"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.

Recent related posts:

• "Cruel and Unusual Federal Punishments"
• Split Sixth Circuit reverses federal death sentence on interesting grounds
• "The Racial Geography of the Federal Death Penalty"