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January 24, 2007

A poster child for the (federal) death penalty?

This AP story discusses the life and crimes of Joseph Edward Duncan III, who would seem to be exhibit A for anyone trying to make a case for the death penalty.  Here are some details on this bad man:

A man accused of kidnapping two Idaho children, killing one of them, after slaughtering their family has confessed to the killings of three other children a decade ago in Washington state and California, federal prosecutors said Tuesday. 

The prosecutors cited the confessions to the old killings in court papers saying they intended to seek the death penalty against Joseph Edward Duncan III, who was indicted last week on charges involving the two northern Idaho children. "The defendant has engaged in a continuing pattern of violence, attempted violence, and threatened violence," prosecutors said. Duncan "is likely to commit criminal acts of violence in the future that would constitute a continuing and serious threat to the lives and safety of others."...

The U.S. attorney's office said Duncan confessed that he killed Carmen Cubias, 9, and Sammiejo White, 11, in Washington state in 1996 and Anthony Martinez, 10, in California in 1997....

In October, Duncan pleaded guilty in Idaho state court to first-degree murder and kidnapping for the May 16, 2005, hammer slayings of Dylan and Shasta's mother, Brenda Groene; her fiance, Mark McKenzie; and Groene's 13-year-old son, Slade.  Prosecutors say he killed them to get the younger children.

If federal prosecutors fail to win a death sentence in the case involving the two younger children, a jury will be chosen in Idaho state court to consider whether to impose the death penalty on the murder counts that Duncan pleaded guilty to in October.  Duncan was charged Thursday in a California state court in Anthony's death.  Prosecutors there said they also intend to seek the death penalty.

Duncan is a Tacoma, Washington, native who spent most of his adult life in Washington state prisons for sexual crimes against children.  In 2004, he had been arrested for allegedly molesting a 6-year-old boy and attempting to molest another boy in Detroit Lakes, Minnesota.  Authorities say he jumped bail on that charge.

This story has me thinking again about under-explored federalism issues in the debate over the death penalty.  As this case shows, particularly awful murders often provide a basis for the federal government to pursue a capital charge in federal courts.  Wouldn't it make sense for states to rarely (if ever) pursue capital cases (and not be able to take second bites at the death penalty apple), and for the federal government instead to have primary responsibility for pursuing the death penalty in the most horrific murder cases nationwide?

Significantly, the federal government already tends to dominate the prosecution of the most severe white-collar crimes.  Though they surely could have been be charged with some state offenses, high-profile white-collar defendants like Jeff Skilling and Bernie Ebbers typically face only a federal prosecution.  If this model seems to work for high-profile white-collar crimes, why not also for high-profile murders?

January 24, 2007 at 12:32 AM | Permalink


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No--it would not make sense. The bottom line is that states have the right to impose and enforce the death penalty, notwithstanding the bleatings of arrogant federal judges or society's "betters". The idea of federalizing death is affront to the state's unquestioned power to impose death on those who break its most serious of laws. (By the way, it does not work the other way because the states have no right to limit what the nation as a whole can do about federal crimes.) Do you propose to take away this state power by fiat, simply because you think certain states seek death too often?

As for the death penalty . . . . there has already been a death penalty in this case. What the hell was this guy doing out on bail? Furthermore, let's not forget that this guy, when he was 16, raped a boy at gunpoint. There are likely 7 people dead as a result of the fact that he was not locked up for good for that crime. Funny how that doesn't seem to generate the outrage that executing a murderer does. And somehow those who get all weepy about the idea of LWOP, let alone death, for juveniles for truly awful crimes never get weepy about the results of such solicitude, namely, a little boy who got to witness his mother hammered to death and who got to witness his sister being violated in unimaginable ways only to be killed later on.

Forgive the rant, but would someone please explain why the fate of Lionel Tate engendered more handwringing than the fate of Dylan Groene and the other victims of this sick perverted ghoul? We know for an absolute fact that when we let out juvenile killers and rapists that there will be a price in blood. Yet, somehow, the fate of Tookie was somehow of greater moment. And it is interesting to see the dripping condescension of those who rail against "knee-jerk" tough-on-crime policies. Yes, we should probably be smarter about how we allocate a scarce resource, prison beds, but outrage is a natural reaction to hearing about the predations of those who, based on past acts, should have been locked away for good. And that outrage is good, as compared to the faux outrage over the execution of a quadruple-killer who happened to pen a few children's books or the tut-tutting of those who advise us that we cannot be "killing to show that killing is wrong" (and that such a juvenile snark passes for argument is emblematic of the intellectual weakness of many on the abolitionist side). And without that outrage, we'd have far more Dylan Groenes and far more wrong-headed policies born of moral preening rather than any sense of justice, e.g., Michael Dukakis' furlough policy. (On that point, isn't it funny that the howls of outrage over the running of the Willie Horton ad eclipse the outrage over the idea of furloughing from prison a murderer who killed a 17 year old boy who had handed over the money and who pleaded "please don't hurt me".)

As for Duncan being Exhibit A for the death penalty--unfortunately, there's a long long long line for that [dis]honor. And sure enough, when Duncan is strapped into the gurney, assuming the Ninth Circuit decides that in this case, given its heinousness, the law must be followed, there will be someone telling us that it's wrong to kill him to show that killing is wrong.

Posted by: federalist | Jan 24, 2007 1:33:52 AM

For one thing, we usually don't think of retribution as the federal government's job. Deterrence, maybe, but not retribution. You also alluded to the states' rights issue -- and indeed, there is a huge federalism/democracy problem in states without the death penalty. Also, such a system is likely to introduce further arbitrariness in capital sentencing (with a defendant's chances of being sentenced to death based on who the AG is, given that the AG now must approve _not_ seeking the death penalty). On the other hand, such a system wouldn't have the mantle of state's rights to shield it from Supreme Court "interference."

Posted by: rothmatisseko | Jan 24, 2007 3:40:16 AM

That's a cheap shot, federalist. How dare you pontificate about how you experienced the tragedy of the Groene case more than others here or anywhere else. The whole country wept in grief and rage and there is nothing special about your anger.

Reasonable people can still disagree on what to do about it.

For a start, why don't you list all the people who made bail and never killed anyone or who completed their sentences and never killed anyone. Just to balance the scales.

You dramatically imply the judge knew of his previous conviction, knew that he had prior uncharged murders he would later plead guilty to, knew he would kill once he was released, but he didn't know and no one knew. If he did know of Duncan's previous prison sentence for rape with a gun and Level III status and still granted a mere $15,000 bail, you would be at least that much right. He didn't.

Duncan is the perfect case for the feds to promote their death penalty and the cynic in me wonders if they might be a little thankful for the opportunity.

Few if anyone will shed tears if Duncan gets the "big jab," and if doing that would work to prevent another Duncan, I'd be all for it. But I suspect the law is working at the opposite direction and is tempting some other unstable person who with every day has less and less to lose. Hopefully, they aren't violent, or better yet, have some recovery behind them and a means of extrication available. It's ironic they are called animals and then backed into a corner.

Nothing can ever justify what Duncan did. Nothing, but note that all four states have the death penalty: Washington, Idaho, Montana and California. The death penalty did not deter him.

Posted by: George | Jan 24, 2007 3:42:50 AM

Crimes by one individual against another are properly matters of state law. Your proposal would further extend the federalization of criminal law, a trend which has already gone too far and needs to be rolled back, not extended. Crimes like Skilling's are properly prosecuted as federal because they have a widespread impact across the nation and significantly affect interstate commerce, regulation of which is one of the enumerated powers of the federal government.

Federalism is not just a abstraction. Keeping lawmaking at the lowest level where it is practical increases the influence of individuals over those decisions. Your state assemblyman represents fewer people than your congressman, and your vote and contributions are more influential in whether he gets reelected. There is also an important element of personal choice. If you get totally fed up with your state's laws, you can move to another state, a far easier transition than moving to another country.

Posted by: Kent Scheidegger | Jan 24, 2007 9:09:02 AM

I largely agree with all the pro-federalism comments in the negative reaction to my suggestions. Here are two quick reactions:

1. If the DP really has a significant deterrent impact (as many now claim), the application of the DP seems like an especially important national issue.

2. Anyone recoiling from the federalization of homicide offenses ought to be vocally opposing the federalization of drug crimes. Mario Claiborne's low-level drug offense, which will be examined by the Supreme Court next month, is the ultimate local crime. And yet I do not hear many folks complaining --- federalist? Kent? ---about the heavy involvement of the feds in that arena.

Posted by: Doug B. | Jan 24, 2007 9:41:18 AM

George, I don't think it a cheap shot at all. The fact is that we are dealing with some extremely violent people, and Duncan is but one example of many of what happens when violent felons are set free. And my comments were not directed at the revulsion at Duncan's crimes, which speak for themselves. Rather I was juxtaposing the handwringing that goes on over capital punishment and juvenile sentencing outcomes with the lack thereof in cases like Duncan. Simply put, many people got more worked up about executing Tookie than the wrong-headed policies that led to the massacre in Idaho and countless others. Lenience for violent criminals is a death sentence for countless innocent people.

As for the bail--$15K for a child molester . . . . . I'll just let that speak for itself.

As for the federalization of the criminal law, I think disappointment is a better word than recoil. In a perfect world, there wouldn't be so many federal crimes or prisoners. However, federal time is hard time, and I usually have zero problems with removing criminals from society.

Posted by: federalist | Jan 24, 2007 10:36:46 AM

If the DP really has a significant deterrent impact (as many now claim), the application of the DP seems like an especially important national issue.

By that argument, any arguably beneficial idea should be federalized. Highways are good, so let's have the feds build more highways. Education is good, so lets nationalize the public schools. Health care is good, so let's have universal health insurance.

Anyone recoiling from the federalization of homicide offenses ought to be vocally opposing the federalization of drug crimes. Mario Claiborne's low-level drug offense, which will be examined by the Supreme Court next month, is the ultimate local crime. And yet I do not hear many folks complaining --- federalist? Kent? ---about the heavy involvement of the feds in that arena.

Unlike federalist, I am at least consistent about it: the federal government prosecutes far too many crimes that are basically local. However, as Kent has noted, there is at least a reasonable argument for federal involvement in Jeff Skilling's case, since the crimes he committed had a national impact.

Which sovereign should prosecute is, of course, a whole other question from whether the sentence was just.

Posted by: Marc Shepherd | Jan 24, 2007 12:05:37 PM


Nice rant. Now get on to the undeniable fact, those who kill and get out of jail are LESS likely to kill than the general populace, and dramatically LESS likely to kill than males in the age group of 16-24. Wanna stop murder, lock up all males in that age group.

And where is the outrage when the feddies step in to prosecute seeking death in jurisdictions that have abandoned the death penalty. Seems to me that the federalism should apply equally in states that do & don't have the death penalty & not just states where DoJ doesn't like local law.

Posted by: anony | Jan 24, 2007 12:27:35 PM

marc, since when is consistency a categorical imperative? There are degrees of dislike. I am not thrilled with the federalization of the criminal law, but we are where we are, and why do I need to be outraged? I don't like high taxes either--but I am not manning the barricades.

As for anony's post, my point was not about just killers, but violent offenders for relatively short periods of time. It has a price in blood. That simple.

And with respect to the DP in jurisdictions which do not have it, the nation certainly has the right to prosecute federal crimes wherever they are, and are we to give defendants a pass based on which state they live in?

Posted by: federalist | Jan 24, 2007 12:38:39 PM

How can you say anyone is the "poster child" for the death penalty by simply examining aggravating factors and not any mitigating ones? [And what made you think "poster child" was an appropriate metaphor to use in discussing a case regarding kidnapped and murdered children? Duh.] All jurisdictions with the death penalty mandate consideration of both sides of the scale before deciding punishment. Read only the indictment in most any death penalty case and the defendant would seem to deserve the ultimate punishment. But once you begin to feel the horror of the trauma and abuse that person suffered as a child, adolescent, and adult, and appreciate the gravity of their subsequent mental illness, and understand their organic brain damage, then they become less of a two-dimensional poster-anything and more of just a flesh-and-bones person with a really tragic existence that they never asked for. Not that you come to think that their actions are less deserving of the death penalty, but that they as a person are less deserving of it. There but for the grace of god, and all that. Ray Bradbury in "Stranger In a Strange Land" invented the term "grokking" for this sort of comprehension of the totality of a situation and all its causes both proximate and underlying as well as all its consequences both immediate and future. It's the opposite of the revenge impulse.

Posted by: Bob Jenkins | Jan 24, 2007 1:22:33 PM

It's easy Bob--Duncan is a poster child for the death penalty. So long as he's legally sane, I don't need to know his life story. He deserves to die for his crimes.

Posted by: federalist | Jan 24, 2007 1:29:29 PM

"All jurisdictions with the death penalty mandate consideration of both sides of the scale before deciding punishment."

Because the Supreme Court has said that is constitutionally required, not because they necessarily agree that it is right as a matter of policy.

The best argument for a mandatory death penalty is the case of a person who commits premeditated murder after previously being convicted of another premeditated murder. Some states had such laws, and the Supreme Court reserved judgment on them initially, but eventually it struck them down as well.

Posted by: Kent Scheidegger | Jan 24, 2007 1:38:01 PM

Federalist, You seem to have some problems with accuracy. First of all, after the death penalty was imposed, he was not out on bail. He was on bail for another, non-capital, charge. I don’t know where you got that from. Because you call judges “arrogant” because they sided with the constitutional arguments of one part over another, I suspect that you invented it to support your point.

Secondly, bail, in many states is a right. No matter how horrific the crime. In fact, the framers thought so highly of the right to bail, they put it in the constitution. (Though the US Constitution does not guarantee bail in all cases, various states do have absolute rights to bail in their constitution.) Perhaps you should simply campaign for an end to bail in all cases, because if the police have probable cause to arrest someone, they probably should not be let out ever again. Moreover, there is nothing to be gained by letting them assist with their defense, as any defense will interfere with the legitimate law-enforcement duties of the states. So, I urge you to continue in your fight to eliminate pre-trial bail, because it is outdated, stupid, and a waste of time.

Posted by: S.cotus | Jan 24, 2007 1:46:18 PM

S.cotus, perhaps you didnt get my point, which was that the lenience to this juvenile offender wound up sentencing to death 7 innocent people in a manner, I might add, far more heinous than even the most botched of executions.

As for the bail, I am aware that state constitutions (and statutes) provide for more protection than Salerno. However, a 40 year old man charged with stranger child molestation should send up red flags about extreme danger, and $15K was just not enough. I highly doubt that $15K was required by the state's constitution.

As for the judges, well, given remarks such as "They can't reverse them all", I think that arrogance is a fair characterization.

Posted by: federalist | Jan 24, 2007 2:21:43 PM

We have some older poll results in Iowa that indicate some members of the public want the maximum penalty to be either LWOP or the DP. When questioned they said they want the DP but when they were informed the penalty was already LWOP many said that was an acceptable alternative sentence. There were very few who still wanted the DP who knew the penalty was LWOP. From the public safety perspective LWOP and the DP both incapacitate. The issue of retribution is subjective and theological in nature so I doubt that a consensus view on that subject can be developed.

If this poll were repeated the stories about DNA evidence showing false convictions in capital cases may cause the poll results to change. Whenever there is a heinous crime the news media do a poll on the DP but they don't ask the follow-up question about LWOP and as a consequence I don't take those polls seriously.

The ugly truth is we live in a society where it is necessary to incapacitate people. An execution is a homicide carried out by the State.

Posted by: John Neff | Jan 24, 2007 3:57:29 PM

"federalist": Evolving standards of decency preclude the use of "DP in jurisdictions which do not have it." Not to mention federalism, federalist. Maybe I like Kent's brand of the doctrine more than yours; at least he would allow for voting with your feet.

Also, it's just false that "states have no right to limit what the nation as a whole can do about federal crimes." The CA medical pot law is valid even in the face of the Controlled Substances Act. Have we seen any prosecution of cannibis prescribers?

And not to be snarky, but can you name other states' rights you support, besides the right to kill prisoners? I'm really wondering what your brand of federalism is, because I've only seen you use it to argue for a right to execute, here and on C&P.

Doug: Great blog, thanks for hosting. Replies to your two thoughts:

1. If the DP really has a significant deterrent impact (as many now claim), the application of the DP seems like an especially important national issue.

A Cass Sunstein foray into capital punishment does not good policy make. Especially one that's willing to trade people's lives for the illusion of safety.

Furthermore, it's wrong to kill to show that killing is wrong. Yes, I'm bleating. No, that doesn't make the proposition false. As Camus said, if we want to be better than the worst of us we have to actually _be better_.

If you want your kids and grandkids to think that people solve their problems with violence, then keep trying to do just that. However, most criminals don't distinguish between the "legitimate" power of the state to kill and their own. Roll as many heads as you want; it's counterproductive.

2. Anyone recoiling from the federalization of homicide offenses ought to be vocally opposing the federalization of drug crimes....

I'll complain about that. Nixon's insane prohibitions have only been successful at filling police coffers and increasing international organized crime, along with drug potency and dangerousness. Not to mention the fact that a good number of states wouldn't have chosen to outlaw some drugs that the feds have. The states' regulation of pseudo-ephedrine (meth precursor), whereby it's harder to buy in bulk at the pharmacy, shows that federal regulation isn't necessary. It's a racket, folks.

Posted by: rothmatisseko | Jan 24, 2007 4:20:02 PM


Before answering your question, let me first clarify that we are talking about whether a crime should be state or federal and not whether drug peddling should be a crime at all or whether the penalties in present law are excessive. I don't want to get into those debates in this thread, but I expect someone will raise them in response to what I am about to say.

I do not agree with your premise that street-level cocaine dealing "is the ultimate local crime." Cocaine is a nationwide market, and virtually all of that commodity has been smuggled into the U.S. in violation of a law that unquestionably in the proper sphere of the federal government rather than the states. Smuggling goes on only because there is a market to be supplied, a market facilitated by street-level dealers. Claiborne's activities have a considerably stronger relation to a subject within the enumerated powers than did the activities of the famous wheat farmer, Mr. Filburn.

That is not to say that I think these cases necessarily should be prosecuted federally. I think there is a good argument they should not. However, I see the federalism question here as a much closer one than you apparently do.

Posted by: Kent Scheidegger | Jan 24, 2007 5:51:24 PM

Federalist, What judge said “They can't reverse them all" and in what case. I need a bit more proof than that. And, even if they said that, perhaps that is just a statement of reality.

While a condition of bail generally includes not violating laws, there is no practical way that any bail can do more than ensure the person’s return to court. You seem to think that the bail should have been set so high that he should not have been let out of jail, effectively ending the right to bail in the state.

Whatever the case, 40-year-olds are charged with various kinds of molestation all the time. Some is egregious, some is not. Because of the hysteria about molestation, most courts have come to the realization that an inquiry into the nature of the alleged molestation must be made before setting bail.

Posted by: S.cotus | Jan 24, 2007 6:00:50 PM

S., I thought Reihnhardt of the CTA9 said that, in an interview somewhere. I tried to look it up, but the only references I found were two by federalist (here and on SCOTUSblog) and one by Kent here. Not that the attribution is incorrect, but I'd also like a cite.

Posted by: rothmatisseko | Jan 24, 2007 7:53:44 PM


Posted by: rothmatisseko | Jan 24, 2007 7:59:08 PM

well, scotus, I am sure that we all wish that more diligence was done in Duncan's case . . . . .

Posted by: federalist | Jan 24, 2007 8:46:31 PM

The death penalty is highly divisive and state authority over it in the main (99% of those on death row) prevents the issue from ripping the nation apart. This is a classic case of federalism working well.

Posted by: ohwilleke | Jan 25, 2007 6:58:52 PM

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