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Friday, July 15, 2016

Interesting Development in Federal Capital Case in Vermont

As reported by a local Vermont paper, there is an interesting development going on in a federal capital case in Vermont, United States v. Donald Fell.  Fell and an accomplice committed a carjacking in Vermont in 2000 in which they kidnapped the victim, Teresca King, drove her into New York, and killed her.  Fell was convicted and sentenced to death in 2005.  The Second Circuit affirmed but the conviction was vacated in 2014 due to juror misconduct.  The case is back in the District of Vermont for retrial.

The defense filed the usual battery of motions for a capital case, arguing among other things that the death penalty has become cruel and unusual punishment.  Curiously, the court issued an order this past February calling for a hearing on the issue.  Citing Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting), the court expressed an interest in the suggestion there that the risk of wrongful execution, the geographic disparities in the implementation of the death penalty, the long delays before execution, and the purported arbitrariness in meting out the death penalty all added up to its unconstitutionality.  However, the court seemed unsatisfied with deciding these issues without a factual record complete with testifying experts, and wrote that the purpose of a hearing “is to develop the fullest possible expression of both sides' factual and empirical arguments.”  In particular, while capital defendants typically repeat the same empirical assertions in their briefs, a hearing would provide the Government the opportunity to “cross-examine[] the sources of social and statistical information cited by the defense” and “offer[] its own empirical evidence in response.”

That hearing began this past Monday and is scheduled to continue next week.  Irrespective of how the court rules, it appears that the court is attempting to get as complete a factual record as possible in order to tee the unconstitutionality issue up for appeal.   My interest in this particular case stems from the fact that this is a federal capital prosecution for crimes occurring in a non-death penalty State (well, here, two separate non-death penalty States).  I have appeared in the case as an amicus and have filed an amicus brief on my own behalf making the argument, based on my prior scholarship, that the Cruel and Unusual Punishments Clause forbids the imposition of the federal death penalty under these circumstances.  Presumably, the court will ultimately address that issue as well, unless it is mooted by a broader ruling that the death penalty is unconstitutional full stop.

Posted by Michael J.Z. Mannheimer on July 15, 2016 at 05:14 PM | Permalink


Are you arguing that a state could immunize its citizens against any particular federal penalty by banning that penalty from being imposed by its own courts?

Posted by: brad | Jul 22, 2016 11:06:23 AM

In essence, yes.

Posted by: Michael J.Z. Mannheimer | Jul 22, 2016 12:28:35 PM

That's pretty close to nullification, isn't it? And, if you combine that with SCOTUS's understanding that cruel and unusual is decided on a crime by crime basis (e.g., death penalty unconstitutional for rape) it is full blown nullification. A state could abolish any punishment for drug trafficking and then it would be unconstitutional for the Federal courts to impose any punishment in that state for that crime, effectively decriminalizing it.

Posted by: brad | Jul 25, 2016 9:38:28 AM

I'm against the death penalty (including constitutionally) and find the professor's argument interesting. But, brad's comment (and the reply) does to me suggest how "extreme" it sounds in practice. And, it shows it isn't just a death penalty argument either. The word "unusual" to me is more appropriately national; this seems sort of like a Miller v. CA approach for the 8A.

Posted by: Joe | Jul 25, 2016 11:17:14 AM

Joe and Brad,

Thanks for the comments. This is not a full-blown “nullification argument,” if by that you mean the theory developed in the early nineteenth century that any State could simply refuse to recognize federal sovereignty in any area it chose. It is much more limited than that. The idea is that the Bill of Rights carves out certain areas for state primacy. One is in the realm of criminal punishments. So, yes, in that narrow slice of governance, I suppose one could say that each State could “nullify” some federal criminal law to the extent that federal law provides for greater punishments than state law. And, yes, if a State decriminalized, say, marijuana possession, then the feds would not be able to prosecute for that crime in that State, although the notion that any State would completely decriminalize “drug trafficking” seems pretty far-fetched to me.

This appears extreme only from the vantage point of 2016. If you raised the prospect as recently as a century ago of a federal government unable to put people in prison for decades for selling narcotics, if only in certain States, you would probably be met with a shrug of the shoulders. After all, that’s what the States are for. It’s only because we have become used to a system in which we assume the feds can criminalize virtually everything and impose virtually any prison sentence up to the sky, that any legal theory that challenges that assumption seems extreme. Step outside that assumption and it’s the status quo that appears extreme.

Besides, the idea that state norms help define federal constitutional rights is hardly novel. Joe mentions Miller v. California: what is obscene in one State can be constitutionally protected speech in another. The Fifth and Fourteenth Amendments protect “property” but property is defined by state law. What is ineffective assistance of counsel in violation of the Sixth Amendment in one State can be competent lawyering in another. Under United States v. Windsor, 133 S.Ct. 2675 (2013), the Due Process Clause of the Fifth Amendment protects some state institutions from federal interference but only in those States where that institution is recognized and protected, meaning that state law defines the parameters of federal rights. In none of these contexts are we concerned about “nullification.”

Joe, I don’t see any evidence from the founding period that the word “unusual” was to be defined on a national basis. By contrast, there is evidence of the concept of “unusual” punishments being determined on a State-by-State basis. In 1783, the Articles of Confederation Congress recommended that it be vested with the power to levy duties on certain imports, a recommendation that required unanimous consent of the States in order to become operative. 24 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 256–57 (Gaillard Hunt ed., 1922). In ratifying this proposed impost power, four of the thirteen States—Georgia, Massachusetts, New Hampshire, and South Carolina—made clear that they did so only on condition that punishments for customs violations never exceed that which could be imposed under state law. Each of these four States forbade the confederal Congress from “inflict[ing] punishments which are either cruel or unusual in this State” (or in Massachusetts, “in this commonwealth”). If you have any contrary evidence of the word “unusual” being used defined on a national basis, I would love to see it.

Posted by: Michael J.Z. Mannheimer | Jul 25, 2016 12:13:50 PM

I appreciate the extended discussion and have voiced my opinion on his views in the past, including at the Sentencing Law & Policy Blog.

I'm not a fan of Miller v. California, so that isn't going to help convince me that much. And, the 1A -- putting aside things changed when the 14A came along -- at least specifically says "Congress."

The "property" example also to me is different. State law defines what "property" means [to some degree it also defines "life" -- see, e.g. the different tests for brain death etc.] though even there what "due process" means as a whole is a national thing. And, the 8A argument restrains federal power to punish to further its interests. Not sure how state property would similarly check federal power to do so in quite the same way.

The cite to the Articles of Confederation is telling to me; such universal agreement to carry out federal powers is something the Constitution was put in place to address. The "condition" citation probably also opens a major can of worms if we take each "condition" seriously. Finally, the "any evidence" comment is rather dubious, though people with more expertise are better apt to go head-to-head with you on the question.

This doesn't mean your argument has no basis in the materials in place. But, net, it seems ill advised to me using various techniques of interpretation.

[For instance -- http://press-pubs.uchicago.edu/founders/tocs/amendVIII.html -- skimming these things alone suggests to me that multiple times a general sense of reason, not some federalism concern alone, is being appealed to. Certain punishments were inherently cruel and unusual, using general language. This sounds to me like a "national" standard. In fact, maybe an international standard, which has been addressed in various scholarship from different ideological points of view.]

Posted by: Joe | Jul 25, 2016 1:23:27 PM

minor point: "And, yes, if a State decriminalized, say, marijuana possession, then the feds would not be able to prosecute for that crime in that State, although the notion that any State would completely decriminalize “drug trafficking” seems pretty far-fetched to me."

Telling point. Some "complete decriminalization" is not really necessary here for the argument to rather significantly change the current state of affairs regarding what the U.S. can criminalize. And, I recall, e.g., at least one state passed a rather open-ended health related exception to drug laws that could apply beyond marijuana. For instance, medicinal value of heroin has been suggested.

Posted by: Joe | Jul 25, 2016 1:29:06 PM


Yes, we’ve discussed this before, here and on the Sentencing Blog, so I’ll just make a brief comment about the Articles of Confederation point. Yes, the Constitution was put in place to cure the perceived ills of the Articles. But what is often not fully appreciated is that the Bill of Rights was put in place to cure some of the perceived ills of the Constitution. That is to say, it restores some state sovereignty that existed under the Articles and was taken away by the Constitution. If we see the Bill as being solely about individual rights, we miss that. But the Bill was as much about state sovereignty as it was about individual rights. That’s why it is interlaced with provisions – such as the Establishment Clause (see Justice Thomas’s view on this), the Second Amendment, the Fourth Amendment (see my latest works), and the Tenth Amendment – that re-invigorate state power at the expense of the federal government. What is telling is that much of the state legislation ratifying the 1783 confederal impost included provisions that align almost perfectly with some of the provisions later included in the federal Bill of Rights. To me, this suggests strongly that the Bill of Rights was largely about the States’ taking back some of that power they held under the Articles.

Posted by: Michael J.Z. Mannheimer | Jul 25, 2016 2:37:46 PM

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