The undermining influence of the federal death penalty on capital policymaking and criminal justice administration in the states.

• Author: Connor, Eileen M.

1. INTRODUCTION

   When Ronell Wilson was sentenced to death by a federal judge in the Eastern District of New York in March of 2007, (1) it was the first federal death sentence obtained in New York City in over fifty years. (2) Wilson was originally charged with capital murder in state court, (3) but after New York's high court invalidated the state's death penalty in 2004, (4) the Staten Island District Attorney requested that federal prosecutors take over the case. (5) The federal interest in the case was not obvious--Wilson was accused of murdering two undercover New York City Police Department officers investigating an illegal weapons ring in Staten Island. The investigation was not part of a joint federal-state task force, and the murder case was investigated by local law enforcement, and cooperating witnesses were given deals in state, not federal court. (6) The clear motivation for the transfer was that the death penalty was not available in state court.

   Unsurprisingly, the decision of the Staten Island district attorney to seek the death penalty against Wilson was widely supported by the local law enforcement community, (7) who were a visible presence at the federal trial. (8) Critics characterized the federal prosecution as an "end run" around the New York law, (9) whereas others saw the federal capital trial as expressing the conscience of the community where the laws of the state failed to adequately provide for such expression. (10) When the federal jury, which was drawn from a geographical area including but not limited to Staten Island, (11) returned a death verdict, Staten Island Borough President James Molinaro commended the decision and opined that "[t]he vast majority of New Yorkers support capital punishment for the most heinous acts of murder." (12)

   As Wilson and other cases demonstrate, capital punishment gives rise to tensions between federal and state values. Increases in the quantity and scope of federal criminal legislation enacted pursuant to the Commerce Clause have made federal law nearly coextensive with state law such that virtually every murder may be charged by both authorities. The death penalty is available very broadly under federal law, whereas in some states it is not available, not imposed, or more difficult to obtain when sought. In practice, the number of federal capital prosecutions remains low, and the vast majority of homicide prosecutions are undertaken by state criminal justice systems. (13) However, the impact of the federal death penalty is greater than these numbers suggest, as the potential for federal prosecution alters the behavior of state-level criminal justice actors in a number of ways.

   An abundance of scholarship addresses the consequences of increased federal criminal jurisdiction on local actors and individual criminal defendants. Likewise, an enormous body of literature examines the constitutional underpinnings and attributes of the modern death penalty regime. However, little attention has been paid to the dynamic relationship between federal criminal law in general, the federal death penalty, and the administration of criminal justice and capital sentencing in the states.

   This Article addresses this dynamic relationship and argues that the federal death penalty obstructs the ability of and obscures the incentives for individual states to set criminal justice policy within their respective territorial jurisdictions, and furthermore that this tendency is manifestly out of step with constitutional norms surrounding the death penalty. Part II.A provides an overview of the current federal death penalty and the policy of the Department of Justice, which guides the use of prosecutorial discretion in relation to concurrent federal-state jurisdiction in homicide cases. Part II.B details a selection of recent federal cases, which suggest that federal prosecutions are being undertaken not to vindicate uniquely federal interests, but rather to achieve death sentences where the state prosecution would yield, at a maximum, a sentence of life imprisonment without the possibility of parole. At times, federal prosecutions are undertaken at the behest of state and local authorities, and at other times, they are in conflict with local norms. Part III examines several constitutional doctrines and finds that they are insufficient to resolve the individual rights and sovereign interests implicated by certain federal death penalty prosecutions. In particular, jurisprudence under the Double Jeopardy Clause recognizes the dual sovereignty doctrine, by which successive federal-state prosecutions are permissible. In the capital context, this means that a defendant may be acquitted or sentenced to life in state court and then prosecuted capitally by federal authorities. Although dual criminal jurisdiction is an enduring component of our federal system, the present calibration of federal criminal power vis-a-vis the states is predicated on an outdated norm that assigns to states obstructionist intentions with respect to federal law enforcement priorities. However, the modern landscape is one of collaboration. Part IV examines the institutional features of Congress that impact its capacity to enact rational criminal justice legislation and argues that the respective states are better able to set a rational criminal justice policy that is truly reflective of community norms. Part V argues that the overlapping jurisdiction of federal and state death penalty law is inconsistent with constitutional principles governing capital sentencing. The potential for federal capital prosecution nationwide threatens to undermine seriously the ability of states to make reasoned policy choices for the benefit of their citizenry, the ability of local prosecutors to remain accountable for their charging decisions, and the capacity of local juries to breathe normative and moral values into the substance of capital law. Finally, Part VI suggests that federal enactment of an abstention rule similar to the non-binding policy currently operative within the Department of Justice is the best means to address the concerns raised in Part V.

2. THE SUBSTANTIAL FEDERAL INTEREST IN THE DEATH PENALTY

   The federal government has in recent years broadened the reach of its capital punishment regime. (14) This expansion, as discussed infra, is attributable to an increase in federal statutes authorizing the death penalty for particular crimes and, in part, an increased willingness on the part of recent Attorneys General to pursue federal capital prosecutions.

   The policy considerations facing Congress and federal law enforcement officials are quite distinct from those that impact the states. In addition to the need to consider how to best vindicate federal interests and effectuate national law enforcement policy, the federal government must consider that its criminal jurisdiction often overlaps with that of the states. Part II.A provides a brief overview of federal statutory law regarding the death penalty and outlines the Department of Justice's internal procedures regarding which cases will be selected for capital prosecution. Part II.B provides examples of recent capital prosecutions in which federal prosecution overlapped and, at times, conflicted with state criminal jurisdiction, and argues that the Department's procedures do not provide a clear principle for resolving these conflicts.

   1. AN OVERVIEW OF THE FEDERAL STATUTES AND POLICY GOVERNING THE DEATH PENALTY

      The increasing frequency of federal capital prosecutions and expansion of death-eligible offenses under federal law is in line with the well-documented, expansive trend in general federal criminal law. (15) Commentators have explored the implications of this expansion for the calibration of power in our federalist system. (16) Prior to the last third of the twentieth century, the bulk of federal criminal law was directed at conduct that was particularly or inherently federal in nature--crimes against the sovereignty of the federal government, such as treason, and crimes involving national currency, borders, land, or territories. (17) Almost by definition, the conduct proscribed in a truly national crime was beyond the reach of state criminal statutes or enforcement capabilities. This arrangement was in harmony with fundamental precepts regarding the balance of power between the constituent parts of our federal system. Traditionally, states are the protectors of the public health and welfare of their citizens, whereas the Constitution did not grant to the federal government a general police power. (18) Yet given the current expanded scope of federal criminal law, this precept is observed more often in the breach, as courts have upheld federal criminal statute upon federal criminal statute as valid exercises of Congress's power under the Commerce Clause. (19) A consequence of this expanded and expansive federal criminal jurisdiction is that virtually every homicide is potentially punishable by the federal government, even those that are purely local and thus seemingly at the core of the quintessential local police power. (20)

      Three federal legislative enactments compose the modern federal death penalty. Following the Supreme Court's invalidation of all death penalty statutes in Furman v. Georgia in 1972, (21) the United States did not reinstate the death penalty for federal offenses until 1988 with the passage of the Anti-Drug Abuse Act. (22) The availability of the federal death penalty expanded further with the Violent Crime Control and Law Enforcement Act of 1994, which contained the Federal Death Penalty Act (FDPA). (23) The FDPA prescribes procedures for implementing the death penalty in relation to over sixty substantive crimes. (24) The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) added four more crimes to the list of death-eligible federal offenses. (25) It cannot be said that the majority of these crimes reach criminal...