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.


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.



Notable opinions in capital cases at the Court

It was an uneventful opinion day at the Supreme Court today (unless you love the Administrative Procedure Act).  But two capital cases are worth noting from today’s action – one a per curiam opinion reversing an Arizona death sentence, the other a dissent from the denial of certiorari in a Louisiana case.

The Court’s PC opinion in Lynch v. Arizona found that Shawn Patrick Lynch’s death sentence violated due process because, although the State suggested Lynch’s future dangerousness, Lynch was not eligible for parole and that information was not placed before the sentencing jury.  This rule comes from the Court’s 1994 decision in Simmons v. South Carolina, which held that where the State argues for a capital defendant’s future dangerousness and the only other sentencing option under state law is life without parole, the jury should be told that the defendant will not be parole-eligible.

Justice Thomas, joined by Justice Alito, dissented.  Focusing at first on the facts of the crime here, Justice Thomas continued to question the correctness of Simmons and said that not only was the trial court’s instruction to the jury a correct statement of Arizona law, it is “far-fetched” to suggest that the jury’s decision would have been different had it been given current information about Arizona sentencing law.  Here, Lynch and a cohort, Sehwani, killed James Panzarella after returning to Panzarella’s home from a Scottsdale bar in 2001.  Panzarella’s body was found, as Justice Thomas described it, “bound to a metal chair in his kitchen.  His throat was slit.  Blood surrounded him on the tile floor.  The house was in disarray.  Police discovered a hunting knife in the bedroom.  A knife was also missing from the kitchen’s knifeblock.”  When police found Lynch and Sehwani, Lynch’s shoes were stained with Panzarella’s blood.  In the killers’ truck were the victim’s car keys and a sweater that contained the victim’s blood.   Lynch and Sehwani had also spent their days on a spending spree with Panzarella’s credit and debit cards.

In Tucker v. Louisiana, the Court denied cert, but Justice Breyer (joined by Juistice Ginsburg) dissented.  Once again, Justice Breyer suggested that the Court take up the question of whether the death penalty is per se cruel and unusual in violation of the Eighth Amendment.  This time, he again raised an issue he has raised before: whether the fact of geography determines who receives a death sentence.  Lamondre Tucker was tried in Caddo Parish, which, according to Justice Breyer, accounts for half of the death sentences in the State but only 5% of Louisiana’s population.  “One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row,” Breyer wrote.

First, let’s assume Justice Breyer is right about that.  So what?  Does the Constitution require absolute uniformity among jurisdictions in imposing the death penalty?  And what range of disparity between jurisdictions would be constitutionally permissible?  Ten percent?  Twenty percent?  Surely we would not say that Ohio’s death penalty is cruel and unusual simply because Ohio could impose the death penalty for a crime that, if committed in Michigan, could not result in the death penalty at all.  But, of course, perhaps the matter is different when we are talking about jurisdictions within a specific sovereignty, where the law to be applied is the same everywhere.  So why does the Constitution require Caddo Parish and Bossier Parish, Louisiana to impose the death penalty at similar rates?  And are there differences among cases that might explain why some defendants get the death penalty and some do not?  Justice Breyer, in my view, has never satisfactorily explained the constitutional problem here, except to say that it seems arbitrary.  I’m just not certain that it is as arbitrary as Justice Breyer thinks.

Which leads to my next point: it might also be reasonable to believe that Tucker deserved to face the death penalty, regardless of geography.  According to the Louisiana Supreme Court’s rendition of the facts, Tucker shot and killed Tavia Sills, who was five months pregnant with a healthy unborn boy, and who informed Tucker that the child might be his.  Her body was found decomposing in a Shreveport pond.  Tucker gave multiple, conflicting stories about Sills’ killing (ranging from telling police he did not kill her to telling police it was accidental).  Tucker, who was 18 at the time and a student in high school, also had a three-year-old son with Tamara Bates, and the State theorized that Tucker murdered Sills to save his relationship with Bates (Tucker, it turns out, was not the father of Sills’ child).  The investigation revealed that Tucker had confided to a friend that he wanted to cause Sills to have a miscarriage; he confided to another friend that he pushed Sills into the pond and shot her multiple times.  For more details, see State v. Tucker, 181 So.3d 590 (La. 2015).

I suspect that even in Bossier Parish, a sensible prosecutor could have viewed this as a case worthy of capital punishment.  But, of course, the point that Justice Breyer and others seem to be making is that even though Tucker committed a crime worthy of the death penalty, he simply would not have faced it in some places even within Louisiana.  Still, can the Louisiana death penalty really be unconstitutional because a jury in Caddo Parish deemed this crime to be worthy of capital punishment, but a jury in Bossier Parish might not have?

The Court’s work in these cases in embedded in the Order List from today, here.

Supreme Court declines one execution delay claim; another pending

I have posted before (here), and written elsewhere (here) on the delay-in-execution claim (a.k.a, the Lackey claim): that the Eighth Amendment bars imposition of the death penalty after some (undefined?) length of time on death row.  Earlier this week, the Court – as is its habit – denied certiorari on yet another Lackey claim, this one (unsurprisingly) out of California.  In Boyer v. Davis, a California death row inmate claimed that his death sentence violates the Eighth Amendment because he has been on death row for so long – Boyer had three trials, the last of which was in 1992.

Notably, Justice Breyer again dissented from the denial of certiorari, citing his opinions dissenting from cert denial in other delay-in-execution cases.  Breyer explained that California’s system of capital punishment raises concerns about unreliability, arbitrariness, and “unconscionably long delays that undermine the death penalty’s penological purpose.”  He spoke only for himself, apparently, as no other Justice joined the opinion.

Again, I am sympathetic to the claims about the dysfunction in California’s system.  But in my view, the appropriate response is neither abolition nor re-sentencing of folks like Boyer.  It is, rather, legal reform that will ensure a more  timely and responsible review of capital cases and a more timely execution once all claims to legal relief and mercy have been exhausted.  From what I can tell, the time between Boyer’s conviction (upon his third trial) and now was spent litigating his conviction and sentence.  According to the State, Boyer did not raise the Lackey claim on his initial cert petition, which was denied in 2006; he filed two state habeas petitions, one in 2001 and another in 2010; he filed his federal habeas petition in 2010; then he appealed the denial of federal habeas to the Ninth Circuit and the Supreme Court, though he did not raise the Lackey claim in the Ninth Circuit.  In other words, it is not as if Boyer had completed all of his appeals and has been sitting idle in his prison cell awaiting execution for 20 years.  He has contributed to the delays by availing himself of every litigation opportunity available to him.

Moreover, even assuming there was some hypothetical merit to Boyer’s Eighth Amendment claim, I continue to wonder: what is the appropriate remedy for this claim?  Boyer’s cert petition does not really say what he was seeking, other than that California’s death penalty is unconstitutional and that this would be a substantive rule (so as to avoid the Teague bar).  Presumably, then, he is saying that he cannot now be executed.  But isn’t he claiming that the very problem here is that he has not been executed yet?  How can not executing him be the remedy for that?


Also of note, according to the Petitions to Watch list up at SCOTUSBlog, there is another Lackey claim before the Court, this one out of Texas (Moore v. Texas).  This case presents an even greater obstacle to relief because when it comes to administering the death penalty, quite frankly, and as Texas has observed, Texas is not California.  The Moore case might, however, get the Court’s attention on his mental disability claim.

For what it’s worth, Boyer stabbed to death an elderly couple that had allowed him to do odd jobs and given him money – Francis Harbitz sustained 24 stab wounds; Aileen suffered 19 stab wounds.  The State also presented evidence at sentencing that Boyer committed another murder of an elderly man two years earlier.  As for Moore, he used a shotgun to to kill an elderly man who was working the courtesy booth at a supermarket that Moore and two accomplices were robbing.  According to a witness, the victim had his hands in the air when Moore shot him in the head.


Fixing VICAR for murders in aid of racketeering committed by juveniles

This week, the United States Court of Appeals for the Fourth Circuit decided United States v. Under Seal, which provides ample reason to continue questioning the Supreme Court’s egregious errors in Roper v. Simmons and Miller v. Alabama.  The Under Seal opinion is here.

The defendant is a juvenile who was, according to the court, “a few months shy of his eighteenth birthday.”  Truth is, he was 17 years and 8 months.  According to the Government, he was also a member of MS-13, and was accused of directly helping others in MS-13 to kill a fellow gang member who had been suspected of snitching.  The Government also explained that the victim had actually been lured to a Falls Church, Virginia park on the pretext of submitting to a calenton, which involves beating a member while others count to 13.  This was, according to the Government’s description of the crime, an especially brutal killing involving a knife and a machete.  The defendant allegedly helped the others in holding down the victim, stabbing the victim in the stomach, and slashing the victim’s jaw and neck using the machete.  The gang then buried the victim’s body in the park.  Fearing that the body would be found, the defendant then helped others in the gang dig up and rebury the body.

The Government sought to prosecute the defendant as an adult for murder in aid of racketeering (MS-13, of course, being the relevant racketeering enterprise).  Under the murder provision of the Violent Crimes in Aid of Racketeering (VICAR) statute, 18 U.S.C. 1959, however, the only available punishment for the defendant would be death or life imprisonment.  The defendant argued that it would be unconstitutional to transfer him from the juvenile system to the adult system because either of the two available punishments – death or mandatory life – would violate the Eighth Amendment when applied to a juvenile.  Of course, the defendant is correct.  Roper held that the death penalty cannot be imposed upon a person who commits a capital crime before age 18, and Miller held that juvenile homicide defendants cannot be sentenced to a mandatory term of life without parole for crimes committed before 18.  The district court and the Fourth Circuit agreed that the transfer would be unconstitutional.

The Government tried to argue severability, but the Fourth Circuit rejected those arguments.

The logical conclusion of Under Seal is that – because of Roper and Miller – no juvenile defendant can ever be prosecuted in federal court for murder in aid of racketeering.  Given the number of juveniles involved in major gang crimes, including criminal homicides, this is not a desirable status quo for the federal criminal law.  Punishment as a juvenile delinquent for such crimes – just think about the alleged murder in this case, as an example – does not serve the ends of justice nor would it generally serve the purposes of the criminal law.  And while it is true that there are other crimes, which allow for punishments of less than mandatory life, that the Government could seek against juveniles, VICAR is an important statute in fighting very serious crimes, including murders, committed by gangs and organized crime.  Unlike RICO, VICAR allows for the death penalty (for an adult offender, of course).  Also unlike RICO, VICAR does not require the Government to prove a pattern of racketeering activity, which makes it a desirable statute for isolated violent crimes.  It would therefore be unfortunate if the Government was permanently forbidden from using VICAR to target gang-related murders committed by juveniles.

Accordingly, and consistent with the Fourth Circuit’s implied invitation in Under Seal, Congress should amend VICAR to state that, in the case of a juvenile defendant convicted of murder in aid of racketeering after an appropriate transfer proceeding, the punishment shall be for any term of years.  Congress could even add a mandatory minimum (say, ten years), as long as it avoids mandatory life.

Absent this fix, the result is a juvenile delinquency adjudication for allegedly slicing up a guy with a knife and machete and burying him in a park.

Is Justice Kennedy Gettable?

Yesterday I was pleased to speak at the University of Michigan Law School, as part of a symposium on capital punishment.  As the only death penalty supporter there, amidst an All-Star cast of death penalty abolitionists, I faced a tough room.  But the folks at Michigan Law were gracious and hospitable, and I am grateful for their invitation.

One of the major themes of the day was whether, and when, the Supreme Court will abolish capital punishment through judicial review.  Nearly everyone there (except me) seemed to agree that the Court will do so, but there was disagreement about how long it will take.  At one point, Justice Kennedy was invoked: when will Justice Kennedy decide to join the movement toward full abolition?  After all, on the current Court: no Kennedy, no abolition.

I have thought about this question some, but I confess that after this gathering, I’m thinking about it in a slightly different way now.  One prominent abolitionist pointed to Justice Kennedy’s support for the existing Eighth Amendment proportionality framework, suggesting that it is this theory on which Justice Kennedy would most likely vote for abolition and on which he can bring in four other votes.  Others suggested that perhaps Justice Kennedy would adopt Justice Brennan’s sensibility about human dignity, a theme familiar to Justice Kennedy’s work in the area of constitutional rights for those in the LGBT community (such as Obergefell v. Hodges, Lawrence v. Texas, and Romer v. Evans).

When you put these pieces together, the idea of adding Justice Kennedy’s vote to that of Justices Breyer and Ginsburg (from Glossip v. Gross) makes some sense.  Then, the argument goes, Justices Kagan and Sotomayor naturally fall into line and, voila, you have five votes for judicially abolishing capital punishment.

I remain skeptical of this theory, and naturally hope that judicial abolition never happens.  But I want to dig a little deeper, exploring in particular Justice Kennedy’s work in other capital cases and his commitment to federalism.  It is true that Kennedy has been a leader in pushing the proportionality framework, but doing so with respect to a particular category of offender with reduced culpability is different from doing it for every capital case, no matter how brutal the crime, how strong the evidence, how good the lawyering, or how fair the trial.  Kennedy has long been someone who has advocated respect for the role of the States in the federal system.  And although he has served with several Justices who wrote opinions questioning the constitutionality of the death penalty per se, he has never joined any of those opinions.  I think those things might prove to be a counterweight to Kennedy’s other work.

But with Justice Kennedy, you just never know.  And I think he might prefer it that way.  Stay tuned.



Democratic debate touches on capital punishment

I will be speaking in Ann Arbor tomorrow at the Michigan Journal of  Law Reform’s symposium on the death penalty.  As I was preparing for my talk, I was pleased to see that the topic of capital punishment made a brief appearance at last night’s Democratic debate in New Hampshire.  NYT Transcript here. Presidents have a role with respect to the imposition of capital punishment at the federal level, and it is important to know their views and to get a sense of how they understand the death penalty.  These are among the most important cases the federal government prosecutes.  So it should be part of the national political conversation.  Problem is, the responses from Hillary Clinton and Bernie Sanders were to varying degrees ill-informed or sophomoric, and at moments bordered on incoherent. Mercifully, it turns out, the responses were relatively short.

Secretary Clinton’s response was slightly better, as she seemed to understand the sense in having a limited death penalty in light of the truly horrific crimes that have been, and unfortunately will likely continue to be, committed in this country (she specifically noted Oklahoma City, which was an appropriate example).  Points for that.  She also insisted that death penalty cases meet high standards of proof (of course, they already do – it’s proof beyond a reasonable doubt, just as in any other criminal case) and that defense attorneys provide effective assistance (again, they must already do so, and there is a constitutional claim available where they do not).  Nothing deep-thinking about the response, but nothing really offensive either.

But her answer went slightly off the rails when she seemed to suggest that the Supreme Court find a way to distinguish between the States and the federal government with respect to the constitutional validity of capital punishment.  She said, “I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it. If it were possible to separate the federal from the state system by the Supreme Court, that would, I think, be an appropriate outcome.”  This seemed to arise, in part, from an earlier statement that Clinton had made, which Rachel Maddow recalled, in which Clinton said she would “breathe a sigh of relief if the Supreme Court abolished the death penalty nationwide.”  Ugh (cue sigh).

As I understood this response, she appears to believe that the federal system is sufficiently narrow and fair to survive constitutional attack.  Good.  But the implication of her statement was that State death penalty systems are not, and the Court, if possible, should strike down the State systems but preserve the federal system.  I take it from the qualification in her response that she does not actually believe such a distinction really is possible, though it is troubling that she would believe such an outcome “appropriate.”  Given the generalized nature of her response, it made me wonder whether she understands how various states implement their death penalties, and how varied the different systems can be.  I can assure her that it is not possible for the Supreme Court to keep the federal death penalty but strike down all of the State death penalties, at least as she framed the issue.  Individual State practices may be constitutionally problematic, but the idea that no State system could survive at all is preposterous.  What would be the relevant constitutional criteria for upholding the federal death penalty and striking down the state death penalties?  She doesn’t say.

That is not to say that her response was not satisfactory in some respects.  It was, in fact, comforting to witness the reality that Hillary Clinton is to the right of some Republicans on the issue of capital punishment – and that her precipitous move to the Left in order to compete with Sanders’ socialism has not come full circle.   She therefore remains capable of some good sense, even in this year’s Progressivism competition (and does anyone doubt her coming move to the center for the general election?).

The Sanders response had to be some kind of a mistake.  He said that “too many innocent people,” including many minorities, had been “executed” even though they were “not guilty.”  Perhaps he meant “convicted,” rather than “executed. ” For if he really meant “executed,” he is clearly and badly misinformed, and his statement cannot be taken seriously.  It must have been a misstatement.  Beyond that, he unsurprisingly argued for abolition, but – to my surprise – he apparently favors life without parole.  I would have thought that Sanders would also oppose LWOP, but apparently he has not read the memo from the Criminal Justice Left that LWOP is bad.  Unfortunately, no one bothered to follow up with Sanders by asking him what we should do with a lifer who commits a murder while serving his life sentence.