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FEDERALISM AND CAPITAL PUNISHMENT:

NEW ENGLAND STORIES

Michele Martinez Campbell

*†

No state without capital punishment is farther than one hideous murder

away from bringing it back.

1

INTRODUCTION

Application of the federal death penalty to crimes committed in states

that have abolished capital punishment is a tiny problem with a

disproportionately powerful scholarly impact. Federal death sentences

represent only 0.53% of death sentences imposed in the United States.

2

Even more striking, only six individuals, out of 3,242 on death row

nationwide,

3

currently await execution on federal capital charges for crimes

committed in states that have abolished capital punishment.

4

Yet, in an era

of alarmism over the federal government’s role in enforcing criminal laws,

5

an increasing body of scholarly literature has focused on the federalism

concerns posed by this rare capital punishment practice. Overwhelmingly,

scholars have argued that federal death sentences should be constitutionally

impermissible for crimes committed within the borders of abolitionist states

strictly on federalism grounds.

6

Defendants in abolitionist states have used

this argument to attack the charges they face as unconstitutional, both

facially and as applied. The argument against federal capital prosecutions in

* Associate Professor of Law, Vermont Law School.

† The author would like to thank Professors Philip Meyer and Jackie Gardina of Vermont

Law School for their insightful comments on this Article, as well as Jason Hart, Vermont Law School

J.D. Candidate 2012, and Brianne Fischer, Vermont Law School J.D. Candidate 2013, for their excellent

research assistance.

1. Michael Mello, “The Past is Never Dead; It’s Not Even Past”: A History of Capital

Punishment in Vermont, Draft #3 (July 10, 2008) (unpublished manuscript) (on file with author).

Citation to the late Professor Mello’s unpublished article is in no way intended to imply that he would

agree with the views expressed in this Article.

2. John Gleeson, Supervising Federal Capital Punishment: Why the Attorney General Should

Defer When U.S. Attorneys Recommend Against the Death Penalty, 89 VA. L. REV. 1697, 1721 (2003).

3. See DEATH PENALTY INFO. CTR., DEATH ROW INMATES BY STATE (2011), available at

http://www.deathpenaltyinfo.org/documents/FactSheet.pdf.

4. Federal Death Row: State Where Crime Was Committed, DEATH PENALTY INFO. CTR.,

http://www.deathpenaltyinfo.org/federal-death-penalty?scid-29&did+147 (last visited July 21, 2011)

(Iowa (2), Massachusetts (1), Michigan (1), Vermont (1), North Dakota (1)).

5. JAMES STRAZZELLA ET AL., TASK FORCE ON THE FEDERALIZATION OF CRIMINAL LAW,

AM. BAR ASS’N CRIMINAL JUSTICE SECTION, THE FEDERALIZATION OF CRIMINAL LAW 3 (1998),

available at http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/

crimjust_pubs_catalog_fedcrimlaw2.authcheckdam.pdf (arguing that the federal government’s creation

of criminal laws “has serious adverse consequences”).

6. See discussion infra Part II.

82 Vermont Law Review [Vol. 36:081

abolitionist states is thus now making its way through the court system, and

the few courts to consider the issue have so far largely rejected it, finding

no constitutional bar provided that federal jurisdiction to prosecute is

properly established.

This Article will examine the prevailing scholarly view that federalism

concerns trump Supremacy Clause arguments and render the federal death

penalty unconstitutional when applied within the boundaries of abolitionist

states. First, it will review the circumstances within the criminal justice

system that allow this situation to arise in the first place: the nature of

concurrent state and federal criminal jurisdiction, the reinstatement of

federal capital punishment after a long hiatus as an increasing number of

states have simultaneously abolished capital punishment, and changes to the

United States Department of Justice’s Death Penalty Protocol (DPP)

encouraging the use of federal capital charges as a stopgap measure for

particularly heinous crimes when state law prohibits capital punishment.

Second, it will review case law and scholarly literature to demonstrate that

well-established precedent permits Congress to authorize capital

punishment for federal crimes even where state law differs. Third, it will

argue that, contrary to prevailing scholarly wisdom, courts have decided

these cases properly under prevailing Supremacy Clause precedent; and,

that there are major policy advantages in having federal authorities bring

capital charges when particularly egregious cases arise in abolitionist states.

First, federal capital prosecution can serve as a “safety valve,” insulating

local communities from political pressures that might otherwise lead to

more widespread application of capital punishment or derail state

abolitionist movements.

7

And second, federal capital charges provide

opportunities for uniformity of application that may address longstanding

concerns regarding racial inequities in the imposition of death sentences.

This policy argument will be made primarily through consideration of

two contrasting recent New England case studies. The first, a crime of such

unparalleled brutality that it has been compared to the murders of an entire

family immortalized in the novel In Cold Blood,

8

stopped in its tracks an

imminent successful push to abolish the death penalty in Connecticut. In

July 2007, in an idyllic Connecticut suburb, two career criminals followed a

woman and her daughter home from the supermarket. They invaded the

family’s home, brutally raped the mother and her eleven-year-old daughter,

strangled the mother, beat the father, tied the family up, and set the home on

fire, leaving the family to burn to death. The mother and her two young

daughters perished in the fire. The father, Dr. William Petit, escaped and

7. See, e.g., Paul Mysliwiec, The Federal Death Penalty as a Safety Valve, 17 VA. J. SOC.

POL’Y & L. 257 (2010) (discussing the role of the federal death penalty as a “safety valve”).

8. TRUMAN CAPOTE, IN COLD BLOOD (1965).

2011] Federalism and Capital Punishment 83

survived to lead a passionate call for the execution of his family’s killers.

9

While federal jurisdiction might have been an option in this case,

10

the State

of Connecticut prosecuted the defendants.

11

The case exploded in the media

just as Connecticut was on the cusp of abolishing capital punishment. The

Connecticut legislature had just passed a bill abolishing the death penalty

and forwarded it to Governor M. Jodi Rell for signature.

12

Governor Rell,

however, vetoed the bill as a direct result of the outcry over the Petit

murders.

13

Connecticut remains a death penalty state.

By contrast, another recent high-profile murder in another small New

England town—this one in Vermont, which abolished the death penalty in

1965

14

—is being prosecuted federally. The defendant in United States v.

Jacques is charged with the June 2008 kidnapping, rape, and murder of his

twelve-year-old step-niece, Brooke Bennett, through chilling means.

15

According to the indictment and other court documents, Michael Jacques

forced another young girl, whom he had allegedly been molesting since she

was eight years old, to participate in luring her young cousin to her death.

16

As will be discussed in detail below, federal prosecutors asserted

jurisdiction under a 2006 amendment to the Federal Kidnapping Act, 18

U.S.C. § 1201(a), permitting federal prosecution of intrastate kidnappings

where the defendant used the Internet or other means or facilities of

interstate commerce to commit the crime.

17

Jacques faces the death penalty

under federal law,

18

but there has been no public outcry over the federal

9. Mark Pazniokas, Petit Case Shadows Death Penalty Debate, N.Y. TIMES, May 17, 2009,

http://www.nytimes.com/2009/05/17/nyregion/connecticut/17polct.html.

10. Although federal jurisdiction in the Connecticut case is less certain, it is possible that the

defendants could have been charged under the same provision of the Federal Kidnapping Act used in

United States v. Jacques. See United States v. Jacques, No. 2:08-cr-117, 2011 WL 1706765, at *4 (D.

Vt. May 4, 2011) (opinion and order denying motion to dismiss count one). Jurisdiction would be

premised on an incident during the course of the kidnapping in which the mother was forced to go to a

bank and withdraw $15,000, thus implicating use of an interstate commerce facility.

11. Pazniokas, supra note 9.

12. H.B. 6578, 2009 Gen. Assemb., Jan. Sess. (Conn. 2009).

13. See Veto Message from M. Jodi Rell, Governor of Connecticut, to Susan Bysiewicz,

Secretary of State of Connecticut (June 5, 2009), available at http://www.ct.gov/governorrell/cwp/

view.asp? A=3675&Q=441204.

14. 1965 Vt. Acts & Resolves 28 (codified as amended at VT. STAT. ANN. tit. 13, § 2303

(2009)). However, while the 1965 act abolished the death penalty generally, it still permitted the death

sentence for an “unrelated second offense.” Id. Vermont later removed this qualification in 1987. 1987

Vt. Acts & Resolves 125 (codified as amended at VT. STAT. ANN. tit. 13, § 2303 (2009)).

15. Memorandum of the United States in Opposition to Defendant’s Motion to Dismiss Count

One of the Indictment at 1–2, United States v. Jacques, No. 2:08-cr-117 (D. Vt. Feb. 26, 2010), ECF No.

135 [hereinafter Memorandum in Opposition].

16. Id.

17. See infra notes 25–27 and accompanying text.

18. Notice of Intent to Seek a Sentence of Death at 1, United States v. Jacques, No. 2:08-cr-117

(D. Vt. Aug. 25, 2009), ECF No. 106.

84 Vermont Law Review [Vol. 36:081

authorities’ decision to seek death for a crime committed within the state,

despite Vermont’s longstanding abolitionism. A motion by Michael Jacques

to strike the death penalty on federalism-based Eighth Amendment grounds

was denied by the federal district court, as was a more detailed motion to

reconsider. This Article will discuss these opinions in detail. At the time of

publication, the capital prosecution of Michael Jacques is proceeding in

federal court, and Vermont remains an abolitionist state.

I. FACTUAL AND HISTORICAL BACKGROUND

A. A Problem Made Possible by Concurrent Federal and State Criminal

Jurisdiction

Defendants may be subject to federal capital charges for crimes

committed within the borders of abolitionist states because the American

criminal justice system provides for concurrent federal and state jurisdiction

over many crimes. Federal prosecutors conduct approximately five percent

of criminal prosecutions in the United States.

19

These federal prosecutors

work in ninety-four United States Attorneys’ Offices located across the

country, which are organized to correspond to federal judicial districts and

operate under the supervision of the United States Department of Justice.

20

In virtually all federal prosecutions, defendants are charged under criminal

statutes enacted by the United States Congress and codified in the United

States Criminal Code.

21

The remaining 95% of criminal prosecutions are

carried out at the state and local levels by state and county prosecutors

working in thousands of separate offices.

22

These cases are charged under

state statutes, codified in state criminal codes. For many crimes, there are

both federal and state analogues on the books. In these instances, the

decision whether to charge the defendant at the state or federal level turns

on the presence of a federal interest that rises to the level of a jurisdiction-

creating element.

The 2008 murder of Brooke Bennett by Michael Jacques provides a

clear example of concurrent jurisdiction in practice. The physical aspects of

19. STRAZZELLA ET AL., supra note 5, at 19.

20. Offices of the United States Attorneys, U.S. DEP’T OF JUSTICE,

http://www.justice.gov/usao/ (last visited Nov. 27, 2011).

21. In a small number of cases each year, federal authorities prosecute crimes committed on

federally-owned land or on Indian reservations under the Assimilative Crimes Act, 18 U.S.C. § 13

(2006). The Assimilative Crimes Act allows federal prosecutors to charge defendants under state statutes

where no federal statute fits the facts of the crime. See, e.g., United States v. Sharpnack, 355 U.S. 286,

297 (1957).

22. STRAZZELLA ET AL., supra note 5, at 19.

2011] Federalism and Capital Punishment 85

the crime took place entirely within the boundaries of the State of Vermont;

neither Michael Jacques nor Brooke Bennett physically crossed the

Vermont border during commission of the crime.

23

While Vermont law

allows for the prosecution of kidnapping and murder, federal law also

criminalizes kidnapping resulting in death under certain limited

circumstances.

24

Because Michael Jacques used the Internet and text

messaging extensively to lure Brooke Bennett to her death, federal

jurisdiction became an option under the Adam Walsh Child Protection and

Safety Act of 2006 (AWA), which amended the Federal Kidnapping Act,

18 U.S.C. § 1201(a).

25

This amendment broadened federal jurisdiction to

include kidnappings where the Internet and text messaging are used to

commit the crime, on the grounds that use of these interstate facilities

establishes a federal interest in prosecuting the crime. Specifically, Title II,

section 213 of the AWA amended the Federal Kidnapping Act as follows:

Section 1201 of title 18, United States Code, is amended—

(1) in subsection (a)(1), by striking “if the person was alive when

the transportation began” and inserting “, or the offender travels

in interstate . . . commerce or uses the mail or any means, facility,

or instrumentality of interstate . . . commerce in committing or in

furtherance of the commission of the offense.”

26

The constitutionality of this amendment was challenged in several federal

courts, including in the Jacques case, and so far has been unanimously

upheld.

27

Because the Constitution does not confer upon Congress a general

police power, congressional authority to enact criminal laws arises

primarily under the Commerce Clause.

28

As will be discussed further

below, the court in United States v. Jacques recently issued an opinion

23. Memorandum in Opposition, supra note 15, at 2.

24. VT. STAT. ANN. tit. 13, § 2303 (2009) (stating the penalty for murder); id § 2405 (stating

the criminal elements for kidnapping in Vermont); Federal Kidnapping Act, 18 U.S.C. § 1201(a) (2006)

(allowing federal prosecution for kidnapping resulting in death under certain limited circumstances).

25. The Adam Walsh Child Protection and Safety Act of 2006 (AWA), Pub. L. No. 109-248,

120 Stat. 587 (codified as amended in scattered sections of 18 U.S.C. and 42 U.S.C.), contained a

variety of provisions and amendments to existing federal laws intended specifically to address online

sexual predation of children.

26. AWA § 213 (emphasis added).

27. See United States v. Jacques, No. 2:08-cr-117, 2011 WL 1706765 at *11–12 (D. Vt. May 4,

2011) (opinion and order denying motion to dismiss count one) (upholding amended 18 U.S.C.

§ 1201(a) against facial and as-applied challenges as proper exercise of Congress’s commerce power);

United States v. Augustin, No 1:09-cr-187, 2010 WL 2639966 (E.D. Tenn. June 28, 2010) (same);

United States v. Ochoa, No. 8-cr-1980, 2009 WL 3878520 (D.N.M. Nov. 12, 2009) (same).

28. See United States v. Lopez, 514 U.S. 549, 553 (1995) (recognizing that Congress may

enact criminal laws under the Commerce Clause).

86 Vermont Law Review [Vol. 36:081

upholding the amendment to the Federal Kidnapping Act as a constitutional

exercise of Congress’s power to regulate under the Commerce Clause.

29

In

the wake of this decision, it is clear that federal prosecutors had the power

to bring charges for the Brooke Bennett murder, as did Vermont

prosecutors.

That federal prosecutors chose to bring charges, rather than deferring to

Vermont state authorities, was a matter of prosecutorial discretion governed

by internal Department of Justice policy and was likely also the subject of

negotiations between the jurisdictions. The Department of Justice has stated

that:

[S]tate and federal law enforcement officials often work

cooperatively to maximize their overall ability to prevent and

prosecute violent criminal activity in their respective

communities. Such cooperation is a central feature of current

federal law enforcement policy. In some areas, these cooperative

efforts lead to agreements that certain kinds of offenses,

particularly violent crimes, will be handled by federal

authorities.

30

Nothing in federal policy would have prevented such an agreement from

being reached in the Jacques case. A written Department of Justice policy

known as the “Petite Policy” restricts federal prosecutors from charging

defendants who are already charged or were previously charged and

acquitted under state criminal statutes based on the same acts.

31

But where,

29. See infra notes 260–67 and accompanying text.

30. U.S. DEP’T OF JUSTICE, THE FEDERAL DEATH PENALTY SYSTEM: A STATISTICAL SURVEY

(1988–2000) 4 (2000) [hereinafter DOJ STATISTICAL SURVEY], available at http://www.justice.gov/dag/

pubdoc/dpsurvey.html.

31. U.S. DEP’T OF JUSTICE, UNITED STATES ATTORNEYS’ MANUAL § 9-2.031 (updated July

2009) [hereinafter USAM]. The provision states in relevant part:

This policy precludes the initiation or continuation of a federal

prosecution, following a prior state or federal prosecution based on substantially

the same act(s) or transaction(s) unless three substantive prerequisites are

satisfied: first, the matter must involve a substantial federal interest; second, the

prior prosecution must have left that interest demonstrably unvindicated; and

third, applying the same test that is applicable to all federal prosecutions, the

government must believe that the defendant’s conduct constitutes a federal

offense, and that the admissible evidence probably will be sufficient to obtain and

sustain a conviction by an unbiased trier of fact. In addition, there is a procedural

prerequisite to be satisfied, that is, the prosecution must be approved by the

appropriate Assistant Attorney General.

Satisfaction of the three substantive prerequisites does not mean that a

proposed prosecution must be approved or brought. The traditional elements of

federal prosecutorial discretion continue to apply.

Id.

2011] Federalism and Capital Punishment 87

as in the Jacques case, state authorities have not yet charged the defendant,

federal prosecutors have discretion to prosecute despite the existence of

concurrent state authority to do so. Federal prosecutors are allowed—but

not required—to decline prosecution in favor of state authorities if they

believe that “[n]o substantial Federal interest would be served by [Federal]

prosecution” or that “[t]he person is subject to effective prosecution in

another jurisdiction.”

32

This same provision clearly allows them to bring

federal charges if they believe a federal interest is at stake. As will be

discussed below, changes to the DPP during the George W. Bush

Administration specifically allow federal prosecutors to consider the

availability of state capital punishment as a sentencing option when

determining whether to prosecute federally or decline in favor of a state

prosecution.

33

B. A Four-Decade Hiatus in Federal Executions Comes to an End

The imposition of federal capital sentences in abolitionist states, in

addition to being a rare phenomenon, is a relatively recent one. This can be

explained by the fact that a four-decade-long hiatus in federal executions

ended at roughly the same time as a newly energized abolitionist movement

succeeded in eliminating several state death penalty statutes. Thus, during

the 2000s, there were both more federal capital cases and more abolitionist

states, making such prosecutions more likely to arise.

The federal government executed no prisoners between 1963, when

Victor Harry Feguer was executed by hanging for the kidnapping and

murder of a doctor he had lured to his home under the ruse of a house call,

34

and 2001, when Timothy McVeigh was executed by lethal injection for the

murder of 168 people in the bombing of the Alfred P. Murrah Federal

Building in Oklahoma City.

35

Overall, the federal death penalty was

infrequently imposed during the twentieth century.

36

Beginning in the

1960s, it was, in the words of one commentator, “virtually moribund” due

to growing concern over arbitrariness of jury decisions and racial disparities

32. Id. § 9-27.220.

33. See infra notes 97–106 and accompanying text.

34. Sean M. Morton, Death Isn’t Welcome Here: Evaluating the Federal Death Penalty in the

Context of a State Constitutional Objection to Capital Punishment, 64 ALB. L. REV. 1435, 1438 (2001).

35. Executions of Federal Prisoners (Since 1927), FED. BUREAU OF PRISONS, http://www.

bop.gov/about/history/execchart.jsp (last visited Nov. 27, 2011); John Brigham, Unusual Punishment:

The Federal Death Penalty in the United States, 16 WASH. U. J.L. & POL’Y 195, 198 (2004). See infra

pp. 29, 45–50 for a discussion on the degree to which the Department of Justice’s centralized review

process for capital charges provides opportunities to address remaining concerns with racial injustice in

the capital sentencing process.

36. The Federal Bureau of Prisons reports thirty-four federal executions between 1927 and

Feguer’s execution in 1963. FED. BUREAU OF PRISONS, supra note 35.

88 Vermont Law Review [Vol. 36:081

in imposition of death sentences.

37

In 1972, in Furman v. Georgia, the

United States Supreme Court struck down Georgia’s death penalty statute

as cruel and unusual punishment under the Eighth Amendment.

38

Although

there was no single majority opinion in Furman, a number of justices

expressed concerns that arbitrary jury determinations were leading to racial

disparities in imposition of the death penalty.

39

Furman led to a nationwide moratorium on death sentences that lasted

until Gregg v. Georgia upheld the revised Georgia “guided discretion”

statute in 1976.

40

Post-Gregg, many states moved to revise their death

penalty statutes and reinstate capital punishment. However, the federal

capital punishment moratorium significantly outlasted those of most states.

Despite Gregg’s holding that a “guided discretion” framework for death

penalty statutes could pass constitutional muster, Congress repeatedly failed

to pass revised federal capital-sentencing legislation between 1976 and

1988.

41

Commentators have explained Congress’s repeated failure to agree

on legislation as either the result of diverging views between abolitionist

and non-abolitionist states

42

or the political parties’ ingrained ideological

disagreements over the death penalty.

43

Congress’s failure to reinstate federal capital punishment was at odds

with public opinion favoring the death penalty for the most serious crimes.

According to a Gallup poll, opposition to the death penalty peaked in the

United States in mid-1966, when 42% of survey respondents favored the

death penalty for defendants convicted of murder, while 47% opposed it.

44

This poll result was highly anomalous: It is the only result reported by

Gallup between 1936 and 2010 in which a higher percentage of respondents

opposed the death penalty than favored it. During the 1960s, when courts

and the public alike were most vigorously questioning the death penalty,

slim majorities continued to favor it.

45

Interestingly, the Supreme Court’s

decision in Furman, striking down Georgia’s capital punishment statute,

46

appeared to increase support for the death penalty—at least temporarily. A

37. Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the

Department of Justice’s Role, 26 FORDHAM URB. L.J. 347, 370 (1999).

38. Furman v. Georgia, 408 U.S. 238, 239 (1972).

39. Id. at 255.

40. Gregg v. Georgia, 428 U.S. 153, 207 (1976).

41. Little, supra note 37, at 377.

42. Id. at 377–78.

43. Charles C. Boettcher, Testing the Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591–

98 (1994): United States v. Jones, 132 F.3d 232 (5th Cir. 1998), 29 TEX. TECH L. REV. 1043, 1053

(1998).

44. Death Penalty: Are You in Favor of the Death Penalty for a Person Convicted of Murder?

1936–2010, GALLUP, http://www.gallup.com/poll/1606/death-penalty.aspx (last visited Nov. 27, 2011).

45. Id.

46. Furman v. Georgia, 408 U.S. 238, 239 (1972).

2011] Federalism and Capital Punishment 89

Gallup poll conducted between March 3 and 5, 1972, showed 50% of

respondents favoring the death penalty for murder and 41% opposed,

whereas a Gallup poll conducted between November 10 and 13, 1972,

showed 57% of respondents favoring capital punishment for murder and

32% opposed.

47

By the 1980s, support for capital punishment had

rebounded further, commanding solid majorities—usually in the 70th and

80th percentiles—throughout the decade. This support reached an all-time

high of 80% in September 1994.

48

Not surprisingly, 1994 was also the year

in which Congress succeeded in passing comprehensive federal death

penalty legislation.

49

It was not until 2001, however, when Timothy

McVeigh died by lethal injection for carrying out the Oklahoma City

bombing, that federal authorities first executed a prisoner under the new

law. Since then, two federal prisoners have been executed

50

and fifty-eight

other federal prisoners await execution under federal statutes.

51

The same period that has witnessed the reinstatement of federal capital

punishment has also seen a resurgent abolitionist movement, with “a wave

of states . . . reconsider[ing] capital punishment” and deciding to abolish the

death penalty.

52

Currently, sixteen states, the District of Columbia, and

47. GALLUP, supra note 44.

48. Id.

49. In 1988, Congress passed its first post-Gregg capital punishment legislation, authorizing

death as a penalty for certain murders committed in furtherance of a “Continuing Criminal Enterprise”

(CCE), as defined in 21 U.S.C. § 848(c), (e) (2006). The CCE statute is essentially the RICO statute

(Racketeer Influenced and Corrupt Organizations, 18 U.S.C. §§ 1961–1968) of narcotics crimes,

providing enhanced penalties for defendants who engage in “a continuing series of violations [of federal

narcotics law] . . . in concert with five or more other persons with respect to whom such person occupies

a position of organizer, a supervisory position, or any other position of management, and . . . from which

such person obtains substantial income.” 21 U.S.C. § 848(c). If the drug kingpins prosecutable under the

CCE statute commit or order murders in furtherance of their drug enterprise, the legislation, passed by

Congress in 1988 and codified at 21 U.S.C. § 848(e), allows a federal jury to impose a sentence of death

after conviction. This provision was not frequently utilized because it was limited to convictions for

murders in furtherance of CCE violations. As such, it was repealed in 2006 by the USA PATRIOT

Improvement and Reauthorization Act of 2005. See USAM, supra note 31, § 9-10.020 (detailing the

repeal of the federal death penalty).

50. Juan Raul Garza died by lethal injection on June 19, 2001, for murders committed in

furtherance of a CCE in violation of 21 U.S.C. § 848(e); Louis Jones was executed on March 18, 2003,

for kidnapping resulting in death in violation of 18 U.S.C. § 1201(a). FED. BUREAU OF PRISONS, supra

note 35. Jones challenged his sentence, attacking the constitutionality of the Federal Death Penalty Act

of 1994 (FDPA); the Fifth Circuit’s opinion rejected the challenge in the first opinion upholding the

FDPA. See United States v. Jones, 132 F.3d 232 (5th Cir. 1998); see also Boettcher, supra note 43, at

1044–45 (discussing United States v. Jones). Jones’s challenge eventually reached the Supreme Court,

which upheld the capital sentence against an argument that the district-court judge erred by failing to

instruct the jury as to the effect of a deadlock. Jones v. United States, 527 U.S. 373, 384 (1999).

51. DEATH PENALTY INFO. CTR., supra note 4.

52. John Schwartz & Emma G. Fitzsimmons, Illinois Governor Signs Capital Punishment Ban,

N.Y. TIMES, Mar. 10, 2011, http://www.nytimes.com/2011/03 /10/us/10illinois.html.

90 Vermont Law Review [Vol. 36:081

Puerto Rico have no death penalty.

53

Of these states, four abolished the

death penalty either legislatively or by judicial decree since 2004.

54

Thus, at

the same time that federal death sentences have been on the rise, more states

have abolished capital punishment; therefore, more defendants are likely to

be sentenced to death federally for crimes committed within the borders of

abolitionist states.

Given that only sixteen states have no death penalty, lodging federal

capital charges poses no federalism concerns in the significant majority of

states. Moreover, even within abolitionist states—as will be discussed

below when considering the Connecticut and Vermont case studies—a

substantial majority of citizens may still favor capital charges in particularly

heinous murders. Under a reformist (as opposed to a strictly abolitionist)

approach to capital punishment, the occasional federal charge in an

abolitionist state does not undercut federalist values; rather, it furthers these

values by giving abolitionist state legislatures the political breathing room

they need to take a sometimes unpopular stance. Particularly shocking

crimes, such as the murders of the Petit family or Brooke Bennett, incite

such public outrage that capital charges do not subvert the will of the public

but better reflect it, according to poll results.

55

Moreover, the extremely

small number of federal capital cases in abolitionist states suggests that

federal prosecutors exercise meaningful restraint in determining which

cases to charge as federal capital crimes.

56

Rather than using federal

authority wholesale to subvert state laws against capital punishment,

statistics indicate that federal charges are lodged in limited instances where

public opinion would likely favor them anyway, even in abolitionist states.

Thus, federal charges are giving state legislatures the necessary political

breathing room to allow them to continue to eschew capital punishment for

garden-variety murder charges.

53. Id; see also D.C. CODE § 22-2104 (2001) (stating the penalty for murder in the first and

second degrees); P.R. CONST. art. II, § 7 (stating that “[t]he death penalty shall not exist” in Puerto Rico).

54. These states are, in reverse chronological order, as follows: Illinois abolished the death

penalty in 2011, when Governor Pat Quinn signed S.B. 3539. S.B. 3539, 96th Gen. Assemb., Reg. Sess.

(Ill. 2011). New Mexico abolished the death penalty in 2009. N.M. STAT. ANN. § 31-18-14 (LexisNexis

2009). New Jersey abolished the death penalty in 2007. N.J. STAT. ANN. § 2C:11-3 (West 2011). New

York’s death penalty was invalidated when the Court of Appeals struck down the capital punishment

statute’s deadlock instruction in People v. LaValle, 817 N.E.2d. 341 (N.Y. 2004). Current New York

law prohibits capital punishment. N.Y. PENAL LAW § 70.00 (McKinney 2009).

55. Bryan Joyce, Do Vermonters Support the Death Penalty?, WCAX, Oct. 31, 2008,

http://www.wcax.com/story/9275396/do-vermonters-support-the-deathpenalty?nav=4QcS&redirected =true.

56. For example, there were seventeen homicides in Vermont in 2008, the year in which

Brooke Bennett was murdered. Statewide Crime Index, January–December 2008, VT. DEP’T OF PUB.

SAFETY DIV. OF CRIMINAL JUSTICE SERVS., http://vcic.vermont.gov/crime_statistics/ crime_report/2008/

statewide (last visited Nov. 27, 2011). However, her murder was the only one charged by federal

authorities as a capital crime. Id.

2011] Federalism and Capital Punishment 91

C. The Federal Death Penalty Act of 1994

Congress reinstated the federal death penalty post-Furman by passing

the Federal Death Penalty Act of 1994 (FDPA)

57

contained in Title VI of

the Violent Crime Control and Law Enforcement Act of 1994.

58

While full

treatment of all provisions of this legislation is beyond the scope of this

Article, a brief summary is in order.

59

The FDPA authorized death as a potential penalty for approximately

sixty offenses, including both previously existing and newly created federal

crimes.

60

The crimes for which the death penalty was authorized included

various homicide offenses, espionage and treason offenses, and a limited

number of narcotics offenses under the Continuing Criminal Enterprise

Act.

61

The FDPA also provided catch-all language stating that its procedural

provisions applied to “any other offense for which a sentence of death is

provided” under federal law, thus ensuring the act’s applicability to newly

created federal capital crimes.

62

The FDPA set forth specific “guided discretion” capital-sentencing

procedures designed to pass constitutional muster post-Gregg. Trial and

sentencing in capital cases would be “bifurcated,” meaning that

prosecutions would be divided into separate guilt and sentencing phases,

usually taking place before the same jury.

63

The prosecutor in any federal

capital case would be required to file with the court and serve on the

defense a notice of intent to seek the death penalty “a reasonable time

before the trial.” The notice was required to set forth the aggravating factors

that the government planned to present to the jury.

64

The defendant would

then be tried before a jury, unless the defendant opted for a bench trial or

plead guilty. If the defendant was convicted of a capital offense, the FDPA

57. Federal Death Penalty Act of 1994 (FDPA), Pub. L. No. 103-322, 108 Stat. 1959 (codified

in main part at 18 U.S.C. §§ 3591–98 (1994), also codified in scattered sections of Title 18, United

States Code).

58. U.S. DEP’T OF JUSTICE, THE FEDERAL DEATH PENALTY SYSTEM: SUPPLEMENTARY DATA,

ANALYSIS AND REVISED PROTOCOLS FOR CAPITAL CASE REVIEW (2001) [hereinafter SUPPLEMENTARY

DATA], available at http://www.justice.gov/dag/pubdoc/deathpenaltystudy.htm.

59. For a comprehensive discussion of the FDPA’s provisions, see Little, supra note 37 at 385–

403; Boettcher, supra note 43, at 1057–75; Christopher Q. Cutler, Death Resurrected: The

Reimplementation of the Federal Death Penalty, 23 SEATTLE U. L. REV. 1189, 1209–16 (2000).

60. USAM, supra note 31, § 9, Criminal Resource Manual 69 (explaining the FDPA).

61. For a list of the crimes for which the FDPA authorized capital punishment, see Little, supra

note 37, at 391 n. 237–38.

62. USAM, supra note 31, § 9, Criminal Resource Manual 69 (quoting FDPA § 3591(a)(2)).

63. A defendant may waive a jury verdict at either the guilt phase (by pleading guilty or by

opting for a bench trial) or the sentencing phase (by opting to have the judge decide his sentence).

FDPA, Pub. L. No. 103-322, § 3593(b), 108 Stat. 1959 (1994); see also, Little, supra note 37, at 392–93.

64. FDPA § 3593(a).

92 Vermont Law Review [Vol. 36:081

provided for a separate sentencing hearing to take place after conviction.

65

Assuming the defendant had been convicted at a jury trial, the hearing

would take place before the same jury that heard the evidence during the

guilt phase.

66

If the defendant pleaded guilty or was convicted at a bench

trial, he would be entitled to have a special jury empaneled to hear the

sentencing phase, although he could choose to have the court determine his

sentence.

67

At the sentencing hearing, the FDPA required that the finder of fact

first decide a threshold question: whether the defendant acted with one of

several specified mental states that would render him eligible for the death

penalty.

68

The requisite mental states included the following: defendant

intentionally killed the victim;

69

defendant intentionally inflicted serious

bodily injury that resulted in the victim’s death;

70

defendant intentionally

committed an act intended to kill or inflict serious bodily injury on another

and that the victim died as a result;

71

or defendant intentionally participated

in an act of violence that created a grave risk of death which caused the

victim’s death.

72

If the fact-finder determined that the requisite mental state

was present, the sentencing hearing would proceed to a presentation of

evidence of aggravating and mitigating factors.

73

Aggravating factors are

specified in the statute, and the government is required to give prior notice

to the court and defense counsel of which aggravating factors it will seek to

prove.

74

The government was allowed to present evidence on aggravating

factors not specified in the statute so long as notice was given; however, the

jury unanimously must have found at least one statutorily specified

aggravating factor in order to impose a death sentence.

75

The FDPA also

required the fact-finder to consider evidence of “any mitigating factor” that

the defense might choose to present.

76

The statute gave a non-exhaustive list

of possible mitigating factors.

77

The fact-finder would then be required to consider the evidence of

aggravating and mitigating factors and provide “special findings” stating

65. Id. § 3593(b).

66. Id. § 3593(b)(1).

67. Id. § 3593(b)(2), (3).

68. Little, supra note 37, at 393.

69. FDPA § 3593(a)(2)(A).

70. Id. § 3593(a)(2)(B).

71. Id. § 3593(a)(2)(C).

72. Id. § 3593(a)(2)(D).

73. Little, supra note 37, at 393.

74. FDPA § 3592(b).

75. Little, supra note 37, at 401.

76. FDPA § 3592(a) (emphasis added).

77. Id.

2011] Federalism and Capital Punishment 93

which factors were proved.

78

Juries were required to find the existence of

aggravating factors unanimously, but a mitigating factor could be found if

as few as one juror believed that it had been proved.

79

If no aggravating

factor was found unanimously, the court was required to impose a sentence

less than death.

80

If at least one aggravating factor was found unanimously,

the jury (or judge, if the defendant had waived a jury for the sentencing

phase) was then required to

consider whether all the aggravating factor or factors found to

exist sufficiently outweigh all the mitigating factor or factors

found to exist to justify a sentence of death . . . . Based upon this

consideration, the jury by unanimous vote . . . shall recommend

whether the defendant should be sentenced to death, to life

imprisonment without possibility of release or some other lesser

sentence.

81

Assuming the sentencing hearing had taken place before a jury, it was then

the province of the court to impose the sentence recommended by the jury,

or a lesser one.

82

In other words, if the jury recommended death, the court

could still decide to impose life without the possibility of release; however,

the court could not impose a death sentence if the jury had not

recommended one.

83

Two other provisions of the FDPA are particularly relevant to this

Article. First, the FDPA included a provision specifically designed to

address concerns about implementing federal death sentences within the

borders of abolitionist states. The FDPA section entitled “Implementation

of a sentence of death” contains a transfer provision requiring federal courts

sitting in capital cases to transfer the defendant to another state for

execution if the state of conviction does not allow capital punishment.

84

Notably, this provision makes such transfer mandatory: “If the law of the

State does not provide for implementation of a sentence of death, the court

shall designate another State, the law of which does provide for the

implementation of a sentence of death, and the sentence shall be

implemented in the latter State . . . .”

85

One commentator views the

inclusion of this provision as “federal recognition that state opposition to

78. Id. § 3593(d).

79. Id.

80. Id.

81. Id. § 3593(e).

82. Id. § 3594.

83. Id.

84. Id. § 3596(a).

85. Id. (emphasis added).

94 Vermont Law Review [Vol. 36:081

capital punishment, whether expressed by outright prohibition or merely by

the absence of a state capital punishment scheme, is a genuine concern.”

86

While a sentence may be issued within an abolitionist state, the execution

itself will be carried out elsewhere. Certainly, the provision ensures that no

facilities or employees of any abolitionist state will be required to

participate in an execution.

Second, the FDPA contains a conscientious-objector provision,

entitled, “Excuse of an Employee on Moral or Religious Grounds,” which

allows Department of Justice and other employees to decline to participate

in capital prosecutions or executions on moral or religious grounds.

87

Thus,

within an abolitionist state, state citizens who are federal employees may

entirely decline to participate in capital prosecutions. These provisions

lessen the impact of federal capital punishment within abolitionist states.

88

D. Changing Considerations Under the Federal Death Penalty Protocol

As described above, the Federal Death Penalty Act of 1994 reinstated

the federal death penalty, making death an available punishment for

numerous new and existing federal crimes and defining procedures to be

followed by lawyers, judges, and juries in federal capital cases. Shortly

after the FDPA passed, the Department of Justice, under Attorney General

Janet Reno, acted to provide more specific internal guidelines for

prosecutors bringing death penalty prosecutions. These guidelines were

codified in an amendment to the U.S. Attorneys’ Manual adopted in 1995

and provided for centralized decision-making for capital cases.

89

As will be

argued below in Section III, this centralized review renders federal capital

86. Morton, supra note 34, at 1444.

87. Section 3597(b) provides:

No employee of any State department of corrections, the United States

Department of Justice, the Federal Bureau of Prisons, or the United States

Marshals Service, and no employee providing services to that

department . . . shall be required . . . to be in attendance at or to participate in any

prosecution or execution under this section if such participation is contrary to the

moral or religious convictions of the employee.

FDPA § 3597(b).

88. Additionally, if a state citizen has a moral or religious objection to capital punishment so

strong that the citizen could never vote to impose the death penalty, that citizen may be excused for

cause from a federal jury considering capital charges. Lockhart v. McCree, 476 U.S. 162, 165 (1986).

Thus, it is highly unlikely that such a citizen would be selected to serve on a capital-sentencing jury.

89. Eric A. Tirschwell & Theodore Hertzberg, Politics and Prosecution: A Historical

Perspective on Shifting Federal Standards for Pursuing the Death Penalty in Non-Death Penalty States,

12 U. PA. J. CONST. L. 57, 77 (2009). The Death Penalty Protocol has been amended several times since

its adoption in 1995, including in 2001, 2007, and 2011. References in this Article are to the current

version of the Death Penalty Protocol unless otherwise indicated.

2011] Federalism and Capital Punishment 95

punishment more susceptible to reforms intended to combat potential

inequities in capital-sentencing procedures.

While prosecutors in the local U.S. Attorneys’ Offices make most

decisions in federal criminal cases, decision-making in capital cases is now

handled by the Attorney General’s Review Committee on Capital Cases

(Review Committee).

90

The Review Committee is made up of senior

prosecutors from the Criminal Division of the Department of Justice in

Washington, D.C., where the committee meets.

91

The Review Committee

reviews every potential federal capital case and makes a recommendation to

the Attorney General of the United States—who has final say—about

whether the local U.S. Attorney’s Office will be permitted to seek the death

penalty in any given case. The Review Committee operates according to the

DPP as set forth in sections 9-10.101 through 9-10.190 of the Department

of Justice’s United States Attorneys’ Manual.

92

The DPP requires local federal prosecutors to submit for review all

cases “for which the death penalty is a legally authorized sanction,

regardless of whether the United States Attorney wishes to seek the death

penalty.”

93

Prosecutors are required to submit to the review committee all

charging information relating to the case, detailed memoranda analyzing the

evidence of the defendant’s guilt, and written materials defense counsel has

submitted in opposition to the death penalty.

94

The review committee then

meets with the prosecutors from the U.S. Attorneys’ Office handling the

case and the attorney representing the defendant. At this meeting, defense

lawyers “are afforded an opportunity to present any arguments against

seeking the death penalty for their client.”

95

The review committee is

required to consider all information the defense presents, “including any

evidence of racial bias against the defendant or evidence that the

Department has engaged in a pattern or practice of racial discrimination in

the administration of the Federal death penalty.”

96

After meeting with the attorneys and considering all materials

submitted, the review committee makes a recommendation to the Attorney

General of the United States regarding whether to seek the death penalty.

Only the Attorney General can give final authorization to seek the death

penalty. The Department of Justice’s stated purpose in requiring this

centralized review of all potential federal death penalty cases is to ensure

90. DOJ STATISTICAL SURVEY, supra note 30, at 2.

91. SUPPLEMENTARY DATA, supra note 58.

92. Id.

93. Id.

94. Id.

95. Id.

96. Id. (quoting USAM, supra note 31, § 9-10.050).

96 Vermont Law Review [Vol. 36:081

“even-handed national application of Federal capital sentencing laws.

Arbitrary or impermissible factors—such as a defendant’s race, ethnicity, or

religion—will not inform any stage of the decision-making process.”

97

The DPP then provides guidelines for how to weigh this information in

making a decision. At the general level, the protocol requires application of

principles “includ[ing] fairness, national consistency, adherence to statutory

requirements, and law-enforcement objectives.”

98

More specifically, the

protocol gives the following instructions for weighing the aggravating and

mitigating factors set forth in the FDPA in order to reach a decision:

The analysis employed in weighing the aggravating and

mitigating factors should be qualitative, not quantitative: a

sufficiently strong aggravating factor may outweigh several

mitigating factors, and a sufficiently strong mitigating factor may

outweigh several aggravating factors. Reviewers may accord

weak aggravating or mitigating factors little or no weight.

Finally, there must be substantial, admissible, and reliable

evidence of the aggravating factors.

99

The DPP specifically addresses the question of whether federal

prosecutors should seek the death penalty for crimes committed in

abolitionist states. The current protocol allows federal prosecutors to weigh

the absence of a state death penalty as a factor favoring pursuit of federal

capital charges. This policy, contained in the language of the provision

97. USAM, supra note 31, § 9-10.030.

98. Id. § 9-10.130.

99. Id. § 9-10.130(C). A subsequent provision requires prosecutors to consider the following

additional factors beyond weighing aggravating and mitigating factors:

(1) The strength and nature of the evidence; (2) The relative roles in the offense of

defendants in jointly undertaken criminal activity; (3) Whether the offense was

intended to obstruct justice or was otherwise motivated by the victim’s

cooperation with law enforcement or the belief that the victim was cooperating

with law enforcement; (4) Whether the offense was committed to retaliate against

a third-party for cooperating with law enforcement or against a third party

believed to be cooperating with law enforcement; (5) Whether the victim engaged

in criminal activity which was a relevant circumstance of the offense; (6) Whether

a defendant without serious prior convictions had nonetheless engaged in criminal

activity for which he had not been held accountable; (7) Whether the defendant is

already serving a substantial sentence such that an additional sentence of

incarceration would have little punitive impact; (8) Whether the defendant has a

history of infractions or offenses while incarcerated; and (9) Whether the

defendant has accepted responsibility for his conduct as demonstrated by his

willingness to plead guilty and accept a life or near-life sentence without the

possibility of release.

Id. § 9-10.130(D).

2011] Federalism and Capital Punishment 97

governing the exercise of prosecutorial discretion in cases of concurrent

state and federal jurisdiction, provides in pertinent part:

When concurrent jurisdiction exists with a State or local

government, a Federal indictment for an offense subject to the

death penalty generally should be obtained only when the Federal

interest in the prosecution is more substantial than the interests of

the State or local authorities. The judgment as to whether there is

a more substantial interest in Federal, as opposed to State,

prosecution may take into account any factor that reasonably

bears on the relative interests of the State and the Federal

Governments, including . . . .

. . . .

[t]he relative ability and willingness of the State to

prosecute effectively and obtain an appropriate punishment upon

conviction.

100

Thus, federal prosecutors are instructed to consider a state’s ability to

“obtain an appropriate punishment upon conviction” in determining

whether there is a substantial federal interest warranting prosecution.

101

When considering the evolution of this provision since its adoption, it

becomes clear that this language is intended to encourage federal

prosecutors to step in with capital charges in non-death penalty states.

The 1995 protocol expressly prohibited basing the decision to bring

federal capital charges solely on the absence of a state death penalty,

stating: “In states where the imposition of the death penalty is not

authorized by law the fact that the maximum federal penalty is death is

insufficient, standing alone, to show a more substantial interest in federal

prosecution.”

102

In 2001, during George W. Bush appointee John Ashcroft’s tenure as

Attorney General, a number of changes were made to the DPP with the

stated goal of increasing uniformity of application of capital sentencing.

103

This was done in the wake of a report on the application of the Federal

Death Penalty commissioned by then-Attorney General Reno and issued by

the Department of Justice in September 2000, at the end of the Clinton

Administration. The report—The Federal Death Penalty System: A

Statistical Survey (1988–2000) (DOJ Statistical Survey)—examined in

detail “the Department of Justice’s internal decision-making process for

deciding whether to seek the death penalty in individual cases, and

100. Id. § 9-10.090 (emphasis added) (citation omitted).

101. Id.

102. Tirschwell & Hertzberg, supra note 89, at 79 (citation omitted).

103. Id. at 82.

98 Vermont Law Review [Vol. 36:081

present[ed] statistical information focusing on the racial/ethnic and

geographic distribution of defendants and their victims.”

104

The DOJ

Statistical Survey was commissioned primarily to address decades-long

concerns about racial disparities in capital sentencing; and indeed, it did

contain extensive analysis of Department of Justice death penalty decision-

making broken down by race and ethnicity.

105

Additionally, the report

documented major disparities in the rate at which the various U.S.

Attorneys’ Offices sought the death penalty. Out of ninety-four U.S.

Attorneys’ Offices, ten districts had submitted only recommendations in

favor of seeking the death penalty, while twenty-three districts had

submitted only recommendations against seeking the death penalty.

106

In

June 2001, in a follow-up to the DOJ Statistical Survey issued early in the

George W. Bush Administration, the Department of Justice announced that,

while it had found “no evidence of bias against racial or ethnic minorities,”

it would nevertheless revise the DPP in order to “promote public confidence

in the process’s fairness and to improve its efficiency.”

107

The changes

contemplated “increased centralization” in order to promote uniformity of

application.

108

The disparity in the rates at which local U.S. Attorneys’ Offices

recommended seeking the death penalty, along with a passage in the

September 2000 report detailing the ways in which local U.S. Attorneys’

Offices were able to avoid centralized review of potential capital cases,

109

presumably caught the attention of newly appointed Attorney General

Ashcroft. As such, the 2001 revision to the DPP included several changes

that reduced the amount of discretion individual U.S. Attorneys’ Offices

had to decide not to seek the death penalty, as well as increased the

104. DOJ STATISTICAL SURVEY, supra note 30, at 1.

105. Id. Tables in the DOJ Statistical Survey included such data as overall racial and ethnic

distribution of defendants whose cases were submitted for review; rates at which various racial and

ethnic groups submitted for review were recommended for the death penalty; offenses committed by

defendants submitted for review to the committee; defendants authorized for capital prosecution, broken

down by race and ethnicity; race and ethnicity of victims correlated to race and ethnicity of defendant—

i.e., whether intra-racial or inter-racial crimes were more likely to be authorized for the death penalty;

and a number of other statistics regarding frequency of approved capital charges broken down by race.

Id. at 6–8.

106. Id. at 12.

107. SUPPLEMENTARY DATA, supra note 58.

108. Id.

109. Three categories of cases escaped centralized review: (1) concurrent jurisdiction cases

where the local U.S. Attorney’s Office defers prosecution in favor of state authorities; (2) cases where

the local U.S. Attorney’s Office does not believe they could win a conviction on a capital charge; and

(3) cases in which the local U.S. Attorney’s Office chooses to enter into a plea agreement with the

defendant, which forecloses the option of the death penalty. DOJ STATISTICAL SURVEY, supra note 30,

at 9–10.

2011] Federalism and Capital Punishment 99

likelihood that death would be sought for crimes committed within

abolitionist states:

Three changes were particularly significant regarding the

operation of the federal death penalty in non-death penalty states:

(1) all potential capital cases had to be submitted to Main Justice,

even if the U.S. Attorney did not intend to seek the death penalty;

(2) U.S. Attorneys were stripped of the ability to dispose of

potentially capital cases by plea bargain without [centralized

review]; and (3) the section of the Protocol stating that the

absence of a stateside death penalty would not, by itself, justify a

federal capital prosecution was stricken. . . . [The stricken

provision had been replaced by one stating that the] relative

likelihood of . . . appropriate punishment upon conviction in the

State and Federal jurisdictions should be considered.

110

The stated purpose of the 2001 changes to the DPP was to increase

uniformity in decision-making in federal capital cases and ensure that the

same standards of review were applied in all regions of the country.

111

The

push towards uniform application across states and regions necessarily

triggered an incipient conflict with states that had abolished capital

punishment and with the goals of federalism itself.

II. THE LAW AND SCHOLARSHIP OF FEDERALISM AND CAPITAL

PUNISHMENT

As reinstatement of the federal death penalty and changes to the DPP

have led to slightly more frequent—though still extremely rare—federal

capital charges in abolitionist states, a growing number of scholars have

taken notice. Federal capital sentencing in abolitionist states is an area of

the law where scholarship and legal practice are more intertwined than is

often the case. Several prominent theories challenging the constitutionality

of the practice have grown out of judicial opinions that, while lacking the

force of law, have nonetheless spurred thoughtful considerations of the

issues involved. These theories argue that it is, or should be,

unconstitutional for the federal government to pursue such charges. When

raised by defendants in actual court cases, however, these arguments

inevitably fall afoul of Supremacy Clause doctrine. Only one quickly

110. Tirschwell & Hertzberg, supra note 89, at 81–82 (emphasis omitted) (footnotes omitted)

(quoting USAM, supra note 31, § 9-10.040).

111. Gleeson, supra note 2, at 1698–99. It cannot be ignored, however, that the Clinton and

George W. Bush Administrations differed perceptibly in general policy toward capital punishment, with

Bush Administration officials favoring capital punishment in more cases.

100 Vermont Law Review [Vol. 36:081

overruled federal district-court opinion and one very interesting dissent by

Judge Calabresi in a Second Circuit case have taken up the banner of

federalism in this context.

112

All other courts have soundly rejected

federalism arguments, recognizing the clear imperatives of the Supremacy

Clause in our federal system.

A. Acosta-Martinez and the Unique Puerto Rican Context: A

Commonwealth and a Constitutional Prohibition

The federal district court in United States v. Acosta-Martinez is the

only court ever to have held that federal capital charges could not proceed

because of a local objection to capital punishment.

113

That decision was

swiftly overruled by the First Circuit, and future courts are unlikely to adopt

its reasoning. However, the decision has formed the basis for scholarly

commentary arguing that the FDPA is unconstitutional when applied in

abolitionist states.

Defendants Hector Oscar Acosta-Martinez and Joel Rivera Alejandro

were charged federally in Puerto Rico with murder with a firearm in

relation to a crime of violence and murder in retaliation for providing

information to law enforcement.

114

Both charges were subject to the death

penalty under the FDPA.

115

In an opinion subsequently overruled by the

First Circuit, federal district court judge Salvador E. Casellas found the

FDPA “locally inapplicable” within the Commonwealth of Puerto Rico

under the terms of section 9 of the Puerto Rican Federal Relations Act

(PRFRA)

116

because the Constitution of the Commonwealth of Puerto Rico

included an affirmative prohibition on capital punishment.

117

Moreover, the

court reasoned that—as opposed to other federal statutes for which similar

arguments had been raised and rejected in federal courts

118

—the FDPA

112. United States v. Acosta-Martinez (Acosta-Martinez I), 106 F. Supp. 2d 311 (D.P.R. 2000),

rev’d, 252 F.3d 13 (1st Cir. 2001); United States v. Fell (Fell IV), 571 F.3d 264, 282 (2d Cir. 2009) (en

banc) (Calabresi, J., dissenting).

113. Acosta-Martinez I, 106 F. Supp. 2d at 311.

114. United States v. Acosta-Martinez (Acosta-Martinez II), 252 F.3d 13, 15 (1st Cir. 2001).

115. Acosta-Martinez I, 106 F. Supp. 2d at 311–12. The district court was troubled because the

U.S. Attorney’s Office for the District of Puerto Rico, at the time the opinion was issued, had submitted

more potential death penalty cases to the Department of Justice’s review committee than any of the other

U.S. Attorney’s Offices. Id. at 311 n.1.

116. Id. at 321; see also Puerto Rican Federal Relations Act (PRFRA) § 9, 48 U.S.C. § 734 (2006).

117. “The right to life, liberty and the enjoyment of property is recognized as a fundamental

right of man. The death penalty shall not exist.” P.R. CONST. art. II, § 7.

118. The applicability of the federal wiretap statute, Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, had previously faced a similar challenge because of a bar on wiretapping

included in the Puerto Rican constitution. This argument was raised in several cases and repeatedly

rejected by federal courts. See Camacho v. Autoridad de Telephonos de Puerto Rico, 868 F.2d 482 (1st

Cir. 1989); United States v. Quinones, 758 F.2d 40 (1st Cir. 1985); United States v. Gerena, 649 F.

2011] Federalism and Capital Punishment 101

failed to include a specific provision indicating congressional intent to

make it applicable within Puerto Rico.

119

Acosta-Martinez arose in a context that was unique in two respects,

both critical to the court’s decision. First, Puerto Rico is a commonwealth

rather than a state, and its relationship with the United States is governed in

significant part by the terms of the PRFRA. The PRFRA contains a

provision stating that, “[t]he statutory laws of the United States not locally

inapplicable, except as hereinbefore or hereinafter otherwise provided, shall

have the same force and effect in Puerto Rico as in the United States.”

120

Judge Casellas relied on the language of this unique provision to construct a

theory that allowed him to discount the normal principles of the supremacy

of federal law in federal courts. This view, however, was rejected on appeal

by the First Circuit. After determining that it would hear an interlocutory

appeal of the decision under its mandamus jurisdiction,

121

the First Circuit

reversed the district court and reinstated the death penalty as a potential

sentence for both defendants.

122

The court of appeals rejected the district

court’s finding that the FDPA was “locally inapplicable” under the terms of

the PRFRA, holding that Congress manifested its intent to apply the FDPA

to Puerto Rico by specifically making federal crimes enacted in conjunction

with the FDPA applicable to Puerto Rico.

123

The court then reaffirmed the

basic federalist principle that congressional enactments take precedence in

federal court, stating, “[t]his choice by Congress does not contravene Puerto

Rico’s decision to bar the death penalty in prosecutions for violations of

crimes under the Puerto Rican criminal laws in the Commonwealth courts.

The choice simply retains federal power over federal crimes.”

124

The second unique factor underlying Judge Casellas’s opinion in

Acosta-Martinez was that Puerto Rican law prohibited the death penalty not

pursuant to legislative action or judicial decree, as with the states that

prohibited capital punishment, but rather because of an affirmative

Supp. 1183 (D. Conn. 1986); Morton, supra note 34, at 1450–53. For a complete discussion of this Title

III litigation and its implications for the FDPA argument in the Acosta-Martinez case, see Morton, supra

note 34, at 1449–53.

119. Acosta-Martinez I, 106 F. Supp. 2d at 318–19.

120. PRFRA § 734 (emphasis added).

121. Normally, the prosecution has no right of appeal in a criminal case. United States v. Scott,

437 U.S. 82, 84–85 (1978). However, one exception to this rule allows a superior federal court to hear

the appeal pursuant to a writ of mandamus where the lower court opinion is “palpably erroneous,” and

poses a question “of great public importance, and likely to recur.” Acosta-Martinez II, 252 F.3d 13, 17

(1st Cir. 2001) (citing United States v. Horn, 29 F.3d 754, 769 (1st Cir. 1994); In re Justices of Supreme

Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982)). The First Circuit found that Judge Casellas’s

opinion below was properly subject to mandamus review. Id.

122. Acosta-Martinez II, 252 F.3d at 16.

123. Id. at 18, 20.

124. Id. at 20.

102 Vermont Law Review [Vol. 36:081

prohibition adopted as part of the Commonwealth’s constitution. The

district court reasoned that inclusion of the prohibition in the

commonwealth constitution, which had been ratified by the people of

Puerto Rico, created “a reasonable expectation that the death penalty would

not exist under Commonwealth status.”

125

The decision to impose a federal

death penalty within Puerto Rico would therefore constitute a violation of

Puerto Ricans’ substantive due process rights because “[t]he keystone of

Commonwealth status is the principle of the consent of the governed.”

126

The First Circuit also rejected this portion of Judge Casellas’s opinion,

relying on the basic principle that federal law preempts state law in federal

court. The court held that “the Constitution of Puerto Rico does not trump a

federal criminal statute, where Congress intends to apply the statute to

Puerto Rico.”

127

The court went on to say that this principle was also

applicable to any states whose constitutions prohibited capital punishment:

[T]his is true of state constitutions and proceedings in state

courts. Those constitutions do not govern the definitions or the

penalties Congress intends for federal crimes. Indeed, Puerto

Rico is not alone in its abhorrence of the death penalty. Some

twelve states join it in its views. But those state constitutions also

do not trump federal criminal law when Congress intends

otherwise.

128

125. Acosta-Martinez I, 106 F. Supp. 2d 311, 321 (D.P.R. 2000), rev’d, 252 F.3d 13 (1st Cir.

2001).

126. Id. at 321–22.

127. Acosta-Martinez II, 252 F.3d at 20.

128. Id. (citing Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 487 (1st Cir.

1989)). The court’s opinion fails to take note of the fact that all current state prohibitions on capital

punishment were accomplished either by legislative action or judicial decree rather than by

constitutional enactment. States that prohibited capital punishment by legislative action include: Alaska

in 1957, ALASKA STAT. § 12.55.015 (West 2010); District of Columbia in 1981, D.C. CODE § 22-2104

(2011); Hawai’i in 1948, HAW. REV. STAT. ANN. § 706-656 (2011); Illinois in 2011, 720 ILL. COMP.

STAT. 5/9-1 (repealed 2011 by S.B. 3539, 96th Gen. Assemb., Reg. Sess. (Ill. 2011)); Iowa in 1965,

IOWA CODE ANN. § 902.9 (West 2011); Maine in 1887, ME. REV. STAT. ANN. 17-A, § 1251(2006).;

Michigan in 1864, MICH. COMP. LAWS ANN. § 750.316 (West 2011); Minnesota in 1911, 1911 Minn.

Laws 572; New Jersey in 2007, N.J. STAT. ANN. § 2C:11-3 (West 2011); New Mexico in 2009, N.M.

STAT. ANN. § 31-18-14 (West 2009); North Dakota in 1979, N.D. CENT. CODE ANN. § 12.1-32-01

(West 2009); Rhode Island in 1984, R.I. GEN. LAWS § 11-23-2 (West 2010); Vermont in 1964, VT.

STAT. ANN. tit. 13 § 2303 (2010); Wisconsin in 1853, WIS. STAT. ANN. § 939.50 (West 2010); West

Virginia in 1965, W. VA. CODE ANN. § 62-3-15 (West 2010). States that have abolished the death

penalty by judicial decree include: Massachusetts in 1984, Commonwealth v. Colon-Cruz, 470 N.E.2d

116, 124 (Mass. 1984); New York in 2004, People v. LaValle, 817 N.E.2d 341 (2004) (holding a

deadlock jury instruction unconstitutional) (eventually followed by N.Y. PENAL LAW § 70.00

(McKinney 2009)).

2011] Federalism and Capital Punishment 103

The First Circuit’s bald rejection of Judge Cassellas’s reasoning has

not prevented the Acosta-Martinez district-court opinion from finding a

scholarly following. Commentators are taken with the district court’s

arguments that an affirmative constitutional prohibition on capital

punishment carries moral force above and beyond that of a legislative

enactment. One commentator fused this view with an Eighth Amendment

argument, suggesting that the standard for what constitutes cruel and

unusual punishment should be calibrated to local views where a

constitutional prohibition is involved.

129

“Arguably, just as obscenity is

reckoned with regard to ‘contemporary community standards,’ ‘cruel and

unusual punishment’ should more properly be defined at the local level.”

130

Another observer used this perspective as the basis of an international law

argument, arguing that implementation of the FDPA in Puerto Rico

“violat[es] the norm of regional customary law that has developed in the

Latin American region, which . . . prohibits imposition of the death

penalty.”

131

In short, the unique Puerto Rican context produced the only court

opinion to date finding the FDPA inapplicable in a federal capital

prosecution based on a local prohibition on capital punishment. While

Judge Casellas’s Acosta-Martinez opinion still resonates with scholars, it

has been definitively overruled and is unlikely to be followed in other

federal-court cases.

B. The Calabresi Dissent in United States v. Fell: A Sixth Amendment

Approach

Several years before Jacques, another defendant was sentenced to

death in a federal capital case in Vermont, which has no state death penalty.

Donald Fell was a twenty-year-old with a history of drug and alcohol abuse

and a long criminal record.

132

On November 26, 2000, Fell and his

accomplice Robert Lee were playing cards with Fell’s mother and her

boyfriend when an altercation broke out.

133

Fell stabbed the boyfriend

approximately fifty times, killing him, and Lee stabbed and killed Fell’s

mother.

134

Both men showered, then left Fell’s mother’s residence on foot at

129. Morton, supra note 34, at 1463.

130. Id. (quoting Roth v. United States, 354 U.S. 476, 489 (1957)).

131. Monique Marie Gallien, Note, “No Existira la Pena de Muerte”: Does the United States

Violate Regional Customary Law by Imposing the Death Penalty on Citizens of Puerto Rico?, 30

BROOK. J. INT’L L. 727, 756 (2005).

132. United States v. Fell (Fell III), 531 F.3d 197, 205 (2d Cir. 2008).

133. Id.

134. Id.

104 Vermont Law Review [Vol. 36:081

around 3:30 a.m., carrying a shotgun for which they had no ammunition.

135

They went to a local Price Chopper and kidnapped Teresca King, a fifty-

three-year-old grandmother, from the parking lot, stealing her car and

forcing her into the back seat at gunpoint.

136

They took King to some

nearby woods where they kicked her and beat her with a rock until she

died.

137

After killing King, Fell cleaned his boots by wiping them on her

clothing.

138

Fell was indicted on federal charges of carjacking and kidnapping

resulting in death.

139

In October 2001, Fell agreed to plead guilty to all

charges in exchange for the government agreeing to forego the death

penalty; however, the agreement he signed with the U.S. Attorney’s Office

in Vermont required approval from the Attorney General in Washington.

140

As discussed above, the Department of Justice under Attorney General

Ashcroft had just amended the DPP to take away from local offices the

discretion to enter into such plea agreements and mandated greater

consistency among the U.S. Attorneys’ Offices in death penalty decision-

making.

141

The Capital Case Review Committee rejected the plea

agreement, and the U.S. Attorney’s Office in Vermont subsequently filed a

Notice of Intent to Seek a Sentence of Death.

142

Prior to trial, Fell filed a motion challenging the constitutionality of the

FDPA on a number of grounds.

143

Judge William Sessions granted the

motion, striking down the FDPA as unconstitutional because it followed

evidentiary standards more relaxed than those prescribed by the Federal

Rules of Evidence in the fact-finding phase of a capital-sentencing

hearing.

144

The Second Circuit overruled this decision on interlocutory

appeal, and the case proceeded to trial.

145

At trial, the government proved

the facts discussed above and did not dispute substantial mitigation

evidence—including that Fell’s parents were chronic alcoholics, that Fell

was raped by a babysitter as a child, and that he was abandoned by his

parents to be raised by relatives.

146

The jury weighed the mitigating

evidence against the aggravating factors and voted to sentence Fell to

135. Id.

136. Id.

137. Id. at 205–06.

138. Id. at 206.

139. Id.

140. Id.

141. See supra notes 103–06 and accompanying text.

142. Fell III, 531 F.3d at 206.

143. United States v. Fell (Fell I), 217 F. Supp. 2d 469, 473–74 (D. Vt. 2002), vacated, 360 F3d.

135 (2d Cir. 2004).

144. Id. at 489.

145. United States v. Fell (Fell II), 360 F.3d 135, 138 (2d Cir. 2004).

146. Fell III, 531 F.3d at 205.

2011] Federalism and Capital Punishment 105

death.

147

A lengthy appeals process followed, with the Second Circuit

ultimately rejecting challenges by Fell, both to his conviction and death

sentence, on numerous grounds.

148

The most interesting federalism issues raised by Fell’s death sentence

arose after he lost his appeal. After the Second Circuit denied Fell’s appeal,

he filed for rehearing en banc, which the court denied.

149

Two judges issued

separate opinions in connection with that denial, engaging in the most

significant judicial dialogue to date on federalist objections to federal

capital sentences in abolitionist states.

150

Judge Guido Calabresi issued a written opinion dissenting from the

denial of rehearing, stating:

[T]his is an appeal of a federal death sentence from a state that

does not have capital punishment. That is an unusual occurrence

for any federal court, and it is particularly important that our

Circuit address it, because two of the three states in our

jurisdiction, [Vermont and New York] . . . have effectively done

away with capital punishment. The imposition of the death

penalty in states that have rejected it raises issues that have not

yet been addressed.

151

Judge Calabresi then took a unique, Sixth Amendment-based approach to

the question, focusing on the excusal for cause of a juror who had expressed

strong reservations about capital punishment. Vermont abolished the death

penalty legislatively, which indicated to Judge Calabresi that its citizens

opposed capital punishment.

152

He argued that the Sixth Amendment

mandate that jurors be drawn from the district where the crime was

committed means that the Framers intended juries to reflect community

values.

153

Only by including jurors who oppose capital punishment could

the will of the community be properly reflected.

154

“For a federalism like

ours—made up as it is of states whose populations hold widely different

moral viewpoints—to work, perhaps even to survive, it is at least arguable

that the values of the citizens of the state . . . be reflected in trial juries, even

147. Id. at 208.

148. Id. at 205.

149. United States v. Fell (Fell IV), 571 F.3d 264, 264 (2d Cir. 2009).

150. Judge Raggi, joined by Chief Judge Jacobs and Judges Cabranes, B.D. Parker, Wesley, and

Livingston, filed a concurring opinion, id. at 265 (Raggi, J., concurring), and Judge Calabresi issued a

dissenting opinion, id. at 282 (Calabresi, J., dissenting). Judges Pooler and Sack also issued shorter

dissenting opinions. Id. at 295–96.

151. Id. at 282 (Calabresi, J., dissenting).

152. Id. at 283.

153. Id. at 284.

154. Id.

106 Vermont Law Review [Vol. 36:081

in federal cases.”

155

Later in the opinion, Judge Calabresi tied the federalism

issue to the Eighth Amendment, arguing that imposition of the federal death

penalty in states that do not permit capital punishment would satisfy the

“unusual” portion of the prohibition on “cruel and unusual punishment.”

156

Judge Reena Raggi wrote a separate opinion concurring in denial of the

rehearing en banc specifically to rebut Judge Calabresi’s federalism

arguments.

157

In an opinion joined by five other Second Circuit judges, she

found no basis in the Sixth Amendment’s vicinage requirement for the

argument that local views on capital punishment should be reflected in jury

selection:

I am . . . skeptical of the dissent’s suggestion that

federalism requires each state’s adoption or rejection of the death

penalty somehow to be factored into the selection of federal

capital juries. . . . Federalism is a principle concerned with “the

constitutional distribution of power as between the Nation and

the States.” . . . The selection of a federal jury to hear a case

arising under federal law involves the exercise of exclusive

federal power. It does not intrude . . . on the exercise of any state

power.

158

Judge Raggi then argued that the Supreme Court’s precedents on voir dire

and jury selection in capital cases are constitutional rules that “must apply

equally throughout the states.”

159

Any attempt to calibrate jury selection to

local views on capital punishment would result in unequal treatment for

federal capital defendants depending on their state of residence.

160

Judge

Raggi would be “hard pressed to . . . explain to a capital defendant in

Texas” that death penalty opponents should be excused for cause in his

capital trial because Texas state law allows capital punishment, while a

defendant charged with the same crime in federal court in Vermont was

tried by a jury that included people who would never impose a death

sentence under any circumstances.

161

Judge Raggi believed that principles

of uniformity must trump federalism concerns in this context.

Judge Calabresi’s dissent did not argue for striking down the FDPA or

prohibiting application of federal capital sentences in abolitionist states. As

a dissent from denial of rehearing, it merely raised the federalism issue and

155. Id.

156. Id. at 289–90.

157. Id. at 265 (Raggi, J., concurring).

158. Id. at 268–69 (quoting Staub v. City of Baxley, 355 U.S. 313, 325–26 (1958)).

159. Id. at 271.

160. Id. at 272.

161. Id.

2011] Federalism and Capital Punishment 107

suggested that further briefing was warranted to explore a previously

unexamined question. Nevertheless, Judge Calabresi’s dissent remains the

only judicial opinion to date, other than Acosta-Martinez, to find federalism

arguments relevant to the application of the FDPA within abolitionist states.

As such, it has attracted considerable scholarly attention.

162

As one observer

characterized the opinion, “Judge Calabresi’s dissent . . . sought to craft a

novel judicial rule that would render a state’s death penalty laws binding on

federal courts sitting within its boundaries.”

163

But the Calabresi dissent in

Fell remains a novelty. Given the number of judges joining Judge Raggi’s

concurrence, the Sixth Amendment-based federalism theory Judge

Calabresi advanced is unlikely to become the law in the Second Circuit.

C. Other Case Law Rejects Federalism Theories

Other than Acosta-Martinez, which has been overruled, and Judge

Calabresi’s dissent in Fell, which never had the force of law, the few other

cases on point have held that longstanding constitutional principles allow

the federal government to determine sentences in federal criminal cases,

and to trump state law that differs.

These principles are clearly explained in the earliest case to consider

and reject a challenge to a federal capital sentence in the post-Gregg era on

the ground that the crime was committed in an abolitionist state. The

defendant in United States v. Tuck Chong

164

filed a motion prior to trial

challenging federal prosecutors’ right to seek the death penalty in his case,

which involved federal charges of murder by firearm in relation to a crime

of violence or drug-trafficking crime in violation of 18 U.S.C. § 924(j).

Defendant Chong argued that, because the crime had occurred in the state

of Hawai’i, which has no death penalty, imposition of a federal death

sentence would violate Hawai’i state sovereignty, the Tenth Amendment,

165

and the Equal Footing Doctrine.

166

The court wrote:

Defendant[’s] . . . argument is based on the flawed premise

that the federal government does not have the power under the

United States Constitution to try and sentence crimes against the

United States. This is simply untrue.

162. Miguel Lopez, Federalism by Jury in United States v. Fell, 33 HARV. J.L. & PUB. POL’Y

375 (2010).

163. Id. at 376.

164. United States v. Tuck Chong, 123 F. Supp. 2d 563, 565 (D. Haw. 1999).

165. “The powers not delegated to the United States by the Constitution, nor prohibited by it to

the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X.

166. Tuck Chong, 123 F. Supp. 2d at 566. The Equal Footing Doctrine holds that all states

admitted to the union shall have the same rights of sovereignty as the original states. Id. at 566 n.2.

108 Vermont Law Review [Vol. 36:081

. . . .

. . . [I]t is clear that in this case, the federal government has

jurisdiction to prosecute Defendant, charged with a crime against

the United States, in federal court. Moreover, the federal

government has jurisdiction to determine the appropriate

sentence under federal law.

. . . .

. . . [U]nder the Supremacy Clause of the United States

Constitution, to any extent that State law conflicts with federal

law, federal law preempts.

167

The court expressly rejected the defendant’s Tenth Amendment argument

on the grounds that the Constitution expressly allows Congress to determine

“what shall be an offense against its authority” and that this power was

never reserved to the states.

168

Simply put, in federal cases, the Constitution

says that federal law controls.

A similar Tenth Amendment argument against a federal death sentence

in abolitionist Michigan was rejected in United States v. O’Reilly.

169

The

defendant was charged federally with bank robbery, premeditated murder,

and use of a firearm in relation to a crime of violence.

170

The court began by

rejecting defense arguments that federal prosecutors lacked jurisdiction,

holding that Congress had authority under the Commerce Clause to

criminalize bank robbery and related murders because banks are both

instrumentalities and channels of interstate commerce.

171

The court then

rejected the defense’s Tenth Amendment argument, relying on Tuck Chong

and the First Circuit’s opinion in Acosta-Martinez to find that there was no

basis to question federal supremacy over state law in federal criminal

cases.

172

“While Michigan is free to prohibit the death penalty for state-

charged crimes, this federal Court cannot prohibit imposition of the death

penalty when authorized by federal law for federally-charged crimes, and

when the tide of precedent dictates against a prohibition.”

173

Thus, basic Supremacy Clause principles dictate that federal capital

charges may proceed despite state-law prohibitions. This view is unlikely to

167. Id. at 567–68.

168. Id.

169. United States v. O’Reilly, No. 05-80025, 2007 WL 2421378, at *3–4 (E.D. Mich. Aug. 23,

2007).

170. Id. at *2.

171. Id. (citing United States v. Spinello, 265 F.3d 150, 155 (3d Cir. 2001)).

172. Id. at *3–4. The court also noted that federal capital charges had been allowed to proceed

against defendants in the abolitionist states of Vermont and Massachusetts, though the courts in those

cases had not expressly considered the Tenth Amendment issue. Id. at *4 (citing United States v. Fell

(Fell II), 360 F.3d 135 (2d Cir. 2004); United States v. Sampson, No. 01-10384-MLW (D. Mass. 2004)).

173. Id.

2011] Federalism and Capital Punishment 109

change because it springs from longstanding and fundamental principles of

federalism that allow states and the federal government to prescribe

penalties for criminal cases within their spheres of jurisdiction.

III. CASE STUDIES: NEW ENGLAND STORIES

The Supremacy Clause principles adopted in the cases described in the

previous section leave courts no choice but to reject federalism-based

arguments in favor of allowing the federal government to choose sentencing

law in its criminal cases. As has been noted, “the supremacy of federal law

make[s] it impossible to stop capital prosecutions in non-death penalty

states.”

174

Inevitably, as defendants facing the death penalty in abolitionist

states continue to advance federalism-based arguments, they will continue

to lose in the courts. This Article takes the view that there are positive

aspects to this unavoidable truth from the perspective of reforming and

seeking fairer application of capital-sentencing laws and that even

abolitionists should recognize these benefits. The centralized review

mandated by the Review Committee and the DPP provides the best

mechanism for identifying and combating racial injustice in capital

sentencing. Moreover, the availability of federal capital sentencing in the

small number of particularly heinous murders that truly incite public

outrage can give states the cover they need to reduce or eliminate capital

prosecutions in more mundane cases.

The following two case studies involve particularly brutal murders,

including the rape and murder of children, taking place in New England

states in the past few years. Both cases attracted overwhelming media

coverage in their respective communities and incited public outrage. Thus,

they are just the type of crime that Professor Mello identified as the most

likely to challenge abolitionist public sentiment.

175

In fact, the polls

discussed below indicate that both cases significantly increased support for

the death penalty in their states. This is especially notable since New

England “is decidedly less death-prone than the nation as a whole. Four of

the six New England States do not have capital punishment. . . . New

England . . . is the region of the United States with the fewest

executions.”

176

These two cases have had distinctive impacts on the capital

punishment schemes of their respective states. These impacts take on

additional significance when viewed against the strong regional tendency to

disfavor the death penalty.

174. Tirschwell & Hertzberg, supra note 89, at 86.

175. Mello, supra note 1.

176. Brigham, supra note 35, at 218.

110 Vermont Law Review [Vol. 36:081

A. A Connecticut Murder Stops Abolition in Its Tracks

The Petit family murders in Connecticut in 2007 were the type of crime

that convinces many people that the death penalty should remain an option

for the most heinous murders, challenging the views of even ardent

abolitionists. These murders also demonstrate what can happen when

federal prosecutors do not step in with capital charges in cases that incite

widespread public outrage. The Petit murders were in the public eye at the

same time as Connecticut was considering abolishing capital punishment

and played a documented role in preventing abolition in that state. The

question thus arises: Would the substitution of a federal capital charge for

state capital charges in that case have reduced political pressures on state

officials and allowed abolition to proceed at the state level? The facts

suggest this is a real possibility.

The Petit case is so extreme among modern homicides that it has

evoked “frequent references” to the slaughter of an entire family by two

hardened convicts immortalized in Truman Capote’s In Cold Blood.

177

The

Petit family—father, William, a doctor and renowned diabetes expert,

mother Jennifer, a school nurse, and daughters Hayley and Michaela, ages

17 and 11, respectively—lived in a pretty colonial on a corner lot in the

quiet suburb of Cheshire, Connecticut, “a community of clapboard homes,

big lawns and weekly Rotary Club meetings.”

178

On Sunday evening, July

22, 2007, Mrs. Petit and Michaela—both pretty and blonde—were leaving a

Stop & Shop a few miles from their home when they had the terrible

misfortune of attracting the attention of two career criminals who were out

cruising for victims.

179

Steven Hayes, 44, and Joshua Komisarjevsky, 26,

had criminal histories of mind-boggling dimensions.

180

“Komisarjevsky had

been breaking into houses since the age of [fourteen] . . . wearing latex

gloves and military night-vision goggles.”

181

Hayes “had spent his whole

adult life in and out of prison for burglary.”

182

Indeed, the pair had

committed at least three other residential burglaries in Cheshire that very

weekend, part of a horrific crime spree that began when the two met in a

halfway house after being released on parole.

183

177. William Glaberson, Prison Books Bring Plot Twist to Cheshire Killings, N.Y. TIMES, July

22, 2010, http://www.nytimes.com/2010/07/22/nyregion/22cheshire.html.

178. Manny Fernandez & Allison Leigh Cowan, When Horror Came to a Connecticut Family,

N.Y. TIMES, Mar. 10, 2011, http://www.nytimes.com/2011/03/10/us/10illinois.html.

179. Id.

180. Id.

181. Id.

182. Id.

183. Id.

2011] Federalism and Capital Punishment 111

That Sunday night, Hayes and Komisarjevsky followed Mrs. Petit and

her daughter home from the supermarket to determine where they lived,

then drove to a nearby Wal-Mart to buy rope and an air rifle.

184

At about

3:00 a.m., they broke into the Petit home and found Dr. Petit asleep in a

chair on the first floor. They beat him over the head with a baseball bat and

tied him up in the basement. Then Hayes left, went to a gas station, and

bought four cans of gasoline.

185

He returned to join Komisarjevsky in

inflicting a night of unimaginable horror on Jennifer Petit and her two girls.

The next morning, Hayes drove Mrs. Petit to a local Bank of America

branch and waited outside as she withdrew $15,000 under threat that her

family would be killed if she did not.

186

She told the bank teller what was

happening, and the teller called the police.

187

Mrs. Petit withdrew the

money and returned, under Hayes’s control, to her home.

While they were gone, Komisarjevsky had raped eleven-year-old

Michaela and photographed himself doing it. Upon Hayes’s return, he later

told the police, Komisarjevsky ordered Hayes to rape Mrs. Petit in order to

“square things up” so they were both equally complicit in the “dirty work”

of the crime.

188

Hayes not only complied, but strangled her to death,

189

though not before trophy photos of the rape were taken using

Komisarjevsky’s cell phone.

190

Hayes and Komisarjevsky tied both girls to

their beds, doused them with gasoline, set them on fire and left them to

burn, fleeing in the family’s SUV.

191

Both girls died in the fire, which was

“so ferocious” that no rescues were possible.

192

Dr. William Petit had

managed to escape right before the fire began, fleeing to a neighbor’s house

shortly after the police had arrived.

193

Hayes and Komisarjevsky were

captured as they fled, crashing into a police SWAT team cordon that had

been set up around the Petit house in response to the call from the bank

teller.

194

184. Id.

185. Id.

186. Id. See supra text accompanying note 11 for a discussion of how this incident implicated

use of an interstate commerce facility.

187. Id.

188. Laura Italiano, Fire Marshall Testimony Reveals Horrifying Traces of Petit-Family

Slaying, N.Y. POST, Sept. 25, 2010, http://www.nypost.com/p/news/local/horrifying_ family_slay_fire_

traces_0tcdLtCQstMaEu7Vix7MaL.

189. Laura Italiano, Petit Killer Claims He Was Told to Rape Mom, N.Y. POST, Sept. 23, 2010,

http://www.nypost.com/p/news/local/sick_rape_excuse_B9b07tRLqGEvXogECFCzNJ.

190. Kaitlyn Folmer, Jury Finds Steven Hayes Guilty in Connecticut Triple Murder, ABC

NEWS, Oct. 5, 2010, http://abcnews.go.com/US/TheLaw/jury-finds-steven-hayes-guilty-deadly-petit-

home/story ?id=11793886.

191. Fernandez & Cowan, supra note 178.

192. Folmer, supra note 190.

193. Fernandez & Cowan, supra note 178.

194. Id.

112 Vermont Law Review [Vol. 36:081

Dr. Petit survived the horrific murders of his family. He wanted Hayes

and Komisarjevsky to receive the death penalty they had imposed on his

wife and daughters.

195

In a state where prosecutors only rarely sought the

death penalty,

196

this case was the exception: capital charges were filed

against both defendants.

197

Prosecutors cited the extraordinarily brutal and

horrific nature of the crime in explaining their decision. “I seek capital

charges when they are warranted. It’s as simple as that,” the prosecutor told

the New York Times.

198

Another prosecutor defending the decision to seek

death called the case “the most horrendous murder in the state of

Connecticut in the last 30 years.”

199

In the wake of the crime, public sentiment in Connecticut

overwhelmingly favored death sentences for the Petit family’s killers, with

76% favoring capital punishment versus 18% opposing it.

200

The percentage

of Connecticut voters who favored death in the Petit case was significantly

greater than that favoring the death penalty over life imprisonment in

general, which usually “hovered at about 60 percent.”

201

The Quinnipiac

poll release noted that this is a common phenomenon: “[S]upport for the

death penalty in a specific case can be higher than support in general. This

is because some voters who oppose the death penalty in general support it

for a particularly heinous crime.”

202

When such a large majority of the public favors the death penalty in a

specific heinous case, this inevitably affects capital punishment policy-

making. The coincidence of events in Connecticut is a remarkable example

of this phenomenon in action. Public outrage over the Petit murders

factored into death penalty policy-making in Connecticut at a level that

cannot be overstated. Simply put, Connecticut would very likely have

abolished capital punishment if not for the Petit murders.

This conclusion is supported by a number of facts. On May 13, 2009,

the Connecticut legislature passed H.B. 6578, which repealed the death

195. William Glaberson, Death Penalty Advocate Is a Challenge for the Defense, N.Y. TIMES,

Sept. 3, 2010, http://www.nytimes.com/2010/09/03/nyregion/03cheshire.html.

196. There were only nine other inmates on death row in Connecticut at the time Steven Hayes

was convicted of the Petit murders and sentenced to death. Christopher Reinhart, Death Row Inmates,

CONN. GEN. ASSEMBLY OFFICE OF LEGIS. RES. (Apr. 11, 2011), http://www.cga.ct.gov/ 2011/rpt/2011-

R-0170.htm.

197. Stacey Stowe, Death Penalty Bid in 3 Killings Draws Critics, N.Y. TIMES, July 28, 2007,

http://www.nytimes.com/2007/07/28/nyregion/28slay.html.

198. Id.

199. Id. (quoting John A. Connelly, State’s Attorney for Waterbury, Connecticut).

200. Connecticut Voters Back Death for Cheshire Killer 4-1, QUINNIPIAC UNIV. (Oct. 13,

2010), http://www.quinnipiac.edu/x1296.xml?ReleaseID=1517.

201. Id.

202. Id. (quoting Douglas Schwartz, Ph.D., Quinnipiac University Poll Director).

2011] Federalism and Capital Punishment 113

penalty for crimes committed after its effective date.

203

This step happened

when it did because it was undertaken by a Democratic majority of the state

legislature that had taken years to build.

204

At the time, however, Steven

Hayes’s trial was fast approaching, and the death penalty debate in

Connecticut was overwhelmingly influenced by the Petit murders, coverage

of which flooded local media outlets.

205

Dr. Petit had become “the most

passionate and visible advocate for the death penalty in Connecticut,” and

his poignant cries for justice for his murdered family utterly changed the

nature of the debate.

206

Shortly after the bill’s passage, he wrote an open

letter condemning the legislators’ actions. “I am deeply saddened that the

legislators of the state of [Connecticut] have walked away from justice,” he

wrote in a letter published in the Cheshire Herald.

207

“For certain murders

and other crimes there is no other penalty that will serve justice . . . .”

208

Though the anti-death penalty Democratic majority in the state legislature

had grown in previous years, the Petit case had made capital punishment

into a major campaign issue in the upcoming gubernatorial election.

209

When the legislature’s repeal of the death penalty landed on the desk of

Governor M. Jodi Rell, she vetoed it. The veto message issued in

connection with that act not only cited the Petit case but also specifically

quoted Dr. William Petit’s statement that only the death penalty provides

sufficient punishment for the most outrageous murders.

210

The Petit murders have continued to curb efforts to abolish the death

penalty in Connecticut. On April 12, 2011, the Connecticut Senate Judiciary

Committee once again passed a bill repealing the death penalty for capital

murder and replacing it with a maximum sentence of life imprisonment

203. An Act Concerning the Penalty for a Capital Felony, H.B. 6578, 2009 Gen. Assemb., Reg.

Sess. (Conn. 2009). Because the law would apply only to crimes committed after its enactment, it would

not have prevented prosecutors from seeking death against Hayes and Komisarjevsky. However, the

capital punishment debate in Connecticut never focused on this point, presumably because once the

penalty was eliminated it would not be available for future similarly horrific crimes. Had federal charges

been initiated, however, those favoring state repeal could point to the limited availability of the federal

option for such heinous cases.

204. Pazniokas, supra note 9.

205. Id.

206. Glaberson, supra note 195.

207. A Letter from Dr. William Petit, CHESHIRE HERALD, May 29, 2009, http://www.cheshire

herald.com/node/927.

208. Id.

209. Paul Bass, Letter from Connecticut: As Murder Trial Rivets States, Death Penalty Becomes

Campaign Issue, N.Y. TIMES, Oct. 21, 2010, http://query.nytimes.com/gst/fullpage.html?res=9C02E3

DB1339F932A15753C1A9669D8B63&pagewanted=print.

210. See Governor Rell Vetoes Death Penalty Bill, CONN. STATE LIBRARY (June 5, 2009),

http://www.ct.gov/governorrell/cwp/view.asp?A=3675&Q=441204.

114 Vermont Law Review [Vol. 36:081

without possibility of parole.

211

Current governor Dannel P. Malloy, a

Democrat, vowed to sign the bill into law if it passed the General

Assembly.

212

Death penalty proponents, including Dr. William Petit,

lobbied against passage of the bill. They argued that even though it would

only abolish the death penalty for future cases, it could result in successful

appeals by inmates already on death row, including Hayes and—assuming

he is sentenced to death—Komisarjevsky.

213

Dr. Petit’s personal lobbying

on this issue persuaded two key state senators to vote against the repeal bill

if it was brought up in 2011, before the conclusion of Komisarjevsky’s

trial.

214

The loss of these two votes doomed passage of the repeal bill and it

has not been presented to the General Assembly for a vote.

On October 5, 2010, Steven Hayes was convicted of sixteen charges,

including six that carried the death penalty.

215

On November 8, 2010, the

jury that convicted him recommended a death sentence,

216

which was

formally imposed by the court on December 2, 2010.

217

One juror stated

that she generally opposed the death penalty because she believed it was

imposed disproportionately on poor and minority defendants, but that she

had voted for it because of the horrific facts of the Petit case.

218

Another

juror stated, “if this wasn't the case to use [the death penalty] on, then we

never really had a case” because the crimes were “so over the top.”

219

Both

Dr. Petit and Governor Rell issued statements hailing the jury’s

recommendation of death.

220

Hayes has appealed his conviction and

sentence.

221

211. Special Announcements: The Judiciary Committee Passes Repeal Bill 27-17!, CONN.

NETWORK TO ABOLISH THE DEATH PENALTY, http://www.cnadp.org/ (last visited Nov. 27, 2011).

212. Kenton Robinson, Death Penalty Repeal Likely Would Have Unintended Consequence,

THE DAY, Mar. 8, 2011, http://www.theday.com/article/20110308/NWS12/303089928/1017.

213. Id.

214. Mark Pazniokas, Petit Lobbies Senators, Changes Minds About Death Penalty Repeal,

CONN. MIRROR, May 11, 2011, http://www.yourpublicmedia.org/content/connecticut-mirror/petit-lobbies-

senators-changes-minds-about-death-penalty-repeal.

215. Man Convicted of Capital Murder in Connecticut Home Invasion Case, CNN, Oct. 05,

2010, http://articles.cnn.com/2010-10-05/justice/connecticut.murder.trial_1_jennifer-hawke-petit-michaela-

petit-petit-family?_s=PM:CRIME.

216. Emily Friedman, Steven Hayes Smiles When Sentenced to Death for Deadly Home

Invasion, ABC NEWS, Nov. 8, 2010, http://abcnews.go.com/US/steven-hayes-sentenced-death-role-conn

ecticut-home-invasion/story?id=12087221.

217. Conn. Horror Killer Steven Hayes Sentenced to Death, N.Y. POST, Dec. 2, 2010,

http://www.nypost.com/p/news/local/conn_horror_killer_steven_hayes_ANqkStUJ0iSKaqSp3jHNwM.

218. Katie Rohner, A Petit Juror, Death Penalty Foe, Voted for It, NEW HAVEN INDEP., Nov. 9,

2010, http://www.newhavenindependent.org/index.php/archives/entry/interview_with_betsy_burbank/.

219. Sarah Netter et al., Death Penalty in Connecticut Home Invasion Case Brought Family

“Huge Sense of Relief,” ABC NEWS, Nov. 9, 2010, http://abcnews.go.com/US/death-penalty-

connecticut-home-invasion-case-brought-family/story?id=12095310.

220. Friedman, supra note 216.

221. Criminal/Motor Vehicle Conviction Case Detail, CONN. JUDICIAL BRANCH,

2011] Federalism and Capital Punishment 115

Komisarjevsky was tried separately and ultimately convicted on

October 13, 2011, of seventeen charges including capital felony murder,

kidnapping, and sexual assault.

222

As of the writing of this Article,

Komisarjevsky has not yet been sentenced. The penalty phase of the

proceedings against Komisarjevsky is scheduled to begin on October 25,

2011, and is expected to last five to six weeks.

223

B. Federal Capital Charges Upheld in an Abolitionist State: A Vermont

Case Study

Michael Jacques is currently awaiting trial on federal charges of

kidnapping resulting in death under 18 U.S.C. § 1201(a) in the murder of

Brooke Bennett.

224

Federal prosecutors from the U.S. Attorney’s Office for

the District of Vermont have filed a Notice of Intent to Seek the Death

Penalty.

225

The physical acts constituting this crime took place entirely

within the borders of Vermont. Because Vermont is an abolitionist state, the

Jacques prosecution raises key issues of federalism and capital punishment.

Jacques filed motions challenging both Congress’s authority under the

Commerce Clause to criminalize his conduct and the constitutionality of the

FDPA. Among numerous other arguments, Jacques’s motion seeking to

strike down the FDPA specifically challenged the application of the federal

death penalty in abolitionist Vermont. Both motions—the challenge to

federal jurisdiction and the challenge to the FDPA—were recently denied

by the federal district court in Vermont in rulings that have significant

implications for the ongoing federalism and capital punishment debate.

http://www.jud2.ct.gov/crdockets/CaseDetailDisp.aspx?source=Pending&Key=25ecb35f-d599-4f13-

814d-918cbd243917 (last visited Nov. 27, 2011).

222. Second Defendant is Convicted in Connecticut Triple Murder, N.Y. TIMES, Oct. 13, 2011,

http://www.nytimes.com/2011/10/14/nyregion/komisarjevsky-convicted-of-triple-murder-in-cheshire-conn.html.

223. Randall Beach, Komisarjevsky Might Address Jurors During Penalty Phase of Chershire

Triple Murder Trial, REGISTER CITIZEN, Oct. 21, 2011, http://www.registercitizen.com/articles/2011/10/

21/news/doc4ea182a5616fa994408205.txt?viewmode=default.

224. Indictment at 2, United States v. Jacques, No. 2:08-cr-117 (D. Vt. Oct. 1, 2008), ECF No.

59. Count One of the Indictment reads:

On or about and between June 20-25, 2008, in the District of Vermont, JACQUES

unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, and carried

away Brooke Bennett, and held her for his own benefit and purpose, and used

means, facilities, and instrumentalities of interstate commerce, namely, cell phone

text messages, internet email messages, and an internet MySpace posting, in

committing or in furtherance of the commission of the offense, which resulted in

the death of Brooke Bennett.

Id. (quoting 18 U.S.C. § 1201(a)(1)) (emphasis added). Jacques is also charged in the same indictment

with several counts of producing and possessing child pornography in violation of 18 U.S.C. § 2251(a).

Id. at 2. Those charges are not at issue in this Article and will not be discussed.

225. Notice of Intent to Seek a Sentence of Death, supra note 18, at 1.

116 Vermont Law Review [Vol. 36:081

1. A Crime Challenges Abolitionist Sentiment in Vermont

The power of a single horrific murder to change state sentencing laws

is just as apparent on the facts of the Brooke Bennett murder as it was in

Connecticut in the Petit case. Michael Jacques is a repeat sex offender who

had been released early from probation at the time he allegedly kidnapped

and raped seventh-grader Brooke Bennett, suffocated her by tying a plastic

bag over her face, and buried her in a shallow grave in the woods a mile

from his house.

226

Like the Petit murders, the murder of Brooke Bennett

challenged the views of citizens who otherwise supported abolition of the

death penalty. A poll taken in the wake of the Brooke Bennett murder

showed a dramatic increase in support for the death penalty among

Vermonters, despite the fact that Vermont is one of the sixteen states that

has abolished capital punishment.

227

“Thanks to Michael Jacques, many

Vermonters have been re-examining [their views on capital punishment],”

stated a news article reporting the poll results.

228

A poll in 2001 indicated

that 46% of Vermonters opposed capital punishment for murder and 45%

favored it. A few months after the Bennett murder, however, a poll taken in

October 2008 showed that only 29% of Vermonters opposed the death

penalty while 66% favored it.

229

Public outrage over Brooke Bennett’s murder led to rallies demanding

tougher sentences for sex crimes against children, including calls for

reinstatement of capital punishment in Vermont.

230

Sentiment was heated

enough to result in significant legislative action. Public hearings led to the

passage of “Brooke’s Law,” which contained, among a variety of

provisions, a possible twenty-five-year minimum sentence for sexual

assaults against minors, which—while not mandatory—could be sought at

prosecutors’ discretion. Brooke’s Law also increased funding for

investigations and education relating to sex crimes against children.

231

What

it did not include was reinstatement of capital punishment in Vermont. One

possible explanation for this omission is that federal prosecutors in

226. Jacques had previous convictions for sexually assaulting a minor female in 1985, leading to

her pregnancy, and for the 1992 kidnapping and sexual assault of another teenaged girl. Brooke’s Law

Signed by Governor Wednesday, WPTZ, Mar. 4, 2009, http://anonymouse.org/cgi-bin/anon-www.cgi/

http://www.wptz.com/news/18853079/detail.html. While Jacques should have been under parole

supervision at the time he kidnapped and murdered Brooke Bennett, he had been removed from supervision

seven years early by a state-court judge. Id.

227. Bryan Joyce, Do Vermonters Support the Death Penalty?, WCAX, Oct. 31, 2008,

http://www.wcax.com/story/9275396/do-vermonters-support-the-death-penalty?nav=4QcS&redirected =true.

228. Id.

229. Id.

230. WPTZ, supra note 226.

231. Kristin Carlson, Governor Signs Brooke’s Law, WCAX, Mar. 4, 2009, http://www.wcax.com/

story/9948776/governor-signs-brookes-law.

2011] Federalism and Capital Punishment 117

Vermont had already stepped in to charge Jacques with a capital crime, so

those citizens particularly outraged by the Brooke Bennett murder had no

cause to seek redress. While the internal deliberations of the Review

Committee are not made public, as described above, the DPP specifically

calls for consideration of state authorities’ ability to “obtain an appropriate

punishment upon conviction” in determining whether to bring federal

charges.

232

The facts of this case, especially as contrasted with what

happened in Connecticut with the Petit case, strongly suggest that federal

capital charges can blunt public outrage, leaving states like Vermont freer to

pursue abolitionist policies.

2. The Jacques Court Sustains Federal Jurisdiction

The defense in the Jacques case, obviously more concerned with

Michael Jacques’s own fate than with the future of capital punishment in

Vermont, sought to block application of the death penalty in two ways. The

first was to challenge the jurisdiction of the U.S. Attorney’s Office to

prosecute him at all by arguing that the federal statute he was charged under

was unconstitutional both on its face and as applied to his case.

233

If

Jacques’s lawyers could get the federal charges against him dismissed and

move the case to Vermont state court, then he would face Vermont murder

and sex-assault charges that carried only prison sentences, which are

significantly lower than would apply in many other states.

234

Jacques challenged the constitutionality of an amendment to the

Federal Kidnapping Act that had allowed him to be charged based on his

use of the Internet and text messaging in kidnapping and murdering Brooke

Bennett.

235

The AWA,

236

which enacted the amendment at issue, was

intended to address public concern with Internet child predation.

237

Among

many other provisions, the AWA amended the Federal Kidnapping Act to

expand federal jurisdiction to reach kidnappings in which the offender used

232. USAM, supra note 31, § 9-10.090.

233. Defendant’s Motion to Dismiss Count One of the Indictment at 1–3, United States v.

Jacques, No. 2:08-cr-117 (D. Vt. Jan. 8, 2010), ECF No. 125.

234. The penalty for first-degree murder in Vermont is thirty-five years to life. VT. STAT. ANN.

tit. 13, § 2303. The penalty for sexual assault is three years to life imprisonment. Id. § 3252(f). However,

asked in 2008 during the Jacques trial, 72% of Vermonters agreed that they wanted a twenty-five-year

mandatory minimum sentence for aggravated sexual assault. Joyce, supra note 227.

235. Defendant’s Motion to Dismiss Count One of the Indictment, supra note 233, at 13.

236. AWA, Pub. L. No. 109-248, 120 Stat. 587 (codified as amended in scattered sections of 18

U.S.C. and 42 U.S.C.).

237. In the Preamble to the AWA, Congress described it as, “[a]n Act to protect children from

sexual exploitation and violent crime, to prevent child abuse and child pornography, [and] to promote

Internet safety.” Id. at Preamble (emphasis added). It contained a variety of new provisions as well as

amendments to existing federal laws intended specifically to address online sexual predation of children.

118 Vermont Law Review [Vol. 36:081

channels or facilities of interstate commerce to commit the crime, even if

the physical kidnapping occurred within the borders of a single state.

238

Prior to this amendment, Jacques could not have been charged federally

with the kidnapping because he did not move Brooke Bennett across state

lines. The Jacques case is one of the first in the nation to be prosecuted

under the amendment based on use of interstate commerce facilities.

239

Its

facts make it an ideal fit for the amended statute given Jacques’s heavy

reliance on cell-phone text messaging and the Internet—both of which meet

the definition of “facilities of interstate commerce”—to commit the

crime.

240

Jacques engaged in a bizarre, complex plot to use text messaging and

the Internet to pressure another minor female—whom he had been sexually

abusing since she was eight years old—to lure Brooke Bennett to her

kidnapping and death.

241

Jacques used a variety of email addresses to

convince this young girl, identified in court documents as J1, that a criminal

organization known as “Breckenridge” was stalking her

242

and that

Breckenridge members would kill her if she did not comply with demands

to lure Brooke into three-way sex with Jacques and J1.

243

In May and June

2008, Jacques sent numerous emails and text messages to J1, purportedly

from Breckenridge members, ordering J1 to assist in killing Brooke in order

to prevent her from going to the police and accusing Jacques of rape.

244

238. Prior to the 2006 AWA amendment to the Federal Kidnapping Act, Jacques could not have

been charged federally because the victim did not travel across a state border. Instead, he would have

been charged with kidnapping under Vermont law and would not be facing the death penalty.

239. Only two other cases were reported prior to United States v. Jacques in which the 2006

AWA amendment to section 1201(a) was used to reach intrastate kidnappings based on the defendant’s

use of a facility of interstate commerce to commit the crime. See United States v. Augustin, No 1:09-cr-

187, 2010 WL 2639966, at *3 (E.D. Tenn. June 28, 2010); United States v. Ochoa, No. 8-cr-1980, 2009

WL 3878520, at *4 (D.N.M. Nov. 12, 2009). In both cases, defendants challenged federal jurisdiction,

attacking the amended § 1201(a) as unconstitutional both on its face and as applied as in excess of

Congress’s authority under the Commerce Clause to criminalize intra-state conduct. In both cases, the

district courts denied these motions and upheld the amended statute. For a complete discussion of

Commerce Clause jurisprudence and the amended § 1201(a), see Michele Martinez Campbell, The Kids

Are Online: The Internet, the Commerce Clause and the Amended Federal Kidnapping Act, 14 U. PA. J.

CONST. L. (forthcoming 2011) (manuscript at 28–42), available at http://ssrn.com/abstract=1837631.

240. 18 U.S.C. § 1201(a)(1).

241. See Memorandum in Opposition, supra note 15, at 2–3.

242. Id. at 4–8.

243. Id. at 6.

244. Id. at 6–8. A letter written on June 6, purporting to be from Breckenridge to J1, recovered

from Jacques’s laptop, stated:

[W]e have recently come to an agreement with Charles, Eric and [Jacques]

regarding what will be done. To put it bluntly, Miss Bennett will cease to

exist. . . . You will not be required to participate in the actual termination, but you

will participate in events leading up to it. We expect your full and enthusiastic

participation.

2011] Federalism and Capital Punishment 119

Jacques and J1 continued to exchange voluminous, detailed emails and text

messages planning Brooke’s abduction and murder.

245

J1 lured Brooke to

Jacques’s house (which, it is clear from court documents, was also J1’s

house) using the ruse that J1 was hosting a pool party which would be

attended by a local boy Brooke liked.

246

Jacques created phony text

messages that appeared to be from this boy and forwarded them to J1, who

then forwarded them to Brooke.

247

The ruse was successful; Brooke agreed

to attend the pool party and secured her mother’s permission to do so based

on text messages from J1.

248

The physical aspects of the crime were both planned and documented

by voluminous text messages between Jacques and J1. On June 20, 2008, J1

texted Jacques that she would “help out . . . with the tie down.”

249

On the

morning of June 25, 2008, when Brooke was already in Jacques’s house

expecting that the pool party would begin, Jacques and J1 texted back and

forth, unbeknownst to Brooke, to arrange for the actual moment that she

would be sexually attacked. Jacques instructed J1 to tell Brooke that he

wanted to show her a “magic trick.”

250

Jacques came downstairs to where

the two girls were and took Brooke upstairs to his bedroom.

251

Shortly

thereafter, Jacques came down again and instructed J1 to leave the house,

telling her that the taser was not working.

252

Even as Jacques raped Brooke

upstairs and suffocated her with a plastic bag, J1—demonstrating the degree

to which she had been brainwashed by Jacques’s phony text messages from

“Breckenridge” members—continued to text the fictional Breckenridge

members to keep them apprised of the progress of the crime. In one such

message, J1 wrote, “The tazor (sic) didn’t work and I’m leaving . . . . Now

get here now now now,” because Jacques needed help disposing of the

body.

253

Jacques further used the Internet and text messaging in attempts to

divert suspicion onto other suspects before, during, and after his crime.

Prior to the kidnapping, Jacques sent J1 a text purportedly from a

Breckenridge member ordering her to have sex with a local boy in order to

obtain a semen sample in a handkerchief; he later left this handkerchief

Id. at 8.

245. Id. at 8–11.

246. Id. at 8–9.

247. Id. at 10–11.

248. Id. at 11.

249. Id.

250. Id. at 16.

251. Id.

252. Id.

253. Id. (alteration in original).

120 Vermont Law Review [Vol. 36:081

beside Brooke’s body in the shallow grave where he buried her.

254

Jacques

had also planned to use Brooke’s cell phone after her murder to send text

messages to J1, making it look like she was still alive and had run off with

the local boy.

255

When it turned out that Brooke had left her cell phone at

home, Jacques and J1 exchanged panic-stricken text messages—while

Brooke was right there in Jacques’s house—looking for an alternate way to

cover their tracks.

256

Through repeated texts, Jacques and J1 developed

another plan: J1 would get Brooke to reveal her MySpace password so

Jacques could access Brooke’s MySpace page to plant a decoy story about

Brooke running away with the boy.

257

Before he murdered and buried

Brooke, Jacques accessed the account and posted this phony entry to

explain her disappearance.

258

The next day, after Brooke was dead, Jacques

pretended to discover this evidence.

259

In sum, text messaging and the

Internet were central to the kidnapping and murder of Brooke Bennett and

created the basis for federal prosecutors to charge Jacques.

Jacques moved to dismiss the indictment filed against him, arguing that

the 2006 AWA amendment to the Federal Kidnapping Act was

unconstitutional because Congress lacked authority under the Commerce

Clause to criminalize conduct that took place entirely within the borders of

a single state.

260

In a May 2011 ruling, the Vermont federal district court

denied Jacques’s motion to dismiss the Federal Kidnapping Act charge as

unconstitutional.

261

The district court relied on well-established precedent

under the Commerce Clause to hold that Congress has the power to regulate

intrastate criminal conduct so long as it falls into one of “‘three broad

categories’ of activity.”

262

As the Supreme Court stated in United States v.

Lopez, “Congress is empowered to regulate and protect the

instrumentalities of interstate commerce, or persons or things in interstate

commerce, even though the threat may come only from intrastate

activities.”

263

The Jacques court was persuaded by the reasoning in two

prior federal district court opinions—United States v. Augustin

264

and

254. Id. at 3–4, 11, 18.

255. Id. at 12.

256. Id. at 12–13.

257. Id. at 13.

258. Id. at 14. The entry read in part, “I do want to see you in the morning so please meet

me . . . . u know where. I think I have a good plan to sneak around this. My mom will kill me but then

I’m going 2 Texas and she will get over it. . . . OMG if only people knew me 4 real! See you there!” Id.

259. Id. at 17.

260. United States v. Jacques, No. 2:08-cr-117, 2011 WL 1706765, at *12 (D. Vt. May 4, 2011)

(opinion and order denying motion to dismiss count one).

261. Id.

262. Id. at *9 (quoting United States v. Marek, 238 F.3d 310, 317 (5th Cir. 2001)).

263. United States v. Lopez, 514 U.S. 549, 558 (1995) (emphasis added).

264. United States v. Augustin, No 1:09-cr-187, 2010 WL 2639966 (E.D. Tenn. June 28, 2010)

2011] Federalism and Capital Punishment 121

United States v. Ochoa

265

—that kidnappings committed using the Internet,

telephones, or other interstate commerce facilities were properly subject to

federal charges under Lopez’s “Second Category” even if the physical acts

at issue took place entirely within the borders of a single state.

266

The court

wrote:

[Section] 1201(a) is an unremarkable and facially valid exercise

of Congress’s long-established power to regulate the channels

and instrumentalities of interstate commerce under the

Commerce Clause, regardless of whether the underlying conduct

is also amenable to proscription under a state’s police

power. . . . As the 11th Circuit stated: “Plainly, congressional

power to regulate the channels and instrumentalities of commerce

includes the power to prohibit their use for harmful purposes,

even if the targeted harm itself occurs outside the flow of

commerce and is purely local in nature.”

267

Jacques challenged the 2006 AWA amendment to the Federal

Kidnapping Act not only on its face, but also as it applied to his conduct,

arguing that his use of cell-phone text messaging and the Internet was “too

attenuated” from his crime to sustain a conviction.

268

The court also rejected

the as-applied argument. Though the defense admitted that interstate

commerce facilities were used to lure Brooke to Jacques’s house prior to

her rape and murder, Jacques argued that this was not the same as

kidnapping her; the luring and the kidnapping must be viewed as two

separate, unrelated events.

269

Examining the definition of kidnapping under

§ 1201(a)(1), the court found that the language defining the crime

prohibited “inveigling” or “decoying” the victim just as it did kidnapping

her or carrying her away.

270

The court wrote:

A kidnapping that begins with an inveiglement and evolves into a

confinement by force is one offense, not two . . . . Because, at a

minimum, cell phone text messaging was allegedly used to

convince Brooke Bennett that she was assisting in the

(sustaining an intrastate kidnapping charge sustained under § 1210(a) based on a defendant forcing a

victim to make repeated cell phone calls to arrange for the delivery of money).

265. United States v. Ochoa, No. 8-cr-1980, 2009 WL 3878520 (D.N.M. Nov. 12, 2009)

(sustaining an intrastate kidnapping charge sustained under § 1210(a) based on a defendant’s use of

emails and telephone calls to lure a victim to the scene of a kidnapping).

266. Jacques, 2011 WL 1706765, at *10 (order denying motion to dismiss count one).

267. Id. at *11 (quoting United States v. Ballinger, 395 F.3d 1218, 1226 (11th Cir. 2005)).

268. Id.

269. Id.

270. Id.

122 Vermont Law Review [Vol. 36:081

preparations for a pool party . . . there is probable cause to

believe that an instrumentality of interstate commerce was used

to commit or to facilitate the commission of a kidnapping. The

application of § 1201(a) to Jacques’s conduct as alleged in Count

1 of the indictment is constitutional.

271

Federal prosecutors had applied a relatively new and untested statute in

order to charge Michael Jacques federally, allowing them to seek the death

penalty. The court had upheld that statute and found that federal jurisdiction

in Jacques’s case was proper. That still left the court to resolve a major

constitutional question central to this Article: whether federalism concerns

should prevent the U.S. Attorney’s Office from seeking the death penalty

against Jacques for a crime committed within the borders of abolitionist

Vermont.

3. The Court Rejects a Federalism-Based Challenge to the Application of

the FDPA in Abolitionist Vermont

Jacques moved to strike the government’s Notice of Intent to Seek the

Death Penalty by arguing that the FDPA was unconstitutional on a variety

of grounds.

272

Jacques’s lawyers may have expected a more sympathetic

hearing, given that the judge in his case was the same one who had declared

the FDPA unconstitutional several years earlier in United States v. Fell

based on concerns regarding the evidentiary procedures applied in

determining aggravating factors.

273

That ruling had been reversed by the

Second Circuit, however, and the arguments advanced in Jacques’s motion

to strike were largely rehashes of theories previously rejected by the

Supreme Court, the Second Circuit, and other courts.

274

Yet buried in

271. Id. (citations omitted).

272. Motion, With Incorporated Memorandum, to Strike or Modify the Notice of Intent to Seek

the Death Penalty at i–ii, United States v. Jacques, No. 2:08-cr-117 (D. Vt. Mar. 29, 2010), ECF No.

146. In the same motion, Jacques moved in the alternative to modify the Notice of Intent to Seek the

Death Penalty, arguing that some of the aggravating factors alleged by the government should be subject

to additional offers of proof or should be struck. Id. This motion was granted in part but will not be

further discussed herein because it is not relevant to the subject of this Article. Id.

273. See Fell I, 217 F. Supp. 2d 469, 489 (D. Vt. 2002), vacated, 360 F.3d 135 (2d Cir. 2004).

274. See United States v. Jacques, No. 2:08-cr-117, 2011 WL 1675417, at *15 (D. Vt. May 4,

2011) (opinion and order regarding defendant’s motion to strike or modify notice of intent to seek the

death penalty). The arguments made by Jacques attacking the constitutionality of the FDPA and rejected

by the court as largely foreclosed by precedent included the following: (1) that the FDPA violates the

Fifth and Eighth Amendments because it is applied in an arbitrary, capricious, and discriminatory

manner; (2) that the FDPA is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002), because it

vests in prosecutors rather than the grand jury the authority to charge aggravating factors; (3) that the

indictment against Jacques violated the Fifth Amendment in not presenting certain information to the

grand jury; (4) that the capital decision-making process mandated by the FDPA is too confusing to

2011] Federalism and Capital Punishment 123

Jacques’s motion, and winning meaningful, if brief, consideration by the

district court in its opinion, was a discussion of the federalism-based

argument for striking the death penalty given that Jacques had committed

his crime in a state without capital punishment. Despite its brevity, Judge

Sessions’s ruling is a significant new contribution to the case law on

federalism and capital punishment and deserves careful examination.

Unfortunately, rather than briefing the issue independently and

thoroughly in a manner that might have drawn more extensive

consideration from the court, Jacques’s lawyers simply “adopted by

reference”

275

the argument made by Professor Michael Mannheimer in his

article “When the Federal Death Penalty Is ‘Cruel and Unusual.’”

276

While

Professor Mannheimer relies on the Eighth Amendment to challenge

application of federal capital punishment to crimes committed within

abolitionist states, his argument is more nuanced, and more historically

rooted, than the simple assertion made in other articles that whether a

punishment is “cruel and unusual” must be determined with reference to

local law or custom. Instead, he posits—as Judge Sessions summarizes in

his opinion—that, “because one of the original and central purposes of the

Bill of Rights was to prevent federal encroachment on state sovereignty and

local values, the Eighth Amendment should be read to prohibit the federal

government from imposing the death penalty in states that do not authorize

capital punishment.”

277

Professor Mannheimer delves into the history of the

adoption of the Bill of Rights and of the Eighth Amendment in particular,

arguing that the “anti-federalists”

278

intended the proscription on cruel and

unusual punishments “not to ensure the general fairness and reliability of

the federal criminal process, but instead to create obstacles to the

investigation, prosecution, conviction, and punishment of persons for

federal crimes.”

279

This reading of the Eighth Amendment and the criminal

permit juries to make reasoned choices; (5) that the use of non-statutory aggravating factors under the

FDPA is unconstitutional both on its face and as applied to his case; and (6) that the death penalty per se

violates the Eighth Amendment’s prohibition on cruel and unusual punishment as well as the Due

Process Clause. Id. at *3–5, *9, *11–13, *15 & *17.

275. Motion, With Incorporated Memorandum, to Strike or Modify the Notice of Intent to Seek

the Death Penalty, supra note 272, at 169.

276. Michael Mannheimer, When the Federal Death Penalty Is ‘Cruel and Unusual,’ 74 U. CIN.

L. REV. 819 (2006).

277. Jacques, 2011 WL 1675417 at *15.

278. While current usage refers to those who favor a states’ rights viewpoint as “federalists,”

Professor Mannheimer adopts the legal historical term “anti-federalist” to refer to those among the

Framers “who fought for a Bill of Rights that would impose an important constraint on the central

government and would repose ultimate authority in the people of the several States to decide whether a

particular mode of punishment is acceptable within their respective borders.” Mannheimer, supra note

276, at 821.

279. Id. at 822.

124 Vermont Law Review [Vol. 36:081

procedure amendments in the Bill of Rights, while not followed in case law,

has some adherents among scholars.

280

The limited briefing provided on this theory, however, failed to

persuade the district court. Instead, the court relied on Judge Raggi’s

concurrence in the denial of rehearing en banc in United States v. Fell to

argue that, if the proscription on cruel and unusual punishment were to be

read differently depending on varying state capital punishment laws,

“serious problems” would arise with uniformity of application.

281

Judge

Sessions cited Judge Raggi’s concern that, “constraining the federal

government’s ability to impose the death penalty in certain states could

create equal protection problems.”

282

Judge Sessions may have left the door

open a crack by rooting his rejection of Jacques’s federalism argument in

the defense’s inadequate briefing and failure to meet the burden of

persuasion.

283

Nevertheless, he quoted at length Judge Raggi’s firm

pronouncement that there is no support in Eighth Amendment jurisprudence

for Professor Mannheimer’s arguments: “The Eighth Amendment, no less

than other provisions of the Constitution, must apply equally throughout the

states. Nothing in the Court’s jurisprudence has ever suggested that

federalism warrants re-tailoring the Eighth Amendment in each state . . . to

test federal death sentences by reference to local practices.”

284

Judge Sessions ended by stating that the question of federalism and

capital punishment Jacques raised “appears to remain an open one in this

circuit.”

285

But this statement should not be read as more than it is—an

acknowledgement that Judge Raggi’s Fell opinion was only a concurrence

in a denial of rehearing en banc and does not have the force of precedent.

Jacques subsequently moved for reconsideration of this ruling,

presenting additional briefing on the federalism issue.

286

Jacques argued

that the Eighth Amendment’s prohibition on cruel and unusual punishment

280. See, e.g., George C. Thomas III, When Constitutional Worlds Collide: Resurrecting the

Framers’ Bill of Rights and Criminal Procedure, 100 MICH. L. REV. 145, 160 (2001). “The principal

concern in the Bill of Rights was not to protect innocent defendants. The Framers instead intended to

create formidable obstacles to federal investigation and prosecution of crime.” Id.

281. Jacques, 2011 WL 1675417 at *16.

282. Id.

283. “[T]his court is unable to conclude that Jacques has met his burden on the basis of the one

paragraph he devotes to the federalism argument. . . .” Id.

284. Id. (quoting Fell IV, 571 F.3d 264, 274 (2d Cir. 2009) (en banc) (Raggi, J., concurring)).

285. Id.

286. United States v. Jacques, No. 2:08-cr-117, 2011 WL 3881033, at *1–2 (D. Vt. Sept. 2,

2011) (opinion and order denying defendant’s motion to reconsider point eight in favor of striking the

death penalty).

2011] Federalism and Capital Punishment 125

was intended to ban any punishment “not authorized by law.”

287

Because

Vermont had abolished capital punishment, he asserted, imposition of the

death penalty in Vermont violated the Eighth Amendment.

288

Jacques also

argued that imposing a penalty under federal law greater than that

authorized by Vermont state law violated the Tenth Amendment.

289

Once again, Judge Sessions denied Jacques’s motion, refusing to

prohibit the government from seeking the death penalty.

290

The court

thoroughly rejected the idea that the Eighth Amendment should be

interpreted to apply differently to different states depending on whether or

not a state had abolished the death penalty.

291

Judge Sessions reviewed

Eighth Amendment jurisprudence and found that no case had ever

countenanced such uneven application.

292

He wrote:

[E]ven if this Court were willing to make the dramatic break

from the existing Eighth Amendment jurisprudence suggested by

Jacques, such a move would raise constitutional concerns far

more troubling that the one it would be meant to

address. . . . [T]he Court would effectively be sanctioning and

contributing to geographic disparities in application of the federal

death penalty.

293

The court relied on United States v. Tuck Chong, discussed above in

Section II(C), in rejecting the Tenth Amendment argument.

294

The court

reasoned that because the federal government is entitled to determine

punishment for crimes committed against the United States, imposing the

death penalty in a federal criminal case does not intrude upon state

sovereignty.

295

Judge Sessions’s opinions in Jacques make an important contribution

to the growing body of precedent holding that federal authorities with

proper jurisdiction over a criminal case do not violate the Eighth

Amendment or any other constitutional rule when they seek the death

penalty for a crime committed within an abolitionist state.

287. Id. at *2 (quoting Defendant’s Motion to Reconsider Point Eight in Favor of Striking the

Notice of Intent to Seek the Death Penalty at 3, United States v. Jacques, No. 2:08-cr-117 (D. Vt. June

15, 2011), ECF No. 290).

288. Id.

289. Id.

290. Id. at *6

291. Id. at *5.

292. Id. at *4.

293. Id.

294. Id. at *3.

295. Id.

126 Vermont Law Review [Vol. 36:081

IV. BENEFITS OF GREATER POLITICAL FLEXIBILITY FOR STATES AND

UNIFORMITY OF APPLICATION OUTWEIGH FEDERALISM CONCERNS

The few cases in which criminal defendants have been charged

federally with capital crimes in abolitionist states may have generated

intriguing dialogue on federalism, but scholarly and defense arguments

against application of the FDPA in abolitionist states have failed to find

favor in the courts. As a matter of doctrine, the courts have it right. Varying

the application of federal law to comport with state capital punishment

statutes might satisfy some theoretical notion of federalism, but it would fly

in the face of well-established Eighth Amendment and Supremacy Clause

doctrine. Beyond the question of doctrine, however, is that of policy and

values. It may be clear as a matter of law that federal prosecutors have the

right to step in with federal capital charges in crimes committed in

abolitionist states so long as federal jurisdiction is properly established. But

should they? This Article takes a contrary view as a matter of public policy

and argues that federal prosecutorial discretion exercised with restraint can

play a salutary role in (i) preserving state sentencing diversity and (ii)

providing for uniformity of enforcement through the centralized DPP

review process that can and should be used to address longstanding, valid

concerns with race- and ethnicity-based disuniformity of application.

A. Federal Capital Punishment Allows State Abolitionism to Prosper

The federal death penalty can play a salutary role in preserving state

abolitionism in the face of political pressure and should be viewed as a help

rather than a hindrance to robust federalism. The Petit and Jacques case

studies, read together, suggest that state diversity in sentencing policy is

more resilient where federal capital charges are available to address those

rare murder cases that generate political backlash. Federal capital

punishment, rather than squelching states’ freedom of choice in capital

sentencing, can preserve the ability of the states to function as

“laboratories”

296

of criminal justice policy. Polls demonstrate that sentiment

in favor of abolishing capital punishment is lukewarm at best.

297

Even in

states with no death penalty, abolitionism hangs by a thread and a high-

profile, particularly shocking murder can pose a serious threat to a state

296. “One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for

the possibility that ‘a single courageous State may, if its citizens choose, serve as a laboratory; and try

novel social and economic experiments without risk to the rest of the country.’” Gonzales v. Raich, 545

U.S. 1, 42 (2005) (O’Connor, J., dissenting) (quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311

(1932) (Brandeis, J., dissenting)).

297. GALLUP, supra note 44.

2011] Federalism and Capital Punishment 127

abolitionist sentencing regime. The availability of the federal death penalty

in those cases can blunt public outrage sufficiently to protect state

abolitionism.

As described above, since 2001, the DPP has permitted federal

prosecutors to consider the lack of a state death penalty in determining

whether to prosecute on capital charges in instances where there is

concurrent jurisdiction. Scholarly opinion has been uniform in viewing this

policy as an attack on state sovereignty—an attempt to prevent states from

pursuing their own sentencing policies. But a pragmatic examination of the

facts, stripped of any ideological spin, demonstrates that this is simply not

true. First, federal policy commands consultation with, rather than defiance

of, state authorities. Indeed, though information on negotiations between

federal and state prosecutors in these cases is difficult to come by, there are

documented instances in which federal authorities have stepped in only at

the request of state authorities.

298

Second, the miniscule number of federal

capital prosecutions brought in abolitionist states proves the falsity of the

idea that the Department of Justice pursues cases in order to undermine

state sentencing choices. As one commentator has noted, “If . . . the

Department of Justice were using the federal death penalty to impose a

death penalty on states that chose not to have a state death penalty, the

incidence of capital federal prosecutions in the fifteen states that do not

have a state death penalty would be far higher . . . .”

299

In short, a pragmatic

look at the numbers suggests that federal prosecutors make charging

decisions based on the facts of individual cases rather than in an attempt to

undermine state abolitionism.

But rather than focusing on what the Department of Justice intends to

accomplish when it brings federal capital charges for crimes committed in

abolitionist states, we must assess what it actually accomplishes. The

Connecticut and Vermont case studies, read together, suggest that by

bringing capital charges in a rare, extreme case, federal prosecutors

preserve the ability of states to decide not to allow the death penalty in a

much greater number of other cases. While this assertion cannot be proved

with certainty, common sense strongly suggests that it is the case. Thus, the

rare federal capital prosecution that answers public calls for justice in the

298. For example, Ronnell Wilson had been charged by the Richmond County, New York

District Attorney’s Office with two counts of capital murder in the shooting of two New York Police

Department detectives during the course of an undercover narcotics deal. The New York Court of

Appeals overturned the state’s capital punishment statute while Wilson’s case was pending. The

Richmond County District Attorney then met with the United States Attorney’s Office for the Eastern

District of New York and formally requested that the federal government take over the case so that the

death penalty could be pursued. The federal prosecutors ultimately took the case, and Wilson was

sentenced to death by a federal jury in 2006. See Mysliwiec, supra note 7, at 264–65.

299. Id. at 275.

128 Vermont Law Review [Vol. 36:081

face of a particularly heinous crime should be viewed as preserving state

abolitionism rather than destroying it.

B. DPP Procedures Provide Potential for Uniformity of Enforcement that

Can Address Longstanding Constitutional Concerns

A federalism approach to capital punishment values difference and

opposes uniformity. As Professor Mannheimer asserts in arguing that

federal capital punishment in abolitionist states violates the Eighth

Amendment, “dis-uniformity is the price we pay for our federal system.”

300

Professor Little notes that “[u]niformity” and “[c]ommunity values . . . are

in tension in any criminal sentencing regime.”

301

When federalists oppose

uniformity in the death penalty context, they are concerned with the ability

of states to maintain sovereignty over criminal sentencing within their

borders. They view federal sentencing policies that seek to impose uniform

sentences across geographic jurisdictions as unconstitutional because of the

potential for intrusion upon state sovereignty.

302

But there are different

kinds of uniformity. In the death penalty context, dis-uniformity of

application has historically meant something different, and more sinister,

than the diversity of state policies that federalism values: It has meant racial

inequity in punishment. As Justice Douglas wrote in his concurrence in

Furman v. Georgia:

[I]t is ‘cruel and unusual’ to apply the death penalty—or any

other penalty—selectively to minorities whose numbers are few,

who are outcasts of society, and who are unpopular, but whom

society is willing to see suffer though it would not countenance

general application of the same penalty across the board.

303

This Article posits that the more centralized federal capital punishment

system is better suited than state systems to address the persistent,

egregious problem with unequal application of capital punishment and that

this should weigh into the federalism and capital punishment debate. By

requiring strict centralized decision-making in capital cases, the Department

of Justice’s DPP creates a mechanism for addressing longstanding issues of

300. Mannheimer, supra note 276, at 877.

301. Rory K. Little, Good Enough for Government Work? The Tension Between Uniformity and

Differing Regional Values in Administering the Federal Death Penalty, 14 FED. SENT. R. 7 (2001).

302. Of course, as Professor Little points out, this type of geographical uniformity is the norm

not only for all federal criminal sentencing, including terms of years, but for state sentencing regimes as

well. Id. at 7–8. In other words, the federalist viewpoint taken to its logical conclusion would result in

pegging federal sentences to state sentences for all crimes, including those for which jail terms apply.

303. Furman v. Georgia, 408 U.S. 238, 245 (1972) (Douglas, J., concurring).

2011] Federalism and Capital Punishment 129

racial injustice in application of capital sentencing. It also addresses clear

problems with regional differences in application that some have argued are

race-related.

304

Whether that mechanism can achieve the goal of reducing racial

disparity in capital sentencing remains to be seen. Certainly, available

statistics speak to the persistence of racial disparities. The Department of

Justice’s June 6, 2001 Report (Report) found that the percentage of

minority defendants prosecuted in federal capital cases exceeded their

representation in the general public.

305

The Department of Justice has

explained that this disparity exists because federal capital prosecutions have

focused primarily on murders associated with drug trafficking, a type of

crime that statistically occurs with greater frequency in minority

communities.

306

The Report asserts that the statistical disparity does not

reflect intentional discrimination but rather “the differing incidences of

crimes in different demographic groups.”

307

Indeed, the Department of

Justice has pointed to a different statistic of racial disparity to counter

charges of intentional discrimination: the differing rate at which defendants

of various races were approved for capital prosecution during the period

studied. The Report states that 38% of white defendants were approved for

capital prosecution as compared to 25% of black defendants and 20% of

Hispanic defendants.

308

A full consideration of the reasons for persistent racial disparities in

capital sentencing is beyond the scope of this Article, and no position is

taken on the merit of the Department of Justice’s explanation. This Article

certainly does not argue that federal authorities have succeeded in

eliminating racial disparities in capital sentencing; quite the contrary.

Obviously, whatever the reason or intent, racial disparities in federal capital

sentencing continue to raise concerns of constitutional dimension and must

be combated aggressively. But in evaluating the policy merits of allowing

304. See G. Ben Cohen and Robert J. Smith, The Racial Geography of the Federal Death

Penalty, 85 WASH. L. REV. 425, 445–61 (2010) (arguing that federal districts with the highest death-

sentencing rates tend to be composed of a largely black county surrounded by largely white counties,

meaning that geographical differences in application result from racial differences between jurors and

defendants).

305. SUPPLEMENTARY DATA, supra note 58.

306. Id.

307. Id.

308. Id. White defendants have begun to argue that this means they are being targeted for capital

prosecution in order to address concerns about discrimination against minority defendants. For example,

in the case of a nurse charged with federal capital crimes for murders of patients in Veterans Affairs

hospitals, it was argued that, “a relative dearth of women and Caucasians on federal death row raised

suspicion that the government felt intense pressure to prosecute . . . a white female.” John P.

Cunningham, An Uninvited Guest: The Federal Death Penalty and the Massachusetts Prosecution of

Nurse Kristen Gilbert, 41 U. RICH. L. REV. 969, 983 (2007).

130 Vermont Law Review [Vol. 36:081

federal capital punishment in those rare, heinous cases that might prompt a

public outcry in abolitionist states, it is worth considering the federal

government’s significant efforts to document, analyze, and combat racial

disparity in capital prosecutions. While Review Committee members are

not told the defendant’s race or ethnicity, paralegals within the Capital Case

Unit at the Department of Justice are directed to collect and maintain a wide

variety of statistics related to race and ethnicity and capital-case decision-

making.

309

The DPP specifically prohibits consideration of racial

characteristics in capital-case decision-making. The fact that the

Department of Justice gathers and reports the type of statistics that make it

possible to meaningfully assess this problem is a factor that should be

considered in weighing the costs and benefits of those rare federal capital

prosecutions in abolitionist states.

CONCLUSION

Application of the federal death penalty for crimes committed in

abolitionist states has concerned federalists, who argue that imposition of

federal sentencing law intrudes upon state sovereignty. But scholarly

opposition to this extremely rare practice does not measure up in the face of

clear and growing judicial precedent affirming federal power to determine

sentences in federal criminal cases. Federal courts are correct as a matter of

law when they reject federalism-based challenges to the FDPA. Equally

important, as a matter of policy, the judicious and rare assertion of federal

capital charges can help preserve, rather than attack, states’ abolitionist

sentencing regimes. Additionally, centralized review of federal capital cases

can promote uniformity and create conditions for better tracking and

assessment of—and thus ultimately better policies to combat—racial

injustice in capital sentencing.

309. DOJ STATISTICAL SURVEY, supra note 30, at 2–3.