Federal jurisdiction and criminal justice in the Sooner State

The Supreme Court granted certiorari this week in Royal v. Murphy, a case at the intersection of federal jurisdiction, American Indian Law, and the death penalty.  It is also one that could affect the criminal justice system of — and a lot of people in — one state. It boils down to the following question: did Congress ever disestablish the boundaries of the Muscogee (Creek) Nation Reservation in eastern Oklahoma?

Patrick Dwayne Murphy was convicted of capital murder and sentenced to death in Oklahoma state court for killing George Jacobs on August 28, 1999.  As set forth in the opinion of the Tenth Circuit Court of Appeals, Jacobs was riding in a car with Mark Sumka in eastern Oklahoma after a day of drinking.  Murphy was driving with two other men in a car on the same road.  Murphy ran Sumka off of the road and confronted him, while Murphy’s companions began beating Jacobs; Murphy then joined the attack.  As it turns out, the court noted, Jacobs had a prior relationship with Patsy Jacobs, with whom Murphy lived.  And Murphy had stated to Patsy that he was “going to get” George.

As the appeals court explained, the evidence showed that George Jacobs was found barely alive in a rural roadside ditch with a bloody face and slashes across his chest and stomach.   His genitals had been severed and his throat had been slit.  He soon bled to death.  According to the State and the state court’s summary of the evidence (see cert petition with appendix here), Murphy and his accomplices even boasted about severing Jacobs’s genitals and placing them in his mouth, and that they “had tried to stomp on [Jacobs’s] head like a pancake.”

After the attack, the evidence summary showed, Murphy instructed everyone involved to remove their clothes so that he could burn them.  Murphy and his cohorts then went to the home of one of his accomplices, where George Jacobs’s son — George Jr. — was staying.  Apparently, they planned to kill the son, too.  But the accomplice’s mother intervened and stopped them.  Murphy later confessed his actions to Patsy, the evidence showed.  In addition, Sumka saw Murphy throw his folding knife into the woods, and investigators later recovered the knife.

Murphy is a member of the Creek Nation, as was George Jacobs.

Federal criminal law (the Major Crimes Act) provides that only the United States has jurisdiction over certain crimes committed by an Indian in Indian country.  18 U.S.C. 1153.  So, as here, a murder committed by an Indian in Indian country can only be prosecuted in federal court, not state court.  On post-conviction review, the Tenth Circuit held that, applying Supreme Court precedent in Solem v. Bartlett, Congress had never disestablished the Creek Reservation.  Consequently, the court held, this crime occurred in Indian country, over which Oklahoma lacks jurisdiction.

The explanation of Native American history in Oklahoma is extensive. For pertinent (and very interesting) details, see the Tenth Circuit’s opinion and the State’s cert petition.  The bottom line, though, is this: both Murphy and Oklahoma agree that this offense was committed on land that would be part of the Creek Reservation, if Congress has not disestablished the Reservation as such.  The Supreme Court must now determine whether Congress ever did so.

More broadly, Oklahoma argues that the resolution of this issue matters a lot to the people there. The land at issue comprises over three million acres in Oklahoma (including most of Tulsa, a city of over 400,000); 4,600 square miles; and a population of over 750,000.  Oklahoma also expresses concern that the lower court’s decision extends to the boundaries of the Five Tribes (the Creeks, Cherokees, Choctaws, Chickasaws, and Seminoles), which, if true, would massively extend Indian country within the State (43% of the State’s land mass).

If Oklahoma cannot prosecute certain categories of crimes committed in this region of the State, the argument runs, this could have serious consequences for the State’s ability to exercise its criminal jurisdiction and could dramatically increase the number of federal criminal cases that the United States would have to manage.  Oklahoma also notes the potential effects in other areas of law, such as taxation.  Murphy downplayed these effects in his brief in opposition, but will no doubt need to address these concerns on merits review.

More immediately, though, the resolution of this issue will likely determine Murphy’s fate.  If the Court finds that the Creek Reservation was clearly disestablished, then Murphy’s conviction and death sentence will stand, unless some other legal impediment arises.  But if the Court determines that the Reservation was clearly not disestablished, and holds in Murphy’s favor, then the Justice Department must decide whether to prosecute the case (this would not, of course, raise Double Jeopardy concerns because of the separate sovereign doctrine).

Yet even that is not the end of the matter.  Even if the DOJ prosecutes Murphy or another person similarly situated, the Federal Death Penalty Act contains a special provision for Indian country cases: “no person subject to the jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country  . . . and which has occurred within the boundaries of Indian country,” unless the governing body of the tribe has decided otherwise.  18 U.S.C. 3598.  If effective as to Murphy, this would prevent the Justice Department from even seeking the death penalty against him.  And it would have the same effect on any other similarly situated person who commits a murder within this territory.  The question would then be whether federal jurisdiction could be established on some other basis.

A final complication is this: the case is on post-conviction, not direct, review.  And the state court opinion rejected Murphy’s claim that this was an Indian country case.  One of the contested issues in the lower courts was whether the Anti-Terrorism and Effective Death Penalty Act (AEDPA) governs the case.  See 28 U.S.C. 2254.  If so, then the federal courts must give deference to the state court opinion, unless the state court’s decision was “contrary to, or an unreasonable application of, clearly established Federal law,” as determined by the Supreme Court.

This requires two distinct considerations in Royal: first, whether claims regarding Indian country jurisdiction are reviewed under AEDPA deference (about which there appears to be legitimate dispute); and second, even if AEDPA deferential review applies, whether Supreme Court precedent clearly shows that the state court’s decision — affirming state jurisdiction, based on disestablishment — was wrong (this was the basis of the Tenth Circuit’s decision).

This is a complicated and fascinating case.  Watch for it next Term.

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Attorney General’s memo on pursuing drug-related capital crimes

This is a follow-up to my last post, from March 19.  Yesterday, March 20, the Attorney General circulated this memorandum to the United States Attorneys, “strongly encourag[ing]” federal prosecutors to “use” the existing capital offense statutes that involve drug trafficking predicates.  He specifically identifies VICAR, the firearms statutes, the CCE law, and the drug kingpin provisions of the Federal Death Penalty Act (did he catch my last post, I wonder?).

While I fully support the sentiment expressed in the AG’s memo, I’m wondering what its purpose is.  After all, the existing death penalty protocol already requires that the United States Attorneys submit all death-eligible cases to Main Justice for review.  Pursuant to the existing death penalty protocol in the United States Attorneys Manual, federal prosecutors in the districts cannot unilaterally decide whether to seek the death penalty; they can only make recommendations, and the final decision belongs solely to the AG.  This is important, by the way.  As I understand the memo, it should not be interpreted to mean that the AG has now instructed federal prosecutors to unilaterally seek death sentences.  Under the protocol, they have no such power until he says so after Main Justice protocol review.  Rather, unless I am mistaken about the memo’s meaning, I understand the memo as instructing federal prosecutors to charge these underlying capital offenses (i.e., to “use” them) when the facts support such charges, thus ensuring Main Justice review and an AG decision, as well as a conforming indictment.  I do not see this as unilaterally changing the protocol (indeed, it would be strange for the AG to simply give up centralized Department review in these cases).  Consequently, when the AG refers to the “pursuit” of the death penalty in these cases, he is the one — the only one — who decides whether the death penalty is “pursued.”  It makes little sense to place that burden on the districts, who already have an obligation to submit death-eligible cases for review.

With that in mind, my sense is that federal prosecutors are already “using” these statutes — in the sense that they are seeking indictments and submitting cases for review pursuant to existing statutory law (with the possible exception of using section 3591(b), which applies only to a very small subset of potential defendants, as compared to, say, section 924, which is far more broadly applicable).

Moreover, assuming the memo means to retain the existing protocol, is the AG hinting that more USAOs need to submit “seek” recommendations?  Or is he hinting that he will sign off on the death penalty in cases implicating these statutes?  I reiterate, as I have before: the death penalty may be the right decision in a given case, but it is dangerous to signal in advance that the death penalty will be sought, prior to full and fair review of each individual case.

So I suppose one possible consequence of Monday’s presidential announcement, and of the AG’s memo, is that more and more United States Attorneys will submit “seek” recommendations to Main Justice.  And perhaps that is wise, depending upon the cases.  But each case will still have to proceed through the Capital Case Section and the AG’s Review Committee, as well as ODAG and OAG.  And defendants will still have the opportunity to argue against seeking death in their cases.  So it is possible that this new push will practically result in more capital prosecutions in cases involving drug-related killings.  But I do not see how it will change much of what federal prosecutors, and the death penalty experts at Main Justice, are already doing, and have been for many years.

Perhaps, then, the purpose of the memo was not to change what is already happening on the ground in the world of federal prosecution.  Perhaps the memo was simply meant to send the message that this Justice Department takes seriously the social, cultural, familial, and economic damage being done by those who seek to profit off of the misery, tragedy, and ultimate death of those affected by the current drug crisis.  More death sentences will not solve the crisis.  But a death sentence might serve the ends of a justice in a given case.

Let’s cook: Drug Trafficking and the Federal Death Penalty

Today, in remarks in New Hampshire, and via the White House website, the President announced an opioid prevention and enforcement plan and repeated his previous suggestions about imposing the death penalty for drug trafficking.  That issue has garnered significant attention, though it is not clear whether he will propose any new death penalty to federal criminal law.

The President often speaks in grandiose and vague terms, so it is difficult to know what he means by a death penalty “for drug traffickers.”  His language on this issue seems to be the very species of flumadiddle that nearly always characterizes his public speech on matters of complex policy.

Quite possibly, what he has meant in other remarks is a death penalty option in cases where a dealer distributes to a person who then subsequently dies from the drug received as part of the transaction.  The President did not elaborate on this today, though the White House announcement of the plan says that the Justice Department would seek the death penalty “where appropriate under current law.”  But the President also said today that DOJ is “working very hard” on changing the law.  Nothing more specific, naturally.

Several issues come to mind.

First, the idea of a death penalty connected to drug trafficking is not at all outrageous or even unusual.  Several provisions of federal criminal law already provide for this (the firearms statutes, the CCE/drug kingpin law, the drive-by shooting law, and even the racketeering laws, like VICAR).  Moreover, Congress in 1994 beefed up the capital punishment provisions for CCE/kingpin-related crimes in the Federal Death Penalty Act (FDPA).  See 18 U.S.C. 3591(b).  Indeed, a drug kingpin — Juan Raul Garza — is one of only three people executed by the federal government in the modern death penalty era (he was executed a little over a week after the Government executed Timothy McVeigh).

I understand the President to be demanding stronger enforcement of those laws.  But to suggest, as he did today, that the country maybe is “not ready” for a capital drug trafficking law suggests either that he does not know that current law already covers this ground, or that he has an unusual new capital drug trafficking law somewhere up his sleeve (is that what he meant when he said that DOJ is working to change the law?).

Second, if a new capital drug trafficking law was adopted, what would it look like?  The idea that the act of engaging in a drug transaction in which the recipient dies would be punishable by death — particularly where the victim’s death is reasonably foreseeable — is not as outrageous as it may seem.

The idea could be based on a fairly standard theory of felony murder — death resulting from the commission or attempted commission of the underlying drug trafficking felony.  And it would be consistent with the theory of non-capital death-resulting penalties used not only in the some of the federal statutes mentioned above, but also those contained in the core drug offense penalty statutes.  See, e.g., 21 U.S.C. 841(b)(1); 21 U.S.C. 960.  Those statutes could be amended to include death as a penalty for the death-resulting conduct.

This general idea could, however, raise significant questions of causation and culpability, depending upon how the law is drafted.  Who is the cause of the victim’s death: the street-level dealer?  The distributor?  The manufacturer?  The victim?  When does the chain of causation between the underlying felony and the death end? (but see this earlier post on one of the federal statutes punishing death-resulting drug activity).  Would it matter that the victim took the drugs voluntarily?  That might matter to FDPA enforcement, because one of the mitigating factors listed in section 3592(b) is that “the victim consented to the criminal conduct that resulted in the victim’s death.”  A new  statute could also raise questions about Eighth Amendment proportionality under the rule of Enmund v. Florida, if the dealer/trafficker’s culpability is too attenuated from the death (though I would argue that Tison v. Arizona would likely provide an important counterweight to any Enmund claim, where the dealer/trafficker could be said to be a major participant with reckless disregard for human life, which may be especially true when trafficking in certain opioids).

So there are some open questions raised by the idea of a new capital drug trafficking statute, and perhaps that has made the White House hesitant to propose one.

Finally, even assuming that the President’s interest in seeking more death penalties in drug cases is desirable, and that he is simply asking for stronger enforcement of current law without any new additions to the prosecutorial menu, publicly pressuring the Justice Department to seek the death penalty is a dangerous game to play.

A President should be able to make his law enforcement priorities known, including his support for the death penalty.  Every President shifts DOJ resources to those areas he wishes to prioritize (gangs, guns, corporate crime, etc.).  Still, as I have previously written in the context of the President’s public statements about the Saipov case, whenever the President appears to be putting political pressure on the Justice Department to seek the death penalty, that pressure can create the impression that the DOJ’s death penalty review process is a sham.  It undermines public confidence in what should be a serious and apolitical review based on the facts and circumstances of each case.  That confidence, and the sober nature of DOJ death penalty protocol enforcement, is critical to the continued legitimacy of the federal death penalty.

To be fair, today’s remarks do not raise quite the same concerns — advocating a death penalty generally for a category of federal offenders is not the same as advocating it in a specific case without having all of the available facts and evidence.  And the White House’s statement that the DOJ “will” seek the death penalty “where appropriate under current law” may suggest that the review process will remain objective.  But, it also raises a concern: does the White House mean to say that the DOJ will seek the death penalty where the statutory scheme provides for it?  Or does the White House mean that the DOJ will seek the death penalty only where current law allows it and the DOJ concludes from its internal review that death is an appropriate punishment based on the specific facts and circumstances of the case?  Big difference.

The President’s proclivity for public bombast when wanting to appear “tough” can have negative consequences for the policies he claims to support, transforming tough talk into presidential weakness.  His counter-opioid plan has some admirable components.  They deserve a serious but careful defense.

Saipov and the federal death penalty

The Government has filed a formal criminal complaint in the case of Sayfullo Saipov, who allegedly killed eight people and injured about a dozen more on Halloween by driving his truck through a bike lane in New York City.  Although this is not an indictment, and the indictment could include additional statutory violations, the complaint focuses on one of the material support for terrorism statutes (18 U.S.C. 2339B) and the motor vehicles statute (18 U.S.C. 33).  Interestingly, the complaint also alleges a violation of section 34.  That is critical, because although the material support statutes do not provide for the death penalty, section 34 explicitly does, and here the violation of section 33 resulted in the death of a person.

Based on this, and what will almost surely appear in a future indictment, there seems to be a very high probability that the Government will seek the death penalty against Saipov.  In fact, now, I would say that it is almost certain.

Yesterday, the President tweeted that Saipov “SHOULD GET THE DEATH PENALTY.”  The President then tweeted again today about Saipov’s case, “Should move fast. DEATH PENALTY!”  (Politico has analysis here).  That is a sentiment shared by many, and under ordinary circumstances, it would be an unremarkable assertion in a terrorism case involving so many killings.  The problem, however, is that the President is not supposed to be the guy at the end of the bar.  The President oversees the federal prosecutorial infrastructure and the very people who must make the decision of whether to seek the death penalty against Saipov.  Why is that a problem?  Here is why, and it’s different than the concerns others have raised.

The federal death penalty is (or, at least should be) a point of pride for the Justice Department.  It is not used often, but when it is used, it tends to be reserved for truly heinous and highly aggravated killings.  And the Saipov case, based on what is currently known, looks to fit that bill.  Moreover, the federal death penalty provides substantial process to ensure that the decision whether to seek the death penalty is fair and objective, based on a variety of relevant factors.  Federal capital defendants receive learned counsel, and per the DOJ’s death penalty protocol, they have the opportunity to make a presentation (through counsel) to DOJ officials who review the United States Attorney’s submission of the case.  The process is not rushed, nor is it arbitrary.  Some cases, though death-eligible, may not be sufficiently aggravated to warrant a decision to seek; and even in a highly aggravated case, the Attorney General may decide not to seek because of substantial mitigating evidence, including mental state evidence.  The Department goes to great lengths to ensure that the threshold seek/no seek decision is deliberate, informed, and fair.

By stating his insistence upon a death penalty for Saipov, however, the President may be sending a signal to General Sessions that Sessions must authorize a capital prosecution, regardless of the mitigating evidence (if any).  Now, it is likely that Sessions would be inclined to seek in this case anyway, and from all public accounts of the alleged offense, it would seem to fit the mold of a federal death penalty case — highly aggravated, implicating national government interests, with minimal persuasive mitigation.  But the whole point of the protocol review process is to vet the case and determine whether the death penalty is appropriate, in light of the facts and circumstances of the individual case.

In other words, my fear is that the President has given Sessions little room on the “no seek” side of the decision-making process.  This is particularly true for Sessions, who has been publicly humiliated by the President in recent months and who functions in a world where public disagreement with — indeed, failure to worship — the President is treated as a great sin.  One might reasonably ask whether Sessions feels that he is in any position to take a different side from the President on anything.

My even greater fear is that Saipov’s lawyers will challenge the fairness and legitimacy of the review process by claiming that the fix was in and that once the President tweeted, Saipov never stood a real chance of avoiding the death penalty because the Attorney General’s hands were politically tied.  While capital defendants ordinarily do not challenge the process by which the seek decision was made, I am concerned that the President may be inviting new litigation about that process.  That is unfortunate, and unfair to the career prosecutors, as well as political appointees at Justice, acting in good faith to apply the protocol and make sound decisions in very ugly, and often complex, cases.  It is especially unfortunate in a case where the President’s sentiment was wholly unnecessary — the Attorney General may already have been inclined to favor the death penalty without prompting by the President.

I don’t want to overstate the concern.  Perhaps the President’s tweets will not matter in the Saipov case, and perhaps the legitimacy of the decision-making process will not be challenged.  After all, as I have said, it is not as if this would be a weak case for the death penalty in the absence of the President’s tweets.  Still, the President’s tweets — however satisfying to his political base — could be perceived as influencing the Justice Department’s ability give the case an objective review, and have the effect of compromising the integrity of a process that is designed to be serious, sober, thorough, and independent.  In death penalty decision-making, those are virtues more important than speed.

Given the pressures facing the death penalty in America, it is critical that the federal system be perceived as fair and just, rather than merely efficient or fast.  For those of us trying to preserve the death penalty, and its image in American law and politics, the President is making things much harder.

 

New case asking the Supreme Court to abolish the death penalty

I was grateful to contribute to the Akron Law Review’s recent symposium issue on Justice Scalia’s legacy in criminal law and procedure.  My short piece, available here, analyzes Justice Scalia’s work in death penalty cases.  One of the issues I tackle has to do with the viability of judicial abolition on the post-Scalia Court.  I mention this now because a new petition has arrived at the Court in Hidalgo v. Arizona, which was featured on SCOTUSBlog this week and which offers the Court the opportunity to consider judicial abolition.   Neal Katyal is counsel of record for Hidalgo, and Katyal’s name certainly lends gravitas to the petition.

One thing about the petition irked me.  In its recitation of the facts, the petition simply says that Hidalgo “killed someone in exchange for $1,000 from a gang member.  In the course of that crime, he killed a bystander.”  Those facts are literally true, but woefully incomplete and santitized.

Yes, Hidalgo killed “someone,” but that someone had an identity: Michael Cordova, whom Hidalgo shot in the forehead.  And as the Arizona Supreme Court’s opinion states, Hidalgo took the $1,000 from the gang member “without knowing Cordova or why the gang wanted him murdered.”  In other words, it was just business for Hidalgo.  The “bystander” reference is also problematic.  The “bystander” was Jose Rojas, and his death was no accident; it was not as if Rojas was walking by and was randomly struck by a bullet that had ricocheted off of a cement wall.  Hidalgo, the facts from the lower court opinion show, deliberately shot Rojas in the head to prevent him from being available as a witness.  And after Hidalgo had shot both men in the head, according to the state supreme court, Hidalgo “shot each victim five more times to ensure he died.”

To be fair, Hidalgo attaches the Arizona Supreme Court opinion as an appendix.  So the complete set of facts is literally contained in the petition, if the reader ventures to the appendix to read the state court opinion.  Still, the petition’s effort to sanitize the murders here is frustrating to read.

Substantively, the per se challenge to the death penalty is not the only issue raised in the petition.  Hidalgo leads with the claim that Arizona’s list of statutory aggravating factors — 14 of them, see Ariz. Rev. Stat. 13-751 — fail to perform the constitutionally required narrowing function because they are so numerous and broad that a defendant would be death eligible for most any first-degree murder.  It’s an interesting framing of the narrowing problem, but I am skeptical of the claim for a variety of reasons, including some identified in the Arizona Supreme Court opinion.

The question is not, “how many aggravators appear on the state’s list?”  I would argue that the Eighth Amendment does not require a numerical cut-off point.  If it did, how would we know what that cut-off point is?  Rather, the question is whether each aggravator on the list circumscribes the broader class of first-degree murderers.  The mere fact that all of the aggravators added together will apply to a broader class of murderers than any individual aggravator does not make the scheme insufficiently narrow, because all of the aggravators on the list will not apply to each case (indeed, if there were a case in which all 14 aggravators applied to the defendant, it would be hard to argue that that defendant was not deserving of death-eligibility).

In other words, one could argue, the constitutionality of the State’s narrowing procedure should be judged on an as-applied basis: once the State enumerates eligibility factors in its capital sentencing scheme, the only thing left is to determine the validity of each factor as it applies to the defendant in a given case.  If one could make what amounts to a facial challenge to the list of statutory aggravators generally, then the remedy is . . . what?  Excising some?  And if the Constitution required the State to narrow its list even further, how would the Eighth Amendment — or a court — even know which aggravators had to be excised?  What standard would be employed to effect that remedy?

It seems to me that the only way to answer those questions is to evaluate each individual aggravator for its validity.  And yet Hidalgo does not allege that any of the aggravators that apply in his case were themselves constitutionally invalid.  Curious.  The State Supreme Court, in my view, properly disposed of this claim, relying on the authority of Tuilaepa v. California, and also properly understood the distinction between eligibility and selection.

But let’s assume for the moment that Arizona’s scheme of aggravators is constitutionally overbroad.  Even if Arizona’s legislature — voluntarily, or as a result of judicial compulsion — had to further narrow its list, Hidalgo’s crime surely would fit into one or more factors on a constitutionally permissible shorter list that distinguish his crime from a first-degree murder generally.  He killed more than one person in a single criminal episode, substantially premeditated the killing of Cordova, committed the Cordova murder for pecuniary gain, and the murders were closely connected to the activities of a criminal enterprise.  It is not clear, then, that Hidalgo would escape the death penalty even if the statute was narrowed further.  Perhaps this is why he focuses on the breadth of the statutory list generally, rather than on the particular aggravators in his case.  Even if we assumed the invalidity of Arizona’s list, it is not difficult to imagine a constitutionally permissible list of statutory aggravators that would make Hidalgo death-eligible.

Still, keep an eye on this case.

 

Federal crimes in Charlottesville

The horrific events in Charlottesville yesterday have prompted a number of important questions associated with the political and moral necessity of condemning the evils of white supremacy and political violence: why did the President fail — once more — to specifically condemn white supremacy and explicitly disavow fascist and racist supporters? Will Republicans condemn the President’s anemic and equivocal response? Should we call this domestic terrorism, and why would that matter? Those are worthy questions.

Now that one person is in custody related to the car crash that killed a 32-year-old woman, however, it is also important to begin looking at the criminal law questions, as well as the political ones. The Justice Department — after an appropriate statement of condemnation from Attorney General Sessions — announced that it has opened a civil rights investigation. It is early, and we need to await more evidence before arriving at any conclusions about charges or guilt. Still, what might the Feds be looking for?

Most likely, investigators will focus on whether there was a conspiracy to violate civil rights of anyone, including the counter-protesters, pursuant to 18 U.S.C. 241. Investigators will also likely focus on 18 U.S.C. 245, which targets actions against those engaged in certain specific federally-protected activities; whether anyone was intentionally obstructed in the free exercise of their religion, pursuant to 18 U.S.C. 247; and whether this was a violent hate crime, pursuant to 18 U.S.C. 249. These latter three charges, in particular, would require evidence that the person had acted with some specifically proscribed animus, such as racial or religious animus. With respect to the car incident specifically, because death resulted from the actions of the driver, capital punishment is available under sections 241, 245, and 247, but not section 249, if those statutes applied.

But the Feds may not need to rely solely upon civil rights enforcement statutes here.  For example, 18 U.S.C. 33 makes it a crime for any person, acting “with intent to endanger the safety of any person on board” or “with reckless disregard for the safety of human life,” to damage, disable or destroy any motor vehicle “used, operated, or employed in interstate or foreign commerce.”  Section 33 also makes it a crime to, “with like intent,” disable or incapacitate “any driver or person employed in connection with the operation or maintenance of the motor vehicle, or in any way lessen[] the ability of such person to perform his duties as such.”  The video and photographic evidence from the scene in Charlottesville strongly suggests that Section 33 is a potential avenue for prosecution, though this would also depend upon other factors, such as evidence to prove the jurisdictional element (though that should ordinarily not prove to be difficult).

Section 33 does not specifically employ capital punishment, but it need not.  Section 33 is a part of Chapter 2. This is important because Section 34 provides that the death penalty applies to anyone convicted of a crime listed in Chapter 2, where the crime has resulted in a person’s death.

Another important question that remains is whether the driver is a member of, or acted on behalf of or at the direction of or in an effort to become a member of or increase status in, some specific entity, organization or association-in-fact. If so, this could potentially implicate the racketeering laws, notably the violent crimes in aid of racketeering (VICAR) statute, 18 U.S.C. 1959.  Unlike the RICO statute (sections 1961 and 1962), VICAR provides for capital punishment.  Of course, in addition to proving the underlying conduct, the Government would need to prove that the entity met the statutory definition of a racketeering “enterprise.”

Finally, it is worth noting that any mention of capital punishment is subject to both the procedural prerequisites of 18 U.S.C. sections 3591 and 3592, as well as the DOJ’s death penalty protocol.

Virginia has proven itself more than capable of handling high-profile homicide cases.  But in recent years, we have also seen the Justice Department take the position that federal action is required when civil rights enforcement is at stake.  It will therefore be important to find out whether investigators can uncover evidence of animus, or other evidence, that would be sufficient to implicate the federal civil rights statutes in Title 18.  But even without the civil rights statutes in play, federal prosecutors still may have an avenue for federal action, depending upon what the investigation reveals.  The question would then be, as it often is, whether the Feds would be content to let Virginia handle the case alone, whether Virginia would defer to the Feds, or whether there would be dual prosecutions, in which case the Feds would have to assert a unique federal interest that would not be vindicated by the state prosecution.  If the civil rights statutes are implicated, and if prior similar cases are any guide, the chances of a federal prosecution are very high.

Federal death penalty challenge in Vermont

There is a developing situation in Vermont concerning the federal death penalty.  C&C has a post here.  Prawfs has a post here by Professor Michael Mannheimer.  Local news is here.

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.