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October 5, 2011

"Face the federal death penalty in Michigan? Let state's laws decide"

The title of this post is the headline of this commentary in the Detroit Free Press authored by Professor Michael Mannheimer.  Here are excerpts:

The full U.S. Court of Appeals for the 6th Circuit is considering whether to review the federal death sentence imposed on Marvin Gabrion II in Michigan in 2002.  Gabrion is purportedly eligible for the federal death penalty because he committed murder in a national forest.  A three-judge panel recently threw out Gabrion's death sentence because the trial judge refused to allow the jury to consider the absence of capital punishment in Michigan as a mitigating factor.

Although the panel came to the correct result, it did not go far enough.  Because Gabrion committed his crime within a state that does not authorize the death penalty, his federal death sentence violates the Eighth Amendment's ban on "cruel and unusual punishment."...

The federal Bill of Rights was adopted under the assumption that state law would provide the standard to give the bill's provisions meaning.  This view demands that we take a state-centered and state-specific approach to the Bill of Rights.  Indeed, the fiercest advocates of a federal Bill of Rights were those whom we would today call the "states' rights" crowd....

In its original incarnation, the doctrine of states' rights operated to provide an additional layer of protection between individuals and government by using state norms to determine the limits of federal power.  And the key word of the cruel and unusual punishments clause -- "unusual" -- cries out for a comparison between the punishments prescribed by the new federal government and those meted out by the states, which, by 1791, had extensive experience in administering criminal justice in North America, some for nearly two centuries....

There is good reason to think that Marvin Gabrion II should be executed.  But there is also good reason to reject capital punishment wholesale.  Ultimately, the question is not one of crime and punishment, but of who decides.  The cruel and unusual punishments clause leaves in the hands of the people of Michigan the question whether men such as Gabrion should live or die.

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Comments

"Because Gabrion committed his crime within a state that does not authorize the death penalty, his federal death sentence violates the Eighth Amendment's ban on "cruel and unusual punishment..."

Welcome contestant, as your rant qualifies for the Non Sequitur Hall of Fame.

Was this written by Michael Mannheimer or actually by Keith Olbermann?

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"cries out for a comparison between the punishments prescribed by the new federal government and those meted out by the states"

Ya betcha yooper. "By 1791", Michigan was doling-out tongue lashings and 5-paragraph essays for murder.

Pound pulpit harder, Farmer-man

Posted by: adamakis | Oct 6, 2011 9:06:52 AM

Headline #1: "Face the federal death penalty in Michigan? Let state's laws decide"

Headline #2: "Face federal desegregation laws in Mississippi? Let state's laws decide"

Posted by: Bill Otis | Oct 6, 2011 9:13:57 AM

How 1830s of the author.

Posted by: Jonathan Edelstein | Oct 6, 2011 11:41:20 AM

Bill's analogy is bogus.

There is no federal constituional imperative requiring Gabrion to suffer the death penalty for his crimes.

There are federal constitutional imperatives that require Mississippi to to not discriminate on the basis of race. See, 13, 14 & 15th Amendments

Posted by: ? | Oct 6, 2011 11:53:34 AM

? --

"There is no federal constituional imperative requiring Gabrion to suffer the death penalty for his crimes."

But there is a federal death penalty statute that, when invoked, overrides the failure or refusal of any given state to provide for the death penalty. Under the Constitution, federal law is supreme irrespective of state law. it cannot be subordinated to state law any more than federal desegregation laws can be.

Posted by: Bill Otis | Oct 6, 2011 2:13:12 PM

true bill but i think in the case of the REAL federal death penalty statue is controled by the U.S. CONSTUTION and it tells us WHICH crimes qualify and last time i looked it DID NOT include mundate things like murder. that was to be handled by the state.

federal crimes were to be things that offected the NATION you know....TREASON, taking up ARMS aginst the NATION that sort of thing!

Posted by: rodsmith | Oct 6, 2011 9:52:41 PM

Committing crimes in national parks seems to be an issue for the national government . . . .

Posted by: federalist | Oct 7, 2011 10:11:09 AM

ONLY if said crime is a FEDERAL crime! as enumerated in the CONSTUTION!

Posted by: rodsmith | Oct 7, 2011 5:59:58 PM

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