The Federal Death Penalty in Non-Death States

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(Michael J.Z. Mannheimer) I want to thank Dan and the gang for inviting me to blog here this month.  I’m a bit embarrassed that this is my first post, given that we are already five days into the month, but I was away the first couple of days and have had intermittent and inexplicable internet outages since then (yay, Time Warner).  Anyway, I look forward to sharing my thoughts on scholarship, teaching, service, and whatever else crosses my mind.

For my first post, I wanted to share a few thoughts on a pet issue of mine that happens to be quite timely:  federal capital prosecutions brought for conduct occurring entirely within States that do not authorize the death penalty.  I say “timely” because Judge William K. Sessions III issued a decision yesterday in United States v. Michael Jacques (pronounced “Jakes”) denying, among other things, Jacques’s motion to strike the notice of intent to seek the death penalty.  Jacques is accused of luring his twelve-year old niece to his house, then kidnapping, raping, and killing her.  This took place entirely within Vermont, which has no death penalty, but the federal government is bringing the prosecution under the Federal Kidnapping Act.  Before 2006, this would not have been a federal offense.  The FKA was amended that year to cover not only kidnappings that cross State lines, but also those where the actor “uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense.”  That Jacques allegedly used text messages to lure the victim and altered her MySpace page to try to cover his tracks — and perhaps even that he used an automobile to transport the victim — brings it within the FKA.  It seems pretty clear that the only federal interest here, if it can be called that, is that the death penalty is available under federal law but not Vermont law.

Jacques raised the argument I made in my article, When the Federal Death Penalty is “Cruel and Unusual,” 74 U. Cin. L. Rev. 819 (2006) (oh, yes, the shameless self-promotion starts with the first post), that it constitutes cruel and unusual punishment in violation of the Eighth Amendment for the federal government to impose death for conduct occurring within a State that does not itself authorize capital punishment.  The argument is grounded in the origins of the Eighth Amendment, and the Bill of Rights generally, as a means by which the Anti-Federalists sought to preserve State sovereignty, especially over crime and punishment.  Because the Anti-Federalists conditioned their reluctant acquiescence to the ratification of the Constitution on the adoption of a Bill of Rights, I argue, their views, motivations, and general outlook must be consulted on the meaning of the Bill’s provisions.

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August 24, 2014 |

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