Donald Fell is being retried there for the killings, with accomplice Robert Lee, of Fell’s mother Debra; her companion Charles Conway; and 53-year-old grandmother Teresca King, who worked at a store where Fell and Lee sought to obtain shotgun shells. Fell stabbed Conway 50 times, killing him, and Lee stabbed Debra Fell to death. As Fell and Lee fled, looking for shotgun shells, they encountered King arriving for work at Price Chopper. They stole her car and forced her inside of it at gunpoint, then later decided to kill her to prevent her from identifying them. They killed King by taking her to the woods in New York and kicking her and beating her with a rock until she died. They were later apprehended in Arkansas. Fell did not contest his guilt. These facts are provided in the Second Circuit’s decision in United States v. Fell, 531 F.3d 197, 205-08 (2nd Cir. 2008).
Fell was convicted in federal court in connection with King’s death, and received the federal death penalty, even though Vermont, as a matter of state law, has no death penalty. After years of appellate litigation, Fell eventually obtained relief on a claim of juror misconduct and is now is being retried. The District Court has convened a lengthy hearing on the constitutional validity of the federal death penalty. One issue the court is apparently considering is whether the federal government may, as a matter of constitutional law, seek the death penalty in a non-death penalty state. I felt the issue deserved a quick comment in light of the hearing in Fell. [Disclosure: I worked in the Justice Department’s Capital Case Unit during the earlier litigation of Fell’s case, and have also worked on this issue; nothing in this post contains non-public information, and the views here are my own considered views and not necessarily those of the DOJ.]
The leading academic proponent of the theory that the Eighth Amendment forbids the federal death penalty in a non-death penalty state is Professor Mannheimer. His amicus brief is embedded in the above post, and he has written extensively on the subject. His work is thoughtful and interesting. His chief argument is that those who precipitated the drafting of the Eighth Amendment and other provisions of the Bill of Rights – the Anti-Federalists – were concerned about a federal criminal law that would displace state criminal law. Accordingly, he contends, the Eighth Amendment’s ban on Cruel and Unusual Punishments should be understood to prevent the federal government from imposing any punishment that would be more harsh than the harshest punishment allowed by state law. The Cruel and Unusual Punishments Clause is, then, a kind of federalism provision.
I applaud Professor Mannheimer’s use of originalism to make his case, and his concerns for federalism. Beyond this, I do not find any appeal in this theory or this claim. Regardless of how one feels about the federal death penalty, it is important to think about the broader consequences of this notion. First, presumably, this argument would apply to other punishments beyond the death penalty. So if a state’s harshest punishment was life with parole or a term of years that did not include natural life (see Alaska), but did not permit life without parole, the federal government could never impose life without parole upon a conviction for a federal crime. Moreover, if the theory applies crime-by-crime, then if a state provided only five years in prison for an armed robbery, then a Hobbs Act robbery conviction in federal court could not result in any federal sentence longer than 5 years. Unless I am misunderstanding this theory (and I might be), the theory would permit state law to dictate the scope of federal law. It would give the states a veto over federal law. That seems practically troubling, inconsistent with notions of federal Supremacy, and smacks of nullification, a long discredited notion in American constitutional law.
Moreover, this displacement theory assumes that state law and federal law are necessarily co-extensive in a given case – that when the federal government prosecutes a criminal homicide, it is necessarily seeking punishment for the same conduct that would be punishable under state law. That is hardly ever true, and Fell is an example. Fell is not being prosecuted for the equivalent of a state law murder. He is being prosecuted on capital charges that arguably have a unique relationship to federal interests: carjacking and kidnapping and transportation in interstate commerce, resulting in death. Now, one can question the constitutional basis for the creation of these and other federal criminal laws. If the idea is that the federal government has no business prosecuting these offenses, and that they are best left to state criminal law, then the proper challenge is to the constitutionality of the underlying substantive criminal law, not the scheme of federal punishment. That, it seems to me, is the better protection for the state’s federalism interests.
Indeed, if the framers of the Eighth Amendment, and the Anti-Federalists, were concerned about federal criminal law displacing state criminal law, then expressing that concern through a limit on punishments – rather than substantive criminal law definition powers – seems quite odd. Placing a ceiling on federal punishments does virtually nothing to curb federal criminal law-making. One might imagine that the better approach would have been a provision that forbid Congress from defining federal crimes in ways that displaced state criminal law. But, of course, that would have been unnecessary, because congressional power to define criminal law was already limited by Article I.
That, of course, would be a more meaningful limit if the Supreme Court had not broadened federal commerce power to the extent that it has done. But again, the scope of congressional power to define a crime is distinct from the question of whether the federal government can impose a particular punishment for a federal crime that Congress has properly defined.
As long as the federal government establishes a basis for federal jurisdiction in the definition of its criminal law, then by operating its own sovereign system of crime definition, it also has discretion to impose punishments unconstrained by the decisions of state legislators, whose interests may vary from those of the federal government with respect to a particular criminal act. Of course, much federal criminal law likely has some overlap with state criminal law. Yet it also has a unique federal hook. Take the Tsarnaev case, for example. Even though both the State and the Feds could have prosecuted based on the same transaction or occurrence, Massachusetts would be prosecuting for state law murder; the Feds prosecuted based on federal crimes connected to guns and terrorism. The ongoing Roof prosecution in South Carolina is similar (even though, unlike Massachusetts, South Carolina has a death penalty). The State law is charging Roof based on state law murder. The Feds are prosecuting based on federal civil rights and gun crimes, resulting in death. The federal government’s unique interest in the case gives rise to a unique federal power to punish, one that cannot be constrained by state law.
Finally, the claim has always struck me as strange, just as a matter of core principles. The claim, at its core, is based on the idea that the people of a given state – here, Vermont – have chosen not to have a death penalty, and that the federal government should not foist its death penalty upon the unwilling people of that State. But this argument overlooks what is obvious: clearly the people of Vermont are not categorically against capital punishment because a group of Vermonters unanimously voted to give Fell the death penalty! And that is true in many other places (Michigan, North Dakota, New York, Massachusetts, etc.) in which the people of the jurisdiction voted to impose the federal death penalty despite the fact that it is not authorized under state law. It cannot be said, after the Tsarnaev case, for example, that the people of Massachusetts are categorically against the death penalty when Massachusetts citizens chose to impose it when given the appropriate opportunity. The federal government did not force or coerce the jurors to impose death upon Tsarnaev; it was their reasoned judgment after hearing the aggravating and mitigating evidence. The same is true with Fell. That’s the function of death-qualification for juries.
Moreover, it is significant, in my view, that the people of a state are represented in both their state legislative bodies and in the United States Congress. What are we to make of the fact that members of Congress from non-death penalty states voted in favor of the Federal Death Penalty Act? What conclusions are we to draw from the fact that many members of Congress from non-death penalty states have voted for inclusion of death penalty provisions in many federal criminal statutes?
This is not to say that a small group of death-qualified jurors speaks for the entire State; it is still important, as a matter of federalism, to acknowledge the limits imposed by state law. But it does reflect what I still believe to be the reality in every American jurisdiction: that regardless of underlying state law, many of their citizens are willing to impose the death penalty where the crime is especially brutal and aggravated, mitigation is weak, and guilt is clear.
Perhaps there is more to this displacement theory of the Eighth Amendment than I am crediting. I’m happy to do additional research on it. But based on what I know of the idea at this point, I’m not persuaded. Still, I look forward to the District Court’s decision on this matter, and will likely post here when it is handed down.