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Wednesday, January 10, 2018

Federalism and the Death Penalty in the Trump Era

As this Washington Post article notes, Attorney General Sessions has now authorized two federal capital prosecutions, one in the Eastern District of Michigan.  As I wrote in this recent symposium piece, the federal government has a particularly bad record in seeking the death penalty in that district:  0 for 16.  Michigan, of course, does not authorize the death penalty and has not (except for treason) since 1846, which may help explain why juries in the relatively liberal eastern district are especially reluctant to impose the death penalty.

I would also be surprised if the federal government does not seek the death penalty in the case against Sayfullo Saipov, who, inspired by ISIS, mowed down about a couple of dozen people in his car last Halloween in Manhattan, killing eight of them.  There would be little reason for the federal government to engage in verbal gymnastics to get the case into federal court at all (more on that in a later post) other than to obtain a death sentence in another non-death-penalty State.

It might not surprise anyone to know that more federal capital prosecutions in non-death-penalty States were brought during the eight years of the Bush II presidency (39) than during the sixteen combined years of the Clinton and Obama presidencies (30).  Given that Sessions’s “tough on crime” rhetoric precedes him, I would expect that a Trump presidency will see more such cases brought than under the Obama administration.

Posted by Michael J.Z. Mannheimer on January 10, 2018 at 01:26 AM | Permalink


Thanks for the reply.

The complexities of equal protection was noted & didn't realize the basic idea of the federal government not being covered was in question. Ely surely didn't; he just would place it a different place such as the Ninth Amendment.

I recognized that local differences could be acceptable here so take your case law cites as given without much concern. I would note that since your position has not been accepted by the courts, it only takes us so far as a matter of theory. Which is what I was considering.

Posted by: Joe | Jan 11, 2018 2:28:50 PM


Let me say three things about the equal protection argument. First, show me where in the Constitution the federal government is generally bound by equal protection principles. It's not. Yes, yes, reverse incorporation and all that. As John Hart Ely so eloquently put it, reverse incorporation is "gibberish." I know he went on to give a more nuanced defense of Bolling v. Sharpe, but the point is that equal protection principles, if they apply to the feds at all, don't apply in the same way as they do to the States.

Second, the Court has held that distinctions based on geography do not offend equal protection principles unless they lack a rational basis. See Hodel v. Indiana, 452 U.S. 315, 332 (1981). And courts have soundly rejected the claim that federal criminal law that dynamically incorporates state law violates equal protection principles merely because it treats people differently depending upon the State in which their conduct occurs. See United States v. Yazzie, 693 F.2d 102, 103-04 (9th Cir. 1982) (rejecting equal protection challenge to application of Major Crimes Act, 18 U.S.C. § 1153 (“MCA”), by which defendants were guilty of incest for conduct committed on portion of Native American reservation located in Arizona but would not have been guilty had the conduct occurred on portion of reservation located in New Mexico); see also United States v. Vallie, 284 F.3d 917, 922 (8th Cir. 2002) (similar). Any different result would call into question the constitutionality of the MCA, the Assimilative Crimes Act, and a number of other federal criminal laws that dynamically incorporate state law.

Finally, your suggestion that it might be good policy for prosecutors to take local conditions into account when exercising discretion runs directly counter to your suggestion that equal protection might require virtually identical treatment of similarly-situated federal offenders across the country.

Posted by: Michael J.Z. Mannheimer | Jan 11, 2018 12:11:37 PM


Thanks for the comments. Very few have tried to engage with the argument on historical grounds; instead, most people dismiss the argument out of a fetishistic obsession with uniformity. So I thank you for engaging.

I don't claim that all of the provisions of the Bill of Rights have a federalism component. So far, I have studied only the Fourth and Eighth Amendments. There are obvious textual hooks in those provisions -- the words "unreasonable" and "unusual," respectively -- which, I have argued, establish a state-based benchmark for searches and seizures and for punishments, respectively.

More broadly, though, many of the provisions of the Bill use the phrase "the right" (as opposed to, say, "a right"), suggesting that the provision is applying as against the federal government a pre-existing right. Conventional wisdom posits that this demonstrates that the founders were natural lawyers, and "the right" refers to some pre-existing right bestowed by nature or God or what have you. At least insofar as the Anti-Federalists were concerned, this is incorrect. The leading Anti-Federalists were positivists, which explains why they demanded a written Bill of Rights in the first place. For example, in the very first paragraph of his Objections to the Constitution, in arguing for the necessity of a Bill of Rights, George Mason wrote that the common-law rights of Englishmen "stand[] here [i.e., in the United States] upon no other Foundation than [their] having been adopted by the respective Acts forming the Constitutions of the several States.” On this view, where the Bill of rights refers to "the right," it means "the right as it pre-exists under the laws of the States." And that may well differ by State. Again, that is a very tentative conclusion as I have not studied the entire Bill in depth.

I also don't necessarily think the Federalists felt the same way. At least some of them appear to have embraced a natural-law view of rights -- that the rights exist "in the air," so to speak -- which is exactly why they felt a written Bill of Rights was unnecessary. But, as I've argued in my work, the Anti-Federalist view is the one we should follow.

As I've written, we have to think of the Bill of Rights as the result of a three-step process. The Articles were highly de-centralized. The Constitution was adopted to centralize more power in order to correct some of the defects of the Articles. And the Bill was adopted to de-centralize some of that power in order to correct some of the defects of the Constitution.

Posted by: Michael J.Z. Mannheimer | Jan 11, 2018 11:56:56 AM

I think biff generally is correct, as usual don't want to imply I agree with everything such and such a person says, and again don't find the professor's argument convincing. This is so even though I oppose the death penalty, both on constitutional and other grounds.

Thinking about the matter recently, it seemed to me that there are some equal protection concerns regarding two different people getting different punishments here depending on let's say where they kill a mail person. I do think there can be national goals that take into consideration local conditions in application. So, national criminal laws with different applications per state law makes sense in various contexts.

But, net, I don't think there is some constitutional/8A demand that NY not having a death penalty translates into the federal government not bringing a capital prosecution in said state.

As Prof. Dorf argues, there very well might be in general a good policy to respect local practice regarding prosecutorial discretion and the like, but even there, it is not an absolute bar if the federal interest is strong enough. Past success in obtaining a death sentence and other factors surely can be weighed here. This very well might have some "constitutional" interest as well -- political decision-making has that as well. But, that is different from a bar that is enforced in the courts.

Posted by: Joe | Jan 11, 2018 11:17:14 AM

My apologies, I didn't realize your federalism argument was based on your original take on the Eighth amendment. (In my defense, the OP did not mention the Eighth Amendment.)
After perusing one of your articles, I can now engage on that point. You argue that we should look at the Bill of Rights through a states-rights lens. While it is undoubtedly true that states rights was a strong force in forming the contours of the Constitution, it was obviously not the only consideration. There was a strong countervailing desire to have uniformity of federal law throughout the country. For example, the Constitution mandated that there be a single Supreme Court and gave it appellate jurisdiction over any case that raised questions of federal law, in part to ensure that federal law was applied uniformly across the several states.
To give another example, the right to a jury trial in civil cases is guaranteed whenever the amount in controversy exceeds twenty dollars. The amendment did not make the right dependent on what that particular state provided a jury trial for, but made a uniform rule to apply across America. Indeed, one of the defenses during the ratification debates for the Constitution not providing for jury trials for civil cases was that the states had different rules for when one was entitled to a jury. There does not seem to have been a thought that the federal constitution should have different rules for trials in federal court depending on what state it is in.
It is not enough to say that states rights values were very important to the Framers. You also have to show that in the cruel and unusual punishment clause those values triumphed over the desire for uniformity of federal law throughout the nation.

Posted by: biff | Jan 11, 2018 10:39:13 AM

Weirdly enough, I see that Mike Dorf today has posted something similar to the arguments I made in my last comment: http://www.dorfonlaw.org/2018/01/when-should-federalism-matter-to.html

I have also made the analogy to obscenity law that Mike makes. See the comments under this post from July 2016: http://prawfsblawg.blogs.com/prawfsblawg/2016/07/interesting-development-in-federal-capital-case-in-vermont.html

Posted by: Michael J.Z. Mannheimer | Jan 10, 2018 6:33:14 PM

It's not as simple as saying that federal law must apply uniformly across the country. Some federal law in fact demands dis-uniformity. For example, the Assimilative Crimes Act hinges federal criminal liability on whether the conduct would violate state law. That is to say, the very same conduct might be a federal crime in State A but not in State B. Does that mean that the ACA applies differently in different States? No, because the ACA has that dis-uniformity baked into it: it requires everyone, everywhere in the U.S., to abide by state law even when they are within an area of exclusive federal jurisdiction. The ACA applies uniformly but the consequence might be dis-uniformity of treatment.

The same is true where dis-uniformity is not only permitted but required by the Constitution. For example, if A lives in a State that recognizes a property interest in X but B lives in a State that does not, and the federal government passes a law depriving people of X without due process, then A would have a claim under the Fifth Amendment but B would not. That doesn't mean that A and B are being treated disparately. They are both subject to the same rule -- "do not deprive people of their property without due process" -- but the operation of that rule affects A and B differently because of the underlying state law.

As another example, consider same-sex marriage during the two year period between Windsor and Obergefell. During that time, those in same-sex marriages had a federal constitutional right to the same benefits as those in opposite-sex marriages, but only in States that recognized same-sex marriage. Someone with a same-sex spouse in Alabama was treated differently by the federal government than someone with a same-sex spouse in New York. But this does not mean that the Due Process Clause of the Fifth Amendment meant different things in different States. It meant the same in all States: the federal government may not distinguish between same-sex and opposite-sex marriage. It's just that same-sex marriage was not legally recognized in some States. Again, a federal right hinged on state law.

It all comes down to disagreement over what the constitutional rule requires. If the Cruel and Unusual Punishments Clause means only "do not punish people in dramatic excess of their desert," then you are right: that rule permits capital punishment everywhere (unless one thinks that capital punishment is itself always dramatically excessive of a person's desert). But if the Clause means, as I have argued extensively in my scholarship, "do not punish people in excess of the harshest punishment permitted by state law," then that is the rule that applies everywhere uniformly. The killer in New York and the killer in Alabama are subject to the same Eighth Amendment rule but only the former has an Eighth Amendment right against execution by the federal government, just as the person in a same-sex marriage in New York and the one in Alabama were subject to the same Fifth Amendment rule after Windsor, but only the former had a Fifth Amendment right against disparate treatment by the federal government.

You cannot quibble with my proposed Eighth Amendment rule simply because it produces dis-uniformity in result because that assumes that uniformity of result is required of constitutional rules. It isn't. My argument on what the Eighth Amendment means stands or falls on its own. Let's join issue on that.

Posted by: Michael Mannheimer | Jan 10, 2018 4:05:17 PM

I thought biff was responding to Professor Mannheimer's claim that there's a "right not to be punished more severely than the polity feels is warranted for a particular offense" (though they aren't the same "particular offense," there isn't even an element-for-element match between the two statutes), not your observation that there's a regulation that merely requires some sensitivity to state practice. These are very different claims. I'm totally with him on what he says about this supposed right (which extends, if one's actually serious about it, to disparities between state and federal prison terms or even fines for the "same" offenses).

Now, it may be that there shouldn't be differential treatment as a matter of retributivism, that one of these two sentences reflects a correct retributive judgment and the other doesn't. But I don't immediately see how retributivism would tell you that the correct one will always be the less severe sentence preferred by the state, if the state's is less severe. And if retributivism is about the blaming preferences of an affected community, then I suppose I do see retributivist grounds for a differential because the federal offense supposes that the nation as a whole is affected by the offense, and the national community in fact has different preferences about punishment than Massachusetts or parts of Michigan.

Posted by: Asher Steinberg | Jan 10, 2018 2:27:41 PM


Obviously federal law should be applied the same way across states, but what about circumstances, like this one, where the authoritative law requires geographic sensitivity. It's one thing to make an argument against geographic sensitivity when there is no authoritative rule instructing that such sensitivity be exercised; it's quite another when the controlling regulation prescribes it.

If you want to make an argument that the authoritative rule is wrong, that's also a separate normative discussion. It's hard for me to come up with a stripe of retributivism, for example, that justifies differential treatment depending on whether you are in state or federal court. If retributivism captures something about the relationship between the individual and the state, then the forum and location shouldn't matter. If retributivism is supposed to capture something about the private blaming preferences of an affected community, then the forum still shouldn't matter.

Posted by: Lee Kovarsky | Jan 10, 2018 2:13:41 PM

Federalism, under our Constitution, means that everyone in America is part of two polities, a state polity and the national polity. If someone violates state law, he is subject to the punishment which his state's people decided is fit for it. If he violates federal law, he is subject to the punishment the national polity decided is fit for it. If someone violates both state and federal law, he is subject to his state polity's punishment and to the national polity's punishment.

If you would be arguing that the federal government has overstepped its bounds with some of its laws, such as hate crime statutes, I'd agree with you. But to argue that the federal government should enforce federal law differently in different states is not federalism, it's just bizarre. For example, if someone commits treason against the United States, should his punishment depend on which state he happened to be in when he committed it?

Posted by: biff | Jan 10, 2018 1:50:23 PM

As a reference point, this is the DOJ attorney's manual, 9-10.140 - Standards for Determination: "The standards governing the determination to be reached in cases under this Chapter include fairness, national consistency, adherence to statutory requirements, and law-enforcement objectives. . . . National consistency requires treating similar cases similarly, when the only material difference is the location of the crime. Reviewers in each district are understandably most familiar with local norms or practice in their district and State, but reviewers must also take care to contextualize a given case within national norms or practice. For this reason, the multi-tier process used to make determinations in this Chapter is carefully designed to provide reviewers with access to the national decision-making context, and thereby, to reduce disparities across districts."

It's clear that the regulation at least permits (and probably requires) some sensitivity to state practice.

Posted by: Lee Kovarsky | Jan 10, 2018 1:46:46 PM


If federalism were only, or even primarily, about protecting local and state officials from federal overreaching, I would care about what Gov. Patrick thought. But it's not, so I don't. Federalism, like separation of powers, is a structural mechanism designed to protect individual liberty. In this case, it protects Tsarnaev's (and Saipov's) right not to be punished more severely than the polity feels is warranted for a particular offense.

I cannot say it any better than the Court did in Bond v. U.S.: "The limitations that federalism entails are not . . . a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate."

Indeed, state officials have a perverse incentive to fail to object in such a case. Rather than having to make the tough decision to authorize and enforce the death penalty, with all the expense and moral implications that such a decision entails, state officials can happily push off that responsibility to the feds, at least in the large number of cases where federal jurisdiction is appropriate. Federalism enhances accountability by attempting to channel most of the decisions that affect people's lives to local, accountable political actors rather than a distant, less representative central power.

Posted by: Michael Mannheimer | Jan 10, 2018 12:29:59 PM

Treating the application of death penalty prosecutions by federal prosecutors in non-death penalty states as a violation of federalism principles is misleading. I don't recall Governor Patrick or the Boston Globe editorial page expressing outrage when the federal government stepped in to prosecute the Boston Mararhon bomber even though all of the work leading up to capturing him was done by state and local law enforcement. I suspect that the defenders of not having capital punishment were more than happy to not having to defend their beliefs in this particular case, as will be the case in New York. I'm not surprised that Republican administrations are more likely to seek death penalties. I am surprised that the difference between Republican and Democratic administrations is as small as it is, especially when considering that the Bush administration was making their decisions in the immediate post 9/11 era.

Posted by: PaulB | Jan 10, 2018 11:45:56 AM

Excellent analysis.

Posted by: YesterdayIKilledAMammoth | Jan 10, 2018 11:05:18 AM

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