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February 14, 2014

"The Marriage of State Law and Individual Rights and a New Limit on the Federal Death Penalty"

The title of this post is the title of this notable new article by Jonathan Ross now available on SSRN. This piece seems especially timely not only in light of lower federal courts extending recent SCOTUS marriage precedents, but also with the Boston Bomber federal capital case taking place in a state without the death penalty. Here is the abstract:

Since the 1990s, federal prosecutors have, with increasing frequency, sought the death penalty for federal offenses committed in and also punishable under the laws of non-death penalty states. This phenomenon has troubled federalism proponents, who have pointed out that federal prosecutors can use the federal death penalty to circumvent a state's decision to abolish capital punishment. Drawing on these scholars' works, defendants have argued that state law shields them from federal punishment. Courts have almost unanimously rejected such arguments, holding that state law cannot preclude the administration of federal punishment for federal offenses.

This article proposes a novel basis for a challenge to the federal death penalty's use in a non-death penalty state - the Supreme Court's reasoning in United States v. Windsor. In Windsor, the Court held that federal interference with a state law right arising in an area traditionally regulated by states is subject to heightened scrutiny under the Due Process Clause. This article argues that, in some instances, Windsor precludes federal capital prosecutions.

This article considers a Windsor-based motion to dismiss a notice of intent to seek the federal death penalty. The federal capital prosecution in a non-death penalty state interferes with a state law right to not be executed. As states have traditionally prosecuted violent murders, this right arises in an area traditionally regulated by states. Applying due process scrutiny, a court should ask whether a prosecutor's animus towards the state's lack of capital punishment motivated the prosecution in the first place, or whether there is an independent federal interest. If animus alone motivated the prosecution, then Windsor demands that the court reject the attempt to seek capital punishment.

February 14, 2014 at 08:31 AM | Permalink


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Windsor explained how traditionally the feds have basically left marriage to the states, but even there -- (1) there are limits [interracial marriage must be allowed etc) (2) the feds do regulate marriage in some ways. However, in this instance, the nature of the law was so suspect/different and targeted a select group in a blatantly invidious ways that it must fall.

The case ultimately rested on equal protection (which as applied to the federal government is protected by the Due Process Clause -- see,e.g., Bolling v. Sharpe as to school segregation in DC). Some wanted them to firmly rest on federalism. They did not. This argument here stretches the point. It raises an "animus" against federalism sort of argument.

Also, traditionally, the feds HAVE executed people when they commit crimes in states which don't have the death penalty. If someone killed a mailman, e.g., in a state w/o one, traditionally, did the feds suddenly not execute? That is where the federal executions arise -- to further federal powers. Marriage is a traditionally state function. Protecting federal interests, such as interstate commerce or whatever, is a traditional federal function. So, even as to marriage, the feds regulate when marriage might be fraudulent to obtain citizenship.

The "Windsor-based motion" notion particularly doesn't work for me. The best argument there (and even that to me is a bit weak & using Windsor a stretch) would be some crime where the federal link is very weak.

Posted by: Joe | Feb 14, 2014 9:01:18 AM

I would generally be fine with abolition of capital punishment, but this argument has always seemed silly and transparently results-oriented to me. The crimes the federal government can punish with the death penalty are crimes Congress has determined the United States -- rather than a particular state -- has a particular interest in punishing. Now, maybe there should be fewer of those, but to the extent there some, such as murder of federal officials or on federal property, the US has an interest in treating those offenses the same wherever they happen. There may be a disparity between how you're treated for shooting up a post office and shooting up a liquor store, but, from a legal perspective, it's not an unwarranted disparity. Does anyone really think that whether someone can get the death penalty for assassinating the President should depend on whether they do so in WV (no DP) or across the state line in VA? That seems a much more clear-cut example of unwarranted disparity to me.

Posted by: Jay | Feb 14, 2014 10:05:08 AM

I think Windsor is a bit of a stretch. The reasoning is that the law was motivated by animus. The evidence of animus was that it was an area traditionally regulated by state law. There wasn't a holding that areas traditionally regulated by state law are beyond federal reach.

I personally think Lopez should be a Federal Capital Defense Attorney's best friend, but I assume that's been tried.

Posted by: Erik M | Feb 14, 2014 11:05:59 AM

Putting aside the PPACA case, the USSC has not been overly supportive of federalism arguments when some really important federal law is at stake. Lopez left on the books loads of state laws & an easy workaround is available (gun in interstate commerce). We saw how applying Lopez to drug laws worked in Raich.

When a federal abortion law is struck down on federalism grounds, get back to me. BTW, I'm with Jay's opening comment as people know -- I'm against the death penalty. But, some arguments are a stretch.

Posted by: Joe | Feb 14, 2014 11:30:07 AM

"[T]raditionally, the feds HAVE executed people when they commit crimes in states which don't have the death penalty."

Nope. Actually, that's never happened. Never, ever. The closest we came was in 1938 when the U.S. hanged Anthony Chebatoris in Michigan for a murder in relation to a bank robbery, which still authorized the death penalty for treason but not for murder. So, if by "traditionally, the feds HAVE executed people when they commit crimes in states which don't have the death penalty" you meant "once, in the past 225 years, the feds executed someone in a State that didn't have the death for the crime committed," then you're right.

"Does anyone really think that whether someone can get the death penalty for assassinating the President should depend on whether they do so in WV (no DP) or across the state line in VA?"

Yes, I do, and I am in good company. You are describing the state of affairs that existed from 1846, when Michigan became the first State to abolish the death penalty for murder, to 1965, when Congress first made it a crime to assassinate the President. So this unthinkable scenario you describe was actually thinkable, and acceptable, to tens of millions of Americans for at least 119 years.

Posted by: Michael J.Z. Mannheimer | Feb 14, 2014 11:36:52 AM

I take this was covered by people like Prof. Mannheimer, but my concern would be historical cases where the feds could execute a person but did not because the state where the federal crime was committed did not have a death penalty. More so, was there an understanding that they could not on constitutional grounds.

The problem in part would be there would be such a small number of possibles here -- few states banned executions and we already have a small number of federal executions, especially before it expanded the possible crimes. Consider that even John Brown (who raided a federal armory!) was convicted and killed by VA. Today, and I doubt this would be a problem, he would likely be on trial by the feds. Just one case where history would be of limited value.

It is quite true that traditionally things were different in various ways but the comment sort proves too much as to the assassination point -- there it wasn't even a federal CRIME. Crime policy is different today from the days, e.g., when the Bill of Rights were not applied to the states. The problems with a state trying an president's murderer was readily suggested in 1963 and it suggests the can of worms this argument opens up.

Posted by: Joe | Feb 14, 2014 12:15:49 PM

Here is the test the article proposes: "Applying due process scrutiny, a court should ask whether a prosecutor's animus towards the state's lack of capital punishment motivated the prosecution in the first place, or whether there is an independent federal interest."

Let's assume arguendo that SCOTUS adopted this test. It won't do federal capital defendants any good anyway, since the feds will virtually always pass it.

I was a federal prosecutor for a long time. The prosecution of (to take the most prominent current example, Dzokhar Tsarnaev) has zip to do with alleged federal animus toward state law. The reason Tsarnaev is being prosecuted federally is that he broke a fistful of distinctly federal statutes, including, principally, committing murder in the course of a terrorist act.

No sensible person doubts that terrorism, and specifically terrorism against "the Great Satan" -- that being the USA, not Massachusetts -- is a legitimate federal concern. If I were an AUSA in Massachusetts, I would indict Tsarnaev EVEN IF THE DP WERE NOT AVAILABLE, simply because the target of his crime was the United States.

I would not even consider state law. A bomber does not get a freebie against my client no matter what the state does.

Thus, the test proposed in the article would not prevent federal prosecution, and similarly would not prevent the DP (which Tsarnaev is going to get, having earned it, and with all respect to Judy Clarke).

Posted by: Bill Otis | Feb 14, 2014 12:35:25 PM

"However, in this instance, the nature of the law was so suspect/different and targeted a select group in a blatantly invidious ways that it must fall."

I am not a gay marriage culture warrior, but I don't support it. Society has the right to withhold its imprimatur on gay relationships. Saying that view is "invidious" is wrong. I have nothing against gay people, or else I wouldn't live where I live. Why don't you save your moral outrage for the people who exult over justice being denied to a family who had their daughter cruelly snatched from them?

Posted by: federalist | Feb 14, 2014 2:30:14 PM

| “If animus alone motivated the prosecution, then Windsor demands that the court reject the attempt to seek capital punishment.” |
 Animus?
 Motivation of prosecution?

Pardon my daftness, but does not the evidence regarding the offence, and the nature of the crime delimit any attempt by prosecution?
Does not the prosecution have to convince a grand jury, a judge, and defeat appeals in order to even seek capital
punishment anywhere in America? Some really want to prevent a federal murderer from being executed categorically?

[P.S. "Heightened scrutiny?" Fine. What colossal liar today would proffer that any federal capital case lacks lavish scrutiny as is?
Can anyone name one?]

Posted by: Adamakis | Feb 14, 2014 2:33:03 PM

Likely it's never happened because the vast majority of states have had the death penalty for the great majority of American history, in terms of overall years with-DP versus years-without DP, and because the federal government has never brought very many DP prosecutions anyway. Not because some grand principle was being enforced, as the Michigan example illustrates.

Posted by: Jay | Feb 14, 2014 2:34:55 PM


Point well taken. My point in bringing up the history is essentially twofold:

1. The typical initial reaction to my claim is this: How could my argument be defensible on originalist grounds if it had never been made before a few years ago? The simple answer is: when would the argument have been made? There was never an opportunity, other than in the Chebatoris case, to even make the argument. In that case, the attorneys did not even appeal their client's conviction and death sentence, despite the fact that the constitutionality of the Bank Robbery Act had never been resolved.

2. The fact that there were far fewer federal statutes that covered ordinary crime is telling, is it not? It bespeaks a general understanding, whether based on constitutional or sub-constitutional principles, or a mixture of both, that crime that did not directly affect the interests of the federal government qua the federal government was not an appropriate subject for federal regulation. Because of that understanding, we never had an opportunity to develop a robust jurisprudence on the Bill of Rights that incorporates a federalism component, as it was originally understood. By the time the push came for an expansion of federal power in the criminal realm, first in the nineteen-teens and then, more dramatically, in the New Deal Era, the understanding was that the traditional view of the Commerce Clause was all we needed to get around in order to make these new criminal statutes stick. No one thought about the Bill of Rights as an additional constraint (except for the Second Amendment argument against the National Firearms Act, which failed miserably in Miller) because there was no case law in this area. Of course, there were plenty of early Commerce Clause cases because these dealt with economic and social legislation. Once we attained a new view of the Commerce Clause, it paved the way not just for sweeping federal economic and social legislation, but criminal as well, as if the tail naturally went with the hide. But it doesn't if, as I've demonstrated in my work, the Bill of Rights provides an additional federalism-based constraint on the federal government's power to investigate amd punish crime.

Posted by: Michael J.Z. Mannheimer | Feb 14, 2014 2:58:34 PM

"The fact that there were far fewer federal statutes that covered ordinary crime is telling, is it not?"

Somewhat. But, where does one stop there? Next up, Prof. Randy Barnett is on the case and the New Deal itself is in question. I'm not game for that. So, line-drawing problems.

Bill Otis makes a good point too from that end.

Posted by: Joe | Feb 14, 2014 3:36:45 PM

Trying to remember all of the details (about twenty years since I wrote a brief summary of the history of federal criminal law), but, in the 1810s, the U.S. Supreme Court held that there were no federal common law crimes. While the early Congresses passed a handful of criminal law (which could primarily be divided into two categories -- laws for the territories and things like piracy and tax violations which were clearly federal), they left the every day crimes for the states. It is not until after the Civil War that you begin to see an expansion in federal powers and not until the latter part of the twentieth century that you began to see the federal government enacting laws for the type of offenses that most people would see as death penalty worthy, making it all but impossible to argue from history on this issue.

Given the dual sovereignty exception to double jeopardy, I think it is hard to make a credible argument based on Windsor. On the civil side, the full faith and credit clause requires giving legal effect to the acts of other states -- whereas DOMA expressly denied giving full faith and credit (which led to the question of whether treating gay marriage different from other legal acts sanctioned by a state could be justified). The dual sovereign exception effectively excuses states and the federal government from being bound by the acts of other state.

Posted by: tmm | Feb 14, 2014 3:38:04 PM

Bill Otis--

He's not charged with "committing murder in the course of a terrorist act." He's charged with, among other things, "use of weapons of mass destruction," in violation of 18 U.S.C. § 2332a(a)(2), which states, in relevant part: "A person who, without lawful authority, uses . . . or conspires to use, a weapon of mass destruction against any person or property within the United States, and (A) . . . any facility of interstate or foreign commerce is used in furtherance of the offense; (B) such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce; (C) any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or (D) the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a . . . conspiracy, would have affected interstate or foreign commerce . . . if death results, shall be punished by death or imprisoned for any term of years or for life."

So Ross's proposed test -- which I also find problematic, I should add -- might not make a difference here, given that Tsarnaev was reportedly motivated by anti-American animus. But it might make a difference in a case where someone blows up the local newsstand for sport and kills someone in the process, which would equally be covered by this statute. It might also make a difference where someone kidnaps and kills another entirely within one State, so long as the perpetrator sends a text message or e-mail, or makes a phone call, in the process. Or where someone forcibly steals a candy bar from a gas station and kills the proprietor. Or where someone is killed during a drug deal, no matter how small. Or someone is killed in relation to a carjacking. And on and on.

The point is that if virtually any killing can be charged federally as murder, but we know the overwhelming majority are not, and one particular unremarkable murder is prosecuted federally in a non-death State, can we not at least ask whether it's being cherry-picked BECASUE it's a non-death State? Again, I find it problematic to look to a prosecutor's motivation. But it's not a terrible idea.

Posted by: Michael J.Z. Mannheimer | Feb 14, 2014 3:41:50 PM

There's a problem though. As a matter of course, prosecutors can decline a federal criminal case if they think state or civil sanctions are sufficient. (Eg, "I could bring a federal securities fraud case, but I think the SEC bar is sufficient punishment.". Or, "I could bring a federal VICAR charge, but won't because the state murder charge will suffice.").

This article is talking about cases the Feds here are saying "I could defer to state prosecution, but that would not adequately punish the crime and vindicate the federal interest -- such as the federal interest in deterring terrorism, in the Boston marathon case. That's not animus towards Massachusetts policy. That's applying the federal policy, except where the state punishments already operate in a way that makes independent federal prosecution unnecessary to vindicate those goals.

Posted by: Problem | Feb 15, 2014 8:21:29 PM

The federal government may not force a state to pass any law. However, it is allowed to tie federal funds relevant to a law to the passage of such a law. For example, want federal highway funds? Make 21 the legal drinking age.

The federal government should tie law enforcement funding, as well as addiction funding to the passage of and the maintenance of an active and lively death penalty in all the states.

Posted by: Supremacy Claus | Feb 16, 2014 9:43:54 PM

tmm --

Two points. First, am I remembering correctly that you were a defense lawyer before you became a prosecutor? If so, when did you switch, and why? Are you elected?

Second, I again urge you to do some teaching. The prosecution point of view is seldom to be found in legal academia, which could use a strong dose of it to balance, at least slightly, its strong pro-defense bias.

Posted by: Bill Otis | Feb 17, 2014 1:46:27 PM

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