« Notable civil rights action victory for Iowa sex offenders subject to civil confinement | Main | Law and Contemporary Problems devotes March 2013 issue to sentencing reform around the world »

April 22, 2013

Does Boston bombing provide still more support for my federal-only death penalty perspective?

As long-time readers know, I like to describe myself a "death-penalty agnostic" concerning the theoretical and empirical arguments that traditionally surround the the criminal punishment of death.  But while I have long been uncertain about the "meta" arguments for and against capital punishment, as a matter of modern US policy and procedures I have a firm and distinctive view: given (1) persistent public/democratic support for death as a possible punishment for the "worst of the worst," and given (2) persistent evidence that states struggle in lots of ways for lots of reasons with the fair and effective administration of capital punishment, I believe that (1+2=3) as a policy and practical matter we ought to consider and embrace an exclusively federal death penalty.

Regular readers have seen and surely remember various prior post in which I have talked through this idea a bit, and I have linked some of these posts below.  But, as the title of this post is meant to highlight, I think the soundness and wisdom of my distinctive view on the best modern way to administer capital punishment in the United States is now on full display in the wake of the Boston bombings. 

Massachusetts, of course, does not have death as an available punishment.  And yet, I have already seen reports of many local and state officials (not to mention Massachusetts citizens) who now say they are open to (if not eager to) have the bombing suspect(s) prosecuted in federal court in part because federal law includes the possibility of the death penalty.  Moreover, there is every reason to view terror bombings like these, whether or not they have direct international connections and implications, as the kinds of crimes that ought to be investigated and prosecuted primarily by national authorities (assisted, of course, by state and local official and agents).

Stated in slightly different terms and with the events in Boston now making these ideas especially salient and timely, I believe that essentially by definition in our modern globally-wired and national-media-saturated American society (1) every potential "worst of the worst" murder is of national (and not just local) concern, and (2) every potential "worst of the worst" murder merits the potential involvement of federal investigators, and (3) federal authorities have constitutional and practical reasons for wanting or needing to be the primary "deciders" concerning the investigation and prosecution of every potential "worst of the worst" murder, and (4) state and local officials typically will welcome being able to "federalize" any potential "worst of the worst" murder, and thus (1+2+3+4=5) we should just make death a punishment only available at the federal level so that the feds know they can and should get involved if (and only when?) federal interests and/or the value of cooperative federalism are implicated by any potential "worst of the worst" murder.

Lots of (mostly older) related posts on the federal death penalty:

UPDATE This new DOJ press release reports on the initial charges brought against the surviving Boston bomber.  Here is how the release starts:

Attorney General Eric Holder announced today that Dzhokhar A. Tsarnaev, 19, a U.S. citizen and resident of Cambridge, Mass., has been charged with using a weapon of mass destruction against persons and property at the Boston Marathon on April 15, 2013, resulting in the death of three people and injuries to more than 200 people.

In a criminal complaint unsealed today in U.S. District Court for the District of Massachusetts, Tsarnaev is specifically charged with one count of using and conspiring to use a weapon of mass destruction (namely, an improvised explosive device or IED) against persons and property within the United States resulting in death, and one count of malicious destruction of property by means of an explosive device resulting in death.   The statutory charges authorize a penalty, upon conviction, of death or imprisonment for life or any term of years.  Tsarnaev had his initial court appearance today from his hospital room.

April 22, 2013 at 12:54 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Does Boston bombing provide still more support for my federal-only death penalty perspective?:


Agnostics basically say they can't say if there is a God/god or not. Your continual opposition to "abolitionists" (used around here at least somewhat disparagingly, just like in antebellum times) suggest a fair weather agnosticism.

I'm very wary to federalize "worst-of-the worst" crimes and suggest this in select cases will not be "death penalty friendly." For instance, rules on what mentally retarded might entail might be more stringent. Also, at the end of the day, a state might (even if the person is prosecuted in either forum) more gung ho about pressing things to the end. We all know just being on death row is not the end of things. So, you know, this is not just about being against the d.p.

This "national concern" test is a rather loose use of federal power though many will be national in various ways (such as fleeing over state lines or killing in more than one state). But, worse-of-the worse can entail, e.g., killing three prison guards while in a state facility or a horrible crime that is quite local (torture/murder for profit). Do we really want to make such things "federal" crimes?

The Boston Marathon bombing is more reasonable here given various factors, including how such a threat to a major U.S. city is likely to have national implications. But, even if horrible crimes concern the nation in some way (nothing new -- Lizzie Borden was infamous nation-wide too) and federal assistance given resources is appropriate, I find the suggestion problematic.

Again, this goes beyond if the death penalty is or should be on the table.

Posted by: Joe | Apr 22, 2013 1:47:23 PM

ETA: As I noted in the past, I am not convinced by Prof. Michael J.Z. Mannheimer's approach ("no federal death penalty in non-death States").

Just what should as a matter of policy be "national" here is a good question & would bring in various factors, but "worst of the worst" is not the rule I'd choose. Why should the federal government be the "primary deciders" in the killing of some Idaho prison guards or localized mass murder?

Posted by: Joe | Apr 22, 2013 1:54:59 PM

Prof. B,

Given that the federal government is nowhere near being the most successful US jurisdiction when it comes to actually carrying out death sentences I would have to answer this question with not just "no" but "hell no". Honestly to say that capital punishment should be s strictly federal matter sounds like a weasel way to foist the dysfunction of states like California off on the rest of the nation, a way to claim that in theory there are executions but for reasons beyond the control of anybody none of them are ever carried out.

Posted by: Soronel Haetir | Apr 22, 2013 1:58:33 PM

The early comments so far reinforce my sense that reactions to my federal-only death penalty procedure are largely driven by (1) whether someone is substantive for or against the death penalty, and (2) whether one thinks the feds will be better or worse at achieving that particular substantive end. But if one is not categorically pro or con the death penalty (as is true in my case), then one should still be drawn to the notion that the feds likely have an interest, and a better set of means, to fairly and efficiently prosecute major murder cases.

I appreciate when Joe and others say "why should the feds have a role in a purely local killing," but I respond by asking why should the feds have a role in a purely local marijuana use or in purely local downloading of kiddie porn. In other words, I think federal authority and power over small crimes is already so well established that we ought not back away from using the feds to deal with truly big (homicide) crimes. In addition, since nearly every state capital case can/will get appealed in federal courts via 2254 habeas actions, there is always a federal impact that emerges from state capital cases on the back end.

Finally, my vision is that the feds would have, in a world with an exclusive federal death penalty, some formal policy in which it could/would regularly expect to bring capital charges if and whenever local and/or state executive branch officials expressed an interest in having a murder prosecution brought in federal court because of the availability of the death penalty. In other words, if and whenever the proper local/state folks indicated to the feds --- as seems to be going in on Boston --- that they want a murderer brought to federal (capital) justice, then the feds would take over a matter which, at that point, takes on national implication because of death as a sought-after punishment.

Posted by: Doug B. | Apr 22, 2013 3:32:44 PM

I think you would have a much harder time convincing SCOTUS that random murders implicate interstate commerce to the degree needed to provide for federal jurisdiction than has even been required for local drug prosecutions (a step I already believe they have gotten wrong starting at least from Wickard).

What you are putting forward sounds pretty much like the general police power that the court keeps telling us is forbidden to the federal government.

Posted by: Soronel Haetir | Apr 22, 2013 3:57:43 PM

I opposed Prof. Michael J.Z. Mannheimer's proposal as a constitutional matter even when applied to a case where it was being used to block the death penalty.

So, #2 must factor in for me somehow. Since purely local marijuana use should be a state concern and kiddie porn would generally involve the Internet (which is interstate commerce), what does that get you? Same thing with the habeas action. What does that get you? Any range of mundane crime might get you to federal court in some fashion. The road to nationalizing local crime enforcement.

If the state wants to set up a formal process where they can ask the feds to take a case, fine, though if the state has rejected the death penalty, the state officials on their own endorsing it would seem to be going against the will of the people as expressed by the legislature or perhaps constitutional amendment. If the feds are going to have the power anyway and the legislature agrees to such a formal process, it would be legitimate to do so.

Posted by: Joe | Apr 22, 2013 6:49:27 PM

There is an empirical example of federal jurisdiction over murder. Washington DC. The police is so overwhelmed and incompetent, it does not bother investigating. It just waits for the suspects to be murdered themselves. Even in high profile cases, ones involving federal elected officials, the federal government is in utter failure.

Then a psycho and his boy bring the town to a standstill.

The federal government has 99% of its policies set by Ivy indoctrinated lawyers, so any proposal empowering these dumbasses is presumptively really a bad idea. These are horrid rent seeking Momma's boys devoid of any street savvy. They will look out only for themselves. I spend a few years there and learned the sicko culture.

As a rule, take any lawyer proposal, ask, what is its polar opposite? Then do that, the opposite of the proposal for results.

The opposite of this proposal? What is the opposite of the worthless federal government? The individual citizen. Assign the death penalty to the armed and trained individual citizen. Require that all citizen take a shot a the violent criminal, try to kill him on the spot. No more criminal. No more crime. Simple. This approach has also be taken in a empirical example. In Muslim lands, they are dirt poor, but where did all the crime go because there is none? It is fully suppressed by 1) zero tolerance of bastardy; 2) immediate self help at the scene of the crime; 3) immunization of harsh corporal punishment and the killing of criminals.

Posted by: Supremacy Claus | Apr 23, 2013 12:27:38 AM


My views on this are well known on this blog by now so I won't belabor the point. It is quite fascinating to me that you and I, I think, are quite similar on the two issues you spotlight as driving reactions to your proposal: I, too, have very mixed feelings on the death penalty, being in favor of it in principle but also troubled by its costs and the fairly well established race-of-victim effect; and, having experience with both the state and federal judicial systems, I generally think the feds do a better job and have more resources than the States. And yet we are 180 degrees apart on this issue.

Your reference to federal domination in the field of prosecuting obscenity and drug offenses appears to accept the federalization of crime as a fait accompli. I would prefer not to accept the status quo and, instead, would prefer something closer to the framers' design. Virtually any murder could be made into a federal crime. As the criminal complaint filed today shows, any use of an explosive device that affects commerce and results in death is a federal murder, whether at the finish line of the Boston Marathon or at a newsstand manned by a single person in the dead of night. Kidnapping that utilizes an instrumentality or means of interstate commerce and results in death is a federal murder. It is only a short step to a federal statute criminalizing the killing of another with any instrumentality -- gun, knife, bludgeon -- that has traveled in interstate commerce, or any killing that itself affects commerce. The result would be the virtual federalization of murder, which seems to be what you prefer. But that is precisely what the Anti-Federalists feared in demanding a Bill of Rights. It seems to me that if their fears spurred adoption of the Bill, and, indeed, the Bill was adopted precisely to assuage those fears, we can't interpret the Bill as permitting precisely what they opposed.

Posted by: Michael J.Z. Mannheimer | Apr 23, 2013 12:34:05 AM

Doug --

While I appreciate your practical and innovative turn of mind, I think there are insuperable problems in a feds ONLY arrangement.

The problems are federalism in general and the dual sovereignty doctrine in particular. Federalism simply does not contemplate a national government that pushes the states out of their traditional police power, a power very much the rule of the day at the Founding (as Prof. Mannheimer suggests). And a feds only approach would strip the states of the authority that lies at the core of the dual sovereignty doctrine, i.e., that states have independent, sovereign interests in punishing crime within their borders apart from, and in addition to, any federal interest.

I recognize, as you and others do, that the feds are often better funded and can sometimes draw better talent. Thus I would elaborate on your idea by establishing, in DOJ, a State Capital Prosecution Assistance Program, in which the feds would funnel money and, if needed, manpower into state death penalty cases. The Program would be funded by a $500 per year surcharge on lawyers admitted to practice in federal court.

Posted by: Bill Otis | Apr 23, 2013 8:27:19 AM

Bill Otis provides an interesting proposal.

Posted by: Joe | Apr 23, 2013 12:25:15 PM

I am generally pro-DP (or at least anti-anti-) but I am (on the record made thus far) strongly opposed to federal prosecution in this case, precisely because I think abolitionist jurisdictions like Mass should have to face the consequences of their policy choices, and not be bailed out by the feds when those choices prove temporarily inconvenient or embarassing for their politicians and voters. I could see taking a different view if there were a stronger or more distinctively federal issue (like the intentional killing of federal employees or a foreign ambassador in a no-DP state or perhaps plausible evidence that the bombers were agents of a transnational conspiracy being funded by a foreign government), but I assume even the FBI agent who signed the criminal complaint had difficulty typing out the sentences about how the marathon substantially affects interstate and foreign commerce w/o feeling ridiculous. Massachusetts' policy choices may seem overlenient in hindsight, but there is no reason to think the state prosecutors would not prosecute the case as vigorously and competently as possible within the statutory authority they have. This is not one of those situations where federal prosecution is justified on pragmatic grounds because of concerns that the local authorities may take a dive. Plus, who wants this guy to become a Mumia-like celebrity in Europe?

Interestingly enough, the Newtown shootings occurred fairly shortly after Connecticut formally abolished its DP, and somehow there is (as far as I've seen) neither a move to undo the repeal nor a strong demand for federal prosecution in order to get the DP on the table. (They couldn't use the statute being used in Boston b/c the weapon used in Newtown does not meet the definition of "destructive device" in 18 USC 921, but is there really no other statute that could potentially be squeezed to fit by a sufficiently creative U.S. Attorney?)

Posted by: JWB | Apr 23, 2013 1:24:37 PM


I make a similar argument in Self-Government, the Federal Death Penalty, and the Unusual Case of Michael Jacques, 36 VT. L. REV. 131 (2011). Self-government means making the really tough decisions, like whether to have the death penalty, and sometimes getting them wrong, and sometimes changing one's mind as a polity. With the federal death penalty in the background, the States are less likely to have to re-evaluate their policy choices.

Posted by: Michael J.Z. Mannheimer | Apr 23, 2013 1:33:41 PM

This sort of ad hoc federal prosecutorial intervention invited/welcomed by local authorities as well as the funding regime proposed by Bill Otis are I think both examples of some of the phenomena condemned in Michael Greve's interesting-sounding (by which mean I haven't actually read it yet . . .) new book The Upside-Down Constitution, i.e. beneficial-sounding "cooperation" among federal and state authorities with substantially overlapping jurisdiction leading in practice to blurred responsibility and thus diminished accountability to the voting public.

Posted by: JWB | Apr 23, 2013 2:05:49 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB