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Federalism and the Death Penalty

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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3 Responses

  1. A.W. says:

    giving a state a veto over federal punishment seems pretty silly to me and a clear violation of the supremacy clause.

    Suppose a state sets the punishment for grand theft auto to be 10 years in prison. but the federal version of this requires a punishment of 20 years. we should ratchet that down. of course you don’t mention that because of the fetishization of the death penalty.

    It also has your “ratchet down” bias built in. suppose a crime is not a capital offense on the federal level, but it is in Texas. should we then apply the death penalty when the case involves Texas?

    Of course you don’t go there because this is all about being extra nice to criminals. sigh.

    But i always find the number of people who are actually opposed to the death penalty to be very small. for instance, suppose it turned out Hitler was alive and he was found guilty of… pretty much being Hitler and all that entails. Okay so its time to hand down punishment to what is probably the most evil man in history. would you support the death penalty?

    about 90% of the people i have talked to who claim to be against the death penalty say sure, kill the bastard. indeed the isrealis are against the death penalty, but when they got their hands on a former nazi, they made an exception. it is a rare “anti-death penalty” person who doesn’t make exceptions for nazis.

    There is an old Groucho Marx joke that goes like this. he is talking to a socialite and asks her if she would sleep with a man for money.

    “Of course not.”

    “How about for a million dollars. would you sleep with me for a million dollars.”

    “i suppose i would for a million dollars.”

    “How about five bucks?”

    (horrified) “What kind of woman do you think i am?”

    “i already know what kind of woman you are. i am just trying to work out a price.”

    likewise, if you say you are anti-death penalty, but you would make an exception for nazis, then we know what kind of person you are. you are a death penalty supporter. you just quibble about the “price”–i.e. how evil a person has to be before you say “go ahead and kill him.”

    Btw, for bonus points, go look up what the monster did to his own daughter in Kennedy v. Louisiana. do any of you doubt that he deserved to die for what he did?

  2. J.A. Bohrer says:

    The previous post poses several hypothetical “criminals” including Adolph Hitler etc. The problem with hypothetical crimes is that they are clear cut beyond any reasonable doubt. In real life we have incarcerated people whose crimes were later shown to have been committed by others. DNA has made “reasonable doubt” problematical in many instances and has cast substantial doubt upon the reliability of eyewitness testimony. The problem is that one can never be sure of the guilt of another with such certainty that the death penalty should be imposed. Administration of justice in such an instance is just too uncertain to warrant a “one size fits all” approach to the problem. The rest of the industrialized world has managed to get along with out the death penalty without any apparent reduction in public safety.

  3. A.W. says:


    Well, first you are only proving my point. You’re not pro-federalism, here, just anti-death penalty.

    > The previous post poses several hypothetical “criminals” including Adolph Hitler etc. The problem with hypothetical crimes is that they are clear cut beyond any reasonable doubt. In real life …

    Well, except the crime Hitler committed was not hypothetical. The only hypothetical part was where I imagined he was currently alive and put on trial. But he did actually do those things, and if we had captured him in WWII, he would have been put on trial along with the rest of his goons at Nuremburg. And of course you know what happened to them: they were executed, with only a few exceptions.

    And there was nothing at all hypothetical about the nazi the isrealis executed. Were they wrong to do that?

    And for that matter, there was nothing at all hypothetical about Kennedy v. La, where a father raped his own 8 year old daughter so violently it ruptured the wall between her vagina and anus, and has rendered her incapable of having children. Did he deserve to die?

    > In real life we have incarcerated people whose crimes were later shown to have been committed by others. DNA has made “reasonable doubt” problematical in many instances

    People use this trope over and over again except… doesn’t that only speak to the past? Now that we have DNA, the chances of an incorrect conviction goes downward considerably. Further it confuses the difference between reasonable doubt and no doubt at all. I don’t indict those juries that were incorrect like the anti-death-penalty advocates do. That’s just engaging in 20/20 hindsight, and frankly it is insulting to those people. I presume in all cases that by the evidence available at the time, that it was unreasonable to doubt the person committed the crime. And the fact it might have turned out to be wrong, only shows that sometimes the unreasonable possibility happens—something that the very concept of “proof beyond a reasonable doubt” implicitly acknowledges.

    Seriously, pretending that in all of those cases where the unreasonable possibility proves that the system is unfair, is like a man winning the lottery and telling the rest of us, “this proves that rather than saving your money, the smartest investment is in the lottery.”

    Just today, one of the perpetrators of the Lockerbie bombing walked free, to a country praising him as a hero. Is that justice? Is that an affirmation of the right to life of the around 150 souls he helped extinguish? Of course not. The bastard should have been released feet first. And then there was Jeffrey Dahmer. He had body parts in his fridge ready to be consumed, but only gets prison time. And it took a prisoner to administer the proper punishment: death.

    I have seen where this soft-on-criminals approach takes us, and it is shameful.

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