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August 26, 2009

Will (local?) killer in Vermont challenge his federal capital prosecution?

I blog here yesterday about the decision by the Justice Department will to pursue federal death penalty charges against Michael Jacques, a Vermont sex offender accused of an awful rape/murder crime.  This updated local story about the case provides some useful additional information and commentary about the interesting federalism issues that the case raises:

Vermont does not have the death penalty, but Jacques is being charged under federal law because he allegedly used the Internet to both plan for and cover up the crime, according to police.  Because of that, the crime is considered to have crossed state borders, opening it up for federal prosecution.

This would be the third death penalty case in Vermont since the late 1990s.  A 1998 case involving a fatal bombing in Fair Haven had a death sentence attached, but the defendant later pleaded down for a life sentence in prison.  In 2005, Donald Fell was sentenced to death for the 2000 carjacking murder of a North Clarendon woman, who was kidnapped by Fell in Rutland and later killed in New York State. He now sits on death row.

Cheryl Hanna, a professor at the Vermont Law School, said the announcement was interesting because it is the first from the new Obama administration on the use of the death penalty in states that do not have one. "I suspect that we will see some kind of outcry from death penalty opponents over this decision, as we did with the Fell case," she said.

Hanna said it may well be that Jacques' defense questions the constitutionality of the law allowing the federal government to prosecute.  In the Fell case, the crime clearly crossed state borders, but here, Hanna explained, prosecutors are relying on a new law allowing them to step in because the crime allegedly involves the Internet.  "I would not be surprised if the defense questions the law itself here," she said.

This case is already starting to sound like fodder for a law school exam question: Is using the internet while planning a local crime sufficient to provide federal jurisdiction to prosecute that local crime?  Should it be?

Some related (and mostly dated) posts:

August 26, 2009 at 06:10 PM | Permalink


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Oh cmon. So if the suspect uses Google maps, that federalizes an otherwise state murder?

Posted by: . | Aug 26, 2009 6:23:21 PM

The indictment suggests its actually kidnapping that is the chief force behind the federal indictment. As Kent noted yesterday, this is overreaching at its worst.

Posted by: anon | Aug 26, 2009 10:23:38 PM

How material was the use of the internet to the crime itself? There has to be more than internet use. Otherwise, federal jurisdiction is pretextual. It casts such a wide net, that all crimes become federal. The criminal also breathed air that traveled from California, and this air gave him the oxygen for the energy to commit the crime.

Such wide nets violate state sovereignty, the Tenth Amendment and Fifth Amendment due process rights. That leaves no crime to the states.

The indictment includes the making and transmission of child pornography, and a murder in a kidnapping.

Posted by: Supremacy Claus | Aug 27, 2009 12:27:23 AM

I would like a bit of history on the defendant, namely the names of the criminal lover judges and lawyers that loosed him on our kids. They are the real mass murdering vermin that needs capital punishment, after an hour's fair trial. The latter is far more due process than that enjoyed by the murder victims of their clients.

Posted by: Supremacy Claus | Aug 27, 2009 4:09:59 AM

"Is using the internet while planning a local crime sufficient to provide federal jurisdiction to prosecute that local crime? Should it be?"

Yes. No.

Posted by: Kent Scheidegger | Aug 27, 2009 10:40:03 AM

Since Nixon and a feckless congress armed the Justice Department with nuclear weapons (RICO statutes and sentencing guidelines), accusing G-men of "overreaching" has become an anachronism.

Of course the feds are overreaching in Vermont. Who do we see about that?

Posted by: John K | Aug 27, 2009 11:20:32 AM

Prof. Berman should post this story.


That is so we may review the utter failure of lawyer run sentencing law and policy. The lawyers caused this catastrophic failure, and need to be caned in public. To deter.

Posted by: Supremacy Claus | Aug 28, 2009 11:02:34 AM

I would have posted it on my own blog, but no one reads it.

Posted by: Supremacy Clause 2 | Aug 28, 2009 3:01:32 PM

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