Federalism and Capital Punishment

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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9 Responses

  1. Jimbino says:

    I’m sure that there are many like me, so totally opposed to the death penalty, that we will lie to get on the jury of a capital case just so that we can practice jury nullification.

    Of course, in this case, the gummint will retry the case ad infinitum, until they get the verdict they want.

  2. Brett Bellmore says:

    Personally I think the problem here is not so much the federal government over-riding local preference in this regard, as it is the federal government using a BS rationale for asserting jurisdiction over a local crime.

  3. Orin Kerr says:

    I suppose the underlying issue is whether a crime such as this is really just a local crime, or whether it is a crime that is fairly of interest to and under the juridiction of the federal government. If its fairly of interest to the federal government, I have a hard time understanding the federalism objection to the sentence (except as general objection to the death penalty being expressed as a faux federalism claim).

  4. Brett Bellmore says:

    The Boston Marathon isn’t on a federal military base, or in the District of Columbia, or any other place the Constitution actually gives the federal government jurisdiction. And I don’t see a “fairly of interest” clause.

    It was murder, entirely within one state. Definitively a state matter.

  5. Michael J.Z. Mannheimer says:

    I’ve written a bit about this and the problem I see with Orin’s position is that it is exceedingly difficult to distinguish that which is purely local and that which is also “fairly of interest” to the federal government. If a sufficient interest of the federal government is demonstrated simply by the fact that there is a federal crime on the books, that’s really no limit at all. We know this from U.S. v. Jacques, a kidnaping, rape, and murder that all took place entirely within a small area of Vermont but which is a federal crime because the perpetrator used text messages to lure the victim; and U.S. v. Pleau, a botched robbery in Rhode Island, which is a federal crime because the object of the robbery was the proceeds of a gas station, and therefore the robbery “affect[ed] commerce.”

    Do these present cases “fairly of interest” to the federal government and, if not, why not? The Boston case itself is a difficult one under such a nebulous standard. Certainly, the Nation and the media are transfixed by the events in Boston, but the newsworthiness of the crime cannot be the test. I’d prefer — and, I’ve argued, the Eighth Amendment demands — more of a bright-line rule: no federal death penalty in non-death States. And this comes from real federalism, not faux federalism, and certainly not from any “general objection to the death penalty,” which I don’t have.

  6. Orin Kerr says:

    Just to be clear, I didn’t mean “fairly of interest” to be a legal standard. My point was just that I don’t understand the idea of a federalism interest in a specific criminal punishment as opposed to a criminal prosecution as a whole.

    (And I disagree with Michael’s Eighth Amendment theory for reasons I’ve articulated before, so I’ll let our earlier discussions speak on that.)

  7. Joe says:

    I think it is “wrong” not to follow local practice here, but constitutionally, if there is a federal crime, it would not be illegal for it to be supreme. This is wrong though:

    http://tpmdc.talkingpointsmemo.com/2013/04/graham-mccain-boston-bomber-enemy-combatant.php?ref=fpb

    [I have disagreed with the principle expressed in comment #5 before, even though here it would meet my policy and constitutional opinions as to capital punishment generally.]

    To correct a possible misleading comment, the federal hook here, so to speak, is not just locale (D.C., a military base). Art. 1, sec. 8 is a guide there. The comment added “and under the jurisdiction of the federal government” … interstate commerce etc. applies there.

  8. Douglas Levene says:

    This is just a factual dispute. For example, it’s quite clear that if Islamic terrorists mounted a Mumbai-style attack in Boston, killing dozens or hundreds, and the attackers announced that their goal was to force the Federal Government to release the “blind sheik” from prison, the Feds would have a strong interest in prosecuting even if few or no instrumentalities of interstate commerce were used. On the other hand, if an insane person like Lanza crossed the border from Conn. into NY State and shot up a school in NY, I don’t think there would be much of a federal interest in prosecuting that crime.

    Here, we (or at least I) don’t know enough yet to have an informed opinion on the federal interest. Were the bombers trained, financed or encouraged by foreign forces? Were they motivated by Jihad or were they wackos like Lanza?

    If there is a federal interest, then the state’s lack of a death penalty is utterly irrelevant to the federal prosecution, including the prosecution’s decision whether or not to seek the death penalty.

  9. Michael J.Z. Mannheimer says:

    Douglas Levene,

    Correct me if I’m wrong but I do not believe crossing state lines to commit murder is illegal (yet) under federal law unless it is (1) a murder for hire or (2) part of a domestic dispute (added by VAWA). Am I wrong about that?