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January 31, 2007

More support for an exclusively federal death penalty

Howard Bashman has all the news coverage of yesterday's notable federal death sentence imposed in New York.  Among other interesting details, this New York Times article about the case highlights that "[f]ederal prosecutors vigorously sought the death penalty against Mr. Wilson, taking the case from state prosecutors in Staten Island after the New York death penalty was largely invalidated in 2004." 

These realities draw me again to the idea, discussed recently here, that states should rarely (if ever) bother to pursue capital cases and simply request that federal authorities assume primary responsibility for pursuing the death penalty in the most horrific murder cases.  The federal government already tends to dominate the prosecution of the worst white-collar crimes and drug crimes, so why shouldn't they take on primary responsibility for the (much smaller universe) of terrible homicides?

Among other benefits, federal-focused death penalty would greatly reduce habeas headaches.  Outside the war-on-terror setting, most legal habeas battles (in the Supreme Court and in lower federal courts) are about state capital cases.  If the feds were to prosecute most capital cases, significant federalism issues and (confusing AEDPA doctrines) fade away.

Some recent related posts:

January 31, 2007 at 01:18 PM | Permalink


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Federalism issues only fade away if you're willing to do away with federalism. A Federal death prosecution in a state that's done away with such a barbaric punishment is an assault on the rights of the people to self-govern. A state's right to use its the police power shouldn't be abrogated because Gonzalez wants executions where he doesn't deserve them.

Posted by: rothmatisseko | Jan 31, 2007 5:02:50 PM

Can people stop using the word "barbaric" when describing the death penalty. It is not. It may be morally offensive or whatever, but to label a procedure whereby a person is tried and convicted in a court of law, gets numerous appeals and who is put to death in a manner that at least is designed to be painless "barbaric" is to stretch the meaning of "barbaric" beyond its breaking point. Civilizations have used this method of punishment since the dawn of history.

Posted by: federalist | Feb 1, 2007 3:05:38 PM

The last thing we want is more uniformity imposed from further away. The rationale supporting federalism is no less true today than it was two centuries ago. And it's particularly true from criminal law: let people govern themselves, experiment with policy innovations, and reap the rewards or suffer the consequences. The national government should do as little as is practical (or maybe even constitutional).

Posted by: Trent | Feb 5, 2007 2:35:08 PM

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