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Friday, March 16, 2012

Where is the Outrage?

A week from today will be the two-year anniversary of the Patient Protection and Affordable Care Act. To say that the Act has been attacked, both at the policy level and as a matter of constitutional law, would be an understatement. The U.S. Supreme Court has scheduled six hours of oral argument on whether the Act is constitutional. At its very essence, the constitutional argument is about federalism: does the Constitution give the federal government the power to require individuals to purchase a product or does that power belong solely to the States?

But this post isn't about that. It is about a different federalism issue that has received far less attention, sparking the question that is the title of this post: the federal death penalty in non-death States. Again, the issue can be examined at the level of both constitutional law and policy. Can the federal government inflict the penalty of death for a crime committed in a State that does not authorize that penalty for the same crime (or at all)? And, even if it can, should it?

Consider the following federal death cases. First, the en banc Sixth Circuit will hear oral argument this summer on the death sentence imposed upon Marvin Gabrion for a 1997 murder committed on national forest grounds in Michigan, over which Michigan and the U.S. have concurrent criminal jurisdiction. Michigan has not executed anyone since 1830, seven years before it became a State; it abolished the death penalty for all crimes except treason in 1846; and it constitutionalized a complete ban on capital punishment in 1964.

Second, Michael Jacques is scheduled to be tried this year for the kidnapping and murder of his niece. The incident took place entirely within Vermont, a non-death State, but because he allegedly used the internet to commit the crime, it was a federal kidnapping.

Third, Jason Pleau is the subject of a tug of war between Rhode Island governor Lincoln Chafee and the federal government. The feds want Gov. Chafee to turn Mr. Pleau over to them to stand trial under the Hobbs Act for killing a man during a robbery of the proceeds from a gas station. Gov. Chafee has refused, citing the State's longstanding opposition to capital punishment. The en banc First Circuit will soon hear argument over whether Gov. Chafee must accede to the federal government's wishes.

I will be posting more about these cases in the coming days and weeks but for now I am less concerned with the merits of each case than with why they have not garnered the appropriate amount of outrage from those who purport to care about states' rights. The Pleau case did provoke an editorial from the New York Times, although it was decidedly lukewarm on the states' rights issue, suggesting that this was just another opportunity for the Times to attack the death penalty. But why haven't those who so vociferously oppose the PPACA said so much as a peep about the prospect of a distant, powerful, largely unaccountable central government sending a man to his death, despite the fact that a majority of those in the State where the crime occurred have rejected capital punishment wholesale? I ask again: Where is the outrage?

Posted by Michael J.Z. Mannheimer on March 16, 2012 at 01:53 PM | Permalink


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Perhaps the outrage should rest with the federalization of criminal law generally rather than with the specific issue of the death penalty. The death penalty seems like a small slice (though not so small in its particular application) of a much bigger Constitutional issue--the incremental creation of a federal police power.

Posted by: Catholic Law Student | Mar 19, 2012 3:16:26 PM

I would tend to agree with anon here. The federal government can punish someone who the state says should not be punished at all. If so, there's not much cause to complain if the federal government punishes someone who the state says should get a lesser penalty.

And most of those examples are clear Federal jurisdiction anyway. In the healthcare argument, whether the federal government has jurisdiction is questionable, which is different.

Posted by: Ken Arromdee | Mar 19, 2012 11:04:55 AM

I would add that a smart strategy is to use something that is friendly to the "other side" in promotion of your cause. So, Prof. Randy Barnett can note that as well as being against the PPACA, he is for Angel Raich and supports gay rights (supports Lawrence v. Texas, which Ron Paul found a ridiculous case).

So, this issue would be a good case for "outrage." "We aren't just for feds being off our back when the courts strike down death penalty sentences! see!"

But, truly consistent "outrage" is supported by a narrow group of people.

Posted by: Joe | Mar 18, 2012 1:42:01 PM

If something takes place in "national forest grounds," it is federal jurisdiction. So, as a strong opponent of the death penalty [including on federal constitutional grounds], I don't have some "outrage" that the feds would enforce its own law there. I rather not it be capital punishment, but it is not some invasion of state discretion.

The other two cases are more tricky. There is too much federalization of crime and murders should generally be handled by the states. The Amish hate crime that is in the news comes to mind. To me, it's a bit of a stretch to make that a federal crime. And, judicial conservatives have for some time back to the days of Chief Justice Rehnquist voiced some concern about that issue. This is even though there might be some technical federal hook. There should be some careful prosecutorial discretion here, respecting local communities.

Of course, concerns about "federalism" like the "commandeering" of health policy (why don't more on that front talk about forced ultrasounds?) is selective. Old story. Still, Prof. Kerr's confusion seems a bit off. The fact something doesn't arise that often doesn't mean that sometimes it would cause some "outrage," especially when in one case the governor is making an issue of it. Local discretion, including in this emotional area, is a big deal. A minority of states are particularly abolitionist here.

But, again, "outrage" is selective. That seems to be a theme of the post here, if done in a polite understated way.

Posted by: Joe | Mar 18, 2012 1:34:57 PM

You don't see the outrage, because the voting population in many non-death-penalty states is actually pro-death-penalty.

Take New York, for instance. It would never have been a state that imposed the death penalty frequently. But what got rid of the death penalty was not an abolitionist electorate, but rather a court decision eliminating the extant DP, followed by customary legislative inertia making it impossible to push a new DP through.

In Connecticut, the legislature is working upwards DP repeal despite polls showing that the DP is actually popular in the state as a punishment option. (Once again, Connecticut juries impose the DP rarely -- but as the response to the Cheshire murders shows, the populace likes having it as an option.). The legislators are acting as elites -- whether you think in a good way or a bad way -- by bucking the clear will of the voters.

So what happens in the fed/state conflicts you mention is that pro-DP forces in moderate states can, in a sense, ally with the much more powerful pro-DP forces nationally, to make up for the fact that anti-DP local judges and legislatures have frustrated the local small-majority preference

Posted by: Actually | Mar 18, 2012 11:04:47 AM

I am not surprised by the lack of outrage. This country has been on path towards a brick wall for a few years now.

Posted by: Legal Advice | Mar 17, 2012 9:36:05 PM


I think you misunderstand. The opposition to federal judges stopping state executions occurs when judges do so for flimsy reasons -- leaving the impression that they are intervening not for genuine reasons of controlling law, but for reasons of their personal opposition to the death penalty. When that happens often enough, over several decades, people who do want the death penalty might begin to think that their will is being blocked illegitimately. The point is not that the federal government has no role, but that its role should be based on statutory or constitutional law.

Posted by: Orin Kerr | Mar 17, 2012 11:49:22 AM

I think your expectation of outrage should be tempered by considering the political climate of the states in question. North Carolinians are not likely to get involved in conflicts in other states when they have their own battles to fight.

Posted by: Lee S | Mar 17, 2012 10:48:18 AM

Why are "the federalism concerns ... at their apogee when ... the federal punishment crosses a threshold to a method of punishment not authorized by state law"? You seem to agree that the feds can legitimately give Pleau a month in jail for robbing a gas station, *no matter what* Rhode Islanders believe--even if Pleau had been acquitted by a state jury, even if he'd been pardoned by the governor, even if robbing gas stations had been perfectly legal in Rhode Island. So what makes death different? Is it that the death penalty is particularly bad in and of itself, or that Rhode Islanders feel particularly strongly about it?

A separate question: why doesn't the US Attorney just seek an arrest warrant, march into the prison to take custody of Pleau, and arrest any jailers who interfere under 18 USC 111?

Posted by: anon | Mar 17, 2012 12:18:39 AM

I'm not exactly a federalism activist, but I don't see the case for outrage in at least most of these cases. Surely even the most strident federalism nut will concede that the Federal government has some powers and the right to exercise those powers within its jurisdiction. Preventing murder on national government owned grounds is probably quite easily one of them. So too is preventing states from sheltering fugitives.

In each case, whether the Federal government should have an interest in the first place takes background to the more direct issue at stake. That is, whether the government should own national parks is not at play: the question is, given it has national parks, does it have the right to impose the death penalty for murders on its property? Similarly, whether the Federal government should criminalize robbery in interstate commerce is not at play: the question is, can a state hide a fugitive so that the federal government can't even put him on trial and test the question? One can entirely support federalism without putting every other consideration aside in an ends-justifies-means kind of fashion.

The only one where it might be hard to see a strong federal interest is the Jacques case you list. But then it depends on whether there are facts missing. And it would also seem to closely parallel to the Bond case that one prominent federalist (Paul Clement) argued only last term. So there might not be enough outrage for your tastes, but I don't think you can really accuse federalism people of not acting consistently on the issue of federal over-criminalization generally.

Posted by: TJ | Mar 16, 2012 9:34:15 PM


Thanks for your thoughtful comments. I think you are correct that the root cause of the problem is the over-federalization of criminal law. But at least most federal criminal law overlaps with state law. The federalism concerns are most salient where (1) the feds criminalize conduct that is perfectly legal under state law, as with medical marijuana or (2) the punishment under federal law exceeds the potential punishment under state law. And I consider the federalism concerns are at their apogee when, as a subset of #2, the federal punishment crosses a threshold to a method of punishment not authorized by state law (e.g., death rather than imprisonment).

One of the key rationales behind federalism is to protect local majorities who are national minorities. Thus, the Establishment Clause, a key federalism provision of the Bill of Rights, was designed to protect local religious majorities from a federal government, in which they might constitute a minority, that might dictate what their religious establishments should look like. As I have argued in my scholarship, that federalism strand runs through the Bill of Rights, including the Cruel and Unusual Punishments Clause. So the opposition to the death penalty that reflects majority sentiment in some States is exactly what we should understand federalism principles as preserving from a federal government in which such a sentiment is the minority view.

Finally, your comment that you are "not really the target audience" because you "favor the death penalty" is curious. The "target audience" is people who take federalism seriously, irrespective of whether they favor, oppose, or are ambivalent about the death penalty.

Posted by: Michael J.Z. Mannheimer | Mar 16, 2012 9:22:03 PM

It turns out there's no "federalism clause" in the Constitution. There is a Commerce Clause, however, and presumably people get upset when Congress regulates beyond what could conceivably be thought of as "commerce."

FWIW: I'm a person who thinks (as Orin does) that the case against the mandate is a dead loser under existing precedent. I don't like the death penalty very much, but I really hate the federal system intervening in its execution, especially at the last minute for ridiculous reasons.

Posted by: anon | Mar 16, 2012 8:58:35 PM

But Orin, I think you prove my point. There often IS outrage when federal judges interfere with state executions. Certainly, there is outrage when the Supreme Court invents another category of state offenders who cannot be executed, as it has done three times in the past decade -- you want outrage, read Justice Scalia's dissents in Atkins and Roper. And neither you nor I are old enough but I imagine the advent of the Supreme Court's interference with State death penalty schemes forty years ago in Furman was met with some hostility. In comparison, the silence over this issue is deafening.

As for the rarity of the imposition of the federal death penalty in non-death States blunting the outrage, the same can hardly be said for the rarity -- its opponents use the word "novelty" -- of the federal government forcing its citizens to buy an item in commerce.

Posted by: Michael J.Z. Mannheimer | Mar 16, 2012 4:36:22 PM

I don't understand the case for outrage. The major federal/state power struggle in the implementation of the death penalty is between the federal courts and state executive branches, with federal judges often intervening to stop state executions. Any perceived power struggle between the federal executive and state voters barely even registers by comparison, given the relative rarity of the federal death penalty in states that oppose the death penalty as a matter of state law.

Posted by: Orin Kerr | Mar 16, 2012 4:23:54 PM

The outrage probably recides in the same place where pro-life/anti-birth control activists go after they support the Catholic Church on it's pro-life issues but are nowhere to be found when supporting the Church's anti-death penalty (or as I like to call it, the consistent pro-life position) stance.

Seriously now, apart from the constitutional and policy arguments it is not untrue that the main support for finding the ACA unconstitutional comes from a political party(s) that fully supports the death penalty, and doesn't care about pure federalism when it comes to the federal government taking over capital crime cases. Just one of many examples of how the 'state's right's' "federalism' charges against the ACA are entirely political theater and not part of a complete and consistent 10th amendment political philosophy.

Posted by: Spike | Mar 16, 2012 3:38:31 PM

Charles, on the jury issue, see Judge Calabresi's opinion dissenting from denial of rehearing in banc in U.S. v. Fell (I don't have the cite handy).

Posted by: Michael J.Z. Mannheimer | Mar 16, 2012 3:07:17 PM

Stated this broadly, I don't find the case for outrage very convincing.

Of course, I favor the death penalty, so I'm not really the target audience. Certainly, I think states should be free to abolish as they wish. Your examples vary in the degree of "federalism outrage" they ought to engender. Abstractly, I think we have a serious problem of federalizing every crime under the sun, and I think your outrage should be attached to that, rather than the consequences of the fact that death-penalty opponents have the votes in some states, but not enough to overturn to pro-death penalty views of the federal government.

Against this standard, I think your examples are mixed. Federalizing crimes on federal land strikes me as defensible. The internet-enabled kidnapping is a closer call on a policy level (I take it this question is an easy one constitutionally). However, a garden-variety (if tragic) murder at a gas station should not in my view be a federal offense.

You might draw these lines differently, and I understand that. But I don't see a great deal of daylight between where one would draw the line, and the essentially collateral (though undoubtedly grave) consequences of the applicable punishment. In other words, I don't see capital punishment as implicating any distinct federalism issues - whether the feds can punish at all seems to be the inquiry that does all the heavy lifting here.

Posted by: Adam Scales | Mar 16, 2012 2:53:40 PM

This issue is particularly perplexing to citizens of the non-death penalty states. At my old law firm in New York City, our office manager was called for federal jury duty and was considered for a death penalty case. She kept saying that she thought New York had abolished the death penalty; she ultimately said that she was unwilling to impose the death penalty and was excused. But even she, a sophisticated individual who worked for a law firm, had difficulty understanding how the death penalty could be on the table.

As I type this, I am also reminded of the serious implications in the de facto rules we've adopted in which anyone who questions the death penalty is barred from serving on juries in death penalty cases. I have not looked into the issue (since it's not my area), but it seems like that could potentially skew the jury pool in very serious ways.

Posted by: Charles Paul Hoffman | Mar 16, 2012 2:24:59 PM

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