Drug prosecutions in the Trump Administration

At one of this week’s White House press briefings, Sean Spicer spent considerable time (clearly more than he wished) discussing the President’s approach to federal drug policy.  This is one of the areas that I had previously flagged as representing a potentially meaningful departure from Obama Administration policy at the Justice Department.  Spicer’s briefing appeared to signal that this Administration would take a more aggressive approach to drug crime than its predecessor.  But that remains unclear.

Indeed, Spicer’s briefing may have created more new questions than it answered, which has become a rather predictable consequence of his briefings.  Notably, Spicer discussed an obscure appropriations rider (which I previously discussed here) that defunds federal prosecutions for drug offenses in states with liberal medicinal marijuana laws.  He distinguished — on no fewer than three occasions — recreational use from medicinal use, saying, with respect to federal drug enforcement relating to recreational use, “I do think you’ll see greater enforcement of it.”  Presumably, in context, he means greater enforcement of the Controlled Substances Act where the use is recreational.  Strangely, he subsequently tried to walk that statement back, instead referring the issue to the DOJ.

But the question now arises: will the Sessions DOJ more aggressively prosecute CSA offenses?  Will the Sessions DOJ reverse the Holder Memo from August 2013 that directed federal prosecutors not to allege drug quantities that trigger mandatory minimums if certain criteria are met?  That was a major pronouncement from Main Justice, and will have a meaningful effect on the way federal prosecutors treat drug crimes.  Yet the Administration has thus far been silent, and Spicer’s briefing did not help to clarify that matter.

Moreover, the rider to which he alluded does not cover every jurisdiction, because not every jurisdiction has liberal medical marijuana laws.  And it only applies where the defendant is in compliance with all of the State’s marijuana use laws.  This means that, potentially, a defendant who is in violation of the CSA, but who is using the marijuana for medicinal purposes in a state that is not covered by the rider (say, for example, West Virginia), could still be subject to prosecution.  Spicer did not seem to appreciate this scenario, and it raises the question: will the Administration prosecute those defendants?  If so, does that not obliterate the distinction between medicinal use and recreational use that Spicer had drawn?  Also, the rider is of limited duration; Congress could change it at any time.  What will the Administration’s position be on continuing the policy adopted by the rider?  Spicer did not say, but his distinction between recreational use and medicinal use would suggest that the Administration wants the rider to exist indefinitely.  Does Jeff Sessions?

Finally, Spicer was asked repeatedly about the Administration’s decision to reverse the Obama Administration’s interpretation of Title IX with respect to transgender bathroom access.  Spicer referred to this as a “states’ rights” issue (it is not, though that is a subject for another day), and said “we are a state’s rights party.”  I have said before that the use of the term “states’ rights” is constitutionally unsound, in my view, and that conservatives should not use it (“federalism” is a far better term, and is more accurate).  But if Spicer is correct that the Administration is committed to federalism, what, then, does that mean for federal drug law generally?  Of course, the CSA was upheld against a Commerce Clause challenge in Gonzales v. Raich, but two notable conservatives – Chief Justice Rehnquist and Justice Thomas – dissented in that case, as did Justice O’Connor (a notable defender of federalism and of state interests).  Why is drug law not a “states’ rights issue,” too?  By making the transgender bathroom issue one of federalism, Spicer has opened the door to questions about whether the Trump Administration is committed to federalism across subject matter, or whether its approach to Title IX is a kind of fair-weather federalism.

Sure, the appropriations rider is a federalism-protection measure.  But reference to the rider alone tells us nothing about the Administration’s view more broadly concerning the role of the federal government in making and enforcing criminal drug laws.  Perhaps more notably, Spicer’s responses raised this question: if federalism demands respecting the states that have chosen to make medicinal use legal, why does federalism not demand respecting those states that have chosen to make recreational use legal?  In other words, even if we grant the difference between recreational and medicinal use, does a true commitment to federalism require respect for state decisions as to both?

I’m no fan of more liberal drug laws.  There must be a robust drug policy regime that takes a variety of approaches — including, but not limited to, prosecutorial ones — to the range of drug problems in this country.  Spicer, of course, cannot be expected to answer at one briefing every question regarding the President’s views on these various problems.  But this Administration needs a coherent approach to both drug policy and constitutional federalism. And right now it has neither.


“Send in the Feds”? Don’t bother, they’re here.

Keeping up with President Trump’s Twitter activity is a full-time job, and I don’t have that kind of time.  So I rarely find it useful to comment on any of his Tweets.  I could not, however, resist responding to one from late last night, in which he makes a statement about the violence plaguing Chicago: “If Chicago doesn’t fix the horrible ‘carnage’ going on . . . I will send in the Feds!”

What does that even mean?

Chicago – a great American city by any definition – is home to a busy United States Attorneys Office, and field offices for the FBI, DEA, and ATF, among others.  Federal prosecutors and other law enforcement personnel in Chicagoland – among the brightest and most talented in the Nation – routinely work on violent criminal cases within federal jurisdiction.  Even a cursory look at the press releases for these federal offices shows that they have been busy using federal resources to fight Chicago’s dire crime problem (which seems connected in substantial part to a drug trafficking and gang problem).  See, e.g., here, and here, and here, and here, and here, and here.

In other words, what kind of federal role in Chicago does President Trump envision that does not already exist there?

One possibility is that he is not talking about policing and prosecution at all, but rather is talking about using National Guard troops.  That would raise serious legal issues, if the troops are called upon to engage in civilian law enforcement.  The image of uniformed military and even of military weaponry constantly patrolling Chicago’s streets is not an image of America becoming great again.  Another possibility is that he is talking about sending more federal money or other resources to Chicago to help combat the problem.  That would be welcome news to city and state officials in Chicago, I imagine (see a Chicago Tribune piece here).  But that is not typically what one would think of when hearing “send in the Feds,” a phrase that suggests a substantial physical presence by federal officials.  Perhaps even more agents and AUSAs could be placed there; perhaps federal drug and gang task forces there could be enhanced and better funded.  I would favor that move.  But let’s be clear: that’s not sending in the feds – that’s sending in more Feds.

Finally, while there is certainly a robust federal law enforcement role where the violent criminal activity involves guns, gangs, and/or drugs, does the President believe that the federal government should supplant the role of city and state officials in ordinary law enforcement involving street crime merely because the city and state are failing to curb the crime rate?  It is true that federal criminal law offers an expansive role for the Feds in this regard, but a more expensive role for the federal government is not something that conservatives and Republicans have typically defended, preferring instead that most criminal law enforcement be done at the state and local levels.  I can’t imagine intellectually honest conservatives going along with the idea of a wholesale federalization of criminal law enforcement in a major American city.

So if the President simply means ensuring a federal role in cooperation with the city and state role, then I must ask again: how is that different from the existing situation?

The President’s Tweet therefore raise two distinct questions.  First, is he even aware of, or does he understand, the rather extensive law enforcement role of the federal government in Chicago already?  And second, how does he envision the federal role there – or in other cities – in the scheme of constitutional federalism?

Unlike others who have been critical of the President’s focus on crime, I applaud the President for tackling this issue at a time when “criminal justice reform” rhetoric has often obscured a discussion of the need for aggressive approaches to criminal violence (including gun violence and drug trafficking, two things that often go together and that are plaguing Chicago).  And there is no question that the federal criminal law provides legal mechanisms for an aggressive federal approach to the kinds of violent crime that Chicago has been experiencing.  But those mechanisms are already at work in Chicago.  Maybe they should be even more robust.  But perhaps the President could be clearer about his federal prosecutorial priorities and his understanding of the Constitution’s limits on enforcing them.

Transgender killing results in federal hate crime conviction

Several of my recent posts have addressed issues related to hate crimes.  Obviously, the Roof conviction and upcoming federal death penalty hearing has made that case the leading hate crime story nationally of late.  But it seems helpful to note the latest hate crime story of interest, also from the deep South.  Like others, it raises important questions about the federal role in prosecuting violent crimes committed with a bias-motivation.  As the Justice Department announced here, a Mississippi man yesterday pleaded guilty to brutally killing his former romantic partner because she was transgender, and in order to avoid the wrath of a violent street gang.

According to the DOJ and the defendant’s statements at the plea hearing, Joshua Vallum had been dating Mercedes Williamson, then 17.  Vallum knew that Williamson was transgender but he kept this a secret from his family and friends.  Vallum was also a member of the Latin Kings.  The relationship ended and for about nine months, Vallum had no contact with Williamson.  Vallum learned, however, that one of his friends found out that Williamson was transgender.  Believing that he would be harmed if the Latin Kings also discovered that he had been dating a transgender person (the gang has strict rules about homosexuality, and Williamson’s birth gender was male), Vallum decided to kill Williamson.

After driving her from Alabama to Mississippi, he shocked her with a stun gun, and stabbed her repeatedly with a pocket knife.  Williamson was able to escape from the car where Vallum had stabbed her, but Vallum gave chase and stabbed her again in the head (he believed he had “hit brain”).  Although Williamson was still able to stumble into some woods, Vallum again caught up to her and hit her repeatedly with a hammer, killing her.

This case gained special national prominence after Caitlyn Jenner remembered Williamson during Jenner’s 2015 speech at the ESPY awards.

Vallum had already been convicted in Mississippi state court of murder and received a life sentence.  But, as has been true in other cases, the Feds believed that it was necessary to pursue a federal prosecution because Mississippi does not have a hate crimes statute for which gender identity is a protected category.  Thus, in the language of both the relevant statute (the Shepard-Byrd Act, 18 U.S.C. 249) and the DOJ’s Petite Policy, the state prosecution left the specific federal interest “unvindicated.”  It is an open question whether the Trump Administration will take a similar view of how federal interests become vindicated by state prosecutions.

Vallum now faces another life sentence, this time in the federal system.  As I have discussed elsewhere, there is no death penalty under the Shepard-Byrd Act, though I believe this case and others demonstrate why there ought to at least be that option for federal juries in section 249 cases involving brutal killings like this one.

But that raises another question: why not also charge Vallum with murder in aid of racketeering (18 U.S.C. 1959)?  The VICAR statute reaches murder committed for the purpose of “maintaining or increasing position” in a racketeering enterprise.  If the Government’s theory is that Vallum killed Williamson not simply to avoid harm by the Latin Kings (surely a “racketeering enterprise” as defined in VICAR), but in order to remain a member of the Latin Kings, then this would seem to provide sufficient evidence to charge the VICAR offense.  That is notable because a killing under VICAR – unlike the Shepard-Byrd Act – does permit the death penalty.

I have not seen the Vallum indictment.  Perhaps it does contain a VICAR charge, and that charge was dismissed as part of the plea agreement to the hate crime.  If it was not included, perhaps the theory would be that Vallum committed the killing not on behalf of the Latin Kings, or because of a desire to maintain his position in the Latin Kings, but only because of Williamson’s gender identity and his fear of the gang’s enforcement.  But it seems hard to neatly separate his killing of Williamson on account of her gender identity from his interest in maintaining a place within the gang – arguably, he did one to preserve the other.  And that is precisely what VICAR forbids.

Finally, because this prosecution was based on section 249(a)(2), which is justified only under the Commerce Clause, there is a reasonable question as to whether the federal government properly had jurisdiction in the case.  But the statute easily answers that problem, at least as a matter of statutory application.  It specifically permits federal jurisdiction where there was travel across state lines, see 18 U.S.C. 249(a)(2)(B)(i)(I), and that was the case here.  Perhaps Vallum could have argued that the travel from Alabama to Mississippi was too attenuated from the killing to be justified under the Commerce Clause, but I doubt such an argument would go very far.  The statute also permits federal jurisdiction where the defendant uses a dangerous weapon or other weapon that has traveled in interstate commerce, or where the defendant used a “channel, facility, or instrumentality” of commerce “in connection with” the prohibited conduct, or where the prohibited conduct otherwise affects commerce.  See 18 U.S.C. 249(a)(2)(B)(ii)-(iv).

Still, in a different case, depending upon the facts, it could make sense to question whether some of these jurisdictional elements are enough to satisfy the Commerce Clause.  Watch for a hate crime case presenting a viable challenge to the jurisdictional element and the scope of congressional power.

Mistrial in Slager state prosecution

In previous posts, I have noted the Michael Slager case out of South Carolina.  See, e.g., here.  Slager is the North Charleston Police officer who was recorded shooting and killing a man named Walter Scott, who had been the subject of a traffic stop and who was seen running away from Slager.  Slager argues that he shot in self-defense.  Scott was African-American, Slager is white, and the case received extensive attention nationally.  Today, a state trial court judge in South Carolina declared a mistrial in Slager’s case.  CNN story here.  On Friday, a single juror sent the judge a note saying that the juror “could not in good conscience” convict Slager.  The jury was deadlocked through the weekend, culminating in today’s declaration of a mistrial.  It is possible that multiple jurors became holdouts.

Two quick reactions.  First, I think it likely–a virtual certainty–that South Carolina will retry Slager.  Second, recall that Slager is also facing federal criminal charges, including depriving Scott of his civil rights and use of a firearm during a crime of violence.  The United States is not seeking the death penalty.

I am often asked why, if the State is pursuing serious charges against someone, the Feds would essentially duplicate the charges and spend time and taxpayer money on an indictment, pre-trial proceedings, and trial.  That problem becomes even more perplexing, on the surface, when the State case is a very strong one.  The answer to that question consists of several factors, but the Slager case is Exhibit A as to why the Feds decide to move in a case like this: first, there is a substantial federal interest here with respect to the enforcement of laws against violating someone’s constitutional rights; and second, you just never know what will happen in the State case.

Until Slager is convicted in State court, the federal interest (which seems undeniable) remains unvindicated.


Hate crime prosecutions in the new administration

A story out of West Virginia this past week reminded me of an issue that has arisen with respect to the Trump Justice Department, and, in particular, the President-Elect-to-be’s choice for Attorney General.  According to local and national news reports, a 62-year-old man has been accused of murder under West Virginia law, after he shot and killed a 15-year-old boy.  Police say that William Pulliam, who is white, shot James Means, who is African-American, after the two bumped into each other outside of a store near Charleston. Reports say that Pulliam shot Means, then had dinner and visited a friend’s home, where a firearm was found.  Pulliam claims the killing was self-defense.  Now, the United States Attorneys Office confirms it is involved in the case, investigating whether the killing might be a federal hate crime.

There is consternation among many critics of both Trump and Senator Jeff Sessions, who Trump has tapped for AG.  One of the major criticisms of a Sessions-led Justice Department, it is said, is that the DOJ will not make civil rights cases a priority.  That, presumably, could include weak enforcement of the federal hate crimes law. The Pulliam case could be an early test of this theory for the Trump DOJ.

Still, I wonder whether this particular criticism is overstated.  While I think it likely that the new administration’s Civil Rights Division will take a much different view of some civil rights matters (e.g., voting) than the current Civil Rights Division, it is also likely that a Trump Justice Department will make violent crime an enforcement priority.  Federal hate crimes under the Hate Crime Prevention Act are, by definition, violent crimes.  The Shepard-Byrd Act requires that the defendant either willfully cause bodily injury or – through use of fire, firearm, dangerous weapon, explosive or incendiary device – attempt to cause bodily injury. 18 U.S.C. 249.  Because of the double mens rea (that the act be done willfully and that it be done because of certain kinds of animus), the defendant’s state of mind is often the contested issue in the case.  I suspect that will be the issue in the Pulliam case, as well, as there seems to be no question that he used a firearm to kill Means (though there remains the issue of justification).

If the Sessions DOJ makes violent crime an enforcement priority (as I suspect it will, and should), then there is little reason to think that it will categorically refuse to enforce the Shepard-Byrd hate crimes law.  Of course, there remains the question of whether the DOJ should prosecute in cases where the state is also prosecuting, or whether the alleged act involves the kind of animus required by the statute, but those are already barriers to enforcement now.  Neither is a sticking point unique to the Trump Administration.

It is also worth noting that during the debate on the hate crimes bill, Senator Sessions proposed an amendment that would have allowed the death penalty for certain hate crimes resulting in the death of the victim.  Though some described the Sessions Amendment as a poison pill, there were – and remain – considerable arguments for making a hate crime that results in death a capital offense.  Several other criminal statutes relating to civil rights already provide for capital punishment.

There has been an understandable sensitivity to bigotry in the wake of the presidential campaign and the election.  But not every act of bigotry is a federal hate crime, detestable as the act may be.  Merely shouting offensive words, for example, is not a violation of section 249.  The statute requires a highly culpable mental state, combined with personal animus, combined with the infliction or attempted infliction of bodily injury.  And until Congress broadens the law, every Administration – Republican or Democrat – must wrestle with the limits on its enforcement.  Of course, hate crimes may also be prosecuted under Section 245, but again, there are limits: that statute’s narrow hate crime provisions are limited to injury, intimidation, or interference based only on race, color, religion, or national origin, and only with respect to certain federally protected activities.

Still, the new Trump Justice Department could help allay some of the public’s concerns if it demonstrates a proper appreciation for the virtues of the Shepard-Byrd Act, the federally protected activities statute, and the idea of treating animus-based violence as a particularly insidious form of criminality.  I am hopeful that an Attorney General Sessions and his Civil Rights Division will enforce it, sensibly, as part of a wider policy that both attacks violent crime and sustains the Department’s tradition of defending civil rights.

Ninth Circuit: Feds cannot prosecute CSA violators in medical marijuana States, sort of, for now

The United States Court of Appeals for the Ninth Circuit issued a significant ruling on the criminal enforcement of federal drug law yesterday.  In United States v. McIntosh (here), the court held that, where a defendant is fully compliant with the laws of a designated medical marijuana state, the Justice Department cannot engage in a federal prosecution of that defendant under the Controlled Substances Act.  The key limitation on the ruling for marijuana growers and dispensers, however, is that they must be in compliance with state law.

The case involves the consolidation of multiple federal prosecutions under the CSA.  According to the Ninth Circuit, in one case (McIntosh), the co-defendants were accused of running businesses in Los Angeles that dispense marijuana.  The Government also accused them of managing indoor grow sites in L.A. and San Francisco.  In another California-based prosecution (Lovan), federal and county law enforcement agents allegedly found more than 30,000 marijuana plants while executing a federal search warrant.  In a third prosecution (Kynaston), the Government alleged that, in the course of executing a warrant under Washington state law, investigators found over 1,100 marijuana plants (some growing, some, the court observed, with “root structures of suspected harvested marijuana plants”).  In each case, the defendants were indicted on federal criminal charges under the CSA.  The Kynaston case also involved charges under federal gun laws.

Although many States have moved in the direction of liberalizing their own drug laws, the federal government has not.  It remains a federal crime to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance – among them, marijuana (still a Schedule I controlled substance).  See 21 U.S.C. 841(a).  But in 2014, and again during the appropriations battles in 2015, Congress passed an appropriations provision which says that in certain states (including California and Washington), the Justice Department may not spend any funds to prevent these states from implementing their own laws respecting medical marijuana.  See Section 542 of the Consolidated Appropriations Act of 2016.  So, the defendants in these cases sought to dismiss their indictments and obtain mandamus relief from the Ninth Circuit, alleging that the DOJ’s prosecution of them violated section 542 and that any effort by the DOJ to spend funds on such a federal prosecution would violate the separation of powers (by violating the Appropriations Clause, i.e., the executive spending money not appropriated by Congress).

The court agreed.  But the decision was not as sweeping as it might have been (or as some might think that it is).  This decision does not categorically forbid federal drug prosecutions involving marijuana.  Rather, the court interpreted section 542 to forbid DOJ from preventing the implementation of specific state law rules regarding the “use, distribution, possession, or cultivation of medical marijuana.”  But DOJ has the power to prosecute private individuals who violate the CSA and who are engaged in conduct not authorized by state law.

Moreover, as the court explained, not only is the text of the legislation subject to a limited interpretation, the rider itself has a temporal limit.  The court rightly noted that Congress could alter the existing rider by repealing it and appropriating funds to the DOJ.  Or, as the court said, Congress could enact a similar rider in future appropriations legislation (this legislation is good only for FY 2016, so it expires at the end of September – unless renewed, DOJ could then proceed with any prosecution not otherwise barred by law or the statute of limitations).  Moreover, the text of the rider applies only to States with respect to medical marijuana.  The legislation does nothing to prevent the DOJ from prosecuting those persons who violate the CSA in states that are not among those listed (say, West Virginia or North Carolina or South Dakota).

Still, there is an interesting separation of powers argument here that was not included in the court’s discussion, and perhaps was not even raised by DOJ: can Congress use its spending and appropriations powers in a way that interferes with the authority of the executive branch to carry out its constitutional function of taking care that the laws be faithfully executed?

To be sure, the spending power is among Congress’s most important weapons for setting national policy and forcing State compliance with Congress’s will.  But this law is different than a garden-variety conditional spending bill: it actually protects the states against another branch of the federal government, the executive.   One of the recognized limits on the spending power is that Congress cannot condition spending in way that compels states to violate some other constitutional provision (i.e., an independent constitutional bar, see South Dakota v. Dole).  But again, the instant legislation is different: the issue is whether the “independent constitutional bar” limitation includes the constitutional powers given exclusively to another branch of the federal government.

Congress was not saying here that the CSA was no longer a “law” that the executive has a duty to enforce.  Nor did Congress say that the CSA was unconstitutional, and we know that the Supreme Court has upheld Congress’s power to enact the CSA and permit its enforcement even in states with more liberal state drug laws.  See Gonzales v. Raich.  Congress simply said that, in these states, the executive cannot spend funds in a way that prevents these States from implementing their laws (which, practically, forbids federal prosecution).  And Congress has appropriated money for criminal prosecutions generally, just not for these.  So is the executive’s power to enforce the law a constitutional bar to Congress’s use of the spending power to prevent the use of federal funds for a particular kind of prosecution?  In other words, can Congress use the spending power to limit prosecutorial discretion?

I suspect most would say that the spending power extends to this kind of limit on executive power; in other words, this kind of law is a valid exercise of Article I power.  But I detect a separation of powers issue here that might be worth exploring further.



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.