerce, we know that the "affect[ing] commerce" element is really a legal fiction utilized to create federal jurisdiction. No one really thinks that Pleau's evil deed was taking a few thousand dollars out of the stream of commerce. Rather, it was (1) forcibly taking away the property of another with the intent to permanently deprive him thereof and (2) killing another human being with malice aforethought. That is to say, the federal interest in punishing these actions is, in reality, no different from the State's interest. More generally, there is almost always a state crime to which we can pretty closely analogize the federal crime at issue when we look at the real interest at stake.

But treason against the State is fundamentally different from treason against the federal government. If a citizen were to help a foreign power to forcibly take over a State, we still have the federal government in place to fight back, as it is obligated to do under the Guarantee Clause. But if a citizen were to help a foreign power take over the country, then, as they say, game over. So treason against the federal government is a fundamentally different, and more dangerous, crime than treason against the State. This reasoning might even apply to your previous example of murder of the President. I'd have to think about that one, though I still think it's notable that we somehow managed for 176 without a federal law criminalizing murder of the President.

I would add that it is telling that the most serious potential problems with my account -- and there certainly are some problems -- come into focus only if we look at the rather exotic examples of murder of the President, which has occurred only four times since 1791, and treason against a State, which to my knowledge has never occurred.

Posted by: Michael J.Z. Mannheimer | Apr 5, 2012 1:39:23 PM

Jay, if you want to attack a man's integrity, have the fucking balls to do it without the cloak of anonymity. If you can grow a spine and post under your real name, I'd be happy to respond to your comments.

Posted by: Michael J.Z. Mannheimer | Apr 5, 2012 1:44:26 PM

And here I had hoped to hide myself from those who are not willing to spend ten seconds looking on the right side of the screen . . .

Back to the point, however, I think by now you and I are saying almost the same thing. It seems you are saying that if what the feds are regulating is really a local offense, with only a jurisdictional hook like "affecting commerce," then your theory applies. If what the feds are regulating is something that truly implicates the whole country, such as treason against the federal government, then your theory does not apply. But then that goes back to my initial point, which is that it seems that the intuition behind your theory turns on the argument that the Hobbs Act is overbroad because it uses a mere jurisdictional hook to regulate what is really a local issue, and does not turn on the argument that Rhode Island has no capital punishment.

Because lets flip it. Suppose that Congress says the penalty for Treason against the United States is life imprisonment, but Texas says that the penalty for Treason against the United States is death. I take it that we would agree that Texas cannot and ought not be able to impose its death penalty on Texan traitors because the state law would be preempted, and it is appropriately preempted because Treason against the United States is a national issue.

Posted by: TJ | Apr 5, 2012 2:27:14 PM


Sorry, I didn't mean to blow your cover; I was responding to a different commenter complaining that I was not following my "no responses to anonymous comments" policy.

On your last point, I'm not sure I agree. That is really the issue going on now with Arizona, is it not? With all due respect to Jack Chin, I'm not convinced that the States should not be able, as a constitutional matter, to enforce federal criminal law. After all, the Constitution leaves open the possibility that there would be no lower federal courts, and the only court it creates, the Supreme Court, has original jurisdiction over only a limited number of matters. Thus, it must have been contemplated that state courts could enforce federal criminal law. But I have to do some more thinking on that.

On your first point, one answer is to look at what Patrick Henry said in the Virginia ratifying convention on June 16, 1788. He first pointed out that Congress could, under its powers, criminalize petty larceny (how prescient he was!). But then he says: "In the definition of crimes, I trust [Congress] will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtues of representatives." I don't pretend that Henry spoke for all Anti-Federalists but he was pretty prominent and his statement does show a concern on the part of at least some of them, not so much about Congress duplicating state law crimes, but about it prescribing unduly severe punishments for those crimes (and, later, about it not following common-law procedures in prosecuting crimes.

Posted by: Michael J.Z. Mannheimer | Apr 5, 2012 11:24:15 PM

For all who are interested, the audio from the oral argument in Pleau can be found here: http://www.ca1.uscourts.gov/?content=april4.html.

Posted by: Michael J.Z. Mannheimer | Apr 6, 2012 1:08:01 AM

Right, but the quote doesn't seem to answer the relevant questions for me.

(1) Is he saying that Congress should have no latitude for punishments even of things that are not of the character of petty larceny, but indisputably national issues? Because the Constitution itself provides that Congress has power to declare punishments for two things--treason and offenses against the law of nations--and I would imagine the best way to reconcile the constitutional text and the quote you just gave is that the difference turns on the local versus national nature of the underlying offense. One can say that the Eighth Amendment superseded those provisions; but I find that an implausible interpretation of the history, so you would need to do so real heavy lifting to convince me.

(2) Obviously Henry was concerned about Congress creating excessive punishments, and obviously the Eighth Amendment limits the imposition of excessive punishments. But the quote does not seem to link closely to a federalism concern as such -- Henry was a prominent anti-federalist, but not every word coming out of his mouth can be attributed to a "federalism" concern. So how does the quote demonstrate that the concern is punishment might be excessive is one based on federalism, and that the excessiveness of punishment should be measured against a comparable state law? Because one fairly plausible alternative construction that springs to mind is that he is measuring excessiveness of punishment against the common law (as you mention about the later comparison with procedures).

Posted by: TJ | Apr 6, 2012 1:40:21 AM

TJ (who is not anonymous but is Tun-Jen Chiang from GMU Law School, which anyone can figure out after scanning the right side of the screen for about 10 seconds)

I am not sure why this is true since (1) there is a lot of names there & it can take more than 10 seconds to find one (2) there are other people with the initials "TJ."

That was a very rude comment. People, for various reasons, do not use their real names in blog comments in legal blogs. In many of them, including this one, Volokh Conspiracy, Balkinization et. al., contributors still often answer questions. Sometimes, when people are rude, they call them out (like Prof. Kerr does at times on his blog), but without cursing at them.

The professor here is making an argument that many deem weak and at one point in effect implied the other side were being hypocritical. The thin skinned nature of the response doesn't make me respect the writer too much. I appreciate TJ's responses, though -- college graduate I -- I did not assume he was THAT TJ.

Posted by: Tanya | Apr 6, 2012 12:40:13 PM

Maybe a dumb question, but one that has always bothered me about this case. When the US Attorney in RI, Peter Neronha, wanted to get custody of Pleau, the killer, why did he use the Detainer Act? Why not just file a habeas corpus writ in the first place. Governor Chafee has made the point that if he doesn't have the right to refuse the Detainer, why put it in front of him for his signature in the first place. This whole mess revolves around the Detainer Act in the context of federal/state application. But there wouldn't have been any issue if HC were granted by the federal court, would there? Does the federal government normally use the Detainer Act to get custody of a state prisoner, as opposed to a sister state, which I assume commonly use it in state/state situations.

Posted by: Kevin | Sep 7, 2012 2:51:34 PM

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