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November 18, 2009

"Does death for 9/11 plotters offend federalism?"

The question in ths title of this post is the headline of this post from Josh Gerstein in his "Under the Radar" blog at Politico.com.  Here are excerpts from an interesting piece:

The attorney general's call for capital punishment [for certain terrorist defendants] was criticized in some quarters for running the risk that the alleged Al Qaeda men could be seen as martyrs for their cause.  But missing from the commentary on Holder’s announcement was the observation that, by seeking the death penalty in a state which currently does not have it, the attorney general is treading into territory that triggered an outcry from liberal activists against the Bush administration not so long ago.

When Attorney General John Ashcroft ordered a federal death penalty prosecution in Vermont in 2002, there were howls of outrage that Ashcroft was abusing federal authority by essentially forcing the death penalty on a state that didn't have one in local law.  "We've rejected the death penalty as part of our criminal justice system,'' Burlington Mayor Peter Clavelle said at the time. "Many of us resent the imposition of a death penalty as an option in this state by John Ashcroft and his friends from Washington. I think it's an affront to state's rights and is not consistent with the values of a majority of Vermonters.''

Many New Yorkers have welcomed Holder’s decision to seek death in connection with the 9/11 attacks, which killed nearly 3000 people.  However, strictly as a factual matter, it is the case that the Justice Department will be seeking capital punishment in a state which presently doesn’t have that option in its courts.  “If New York itself was to pursue the case, they wouldn’t and couldn’t use the death penalty,” said Richard Dieter, a death penalty critic at the Death Penalty Information Center said in an interview. “That’s how the state law has come down now.”...

Dieter pointed to a couple of distinctions between Ashcroft’s actions and Holder’s decision.  Critics complained that Ashcroft was pursuing the death penalty over the objection of local U.S. attorneys and in cases where there was no particular federal interest. In the 9/11 case, prosecutors appear to be on board and the national quality of the crimes is evident.  “This is not a carjacking that occurred in Vermont. It is more a national terrorism kind of crime that people would probably feel doesn’t raise quite the same federalism issues as prosecuting a local crime would,” Dieter said....

When I asked Holder last month how he might take a different tack than the Bush administration in considering death penalty cases, the top lawman and former U.S. Attorney for Washington, D.C. stressed his respect for local federal prosecutors.  “I will say that based on my experience having been a United States Attorney and given the respect that I have for the career people who handle these kinds of matters, the recommendation that I get from the field carries a great deal of weight with me,” the attorney general said.

As regular readers may recall, I tend to be a big fan of criminal justice federalism.  But, when it comes to the matter of the punishment of death in major criminal cases that generate national attention, I think the nation as a whole and the federal government in particular has every reason and every right to take over a prosecution and subject it to the special (and often better) federal capital procedures.  Indeed, as suggested in some prior posts on this topic (which are linked below), I seriously believe that persons seriously interested in a serious, sound, sober and sensible system of capital punishment ought to be drawn to the idea that all modern capital prosecution ought now to be exclusively federal matters.

Some related (and mostly dated) posts:

November 18, 2009 at 09:11 AM | Permalink


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This is *total* horse hockey. Although very few crimes should be both capital and federal, IHMO, this is one of the few. This conspiracy was an attack on the United States as a nation and is quite properly a federal matter. Whether the state in which the trial is held imposes the death penalty for violations of its laws is utterly irrelevant.

Posted by: Kent Scheidegger | Nov 18, 2009 10:55:22 AM

Rereading the previous comment, the referent of "this" might be unclear. I am referring to the suggestion that a federal DP in this case offends federalism, not the post as a whole.

Posted by: Kent Scheidegger | Nov 18, 2009 11:01:22 AM

If there be objections on federalism grounds to holding the trial in New York, we in Virginia would be happy to have it. The US Attorney's Office in Alexandria, where I used to work, is about five miles from the Pentagon, located in neighboring Arlington, which was also attacked on 9/11. About 200 unsuspecting people were murdered that day, courtesy of KSM.

Although the recent execution here of the Beltway sniper was a state and not a federal case, it illustrates a legal culture that would benefit holding the 9/11 trial here. Unlike states in the Northeast, and California, Virginia has shown that it can apply the death penalty reasonably promptly (somewhat less than seven years post-verdict in the sniper case) and without bankrupting the Treasury.

In fact there should be no civilian trial at all; the case should proceed before a military commission, cf. Ex Parte Quirin, 317 U.S. 1 (1942), but that is a different question. If there is to be a civilian trial, Virginia would welcome it.

Posted by: Bill Otis | Nov 18, 2009 11:12:47 AM

Thanks for the clarification, Kent, since I was worried you were suggesting I needed to buy ice stakes for my federal DP horse. Seriously, I would be interested in more explanation for why you think very few crimes should be both capital and federal. In my view, cases like the DC sniper and the Ohio serial killer and perhaps just about every major murder that receives major news coverage begins to implicate national crime and justice concerns. Moreover, federal capital prosecution generally will (1) reduce concerns/complaints about both the adequacy of defense counsel and the conduct of prosecutors, (2) encourage greater transparency and public discussion about capital punishment, (3) eliminate a layer of habeas review (state habeas) that often slows capital appeals, and (4) diminish the federalism tensions and AEDPA complications when federal courts review (and often reverse) state capital verdicts.

Unless you consider serious murders a uniquely local concern with only local implications, I do not quite see why a federally focused death penalty would be functionally much more effective and efficient (not to mention consistent) than the crazy patchwork system now in place (and still largely regulated and run, at least indirectly, by federal appellate judges).

Posted by: Doug B. | Nov 18, 2009 11:12:53 AM

Doug --

You make some very sound points, IMHO, about increased efficiency were capital cases to be exclusively prosecuted by the feds, but the problem, it seems to me, is in finding a Constitutional basis for federal jurisdiction. The basis in the 9/11 case is clear enough, but that is atypical, to say the least.

Most capital cases are strictly of local concern: Mr. Needs-some-cash-for-my-next-crack-hit knocks over the 7-11 at 3 a.m., blows away the clerk when he's too slow opening the cash drawer, and then blows away the two terrified customers as aa matter of witness elimination.

That's the kind of thing that generally tends to wind up in a capital prosecution. Even with the generous reach of Raich v. Gonzales, and Wickard v. Filburn, I have a hard time seeing a federal nexus for that sort of typical case.

Posted by: Bill Otis | Nov 18, 2009 11:27:16 AM

Professor Berman - are you seriously suggesting that news coverage alone is sufficient to provide for federal jurisdiction over a local crime?

Even as someone who opposes the death penalty and thinks that it is wrong to use federal jurisdicton over what are fundamentally local cases, I see that there are absolutely no federalism concerns in seeking the death penalty in this case. Even using the absolute most narrow conception of interstate commerce, conspiring to hijack aircraft and intentionaly crash them into buildings qualifies for federal jurisdiction.

Drug related murders, common robberies/carjackings, sexual predatation, kidnapping by sexual predators or for other non-ransom purposes, violent crimes that happen to involve email or the telephone - those are basically local crimes and should be tried by local authorities. I think that Bush was wrong to override the local lack of the death penalty in those cases. But in this case or Oklahoma City, no - attacks on federal offices/property, attacks on interstate travel, and crimes which take place over at least 5 states, those are crimes of national interest - and 9/11 qualifies as all of those.

Posted by: virginia | Nov 18, 2009 11:55:52 AM

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