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Thursday, May 05, 2011

The Federal Death Penalty in Non-Death States

I want to thank Dan and the gang for inviting me to blog here this month.  I'm a bit embarrassed that this is my first post, given that we are already five days into the month, but I was away the first couple of days and have had intermittent and inexplicable internet outages since then (yay, Time Warner).  Anyway, I look forward to sharing my thoughts on scholarship, teaching, service, and whatever else crosses my mind.

For my first post, I wanted to share a few thoughts on a pet issue of mine that happens to be quite timely:  federal capital prosecutions brought for conduct occurring entirely within States that do not authorize the death penalty.  I say "timely" because Judge William K. Sessions III issued a decision yesterday in United States v. Michael Jacques (pronounced "Jakes") denying, among other things, Jacques's motion to strike the notice of intent to seek the death penalty.  Jacques is accused of luring his twelve-year old niece to his house, then kidnapping, raping, and killing her.  This took place entirely within Vermont, which has no death penalty, but the federal government is bringing the prosecution under the Federal Kidnapping Act.  Before 2006, this would not have been a federal offense.  The FKA was amended that year to cover not only kidnappings that cross State lines, but also those where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.”  That Jacques allegedly used text messages to lure the victim and altered her MySpace page to try to cover his tracks -- and perhaps even that he used an automobile to transport the victim -- brings it within the FKA.  It seems pretty clear that the only federal interest here, if it can be called that, is that the death penalty is available under federal law but not Vermont law.

Jacques raised the argument I made in my article, When the Federal Death Penalty is "Cruel and Unusual," 74 U. Cin. L. Rev. 819 (2006) (oh, yes, the shameless self-promotion starts with the first post), that it constitutes cruel and unusual punishment in violation of the Eighth Amendment for the federal government to impose death for conduct occurring within a State that does not itself authorize capital punishment.  The argument is grounded in the origins of the Eighth Amendment, and the Bill of Rights generally, as a means by which the Anti-Federalists sought to preserve State sovereignty, especially over crime and punishment.  Because the Anti-Federalists conditioned their reluctant acquiescence to the ratification of the Constitution on the adoption of a Bill of Rights, I argue, their views, motivations, and general outlook must be consulted on the meaning of the Bill's provisions.

Judge Sessions rejected the argument, but I take solace in the fact that, unlike the Government's brief, he was not completely dismissive.  Rather, he suggested that Jacques might have had more success had he spelled out the argument in greater detail in his brief, rather than simply incorporating my article by reference.  Also, the court "observe[d] that the federalism question raised by Jacques appears to remain an open one in [the Second] [C]ircuit."

If Jacques is convicted and sentenced to death, he will join nine others in modern history who have been convicted and sentenced to death by the federal government for crimes occurring in non-death States.  (Three had their convictions or sentences reversed on appeal; of those, two were re-sentenced to life without parole and one is currently scheduled to be re-sentenced).

Posted by Michael J.Z. Mannheimer on May 5, 2011 at 09:59 PM in Criminal Law | Permalink


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So, Orin, does your response about an abstract "national reasonableness standard" mean that the answer to my question is that the federal cops and federal prosecutors both are not bound by a state constitutional limit on searches? What if federal cops violate the state law, collect evidence that leads down a chain of other evidence, and then pass it to the state cops and state prosecutors? Given the many variations and multi-jurisdictional task forces, is it best practice for the federal agents to follow state practice, so they do not taint evidence in a way that limits state-federal sharing?

Posted by: curious federalist | May 17, 2011 3:33:49 PM


You misunderstand my point, which was not about the history of the common law generally. My point is that there was a specific history to what the Framers had in mind when they enacted the Fourth Amendment: they were reacting to a specific set of abuses in England in the 1760s, as well as abuses in the colonies during that period, which was generally understood in the 1780s to be a right against a thing called unreasonable searches and seizures. None of that had to do with the rest of the common law; it was a set of ideas that were understood at the time, however poorly formed. In contrast, there is no support I know of for the idea that "unreasonable" was thought to have anything to do with state law.

Posted by: Orin Kerr | May 17, 2011 12:53:13 AM


I think you are partially right that the term "unreasonable searches and seizures" was meant to encapsulate a "common law standard." However, I think you are making an implicit, mistaken assumption that there was a single "common law standard." That is why the Supreme Court sometimes fails so miserably in trying to identify "the" common law rule (Atwater v. City of Lago Vista comes to mind).

To be more precise, I think the mistaken assumption is that the framers and ratifiers of the Fourth Amendment all conceived of a single "common law standard." That may have been true in England, but when the colonists brought the common law across the Atlantic with them -- beginning, remember, over 180 years before the Bill of Rights was adopted -- they adopted some of it, discarded some of it, and adapted some of it to local conditions. So by 1791, there was no single "common law" in the U.S. Rather, the common law in each State had marked differences from that in other States. More importantly, it was around this time that a conception of the common law as instrumental, particularized, and tied to sovereignty (as opposed to declaratory, unitary, and free-floating) began to gain a foothold. And it was the Anti-Federalists, and their political heirs, the Republicans, who set forth that view. We see this as early as 1798 when Justice Samuel Chase, a former Anti-Federalist who switched parties for political expediency, denied the existence of a federal criminal common law because "he who shall travel through the different States, will soon discover, that the whole of the common law of England has been nowhere introduced . . . and that there is . . . a great and essential diversity in the subjects to which the common law is applied, as well as the extent of its application. The common law of one State, therefore, is not the common law of another." U.S. v. Worrall, 28 F. Cas. 774 (C.C.D. Pa. 1798). Of course, the U.S. Supreme Court ultimately agreed in U.S. v. Hudson, 7 Cranch (11 U.S.) 32 (1812), when all but two of the Justices were Republicans.

So, again, if we take the views of the Anti-Federalists seriously, and I think we should, then perhaps we should read "unreasonable searches and seizures" as varying by State. Whether the standards for "unreasonable searches and seizures" should be viewed as having been settled in 1791 or whether they evolve as State law evolves is another question, as is the question of what we do when the Fourth Amendment is incorporated against the States themselves.

Posted by: Michael J.Z. Mannheimer | May 17, 2011 12:25:48 AM

Michael writes:
It seems to me that the Anti-Federalists assumed that that benchmark would be State law, for purposes of both the Fourth and the Eighth Amendments. And if we are to give primacy to the views of the Anti-Federalists, who reluctantly agreed to ratification in exchange for a Bill of Rights, then Fourth Amendment rights ought to be tied to State law as well.

I don't think that works. The notion of "unreasonable searches and seizures" was a term of art in the English common law, and state constitutions had adopted that same term of art in state constitutions in the 1770s and 1780s. I don't know of any reason to think that "unreasonable" in the federal Fourth Amendment was thought to mean something different than the common law standard, and I don't know of any reason that it was thought in the federal Fourth Amendment to mean some sort of deference to state law in that state.

Posted by: Orin Kerr | May 16, 2011 11:22:11 PM

curious federalist,

That is a great question. The Fourth Amendment uses the term "unreasonable" which, like the word "unusual" in the Eighth, seems to scream out for a comparator: unusual compared to what? unreasonable compared to what? It seems to me that the Anti-Federalists assumed that that benchmark would be State law, for purposes of both the Fourth and the Eighth Amendments. And if we are to give primacy to the views of the Anti-Federalists, who reluctantly agreed to ratification in exchange for a Bill of Rights, then Fourth Amendment rights ought to be tied to State law as well.

Back under the Olmstead regime, when Fourth Amendment rights were explicitly tied to property law, Fourth Amendment law was closer to the original understanding. But even under Olmstead, the Court assumed that there was a uniform, national standard of Fourth Amendment rights. In my view, this was incorrect, at least if one pays attention to the views of the Anti-Federalists, because property rights differed from State to State in 1791. And now, of course, the Court has severed any connection between the Fourth Amendment and property law, so that it is essentially irrelevant if agents violate State law in conducting a search (see, e.g., U.S. v. Oliver).

I would think, though, it is sufficient for a Fourth Amendment violation that the agents' actions violate some positive law of the State; it is not necessary that it violate the State constitution. Calvin Massey, however, wrote a great article a few years ago on the Ninth Amendment, arguing that it should be understood as enshrining state constitutional rights as federal rights that the federal government could not transgress.

Posted by: Michael J.Z. Mannheimer | May 16, 2011 7:35:10 PM

What is the law with the 4th Amendment analogue to this question? If a state has held that its constitution forbids a certain type of search without a warrant, do its citizens have a legitimate expectation in that standard? Can federal agents in that state violate that standard and collect evidence for a federal prosecution?

Posted by: curious federalist | May 16, 2011 4:53:27 PM

"not be excessive in relation to the individual defendant's ability to pay"

So, rich people can be fined exorbitant amounts if able to pay?

If we use the standard of ability to pay, there could still be a national standard; it just would be a proportional type of rate thing, kind of comparable to progressive taxation.

Posted by: Joe | May 10, 2011 6:57:25 PM

Nice post, Mike! I'm looking forward to plenty more.

Posted by: Rick Bales | May 7, 2011 2:09:55 PM


Thanks for the comment. I think you're only half right, though. The Excessive Fines and Excessive Bails Clauses do not directly use any state-specific standard, so they do not appear at first blush to be federalism-based provisions. However, I think it is inaccurate to say that they operate according to a national standard. To the contrary, these Clauses, as originally understood, operate according to a very specific standard -- a case-specific standard in fact. The best reading of these Clauses is that they demand that bails and fines not be excessive in relation to the individual defendant's ability to pay. The Anti-Federalists who proposed the Clause were concerned that federal judges could use bails and fines to get around limitations on punishments. If a fine were imposed that was beyond an individual's ability to pay, he would be incarcerated until he could pay, even if it meant essentially a life term, even in cases where life imprisonment was not authorized by law. The same is true of excessive bails. Although, in the case of an excessive bail, imprisonment would last only until trial ended, that still might exceed any authorized term of imprisonment for the crime. (We, of course, see that phenomenon today, with defendants charged with misdemeanors and minor felonies pleading out because the time spent in jail awaiting trial would exceed any potential sentence). By definition, then, there can be no national standard, or even a state standard, since excessiveness can be determined only on a case-by-case basis.

Posted by: Michael J.Z. Mannheimer | May 6, 2011 8:48:47 PM

This is an odd argument, because you don't reconcile this reading of the cruel and unusual punishments clause with the rest of the Bill of Rights.

Even within the Eighth Amendment, it's clear that the first two clauses (the excessive bail and excessive fines clauses) must operate according to some sort of national standard, because the "mode" analysis you're proposing would be meaningless for those clauses.

If the bail and fines clauses protect federalism through a national standard, then why can't the cruel and unusual punishments clause?

Posted by: matth | May 6, 2011 3:59:47 PM

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