The State of South Carolina will seek the death penalty against Dylann Roof, who is accused of shooting and killing nine people during a church Bible study in Charleston earlier this summer, allegedly because of racial animus. Roof has also been charged in federal court with the federal death-eligible offenses of using a firearm during a crime of violence, resulting in death (18 USC 924(c)), and obstruction of religious exercise, resulting in death (18 USC 247). Notably, Roof is also charged with a federal hate crime under the Shepard-Byrd Act, but that statute does not permit imposition of the death penalty. See 18 USC 249.
I have a new short paper coming out soon on whether the Congress should make federal hate crimes, resulting in death, subject to the death penalty, or at least add animus to the list of aggravating factors in a federal death penalty case. I will try to have a draft of the paper up soon. I connect this idea with the current criminal justice and sentencing “reform” debate, and argue that sentencing reform need not be exclusively about reducing sentences; sometimes, for especially brutal violent crimes, it can be about making them more severe. Roof’s alleged crime would be one example of a situation where that might be desirable, in light of the existing hate crime law.
For now, though, I note that as Main Justice weighs the death penalty option, there is also some question as to how the case will proceed: the State first? DOJ first? Would DOJ decide not to proceed at all, if Roof is convicted and sentenced to death in state court initially? DOJ typically forms an agreement with the states on these matters. I had originally thought that this case would go the way of the Tsarnaev case, and South Carolina would let the Feds take over, and then step in only after conviction or if things went south in the federal prosecution. Now, though, I’m convinced that South Carolina really wants a crack at him; maybe South Carolina doubts that the Feds will seek the death penalty. Or maybe South Carolina wants to preserve that option in case the Feds go first and seek the death penalty but do not get it (thus giving the State a shot at it with a different jury).
This puts the DOJ in the position of deciding whether to go forward at all, in light of the Petite Policy (which is codified in substantial part in the federal hate crime statute). That policy requires the DOJ to consider, among other things, whether the underlying state prosecution has left the federal interest “demonstrably unvindicated.” There is undeniably a federal interest here, so I am focusing on the vindication part of the policy. The DOJ’s position at the moment seems to be that the federal interest cannot be vindicated by the State prosecution because the State is not using a criminal law specifically targeting racial animus. True; the State is using capital murder law. But it is hard to see how using capital murder law under these circumstances is not sufficient to vindicate the broader interest here in punishing racially-motivated violence. I note in my paper that the Roof prosecution is not just about punishing racial animus; it also about punishing gun violence, and again, the State’s capital murder law should be adequate to vindicate that interest under these circumstances. It will be interesting to see what DOJ does next. Perhaps it depends upon the level of abstraction at which one defines the federal interest.
Based on the allegations (and right now, they are that; he has not yet been convicted), this is absolutely an appropriate case for seeking the death penalty, regardless of whether it is the State or the Feds who do so. If the Feds stay in the game here, as I suspect they will, then I hope my old colleagues at DOJ will see the benefit of seeking the death penalty for Roof. But I also hope that Congress will see the wisdom of adding a death penalty to the Shepard-Byrd hate crimes law, just as it has done for other civil rights deprivation statutes in Title 18.