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:
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.
The last meals of death row inmates have, for some reason, always attracted a lot of public attention. Websites exist cataloging them, the press reports on them, and entire books have been written about them. PETA once tried to capitalize on the attention given to last meals by begging Timothy McVeigh to become a vegan in his final meal. Even artists produce projects focusing on the final meals. Perhaps all this attention is driven by a sense of strange irony in treating a man like a king right before we kill him. Or maybe people are just amused by the strange things sometimes ordered by prisoners, such as Victor Feguer’s request for a single olive or Dobie Gillis Williams’ final order of 12 candy bars (with some ice cream on the side).
In rare cases, the last meals become news because they provide insight into the thinking of the prisoners themselves. Ricky Rector‘s execution was controversial because many believed he was unable to understand what was going on around him (after a self-inflicted shot to the head severely damaged his brain); his lack of understanding was confirmed when he saved a slice of pecan pie that came with his last meal “for later.” John Allen Muhammad–better known as the D.C. sniper–asked that his food choices be kept secret, perhaps reflecting his quiet and calculated nature. Troy Davis didn’t eat a last meal at all, refusing the meal for “good luck” and hoping right until the very end that his execution would be stayed and he would get another chance to eat.
As I noted a while ago, there seems to be an increasing interest in U.S. jurisprudence in the notion of a “death row phenomenon.” That interest was reflected yet again in a denial of certiorari in the case of Cecil Johnson, who spent 29 years waiting to die (11 on death row) before being executed early today. In a statement [PDF] accompanying that denial, Justices Stevens and Breyer both expressed great concern about the length of Johnson’s stay on death row:
[There are] two underlying evils of intolerable delay. First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, “delaying an execution does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death.” Thus, I find constitutionally significant both the conditions of confinement and the nature of the penalty itself.
One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification.
Justice Thomas responded with a concurrence in the denial [PDF] that directly rejects any notion of death row phenomenon and mocks the philosophy’s implicit reliance on international law:
It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
[Justice Stevens's view] deviates from the Constitution and . . . proponents of his view are forced to find their support in precedent from the “European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”
At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature. There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in a statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.” I have no doubt that such a system would avoid the diminishing justification problem JUSTICE STEVENS identifies, but I am equally confident that such a system would find little support from this Court.
This is a great articulation of both sides of the argument. Frankly, I don’t know which way to come out on this one, but it should be interesting to see what role international law plays in a debate over the proper interpretation of the Eighth Amendment.
A sad end to a long, sad story came today. Brooke Wilberger, a sophomore at BYU, vanished in 2004 and was never found. As part of guilty plea to avoid the death penalty, Brooke’s killer (Joel Courtney) finally revealed where he hid her body. I find this case interesting primarily because it shows the threat of the death penalty sometimes serves a purpose other than the so-called “deterrent effect.”
A federal judge has intervened and issued a stay in the case of Romell Broom, the Ohio inmate whose execution was delayed last week when executioners could not find a suitable vein. After two hours of “poking,” Ohio Gov. Ted Strickland ordered executioners to stop and try again a week later. U.S. District Court Judge Gregory Frost has decided that’s not enough time to determine if a ‘second execution’ is cruel and unusual punishment.
Broom’s attorneys plan to argue that a second execution attempt would be cruel and unusual punishment under the Eighth Amendment, as it would impose an “unconscionable” amount of physical and mental anguish on Brown. To be sure, something deep down says it’s wrong to put a man in a chair and attempt to execute him twice. But is that type of anguish any different from the anguish every prisoner faces in anticipating his/her sentence?
In 1989, the European Court of Human Rights (ECHR) ruled that, in some situations, “the ever present and mounting anguish of awaiting execution of the death penalty” is simply too much. See Soering v. United Kingdom [PDF]. Scholars have dubbed this anguish “death row phenomenon.” I’m not familiar with any U.S. case staying an execution becuase of a prisoner’s physical/mental anguish while anticipating his execution. Nevertheless, there have been a few suggestions from a Justice or two that the sensitivities of death row inmates may present real Constitutional questions.
If a U.S. court nullifies Broom’s execution, that might be a step towards accepting the ECHR’s premise that some executions are simply too mentally trying. Such a conclusion would raise a host of new questions. How much mental anguish is too much? What situations raise special anguish? Is “mental anguish” objectively judged or something we examine on an individual basis?
Alternatively, the Court could rely on the physical pain suffered by Broom during the first injection to nullify any second attempt. In 2008, the Supreme Court reaffirmed that “a series of abortive attempts” at execution could well be unconstitutional because it would cause a “substantial risk of serious harm.” Baze v. Rees [PDF]. Resting on physical pain, rather than mental pain, would avoid any slippery slope into death row phenomenon arguments. If the Court concludes that Broom’s mental anguish is enough to stop the sentence, however, it should be prepared to face a plethora of Soering-like arguments in future death penalty cases.