On CNN this morning, I was surprised to hear Jeffrey Toobin suggest that the federal government might have a problem seeking the death penalty against Dzhokhar Tsarnaev because Massachusetts doesn’t allow it. Toobin even went so far as to say it might be “unconstitutional” for the Feds to go for death. My understanding of the dual sovereignty doctrine was such that Massachusetts’ choices about how to punish state offenders have very little to do with the Feds’ decision to punish theirs. But sure enough, Toobin’s Twitter feed from a few days ago seems to hint at the same point:
— Jeffrey Toobin (@JeffreyToobin) April 19, 2013
After confirming my understanding, I’m now comfortable putting this argument to rest: there’s no colorable argument that it is “unconstitutional” for the federal government to impose the death penalty on an offender who commits his crime and/or is later captured and tried in a non-death penalty state.
Toobin’s argument seems confined only to law review notes and Hail Mary sentencing arguments. But pratically speaking, the Government is perfectly comfortable bringing death penalty cases in non-death-penalty jurisdictions, having pursued such a sentence at least 40 times in recent years (with nine cases going all the way to a death sentence). Courts are, too. Although case law is a bit sparse on this question, the First Circuit Court of Appeals–which, keep in mind, covers Massachusetts–has ruled that the federal death penalty may be applied in Puerto Rico despite that commonwealth’s locally-enshrined opposition to death sentences. See generally United States v. Acosta-Martinez, 252 F. 3d 13 (1st Cir. 2001). Puerto Rico probably had a stronger argument than most states, as Congress has passed a rather unique statute acknowledging that certain matters are “locally inapplicable” in Puerto Rico. Excepting the federalism protections found in the Constitution, states don’t really enjoy the same protection. We got another glimpse of how federal law trumps in this context in United States v. Pleau, 680 F. 3d 1 (1st Cir. 2012), a case in which the Governor of Rhode Island refused to turn over a state prisoner to the Feds without some assurance that the prisoner wouldn’t be executed. The Feds refused, and the First Circuit said that the Governor had to turn the criminal over despite the state’s opposition to the death penalty.
In short, “[c]ourts have upheld the Department [of Justice]’s actions [in seeking the death penalty in non-death penalty states] as being constitutionally permissible given the supremacy of federal law.” So Toobin’s imagining an issue that doesn’t really exist. (Much as he has previously imagined the thoughts of Supreme Court Justices.)
What is perhaps more interesting is how Massachusett’s opposition to the death penalty might affect the federal government’s chances of actually getting a death penalty sentence out of a Massachusetts jury.
Massholes Massachusetts jurors have long been uncomfortable giving the go-ahead on death. Even in the infamous “Angel of Death” case, for instance, a Massachusetts jury ultimately declined to recommend death. But, then again, a Massachusetts jury did impose the death sentence on carjacker Garry Lee Sampson. (That sentence was later overturned, but the Feds are trying to reinstate it.)
In any event, Toobin’s state-centered “constitutionality” concern is certainly a red herring. There are enough real legal issues in the Boston Bomber prosecutions, so Toobin would be best advised to stop pressing this imaginary one.