Death isn't welcome here: evaluating the federal death penalty in the context of a state constitutional objection to capital punishment.

AuthorMorton, Sean M.
PositionPuerto Rico

    Since 1988, twenty-five individuals have been tried and convicted under the federal death penalty statutes.(1) These prosecutions were undertaken in thirteen states,(2) all of which have a death penalty provision under state law.(3) Of course, the absence of a state capital punishment regime in a given state would not bar a federal capital prosecution in that state, provided that the alleged crime is a federal offense.(4) Nevertheless, an "interesting sovereignty and federalism question[]"(5) would arise if a federal prosecution was undertaken in a state that affirmatively prohibited the death penalty as a matter of state law.(6) Suppose, for example, that a state constitution expressly, or by judicial interpretation, defined the death penalty as an impermissible cruel and unusual punishment. Would that prohibition, an unequivocal expression of the particular state's citizenry, act as a bar to federal capital prosecutions within that state? Or would the Supremacy Clause of the federal constitution(7) "render [the state constitutional provision] a legally irrelevant point"?(8)

    This comment will examine the exercise of the federal death penalty within the states and the implications that a state constitutional prohibition of capital punishment might have upon that exercise. Accordingly, this comment will begin with a brief examination of the federal death penalty as enacted and applied within the states.(9) The comment will then discuss the Commonwealth of Puerto Rico, a United States territory that has expressly outlawed capital punishment via its own constitution,(10) and the relationship between the Puerto Rico Constitution and federal law, including the exercise of federal capital prosecutions within Puerto Rico itself.(11) Finally, this comment will argue that, with regard to capital punishment, the decision to pursue such a punishment is best left a state prerogative.(12) This section will include an argument that, just as "obscenity" is defined for First Amendment purposes in terms of "`contemporary community standards',"(13) "cruel and unusual punishments" under the Eighth Amendment(14) should be defined according to the local values expressed by individual states through fundamental state law.


    Thirty-seven years have passed since the last federal execution.(15) In the late winter of 1963, Victor Harry Feguer was publicly hanged in Iowa for the kidnapping and murder of an Iowa physician.(16) Feguer had summoned Dr. Edward Bartels to Feguer's residence in Dubuque, Iowa, held Dr. Bartels at gunpoint, and then transported him to East Dubuque, Illinois.(17) In Illinois, a companion of Feguer proceeded to shoot Dr. Bartels in the back of the head.(18) Feguer later murdered the companion and deposited the body in an Illinois portion of the Mississippi River.(19) Ten days later, Feguer was arrested by federal agents in Birmingham, Alabama after being confused for another federal fugitive.(20) Feguer was subsequently indicted in the Northern District of Iowa and charged with violating the Kidnapping Act(21) for his transport of Dr. Bartels across state lines.(22) A federal jury convicted Feguer and recommended the death penalty.(23) Pursuant to federal law, a sentence of death by hanging was imposed.(24)

    Apart from being "the last federal execution in the twentieth century,"(25) Feguer's execution is significant in two other respects. First, "Feguer would not have been executed had state[,] rather than federal, prerogatives controlled;"(26) thus exemplifying the fact that various states and the federal government strongly disagree over capital punishment.(27) Second, imposition of the federal death penalty upon Feguer would appear to have been unconstitutional under Furman v. Georgia.(28) Furman declared the "untrammeled discretion" of juries to impose the death sentence to be unconstitutionally arbitrary(29) and essentially invalidated the capital punishment statutes existing on the books at that time.(30) In fact, no such statute was ever used again in a capital prosecution.(31)

    Congress did not enact a series of "generally applicable federal death penalty procedures"(32) until the passage of the Federal Death Penalty Act of 1994 [FDPA].(33) The FDPA mandates that its procedures apply to "any ... offense for which a sentence of death is provided."(34) As for the FDPA's substantive provisions, one commentator has summarized them as follows:

    Section 60003 of the FDPA authorize[s] application of its new procedures "if death results" for fifteen federal statutory sections that already contained a death penalty.... Sections 60005 through 60024 then newly provided possible death penalties for at least seventeen preexisting, and ten new, federal offenses.... Accordingly, there were two categories of offenses in the 1994 Act for which death was a newly-authorized possible penalty: entirely new federal offenses, and pre-existing offenses whose language had not previously contained a possible death penalty. Aside from the new "super drug kingpin" provisions in Section 60002 and the new non-homicidal espionage provision in Section 60003, all the new offenses and penalty provisions limit availability of the death penalty to violation [sic] in which death results. Because some U.S. Code sections may contain more than one offense for which death is now available, and because alternative elements in a single statutory section might arguably be labeled as separate offenses, ... the exact number of federal offenses made death-eligible by the 1994 Act is "open to interpretation...."(35) Needless to say, by any estimate the 1994 FDPA substantially increased the availability of the death penalty for federal offenders? For purposes of this article, several points about the federal death penalty must be stressed.(37) At the outset, it must be noted that a majority of the conduct punishable under the federal death penalty is simultaneously a violation of state law. Quite simply, a vast majority of the federal offenses only become death-eligible when the crime results in death to another party.(38) Most assuredly, such conduct would be a violation of a state's murder or homicide statute--perhaps even the state's capital murder statute, provided the state had one. For instance, federal law authorizes the death penalty for murder committed in a particularly "heinous, cruel or depraved manner."(39) Had that crime occurred in New York, for example, the crime would be equally as punishable under the state's own capital punishment scheme as under the federal statute.(40)

    In situations where such concurrent federal and state jurisdiction is present, the United States Attorney's Manual provides guidance to federal prosecutors in determining whether to defer to state prosecution or pursue prosecution at the federal level.(41) In short, the federal interest in the prosecution must substantially outweigh the state or local interest in order to merit federal capital prosecution.(42) The United States Attorney's Manual lists three factors that are intended to provide individual prosecutors with guidance in ascertaining the balance of state and federal interests.(43) First, a prosecutor should consider the "relative strength of the State's interest in prosecution."(44) This should include consideration of the "nature of the offense," "the identity of the offender or victim," the primary investigative agency, and the "possibility that prosecution will lead to disclosure of violations which are peculiarly within the jurisdiction of either the Federal or State authorities."(45) Second, the prosecutor should consider whether the "criminal activity reached beyond the local jurisdiction."(46) Third, the Manual instructs a federal prosecutor to consider "[t]he relative ability and willingness of the State to prosecute effectively."(47) This should include a consideration of the likelihood of a successful prosecution at the state level, weighing such factors as the availability of "prosecutorial and judicial resources" and any anticipated "legal or evidentiary problems" that could impede prosecution at the state level.(48)

    Significantly, however, United States Attorneys faced with the problem of concurrent jurisdiction with state authorities are not permitted to consider the availability of capital punishment, or lack thereof, under state law.(49) Thus, a given state's lack of a capital punishment scheme does not, by itself, justify federal prosecution.(50)

    Apart from this mandated review by individual prosecutors, all potential federal capital cases must also be reviewed by a "[c]ommittee appointed by the Attorney General."(51) This additional layer of review is designed expressly to guard against "racial discrimination in the administration of the Federal death penalty."(52) Moreover, all parties involved--the federal prosecutor, the Attorney General, and the review Committee--are required to determine whether the aggravating factors of the crime(53) outweigh the mitigating factors applicable to the crime in deciding whether the death penalty is justified in a given case.(54) Although this binary review process ostensibly is designed to "promote consistency and fairness" in the application of the federal death penalty,(55) it may also act as a limitation upon exercises of federal authority where state jurisdiction lies as an alternative. Indeed, just as individual prosecutors are required to justify federal prosecution, the Attorney General's review committee is charged with ensuring that federal prosecution is appropriate.(56)

    Two other points regarding the federal death penalty are relevant to this discussion. First, the FDPA statutorily provides for the use of state facilities for the purpose of carrying out a sentence of death,(57) despite the fact that the federal government has constructed a federal execution facility in Terre Haute, Indiana.(58) Moreover, the statute recognizes that the...

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