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May 7, 2012

En banc First Circuit says RI must turn over murderer to the feds for capital prosecution

As reported in this local article, the full First Circuit today "ruled that [Rhode Island] Governor Chafee must surrender Jason Wayne Pleau to federal custody to be tried for the murder of a gas station manager David Main in September 2010."  Here is more about the notable en banc ruling (which can be found at this link):

The majority of the court rejected Chafee's arguments that the state had the right to refuse to turn Pleau over under an agreement that governs the transfer of inmates between states and the federal government.

If Chafee were to prevail, "Pleau could be permanently immune from prosecution ...," the judges wrote, continuing, "Instead of a place of confinement, the state prison would become a refuge against federal charges."

Chafee had refused to surrender Pleau based on what he called Rhode Island's longstanding opposition to the death penalty. He could face the death penalty for his crimes under federal law.

I suspect an appeal to the Supreme Court may follow, but I also suspect that the Justices may be disinclined to get into this notable fight.

Related prior posts: 

May 7, 2012 at 07:07 PM | Permalink


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The previous post on this subject included this tidbit:

"A day after Governor Chafee, citing a possible federal death penalty, refused to hand murder suspect Jason W. Pleau over to U.S. authorities, Chafee's office on Friday released a letter from the public defender stating that Pleau wants to plead guilty in return for a sentence of life with no parole."

RI doesn't have the penalty. This is the wish of the people of RI. He argued that it would be wrong to supersede it here.

As I noted over at Prawblawg in which a professor used the case to argue for a federalist reading of the 8A, I respect what he is trying to do, but doesn't seem like it holds up. The Supremacy Clause gives the feds the upper hand here, and there is an opening to the death penalty under federal law, though there is some reference to some sort of interstate agreement that might complicate that.

Seems to me that it should be a state prosecution, especially if that plea notification report is accurate. But, that's a policy thing. On the law, if the feds want to (misguidedly) press the point, this seems right.

Posted by: Joe | May 7, 2012 8:03:23 PM

I cannot think of any reason for the Supreme Court to grant cert. There is no Circuit split over this, as I cannot think of any comparable situation in any other Circuit. The majority of the Court is probably happy that Pleau will face the death penalty and that they don't have to make any potentially anti-federalism law to get him there.

Although what if Pleau filed an IAD request today? It is clear Rhode Island will eventually be ordered to give Pleau to the feds, but Rhode Island may file a cert petition. Rhode Island could take up to 90 days; if they filed their cert petition on the 90th day then that would eat up half the IAD's six month time limit. Then another couple months while the feds file a memo in opposition, the Supremes formally deny cert, then the District Court formally issues the writ. Pleau formally requesting transfer under the IAD ends the ambiguity over when the clock starts. I know this is a dangerous game of chicken for Pleau to play, but it offers a better chance than hoping the Supremes reverse.

Posted by: Paul | May 7, 2012 9:42:32 PM


I appreciate the comments in reference to my post at Prawfs. I'm not sure if you saw this later post, which addresses the Supremacy Clause objection: http://prawfsblawg.blogs.com/prawfsblawg/2012/04/every-time-i-present-my-federalism-themed-approach-to-thecruel-and-unusual-punishments-clause-where-the-word-unusual-referst.html

I'll reiterate the last paragraph here: "Ultimately, the Supremacy Clause is irrelevant to this issue. If the best interpretation of a particular provision of the Bill of Rights is that its constraints differ from State to State, the Supremacy Clause cannot change that. So the federalism-based construction of the Cruel and Unusual Punishments Clause stands or falls on its own. Either it is a valid view of what at least the Anti-Federalists contemplated by the Clause, in which case the Supremacy Clause can stand as no impediment, or it is not, in which case the Supremacy Clause is unnecessary."

But please read the whole post if you get the chance.

Posted by: Michael J.Z. Mannheimer | May 7, 2012 10:34:13 PM

I agree with Paul that this is a distinctly unpromising cert candidate. Indeed, it seems pretty much one-of-a-kind.

Posted by: Bill Otis | May 7, 2012 11:12:05 PM

|| "[A]llegedly plotting with a Massachusetts couple to rob a man as he tried to make a bank deposit.
|| Pleau is also accused of killing a gas station manager outside a Woonsocket bank." ||||

Chafee’s stated motive is to shield the convict Pleau from a potential death penalty.

As Kent Scheidegger blogged:
“Rhode Island does not get to veto the United States's choice of punishment for federal offenses that happen to occur
within the boundaries of Rhode Island.”

Joe:: "if the feds want to (misguidedly) press the point, this seems right"

It is misguided because…?

Posted by: Adamakis | May 8, 2012 9:46:40 AM

It amazes me how notions of "federalism" and "states' rights" so often cited when one seeks RELIEF from federal courts, simply VANISH into thin air when it comes to criminal law.
What is the overriding federal interest in this prosecution, besides overriding that state's ban on the death penalty? The totalitarian government the Founding Fathers feared is already here...courtesy of an unelected branch of govenrment: the federal courts.

Posted by: F. Valcarcel | May 8, 2012 10:09:55 AM

Everyone keeps commenting on this as if it is a federalism case. It isn't. It's an IAD case. The Feds are one of 49 signatories to the IAD (I think two states did not sign it, but I am too lazy to check now). This case should be no different from if New York asked to extradite Pleau to face capital charges. And the dissent is right that a governor can refuse a request to extradite under the IAD.

I understand that the battle over Pleau's punishment is the juicy issue, and the regular commenters to this blog are unable to resist blowing a bunch of hot air over the death penalty. But the issues actually presented to the 1st Circuit do not depend on the death penalty. If Virginia had asked Rhode Island to extradite the Lovings to face prison for an interracial marriage, and Rhode Island's governor refused, the issues would be the same.

Posted by: Paul | May 8, 2012 10:35:49 AM

It is misguided since it seems to be more of a local crime and especially if the person pleas as the report noted, it would seem to be a waste of federal resources and an unnecessary conflict with local government.

I appreciate the citation to the professor's post. In effect, he argues that the BOR in various ways provides a 'contemporary community standards' (reference to Miller v. CA, which I'm not a fan of) security as a check on federal power that is also the "law of the land." So, the opposition to his approach -- which was covered there by various replies -- does require additional argument.

I'm with respect still not convinced though the spirit is right -- we should honor local discretion when appropriate in criminal law and juries play a big part here and wrong or not on some detail, Breyer was on the right track in Ring v. Arizona. Judges often will be guided by local norms -- some 10th Cir. judge is often likely selected since s/he comes from that area of the country, influenced by the norms there as Kennedy is affected by CA. Leaving prosecutions to the states when appropriate also advances such ends. Local prosecutoral discretion on the federal level also is appropriate.

But, for me the 8A sets a basic rule and I have not been convinced that it compels (as compared to it being good policy in part because of "constitutional values") the federal government to take the law of the state in the way argued. The feds still have its own interests and the BOR has many other ways to address the federalist concerns involved.

Posted by: Joe | May 8, 2012 11:48:19 AM

I believe Paul and the dissent are correct. The federal government is attempting an end-around the IAD, which they cannot do as signatories of the agreement.

Posted by: Ron | May 8, 2012 11:49:28 AM

“`Rhode Island does not get to veto the United States's choice of punishment for federal offenses that happen to occur within the boundaries of Rhode Island.'”

I have written extensively on why that may be incorrect.

Posted by: Michael J.Z. Mannheimer | May 8, 2012 11:49:59 AM

Paul is correct that extradition rules would not rise or fall on the death penalty, but the DP does tend to get everyone, including judges, extra concerned about everything, in some ways this has legal implications. I noted that the IAD issue complicates matters. I honestly am agnostic on that issue. It is obviously quite important, but I skipped over it to deal with other issues.

One thing though ... "his stated opposition to capital punishment" ... this from the majority opinion. It is my understanding that it is not "his" opinion that is ultimately at stake here but the decision by the state itself not to have a death penalty. I'm sure we can debate motives here, but at least for argument's sake, that's significant.

Posted by: Joe | May 8, 2012 11:55:35 AM

Michael J.Z. Mannheimer --

Is it your view that the federal death penalty can only be imposed in states that have their own death penalty? Can you cite any presently authoritative case so holding?

Posted by: Bill Otis | May 8, 2012 12:59:28 PM

Bill Otis,

Yes to the first, no to the second. If I had a "presently authoritative case" holding exactly what I argue in my scholarship, then my scholarship wouldn't be particularly interesting or valuable. Good legal scholarship doesn't merely reiterate that which is already "authoritative"; it lays the groundwork for the future.

Posted by: Michael J.Z. Mannheimer | May 8, 2012 1:17:04 PM

of couse now what is going to happen when he tells the messed up federal court system to take the same long walk on a short pier he told the federal justice department to take?

Posted by: rodsmith | May 8, 2012 1:46:45 PM

“`Rhode Island does not get to veto the United States's choice of punishment for federal offenses that happen to occur within the boundaries of Rhode Island.'”

Let's assume that's true for the sake of argument (Mr. Mannheimer's comments notwithstanding). Even if that comment is true, RI CAN veto turning over a person in their custody, as contemplated in the IAD. And that's what this argument is about.

Simply put: This is not about RI vetoing capital punishment. It's about RI refusing to relinquish custody of their prisoner.

Posted by: Ron | May 8, 2012 1:58:39 PM

Michael J.Z. Mannheimer --

I am an Adjunct Professor of Law at Georgetown Law Center. I wonder if you could link your work arguing that the feds are prohibited from imposing the DP for a death-eligible federal offense in a state that does not authorized the DP.

Perhaps you could give me a head start by telling me the Constitutional provision that ordains this result.

Do you know of any other scholars who agree with your conclusion?

It is of course true that law review articles often explore conclusions cases have not yet reached (and may never reach). Whether such articles are (1) visionary or (2) dead ends is, of course, something no one can know right now. My own experience is that (2) tends to be the outcome a lot more than (1).

Posted by: Bill Otis | May 8, 2012 2:43:18 PM

Professor Mannheimer --

Cancel that last request. I was able to find it for myself by going to your page at NKU. But I do have one question: Doesn't your ultimate conclusion have to be that there can be no such thing as federal criminal law at all, with the possible exception of areas exclusively of national concern (e.g., espionage)? There are many libertarian/conservative friends of mine who might agree with that, especially with the apparently limitless sprawl of federal authority, but it would require a ferocious U-turn by SCOTUS in order to get there.

P.S. Does your point of view find you hoping that Obamacare gets overturned, on the theory that it's simply too much of a stretch of federal power?

Posted by: Bill Otis | May 8, 2012 2:59:54 PM

Bill Otis,

Certainly. In reverse chronological order:

Cruel and Unusual Federal Punishments, 98 IOWA L. REV. ___ (forthcoming November 2012), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1875868

Self-Government, the Federal Death Penalty, and the Unusual Case of Michael Jacques, 36 VT. L. REV. 131 (2011) (invited submission), available at: http://chaselaw.nku.edu/documents/mannheimer/Jacques.pdf

When the Federal Death Penalty Is “Cruel and Unusual,” 74 U. CIN. L. REV. 819 (2006), available at: http://chaselaw.nku.edu/documents/mannheimer/Fed8A.pdf

You may be right about the prevalance of dead ends over visionary works. But I'd rather be courageously wrong than cautiously irrelevant.

Posted by: Michael J.Z. Mannheimer | May 8, 2012 3:17:32 PM

Bill Otis,

"Doesn't your ultimate conclusion have to be that there can be no such thing as federal criminal law at all, with the possible exception of areas exclusively of national concern (e.g., espionage)?"

No. There were certainly some radical Anti-Federalists who argued, post-ratification, that the federal government could criminalize only the four activities mentioned in the Constitution: treason, counterfeiting, piracy and other felonies on the high seas, and offenses against the law of nations. My reading of the Anti-Federalists, however, indicates that the more moderate elements did not take this stance, and it is the more moderate Anti-Federalists we should look to, because it is they who ultimately acquiesced to ratification of the Constitution in Virginia and New York.

Patrick Henry's June 16, 1788, speech at the Virginia ratifying convention is telling. He said: "In the definition of crimes, I trust [Congress] will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtues of representatives. What says [the Virginia] Bill of Rights? `That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Are you not therefore now calling on those Gentlemen who are to compose Congress, to prescribe trials and define punishments without this control?"

Thus, Henry, at least, was pretty sanguine about the creation of federal criminal law. What he feared was that the protections contained in state bills of rights would not constrain (1) the process by which federal criminal punishments would be imposed (later in the same speech he discusses the right to a jury trial) and (2) the punishments themselves. If the more moderate Anti-Federalists felt that the federal government should be constrained from making substantive criminal law at all, that sentiment did not make its way into the Bill of Rights, whereas constraints on punishment and on the criminal process did.

So on my view, the U.S. is free to prosecute Pleau but cannot seek his death. But notice that if the U.S. cannot seek his death, the incentive to prosecute him disappears. That's how the constraints on the federal criminal process and on federal punishments contained in the Bill of Rights should work to reduce the presence of the federal government in the criminal sphere: by removing the comparative advantage federal prosecutors would otherwise enjoy vis-a-vis their state counterparts.

On the ACA question, I have very mixed feelings. In short, I think the ACA is likely constitutional based on precedent but unconstitutional based on first principles. But, yes, it would be nice if our Commerce Clause jurisprudence were to get back -- or at least closer -- to first principles.

Posted by: Michael J.Z. Mannheimer | May 8, 2012 5:21:14 PM

I think, like Prof. Balkin et. al., "first principles" can be shown to justify the PPACA. The fact he uses originalism to do this while the professor here goes the other way ('likely' so) underlines to me the limits of that approach. Thus, we are left with trying to determine what "moderate Anti-Federalists" thought, and determining how much that matters & then how much that should matter in 2012.

This all is interesting & helps to determine current day application of the Constitution, but take it all with a grain of salt.

Posted by: Joe | May 8, 2012 5:35:21 PM

Professor Mannheimer --

Thank you very much for taking the time to put down your thoughts. The course I teach at Georgetown is called, "Conservatism in Law in America," and as you might imagine, we have a good deal to say about the debate between the Federalists and the anti-Federalists. The best student paper I got this year (from a kid who'll be a Sixth Circuit clerk next year) was on exactly that topic.

The bigger the government gets, the more I think the anti-Federalists were right. But I am perforce constrained in my enthusiasm, since my wife is a co-founder of none other than the Federalist Society. I also spent a good chuck of my career as a federal prosecutor, enforcing the very law that would give the anti-federalists the most heartburn.

The one random thought I have just now, without waging a full-scale debate, is that the bare fact that a state does not have the DP would not necessarily mean that it would be unconstitutional under the state's Constitution, and thus not necessarily a violation of the state Constitution were the feds to impose it.

Posted by: Bill Otis | May 8, 2012 7:20:10 PM

What do you want RI Gov. Chafee to do in the Jason Pleau case? (406 votes)
Refuse to obey: 1.5% (6)
Appeal to Supreme Court: 5.2% (21)
Turn Pleau over: 93.3% (379)
Vote successfully recorded

Posted by: Adamakis | May 8, 2012 10:59:11 PM

Ceart math tha M…J.Z…M., so robbery effecting interstate commerce; conspiracy to commit robbery affecting interstate commerce; and possessing, using, carrying, and discharging a firearm in relation to a crime of violence, death resulting at a federally insured bank no less, are overcome by the IAD, no proceedings necessary. Sounds like justice to me.

So, if Tupac returns from the dead, oh but he’s still alive--to smoke a ranger of the NPS in the .3 acre national park in RI—as he ever liveth to ‘smoke cops’— then he is as untouchable as Chafee engenders?

Posted by: Adamakis | May 8, 2012 11:03:06 PM

Bill Otis,

You have hit upon a very important issue I had to consider. It may well be, according to my research, that a punishment is "cruel and unusual" in violation of the federal Constitution only if it is "cruel and unusual" in violation of the applicable state constitution. I ultimately decided to tentatively reject that narrower position, but I do address it in the Iowa piece (pp.52-53 of the current draft). Briefly, the language of George Mason's Objections regarding cruel and unusual punishments indicates to me that the main goal of the Cruel and Unusual Punishments Clause was to preserve state legislative prerogatives regarding punishment, not simply state constitutional constraints. But even if I am wrong about that, the more fundamental idea about the application of the Clause varying by State would still hold true -- and I'll take that.


I absolutely agree that we should take originalist claims with a huge grain of salt. I do not presume to know what people were thinking in 1791, much less assume that there was some kind of consensus then among the 3 million inhabitants of the United States. Hell, there was as little consensus then as there is now, if not less, except that the lack of consensus was expressed, not by cute little tea parties or occupy movements, but by folks in Pennsylvania who tried to overthrow the federal government -- twice in the same decade! All we have to go on are the statements of the three men who said anything about cruel and unusual punishments -- Abraham Holmes, Patrick Henry, and George Mason -- and the general orientation of the Anti-Federalists. But I think the originalist tent is big enough for someone such as me who is honest enough to admit that the historical evidence provides not clear answers but best guesses, and not AN original understand but original understandingS.

Posted by: Michael J.Z. Mannheimer | May 9, 2012 9:15:05 PM

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