THE FEDERAL DEATH PENALTY AS A SAFETY VALVE

Paul Mysliwiec

ABSTRACT

Fifteen states do not have a death penalty, and yet the federal government can federally prosecute capital cases on historically state- prosecuted violent crimes. This note discusses several problems related to the way non-death penalty states interact with the federal government, and seeks to offer resolutions where possible. For instance, what keeps the federal government from encroaching on a state’s ability to choose not to have a death penalty? Can a state or defendant stop the federal government in court? What stops federal prosecutors from unilaterally taking over cases to seek a death sentence? Finally, do state legislatures feel like they can have it both ways, saving the political capital it might require to reinstate a death penalty, and instead having federal prosecutors take the most egregious cases? Is the federal death penalty really a safety valve for the most heinous offenders in states with no death penalty?

This note comes to several conclusions. First, there is generally no judicial remedy when federal prosecutors choose to seek charges without discrimination or invidious motive. Second, it is not the intent of the Justice Department to substitute their judgment for the state’s by replacing state death penalties with the federal death penalty. Third, the changes Attorney General Ashcroft made to the Death Penalty Protocol lead reasonable observers to the conclusion that the Justice Department does substitute their judgment for the state’s, and those changes should be undone. Fourth, while state legislatures may view the federal death penalty as a safety valve, there is not much the Justice Department can, or should, do about it.

CONTENTS

Abstract ...... 257 I. Introduction ...... 258 II. Constraints on the Exercise of Federal Jurisdiction ...... 258 III. Federal Interest In Capital Cases ...... 262 A. United States v. Wilson ...... 264 B. United States v. Sampson ...... 266 C. United States Attorney’s Manual ...... 269 IV. Community Interest v. National Uniformity ...... 274 V. Back to Sampson ...... 276 VI. Conclusion ...... 278

 Assistant District Attorney, Kings County (, NY), Class of 2011, Clerk for Hon. Judge Maurice M. Paul, Northern District of Florida 2009-2010, University of Virginia School of Law, J.D. 2009. 258 Virginia Journal of Social Policy & the Law [Vol. 17:2

I. INTRODUCTION

Due to the broad reach of the ever-expanding federal criminal code,1 the federal government exercises concurrent jurisdiction (cases that could be prosecuted either federally or by the state) over an increasing number of criminal offenses. Federal regulation of firearms and narcotics especially grant the federal government jurisdiction over many serious crimes in state and local jurisdictions whose participants and/or victims do not cross state lines. There is one area, however, in which the differences between state and federal laws makes the choice of jurisdiction especially important, and that is the federal death penalty for crimes prosecuted in states that do not have a state death penalty. Some commentators decry federal death penalty prosecutions in states with no state death penalty as an encroachment on the right of the several states to choose their laws, while others welcome federal death penalty prosecutions as a safety valve when the most serious offenders would otherwise be spared the possibility of suffering the most serious penalty. Is it the right of the states to constrain the federal government‟s pursuit of crimes with valid (constitutional) federal jurisdiction? Does the federal interest in a prosecution increase in relation to the gravity of the crime? Should the federal government take into account available state penalties when deciding whether or not to prosecute a case federally? This note will show why states are not at liberty to halt federal death penalty prosecutions valid under federal law, and why the seriousness of individual crimes may increase the federal interest in prosecuting those crimes. It will also show why the lack of a state death penalty should not cause the federal government to exercise jurisdiction more often to prosecute capital cases.

II. CONSTRAINTS ON THE EXERCISE OF FEDERAL JURISDICTION

The majority of federal criminal jurisdiction is restricted constitutionally by the Commerce Clause, which allows Congress to make laws necessary and proper to regulate interstate commerce.2 However, Congress has used the Commerce Clause to expand federal criminal jurisdiction not only to crimes crossing state boundaries, such as the interstate transport of women for immoral purposes,3 but also to crimes which use systems capable of crossing state boundaries such as

1 The American Bar Association‟s Task Force on Federalization of Criminal Law reported in 1999 that “more than forty percent of the federal criminal provisions enacted since the Civil War have been enacted since 1970.” James E. Strazella, The Report of the ABA Task Force on the Federalization of Criminal Law, 1998 A.B.A. SEC. CRIM. JUST. 5 (1998) (reprinted in 11 FED. SENT‟G REP. 194 (1999). 2 U.S. CONST. art. I, § 8, cl. 3. 3 Mann Act, 18 U.S.C. §§ 2421–24 (2006). Winter 2010] Death Penalty As A Safety Valve 259 the mails,4 or involving property that has at any time travelled in interstate commerce,5 or that deprives people of money they could otherwise use in interstate commerce.6 Congress may even regulate categories of items by prohibiting possession entirely, even possession when the specific substance possessed has never moved in interstate commerce, on the theory that the possessed substance is fungible and therefore never more than one step away from interstate commerce.7 It seems the only impermissible theory is the “cost of crime” theory, by which any crime always has an effect on the victim‟s ability to spend money in interstate commerce, and the effect on all such victims aggregates to have a substantial effect on interstate commerce.8 Modern commerce clause jurisprudence therefore gives the federal criminal code very broad reach to prosecute crimes that until recently were prosecuted only by the states (such as carjacking), as well as to prosecute activity that the several states may not consider criminal (such as “medical” marijuana possession).9

Because the modern interpretation of the Commerce Clause allows the United States Congress to criminalize such a broad range of conduct, the most common constraint on federal prosecution is resource-based rather than jurisdiction-based, i.e. the available number of investigators and prosecutors compared to the amount of conduct that might possibly be charged federally. The two main aspects the United States Attorneys (the chief federal prosecutors in each federal district) use to manage their resources are coordination with local and state prosecuting attorneys, and the United States Attorney‟s Manual (“USAM”), which has extensive guidelines on, among other things, when to prosecute federally when there is concurrent jurisdiction with local and state governments.10

4 18 U.S.C. § 1341 (2006). 5 18 U.S.C. § 2119 (2006). 6 Hobbs Act, 18 U.S.C. § 1951 (2006). 7 Gonzales v. Raich, 545 U.S. 1, 22 (2005) (upholding the Controlled Substances Act, which granted Federal law enforcement agents power to enforce federal drug laws against people whose drug use was in compliance with their state‟s laws). 8 See United States v. Morrison, 529 U.S. 598, 617 (2000) (striking down the civil provision of the Violence Against Women Act, which did not require interstate transport as the criminal provision did, relying instead on the “cost of crime” theory for federal jurisdiction). 9 See infra, Part III. 10 See U.S. Department of Justice, Initiating and Declining Charges – Substantial Federal Interest, United States Attorney’s Manual (1997) 9-27.230 available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/t itle9.htm (last visited Oct. 26, 2009) [hereinafter USAM]; Initiating and Declining Charges – Prosecution in Another Jurisdiction, USAM 9-27.240. 260 Virginia Journal of Social Policy & the Law [Vol. 17:2

Interestingly, one of the factors the USAM explicitly requires U.S. Attorneys to consider when deciding whether to prosecute an offense federally is the probable sentence upon conviction.11 It reads:

The ultimate measure of the potential for effective prosecution in another jurisdiction is the sentence . . . . In considering this factor, the attorney . . . should bear in mind not only the statutory penalties . . . but also, the particular characteristics of the offense or, of the offender that might be relevant to sentencing.12

Thus, some offenders may be prosecuted by the state for a given offense, and others may, under the USAM guidelines, be prosecuted federally in order to achieve a more substantial sentence, based on characteristics of the particular crime or criminal. The guidelines do not offer much detail on how these determinations are made, but it would not be difficult to imagine state and federal prosecutors meeting every once in a while to discuss how to achieve the most firm punishments for the most heinous offenders.

In fact, it is common practice for state or local prosecutors to bring a case to the attention of their federal counterparts when they believe sufficient sentences cannot be achieved under the state or local statutes in light of the totality of the circumstances of the crime and the offender. On a larger scale, Virginia‟s Project Exile, an extensively-advertised campaign to reduce gun violence by prosecuting firearms crimes federally in the greater Richmond, Virginia area to access the federal five-year minimum sentences, is one recent and high-profile example.13 The Virginia Department of Criminal Justice Services, in announcing recently its Virginia Exile project meant to build on the success of Project Exile, announced that Project Exile helped to reduce gun violence in Richmond, Virginia by forty percent since its inception in 1997.14

The Federal Day program in , implemented by then-U.S. Attorney for the Southern District of New York, Rudolph Giuliani, is another example. As a news article at the time described the program, “[o]n a different day each week, all drug offenders arrested and charged” with drug crimes in the Southern District of New York would be

11 See USAM 9-27.240(B)(3). 12 Id. 13 See Project Exile, U.S. Attorney‟s Office – Eastern District of Virginia, available at http://ojjdp.ncjrs.org/pubs/gun_violence/profile38.html (last visited Oct. 26, 2009). 14 Virginia Department of Criminal Justice Services, Virginia Exile, available at http://www.dcjs.virginia.gov/exile/ (last visited Oct. 26, 2009). Winter 2010] Death Penalty As A Safety Valve 261 prosecuted federally.15 The result is that an offender charged with possession of crack might receive a ten-year-minimum sentence in federal court when he would have received eighteen to twenty months after being convicted in state court, receiving a much harsher sentenced based on the bad luck of having been caught on Federal Day.16 It is understandable that such a defendant may feel they have been unfairly treated by being subjected to the harsher federal penalty, and seek relief from the courts.

Defendants seeking to challenge their federal prosecution as an Equal Protection violation17 have been singularly unsuccessful. As the Supreme Court explained in United States v. Armstrong:

A selective-prosecution claim asks a court to exercise judicial power over a “special province” of the Executive. The Attorney General and United States Attorneys retain “broad discretion” to enforce the Nation‟s criminal laws. They have this latitude because they are designated by statute as the President‟s delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” As a result, “[t]he presumption of regularity supports” their prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”

Of course, a prosecutor‟s discretion is “subject to constitutional constraints.” . . .

In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.”18

15 William L. Anderson & Candice E. Jackson, Washington’s Biggest Crime Problem: the Federal Government’s Ever-Expanding Criminal Code Is An Affront To Justice And The Constitution, REASON, Apr. 1, 2004, at 2, available at http://reason.com/archives/2004/04/01/washingtons-biggest-crime-prob/1. 16 Id. 17 U.S. CONST. amend. XIV. 18 517 U.S. 456, 464-65 (1996) (internal citations omitted). 262 Virginia Journal of Social Policy & the Law [Vol. 17:2

Absent, then, clear and convincing evidence that an individual offender has been indicted in federal rather than state court because of some impermissible factor such as race, prosecutors are free to select among state or federal prosecution where there is concurrent jurisdiction. A challenge based on the bad luck of having been caught on Federal Day, or inside the greater Richmond area where Project Exile is in effect, or just that the federal and state prosecutors decided the offense in question merited the more severe federal penalties available, will fail to persuade the court to override the prosecutor‟s charging discretion.

Thus, courts have been very reluctant to constrain the scope of federal criminal jurisdiction under the Commerce Clause, and simultaneously unwilling to second-guess federal prosecution where there is concurrent jurisdiction without clear and convincing evidence of discrimination. So the main valid constraint on which concurrent jurisdiction cases will be prosecuted federally is self-imposed, and prosecutors are free to charge a particularly awful crime federally to achieve a longer sentence, when a more run-of-the-mill instance of the same crime might be sufficiently punished in state courts. Does that analysis hold true, though, when the punishment sought is not only quantitatively different, as in how many years the offender will serve, but rather qualitatively different – the difference between life and death itself? That question deserves a separate analysis, and in fact the USAM has a separate section for how federal prosecutors should determine federal interest in capital cases when there is concurrent jurisdiction.19

III. FEDERAL INTEREST IN CAPITAL CASES

The ability of the several states to experiment with their governments, including their criminal codes, is an important aspect of American Federalism. State criminal codes, however, do not exist in a vacuum. The federal government may prosecute conduct that is not criminal under state law, such as possession of “medical” marijuana in California,20 and it may seek penalties that are not available under state law, such as the death penalty in the fifteen states (and the District of Columbia) that currently do not have a death penalty.21 In our system of dual sovereignty, the federal criminal code exists parallel to the criminal codes of the several states, and as discussed above, there is a great deal of overlap known as concurrent jurisdiction. So is it proper for one government to prosecute conduct that the other cannot, or chooses not to? And is it proper for one government to seek penalties the other cannot, like the death penalty? Even more specifically, is it proper for the

19 See USAM 9-10.090. 20 See Gonzales v. Raich, 545 U.S. 1, 1-2, 66 (2005). 21 Death Penalty Information Center, States With and Without the Death Penalty, available at http://www.deathpenaltyinfo.org/states-and-without-death- penalty (last visited Oct. 26, 2009). Winter 2010] Death Penalty As A Safety Valve 263 federal government to seek the death penalty against an individual offender specifically because the state in which their offense was committed does not have a state death penalty?

As to the first question, whether one government can prosecute conduct another cannot, the answer is: sometimes. States can certainly prosecute crimes with no federal jurisdiction, like simple assault.22 The federal government can perform marijuana raids of state-licensed suppliers in California.23 Under the Assimilative Crimes Act,24 the federal government can even incorporate state statutes to punish crimes that occur on federal enclaves, like military bases, when no federal statute covers the conduct. When a federal statute does describe the conduct, however, and it is innocent under federal criminal law, the federal government may not use the Assimilative Crimes Act to prosecute it federally using a contrary state law.25 The difference, then, is whether there is an applicable federal law with a valid jurisdictional hook (usually a sufficient connection to interstate commerce, as discussed above).

As to the second question, whether it is proper for the federal government to seek death in states that do not have a death penalty, or indeed to seek death precisely because those states choose not to have a death penalty, the answer is less clear. On one hand, the several states‟ legislative choice to have a death penalty or not should not be nullified by selective (though not unconstitutionally selective under current law) prosecution by appointed federal prosecutors. On the other hand, some might reasonably believe it unjust to punish offenders differently based on the accident of the location of their birth and residence. Some believe that the death penalty has a deterrent effect on crime, such that criminals might choose to commit capital offenses in states without the death penalty. But the victims of that sort of calculating criminal selection are the voters of the jurisdictions that choose not to legislate a death penalty, so that argument should not be considered dispositive or even particularly persuasive. Analysis and comparison of two recent federal capital prosecutions reveals some aspects of the balance of the right of the federal government to prosecute federal offenses uniformly with the right of the states to experiment with their own criminal codes.

22 See, e.g., FLA. STAT. ANN. § 784.011 (West 2007). 23 See Gonzales, 545 U.S. 1. 24 18 U.S.C. § 13 (2006). 25 See Williams v. United States, 327 U.S. 711 (1946) (striking down conviction of Williams under the Assimilative Crimes Act for statutory rape for sex with a seventeen-year old girl on an Indian Reservation in Arizona. Federal law defined statutory rape as sex with someone under sixteen, whereas Arizona law included sex with anyone under eighteen.). 264 Virginia Journal of Social Policy & the Law [Vol. 17:2

A. UNITED STATES V. WILSON26

Ronell Wilson was a member of the Stapleton Crew, a gang local to which traded in guns and drugs. On March 10, 2003, Wilson met with two undercover New York Police Department detectives to sell them two illegal Tec-9 sub-machineguns in exchange for $1,200 in cash.27 Whether because Wilson realized the two buyers were police officers, or simply because he wanted to rob them, Wilson shot each of the two policemen in the head, killing them, before dumping their bodies on the street.28 The policemen had on live wires transmitting sound, and within minutes their bodies were found.29 At some point during the next two days, Wilson wrote song lyrics glorifying these murders: “Come teast Rated U Better have that vast and dat Golock/Leavea 45 slogs in da back of ya head cause I'm getting dat bread I ain't goin stop to I'm dead.”30

Wilson was quickly charged in Richmond County (Staten Island) with capital murder for the police officer killings, but in June 2004, New York‟s highest court, the Court of Appeals, overturned the state death penalty statute. The state statute had required the judge to instruct the penalty phase jury that if they could not reach a unanimous decision on death or life imprisonment without parole, the defendant would be sentenced to the lesser sentence of twenty to twenty-five years to life,31 which the Court of Appeals said violated the state constitution by motivating the jurors to agree to death to avoid the lesser sentence.32

Immediately after the state death penalty statute was overturned, the District Attorney met with the U.S. Attorney for the Eastern District of New York, to persuade her to prosecute the capital case federally.33 U.S. Attorney Mauskopf agreed there was a federal interest, had a grand jury

26 493 F.Supp.2d 537 (E.D.N.Y. 2007); see also United States v. Wilson, 493 F.Supp.2d 509, 510 (E.D.N.Y. 2007). 27 Wilson, 493 F.Supp.2d at 539-40. 28 Id. at 540. 29 Id. at 538. 30 Id. at 540. 31 N.Y. CRIM. PROC. LAW § 400.27 (2005). 32 See People v. LaValle, 3 N.Y.3d 88, 116-17 (N.Y. 2004) (“New York's deadlock provision is unique in that the sentence required after a deadlock is less severe than the sentences the jury is allowed to consider. No other death penalty scheme in the country requires judges to instruct jurors that if they cannot unanimously agree between two choices, the judge will sentence defendant to a third, more lenient, choice.”). 33 Press Release, Richmond County District Attorney‟s Office, Prepared Remarks of Richmond County District Attorney Daniel M. Donovan, Jr. Regarding Federal Indictments of “Stapleton Crew” (Nov. 22, 2004), available at http://rcda.nyc.gov/pdfdocs/Press/2004/pr112204.pdf (last visited Nov. 30, 2009). Winter 2010] Death Penalty As A Safety Valve 265 indict Wilson of capital murder in furtherance of racketeering, and appointed the Staten Island prosecutors as Special Assistant U.S. Attorneys to assist in the federal prosecution.34

Wilson‟s trial began on November 27, 2006,35 and he was convicted on December 20, 2006.36 During the sentencing phase, prosecutors played the recording from that night, which revealed that after Wilson shot Detective Andrews in the back of the head, his partner, Detective James Nemorin had begged for his life before he, too, was murdered.37 The jury sentenced Wilson to death on January 30, 2007 after deliberating for just nine hours.38 Famously, Wilson stuck his tongue out at Detective Nemorin‟s widow upon hearing the death sentence.39 Wilson was the first person sentenced to death in a federal case in New York since Gerhard Puff in 1954, a bank robber who killed a Federal Bureau of Investigation (“FBI”) agent.40

There is certainly a federal interest in prosecuting racketeering crimes, even when the racketeering organization in question, the Stapleton Crew, confines its activities to one borough of . Named after the housing projects in which its members grew up, the Stapleton Crew was undeniably engaged in a continuous and related pattern of violent crime pursued as a business.41 That was the case, however, while New York still had a state death penalty. Yet, Wilson was prosecuted federally only at the request of the Richmond County District Attorney, which came only when the state death penalty was struck down. Thus, the availability of the federal death penalty was certainly a factor in the U.S. Attorney‟s decision to prosecute. The request by the District Attorney to meet with the U.S. Attorney to discuss a possible federal interest in the case was also noteworthy in and of itself. The overwhelming positive public response to Wilson‟s death sentence is yet another piece of the puzzle. Was the federal death penalty used as a safety valve when the state death penalty became unavailable? Has the continued availability of the federal death penalty contributed to the state legislature declining to reinstate the death penalty in New York?

34 Id. 35 Wilson, 493 F.Supp.2d at 544. 36 Verdict, Agreement and Settlement, United States v. Wilson, No. 04-CR- 1016, 2006 WL 4692368 (E.D.N.Y. Dec. 20, 2006). 37 Wilson, 493 F. Supp. 2d at 538, 540. 38 Stefanie Cohen, Fry Baby: Sticks Tongue out at Widow, N.Y. POST, Jan. 31, 2007, available at http://www.nypost.com/p/news/regional/fry_baby_E6155J5h HLUmhJzdavMIDK . 39Id. 40 See id.; United States v. Puff, 122 F.Supp. 775 (S.D.N.Y. 1954). 41 Cohen, supra note 38. 266 Virginia Journal of Social Policy & the Law [Vol. 17:2

The short time since the Wilson verdict, and intervening events, make it difficult to say what precise interaction the federal death penalty and the New York state legislature have. During his tenure as Governor, Eliot Spitzer favored the death penalty, and after People v. LaValle, he supported instituting a death penalty for the murder of police officers.42 In March 2008, however, Governor Spitzer resigned after the Justice Department made public his involvement in a prostitution scandal.43 His Lieutenant Governor, now Governor Paterson, is an opponent of the death penalty.44 In 2006, now-Governor Paterson voted against a bill allowing for the death penalty for the first-degree murder of a police officer, peace officer, or correction officer.45 To understand better the balance between state and federal power in the context of death penalty prosecutions, the Ronell Wilson prosecution should be contrasted with another recent federal death penalty prosecution.

B. UNITED STATES V. SAMPSON46

On July 23, 2001, Gary Lee Sampson called the FBI switchboard. He was a convicted bank robber who had spent eight years in prison, and he had an outstanding fugitive warrant following a series of bank robberies in North Carolina. He offered to surrender, but he was accidentally disconnected. The United States Court of Appeals for the First Circuit recounts what happened next:

The next day, Phillip McCloskey, a 69-year-old retiree, was driving his car in Weymouth, . He picked up Sampson, who was hitchhiking. When McCloskey later tried to drop

42 Patrick Healy, Primary Contest for Governor Overshadowed, N.Y. TIMES, Sept. 10, 2006, at 38, available at http://query.nytimes.com/gst/fullpage.html?re s=9902EFDA1431F933A2575AC0A9609C8B63&sec=&spon=&pagewanted=a ll; See also James M. Odato, Governor: Now Is Not The Time To Debate Death Penalty, Apr. 25, 2007, available at http://blog.timesunion.com/capitol/archives /4508/governor-now-is-not-the-time-to-debate-death-penalty/ (“Spitzer‟s communications director, said the governor will likely sit down with legislative leaders next week to discuss a death penalty law, which Spitzer has long supported, particularly in the cases of cop killers.”). 43 Michael A. Grynbaum, Spitzer Resigns, Citing Personal Failings, N.Y. TIMES, Mar. 12, 2008, available at http://www.nytimes.com/2008/03/12/nyregi on/12cnd-resign.html. 44 Governor Paterson Padlocks New York’s Death Chamber, N.Y. OBSERVER, July 29, 2008, available at http://www.observer.com/2008/politics/governor- paterson-padlocks-new-york-s-death-chamber. 45 Project Vote Smart, Death Penalty and Life Imprisonment Bill, June 13, 2006, available at https://www.votesmart.org/issue_keyvote_detail.php?cs_id=4745& can_id=4223 (Paterson, while a member of the New York State Senate, voted no on S 6771). 46 486 F.3d 13 (1st Cir. 2007). Winter 2010] Death Penalty As A Safety Valve 267

Sampson off, Sampson pulled out a knife and told McCloskey to keep driving. Once they reached Marshfield [Massachusetts], Sampson forced McCloskey out of the car and attempted to restrain him with a belt. When McCloskey resisted, Sampson stabbed him multiple times and then slit his throat, nearly decapitating him. Sampson proceeded to steal McCloskey‟s money and tried to steal his car, which would not start.

Three days later, Jonathan Rizzo, a 19-year-old college student, picked up Sampson (who was posing as a stranded traveler) along a road in Plymouth. Sampson forced Rizzo at knifepoint to drive to Abington [Massachusetts], where Sampson maintained a makeshift campsite. Sampson tied Rizzo to a tree, gagged him with a sock and a bandana, stabbed him repeatedly in the neck and chest, and slit his throat. After Rizzo was dead, Sampson stole his car and drove to New Hampshire.

On July 29, Sampson broke into a home on Lake Winnipesaukee. The next day, the caretaker (Robert Whitney) arrived. Sampson tied him to a chair, gagged him with a washcloth, and strangled him to death with a rope. Sampson then appropriated Whitney‟s car and drove to Vermont.

On July 31, William Gregory picked up Sampson, who was hitchhiking, near West Bridgewater, Vermont. Sampson attempted to force Gregory at knifepoint onto a dirt road so that he could tie him to a tree and steal his car. Gregory, however, pulled into a rest area and escaped on foot. Sampson made off with Gregory‟s car. Later that day, he broke into a home near the Killington ski area. He then called 911 and offered to turn himself in for carjacking Gregory and for the earlier bank robberies. Vermont state troopers arrested Sampson [there].47

Sampson was indicted by a federal grand jury on two counts of carjacking with death resulting, a capital crime.48 He pled guilty to both counts, and was sentenced to death.49 The public response to Sampson‟s death sentence was rather more mixed than to Wilson‟s in New York. For

47 Id. at 18. 48 See id. at 17 (citing to 18 U.S.C. § 2119(3) (2000)). 49 Id. 268 Virginia Journal of Social Policy & the Law [Vol. 17:2 example, “[p]rotesters outside the courtroom were holding „No Death Penalty in Massachusetts‟ signs and one girl said that the Federal government had „stepped all over a State which has consistently refused the death penalty.‟”50 Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, said the decision to try Sampson in federal court “was made by a handful of federal officials who have sought to impose the death penalty in states like Massachusetts that historically have declined to impose this punishment.”51

Since the Massachusetts state death penalty was struck down in 1984,52 legislation to reenact the penalty failed on a tie vote in 1997.53 Bills to reinstate the death penalty in Massachusetts were introduced, and voted down, in every legislative session until Mitt Romney left the Governorship.54 The federal carjacking statute that allowed the prosecution was enacted in October 1992,55 after the highly-publicized carjacking murder on September 8, 1992 of Pamela Basu that put the word “carjacking” into the common American lexicon.56

50 Wikipedia.org, Gary Lee Sampson, available at http://en.wikipedia.org/wiki/ Gary_Lee_Sampson (last visited Oct. 26, 2009). 51 Martin Finucane, Federal Jury: Death for Mass. Men’s Killer, PORTSMOUTH HERALD, Dec. 24, 2003, available at http://archive.seacoastonline.com/2003ne ws/12242003/south_of/67100.htm (last visited Oct. 26, 2009). 52 See Commonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass. 1984). The court recounted how the court had struck down the Massachusetts death penalty statute in 1980 on the grounds that the death penalty violated the Massachusetts Constitution per se, how the voters approved a constitutional amendment in 1982 overriding that decision, and how later that same year the legislature reinstated the death penalty. Colon-Cruz murdered a state trooper in 1983. The Supreme Court of Massachusetts struck down the 1982 statute on the grounds that it provided for the possibility of the death sentence only after a trial by jury, such that defendants would be able to avoid the death sentence by pleading guilty. This feature, the Court opined, coerced defendants impermissibly into giving up their right to a trial by jury and their right not to plead guilty. Interestingly, as Sampson pled guilty to the two carjacking murders in Massachusetts, he would have been spared the death sentence in a state prosecution even if the Massachusetts death penalty statute had not been struck down. 53 Adrian Walker & Doris Sue Wong, No Death Penalty, By One Vote, GLOBE, Nov, 7, 1997, available at http://www.nodp.org/ma/stacks/globe_11079 7.html. 54 NODP, The Death Penalty in Massachusetts, Facts and History, available at http://www.nodp.org/ma/s1.html (last visited Oct. 26, 2009). 55 Anti Car Theft Act of 1992, H.R. 4542, 102d Cong. (1992) (codified at 18 U.S.C.A. § 2119). 56 E. Michael Kahoe, et al., Piracy: vehicle theft takes a deadly turn, USA TODAY, Sept. 1993, available at http://findarticles.com/p/articles/mi_m1272/is_ n2580_v122/ai_13266605/ (last visited Oct. 26, 2009). Winter 2010] Death Penalty As A Safety Valve 269

Sampson‟s crime was certainly brutal, as recounted in a thorough condemnation by Judge Wolf when he delivered the death sentence,57 but would the case have been tried in federal court if Massachusetts had the death penalty? Massachusetts enacted its own carjacking statute in 1992,58 which would have subjected Sampson to a maximum twenty- year sentence in addition to the sentence for murder and kidnapping.59 The only penalty, effectively, that the Massachusetts courts could not give Sampson was death.

Could there be another reason for the U.S. Attorney to exercise federal jurisdiction over the Sampson murders? Sampson was, after all, an interstate criminal, fleeing a warrant from North Carolina, committing two murders in Massachusetts, murdering a third victim in New Hampshire, and then fleeing to Vermont where he attempted yet another carjacking. Yet the basis of the federal capital crimes was not those crimes in New Hampshire or Vermont, but the two carjacking incidents in Massachusetts. There was no federal jurisdiction over the murder in the lake house in New Hampshire, and no capital crime committed in Vermont. Thus, it appears that the principal substantive difference between charging those two carjacking murders in Massachusetts state court and in the District of Massachusetts federal court is the availability of the death penalty. Deeper understanding, however, requires further analysis of the USAM, which provides the guidelines the federal prosecutors used in deciding to prosecute Wilson and Sampson federally.

C. UNITED STATES ATTORNEY‟S MANUAL, TITLE 9, CHAPTER 9-10.090: SUBSTANTIAL FEDERAL INTEREST

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 but not limited to the following:

57 United States v. Sampson, 300 F.Supp.2d 275 (D.Mass. 2004). 58 MASS. GEN. LAWS ANN. ch. 265, § 21A (1992), amended by MASS. GEN. LAWS ANN. Ch 180, § 58 (1998). 59 See Commonwealth v. Kemp, 702 N.E.2d 817 (Mass. Ct. App. 1998) (robbery not duplicative of carjacking); Commonwealth v. Smith, 691 N.E.2d 583 (1998) (nor kidnapping). 270 Virginia Journal of Social Policy & the Law [Vol. 17:2

A. The relative strength of the State's interest in prosecution as indicated by the Federal and State characteristics of the criminal conduct. One jurisdiction may have a particularly strong interest because of the nature of the offense, the identity of the offender or victim, the fact that the investigation was conducted primarily by its investigators or through its informants or cooperators, or the possibility that prosecution will lead to disclosure of violations that are peculiarly within the jurisdiction of either Federal or State authorities or will assist an ongoing investigation being conducted by one of them.

B. The extent to which the criminal activity reached beyond the boundaries of a single local prosecutorial jurisdiction. Relevant to this analysis are the nature, extent, and impact of the criminal activity upon the jurisdictions, the number and location of any murders, and the need to procure evidence from other jurisdictions, in particular other States or foreign countries.

C. The relative ability and willingness of the State to prosecute effectively and obtain an appropriate punishment upon conviction. Relevant to this analysis are the ability and willingness of the authorities in each jurisdiction, the prosecutorial and judicial resources necessary to undertake prosecution promptly and effectively, legal or evidentiary problems that might attend prosecution, conditions, attitudes, relationships, and other circumstances that enhance the ability to prosecute effectively or, alternatively, that cast doubt on the likelihood of a thorough and successful prosecution.60

There were two relevant changes that Attorney General Ashcroft made to this section of the USAM when he was appointed by President George W. Bush. First, he removed the sentence of the introductory

60 Substantial Federal Interest, USAM 9-10.090, June 2007, available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/10mcrm.htm# 9-10.090 (last visited Jan. 4, 2010). Winter 2010] Death Penalty As A Safety Valve 271 paragraph that said “[i]n 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.”61 Second, he changed the first sentence of subsection C, which had read “[t]he relative ability and willingness of the State to prosecute effectively,” by adding the phrase “and obtain an appropriate punishment.”62 Read together, the two changes clearly imply that prosecutors should consider the lack of a state death penalty as a sufficient reason to seek the federal death penalty when they believe death to be the appropriate punishment for a crime.

Is that why Ronell Wilson and Gary Lee Sampson were prosecuted federally? As for Wilson, the state of New York initially had a greater interest in prosecuting than the United States because the two victims were members of the New York Police Department, not federal agents. Further, the criminal activity, indeed the entire area of operation of the Stapleton Crew, was within Staten Island. Of the three listed factors, it seems that the Richmond County District Attorney‟s reluctance to prosecute when the death penalty could only be achieved in the federal system was the determining factor. However, after her meeting with the Richmond County District Attorney, the U.S. Attorney for the Eastern District of New York did not announce that she would agree to prosecute a purely state-based case for him, but did state that she agreed with the District Attorney that there was a substantial federal interest for the prosecution. The Stapleton Crew was, after all, a continuing enterprise whose business was selling narcotics and guns illegally under federal law, and committing murder and other violent crimes in aid of these racketeering business activities, punishable by death under federal law.63 It is not clear, therefore, that Wilson was prosecuted federally only (or even in significant part) because of Attorney General Ashcroft‟s revisions to USAM 9-10.090.

The factors weigh differently for the Sampson murders, suggesting a greater likelihood that he was prosecuted federally because of the changes to the USAM under Attorney General Ashcroft. First, there is no apparent evidence that the United States had any greater interest in prosecuting Sampson, or prosecuting crimes against his specific victims, than their respective states did. None of them, for instance, were federal

61 U.S. Department of Justice, United States Attorneys‟ Manual 9-10.090 (1995) (on file with author). See also Adam Liptak, Puerto Ricans Angry that US Overrode Death Penalty Ban, N.Y. TIMES, July 17, 2003, available at http://www.globalpolicy.org/component/content/article/168/29792.html (referencing the former guidelines). 62 USAM 9-10.090 (1995). 63 See Death Penalty Information Center, Federal Laws Providing for the Death Penalty, available at http://www.deathpenaltyinfo.org/federal-laws-providing- death-penalty (last visited Oct. 26, 2009). 272 Virginia Journal of Social Policy & the Law [Vol. 17:2 agents or officials. Second, though Sampson‟s criminal activity spanned several states, the capital crimes for which he was tried in federal court did not. None of the victims were transported across state lines, none of the crimes themselves were of a multijurisdictional nature, and there is nothing to suggest that evidence from one state would be needed effectively to prosecute the murder(s) occurring in another. Finally, there was no apparent reason that the state attorneys in Massachusetts, New Hampshire, or Vermont would be unwilling or unable to prosecute Sampson under their own carjacking, kidnapping, robbery, and/or murder statutes. What was lacking, however, was the Massachusetts attorneys‟ willingness and ability to prosecute effectively and obtain an appropriate punishment, according to the United States. Thus, without knowing more specifics about any discussion between the U.S. Attorney and the Massachusetts Commonwealth‟s Attorney, the objective indicia tend to show that Attorney General Ashcroft‟s changes to USAM 9- 10.090 were a significant cause for Sampson‟s federal prosecution.

So why was Sampson‟s death penalty prosecution greeted with protests outside the District Court in Massachusetts, and Wilson‟s prosecution in New York exalted by the community newspapers and the populace generally? Was it because Wilson was a home-grown and remorseless gangster, whereas Sampson was a transient with a felony record going back twenty-five years? That does not seem to be the case. There is not much evidence that Sampson was much more of a generally sympathetic figure than Wilson, and both were sentenced to death after attempting to prove their regret and contrition as a mitigating factor.

Did the public react differently because Wilson killed two police officers in the line of duty, and the people of Massachusetts were not as upset about the murder of sixty-nine-year-old Philip McCloskey, who was so infirm that the jury found his weakness and helplessness to be an aggravating factor against Sampson, or nineteen-year-old Jonathan Rizzo, a college student who was trying to be a good neighbor by giving Sampson a ride? Perhaps. While Philip McCloskey and Jonathan Rizzo were certainly sympathetic victims, death penalty statutes specifically punishing murderers of police or court officials are not unprecedented. When he was Governor of New York, Eliot Spitzer made it clear he was in favor of such a statute.64 In addition, then-Lieutenant Governor Kerry Healey, who lost the 2006 gubernatorial election in Massachusetts, campaigned in part on a plan to “reinstate the death penalty for felons convicted of killing a law enforcement officer, judge, prosecutor, or corrections officer.”65 Lt. Governor Healey lost the election to the former

64 See Odato, supra note 42. 65 Wikipedia.org, Deval Patrick, available at http://en.wikipedia.org/wiki/Deval _Patrick (last visited Jan. 4, 2010) (citing, now unavailable campaign website of Kerry Healey, “Tough, Smart Solution to Change Massachusetts,” Section 23, September 20, 2006). Winter 2010] Death Penalty As A Safety Valve 273 head of the Department of Justice Civil Rights Division, Deval Patrick, whose position is that “the death penalty does not work. It hasn‟t worked in actually deterring crime, and it won‟t work for Massachusetts.”66 Those proposed laws were state laws designed to punish the murder of state officials. They are best analogized to the federal laws punishing murder of federal officials, than to the exercise of federal jurisdiction to punish the murder of state officials. That analysis might apply to show why the federal interest in the Sampson prosecution was not greater than that of the state, and it may also explain why the community reacted so differently to the two federal capital prosecutions.

Did New Yorkers consider the federal death penalty an appropriate safety valve for the lack of a state death penalty (to punish the murder of state officials), and did the Massachusetts citizens not? It is possible. The New York state death penalty was struck down by the Court of Appeals during the Wilson prosecution, whereas at the time of the Sampson murders, Massachusetts had not had a state death penalty for seventeen years.67 However, New York has not implemented any death penalty statute in the five years since People v. LaValle, so it is not clear that the people of New York find the death penalty generally any more acceptable than the people of Massachusetts do.

Perhaps most important in explaining the different public reactions to the two federal prosecutions is the sense some people in Massachusetts had that “a handful of federal officials,” as the local American Civil Liberties Union director put it, were substituting their judgment for the state‟s.68 The Commonwealth‟s Attorney made no statement claiming to have asked for the U.S. Attorney‟s help. The Commonwealth had enacted a law to punish carjacking the same time the U.S. Congress did. There was no conduct that was charged in federal court that could not have been charged under the laws of Massachusetts. The only difference, it seemed, was that the federal courts could sentence Sampson to death and the Massachusetts courts could not, and had not been able to for seventeen years.

66 Release, Deval Patrick: Democrat for Governor, Deval Patrick Statement on the Death Penalty (June 28, 2005), available at http://web.archive.org/web/2006 1031052833/http://www.devalpatrick.com/press_releases.cfm?ID=9 (last visited Nov. 21, 2009). 67 See People v. LaValle, 817 N.E.2d 341, 367 (N.Y. 2004) (holding that the death penalty may not be imposed); Commonwealth v. Colon-Cruz, 470 N.E.2d 116, 129 (Mass. 1984) (holding that the imposition of the death penalty violates the Constitution of the Commonwealth of Massachusetts). 68 Martin Finucane, Federal Jury: Death for Mass. Men‟s Killer, PORTSMOUTH HERALD, Dec. 24, 2003, available at http://archive.seacoastonline.com/2003ne ws/12242003/south_of/67100.htm (last visited Oct. 26, 2009). 274 Virginia Journal of Social Policy & the Law [Vol. 17:2

And, who could blame a citizen of Massachusetts for being upset? The federal government does not take over prosecutions in Texas to ensure the maximum sentence pursued there is life or a term of years, so why should the federal government take over a prosecution in Massachusetts to access the death penalty? In other words, if the federal government is to impose uniformity on the states, why is it imposing that uniformity only in one direction- towards death? There must be a balance between the federal government‟s desire to impose national uniformity, and its respect for the legislative will of the several states.

IV. COMMUNITY INTEREST V. NATIONAL UNIFORMITY

Though the federal courts have their own rules of evidence, statutes, and procedures, there are many ways in which the federal system respects the uniqueness of local communities. First, there is a fair cross- section requirement, by which juries may not be selected in a way that makes the composition of the jury unfairly different from the composition of the population of the district in which the court sits.69 If a defendant can show that a distinct class of jurors has been excluded from the jury at a statistically significant rate as a result of the jury selection process, he is entitled to relief, including perhaps a new trial.70

Additionally, a federal criminal trial must be held in the state71 and district72 where the crime was committed, unless otherwise provided by statute or the Federal Rules of Criminal Procedure.73 The proper location “must be determined from the nature of the crime alleged and the location of the act or acts constituting it,” unless otherwise specified by statute.74 So a federal prosecutor is not at liberty to try a Massachusetts case involving Massachusetts victims to a jury of Texans, for instance. Nor is the prosecutor able to try a case to a Massachusetts jury that does not represent a fair cross-section of the population of the district. In these ways, the federal court system ensures that defendant‟s right to a trial by a jury of his peers is not prejudiced by the decision to prosecute in federal rather than state court.

69 “[A]ll litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes,” 28 U.S.C. § 1861 (2006). See also 28 U.S.C. § 1862 (2006) (“no citizen shall be excluded from service as a . . . juror in the district courts of the United States . . . on account of race, color, religion, sex, national origin, or economic status.”). 70 See Duren v. Missouri, 439 U.S. 357, 364 (1979). 71 See U.S. CONST. art. III, § 2, cl. 3. 72 See U.S. CONST. amend. VI. 73 See FED. R. CRIM. P. 18. 74 United States v. Cabrales, 524 U.S. 1, 7 (1998). Winter 2010] Death Penalty As A Safety Valve 275

On the other hand, an individual juror is not at liberty to spare the accused the death sentence by personally disagreeing with the death penalty and refusing to impose it:

In order to serve on a jury in a death penalty case, a juror must both be “death qualified” and “life qualified.” A juror is not death qualified if “the juror‟s views [against the death penalty] would „prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.‟” . . . A juror is not life qualified if he would automatically impose a death sentence after a guilty verdict, without considering mitigating factors.75

Thus, though jurors must be empanelled fairly, they will only be empanelled if they will follow the appropriate federal law, which includes considering the death penalty in capital cases.

The federal prosecutorial interest, however, is not in the uniform prosecution of the death penalty across the country, but rather the uniform prosecution of the federal death penalty. If, instead, 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 prosecution in the fifteen states that do not have a state death penalty would be far higher, to attempt to match the state capital prosecutions in the thirty-five states that do have a state death penalty. The study of the federal death penalty system performed by Attorney General Reno in 2000-2001 did not even mention allegations that federal capital prosecution was being used to deprive the states of the ability to choose their criminal punishments.76 As of July 1, 2009, there were 3,279 people on across America, and only 58 of those under a federal death sentence.77 Surely if U.S. Attorneys were required (or even encouraged) to prosecute federally capital cases in non-death-penalty states to substitute for the state not having its own death penalty, the fifteen states with no death penalty would be the source of more than 58 federal death sentences to the other thirty-five states‟ 3,221.

75 United States v. Wilson, 493 F.Supp.2d 406, 408 (E.D.N.Y. 2006) (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal citations omitted)). 76 U.S. Department of Justice, The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review, June 6, 2001, available at http://www.usdoj.gov/dag/pubdoc/deathpenaltystudy. htm. 77 Death Penalty Information Center, Facts about the Death Penalty, Dec. 14, 2009, at 2, available at http://www.deathpenaltyinfo.org/documents/FactSheet.p df (plus eight on Military death row). 276 Virginia Journal of Social Policy & the Law [Vol. 17:2

This goal, uniformity of federal prosecution over the different federal districts (rather than the uniformity of overall state and federal prosecution across the states) is confirmed by the Department of Justice‟s own guidelines on the topic, found in the USAM:

National consistency requires treating similar cases similarly, when the only material difference is the location of the crime. Reviewers in each district are understandably most familiar with local norms or practice in their district and State, but reviewers must also take care to contextualize a given case within national norms or practice. For this reason, the multi-tier process used to make determinations in this Chapter is carefully designed to provide reviewers with access to the national decision- making context, and thereby, to reduce disparities across districts.78

This prospect of federal sentencing uniformity, rather than overall sentencing uniformity, reveals that the Department of Justice‟s goals are not in direct conflict with the wishes of each of the several states to be able to experiment with their criminal codes.

V. BACK TO SAMPSON

If federal prosecutors are not using the federal death penalty to substitute their judgment for that of the several states, why were there protests outside the courthouse during Sampson‟s trial? Why did the Richmond County District Attorney announce that he asked for the U.S. Attorney for the Eastern District of New York‟s help, while the Commonwealth‟s Attorney remained silent? Was the Sampson prosecution really just a case of a “handful of federal officials” unilaterally taking over what should have been a state prosecution?79 A possible answer in these questions lies in the policies guiding federal prosecutors‟ deliberative process, and the different methods by which state and federal prosecutors get and keep their jobs.

District Attorneys, or Commonwealth Attorneys, are elected by the voting public. In the case of Richmond County, Staten Island‟s voting public is divided into two main sections: the traditionally conservative

78 Standards for Determination, USAM 9-10.130(B), June 2007, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/10mcrm.htm #9-10.130 (last visited Jan. 4, 2010). 79 Martin Finucane, Federal Jury: Death for Mass. Men‟s Killer, PORTSMOUTH HERALD, Dec. 24, 2003, available at http://archive.seacoastonline.com/2003ne ws/12242003/south_of/67100.htm (last visited Oct. 26, 2009). Winter 2010] Death Penalty As A Safety Valve 277 south shore, and the more ethnically diverse north.80 The north is home to communities which are torn apart by gun and drug-dealing violent gangs like the Stapleton Crew; these communities have an interest in being tough on the gangsters that terrorize their daily lives. Richmond County District Attorney‟s press release in the Wilson prosecution began by stating that the “heroic detectives were killed in the line of duty while seeking to protect our community from the scourge of the illegal gun trade which has destroyed so many lives.”81 The conservative political climate of Staten Island is not present in Massachusetts, which might explain why the Commonwealth‟s Attorney did not issue a similar press release concerning Sampson. The Richmond County District Attorney showed voters he was sufficiently tough on crime by issuing a press release. In contrast, the Commonwealth‟s Attorney did not risk his next Massachusetts election, instead remaining silent. This political distinction clarifies why one federal capital prosecution was explained by a state prosecutor‟s press release and the other was not.

U.S. Attorneys, meanwhile, are guided in their communication with the public about their decisions by the deliberative process privilege.

The deliberative process privilege protects from disclosure documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which Government decisions and policies are formulated. The privilege is intended to enhance the quality of agency decisions, by protecting open and frank discussion among those who make them within the Government.82

The privilege does not protect “purely factual material,” but rather material “actually . . . related to the process by which policies are formulated.”83 Additionally, since federal prosecutors are appointed

80 See, e.g., Dan Rivoli, Democrats Move in on Staten Island’s Republican South Shore, GOTHAM GAZETTE (2006), available at http://www.gothamgazette .com/article/fea/20060821/202/1943; Wikipedia.org, Staten Island, available at http://en.wikipedia.org/wiki/Staten_Island#Government_and_politics (“Staten Island's politics differ considerably from New York City's other boroughs. Although in 2005 44.7% of the borough's registered voters were registered Democrats and 30.6% were registered Republicans, the Republican Party holds a small majority of local public offices. Staten Island is the base of New York City's Republican Party in citywide elections.”). 81 Prepared Remarks of Richmond County District Attorney Daniel M. Donovan, Jr. Regarding Federal Indictments of “Stapleton Crew” (Nov. 22, 2004), available at http://rcda.nyc.gov/pressreleases/2004/pr112204.htm (last visited Nov. 30, 2009). 82 SEC v. Collins & Aikman Corp., No. 07-Civ.-2419-SAS, 2009 U.S. Dist. LEXIS 3367, at *32 (S.D.N.Y. Jan. 13, 2009) (internal citations omitted). 83 Id. at *33. 278 Virginia Journal of Social Policy & the Law [Vol. 17:2 rather than elected, they are less likely to feel the need to explain themselves to the voting public. These policies explain why neither the U.S. Attorney for the Eastern District of New York in the Wilson prosecution, nor the U.S. Attorney for the District of Massachusetts in the Sampson prosecution, made public statements about why they chose to prosecute those respective offenders federally.

VI. CONCLUSION

Concurrent federal and state jurisdiction, especially in capital cases, is an emotionally-charged and legally-complex subject. Charging decisions are a particular province of the executive branch, subject to judicial interference only in rare and egregious circumstances, and the deliberative process privilege protects the basis of such decisions from disclosure; therefore, there may always be members of the public who take exception to the way prosecutors exercise their discretion. That public sentiment, however, should not stop prosecutors from exercising their executive discretion to “take care that the laws are faithfully executed.”84 It is perfectly permissible, furthermore, for local and federal prosecutors to coordinate to ensure that the worst offenders receive the most severe punishments, whether on a case-by-case basis or on a larger scale, like Project Exile85 or Federal Day.86

What if, however, the federal prosecutors decide to take a case against the will of the state? Can the state do anything to bar federal prosecution in concurrent jurisdiction cases? The law is fairly well settled that states cannot stop the federal government from prosecuting offenders who commit violations of valid federal law, even when the conduct is entirely innocent under the laws of the state in which the district court sits.87 There is an emerging movement in the country, however, for states to re-assert their rights under the Tenth Amendment and challenge the broad interpretation of the Commerce Clause that allows such widespread federal enforcement of its regulatory regimes.88 Montana, for instance, recently passed a law stating that “a personal firearm, a firearm accessory, or ammunition that is manufactured commercially or privately in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation,

84 U.S. CONST. art. II, § 3. 85 Project Exile, U.S. Attorney‟s Office – Eastern District of Virginia, available at http://ojjdp.ncjrs.org/pubs/gun_violence/profile38.html (last visited Oct. 26, 2009). 86 William L. Anderson & Candice E. Jackson, Washington’s Biggest Crime Problem: the Federal Government’s Ever-Expanding Criminal Code Is An Affront To Justice And The Constitution, REASON, Apr. 1, 2004, at 2, available at http://reason.com/archives/2004/04/01/washingtons-biggest-crime-prob/1. 87 See Gonzales v. Raich, 545 U.S. 1 (2005). 88 U.S. CONST. art. I, § 8, cl. 3; see also U.S. CONST. amend. X. Winter 2010] Death Penalty As A Safety Valve 279 including registration, under the authority of congress to regulate interstate commerce.”89 Whether the federal government will consent to being constrained in that manner, and whether the new Tenth Amendment challenge to the broad interpretation of the Commerce Clause will affect death penalty litigation, remains to be seen. Until the prevailing view of the Commerce Clause and federal criminal jurisdiction change, however, the duty of the Department of Justice will be to apply the law across the federal districts fairly and uniformly.

To enforce the federal law uniformly, however, federal prosecutors should not consider the lack of a state death penalty dispositive when deciding to prosecute a capital case federally. Both the principle of Federalism and the limited resources of the Department of Justice prohibit U.S. Attorneys from substituting the federal death penalty for that of the fifteen states that choose not to have one of their own. But the current USAM, especially read in light of the changes Attorney General Ashcroft made to the previous version, clearly implies that federal prosecutors should do exactly that, prosecuting federally capital cases because the state in question does not have its own death penalty. That is why the Attorney General should change the Substantial Federal Interest portion of the death penalty protocol of the USAM back to the text as it was under Attorney General Reno, or its equivalent.90

One final question remains: do state legislatures in the states without a state death penalty view the federal death penalty as a safety valve? Do they believe that they can avoid the need to pass their own death penalty statutes to apply the death penalty to the most heinous offenders, because for truly egregious crimes the federal prosecutors can be persuaded to take the case? It is certainly possible. No state court has struck down a state death penalty statute on the grounds that the death penalty is always impermissible under that state‟s constitution. Massachusetts‟ highest court objected to the incentive for accused defendants to plead guilty rather than contest their guilt before a jury.91 New York‟s highest court objected to the peculiar requirement that the judge inform the jury that if they do not reach a unanimous verdict on a sentence between life and death, a third and lesser punishment will be imposed.92 Neither state‟s legislators are incapable of drafting a statute without those objectionable features. At the state level, the question of whether to have a death penalty statute is really more political than legal.

89 Montana Firearms Freedom Act, H.B. 246, 61st Leg., 2009 Reg. Sess. (Mont. 2009), available at http://data.opi.state.mt.us/BILLS/2009/BillHtml/HB0246.ht m. 90 Substantial Federal Interest, USAM 9-10.090. 91 See Commonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass. 1984). 92 See People v. LaValle, 3 N.Y.3d 88, 116-17 (N.Y. 2004). 280 Virginia Journal of Social Policy & the Law [Vol. 17:2

The Department of Justice, however, cannot reasonably threaten to stop capital prosecutions in those states to persuade them to pass their own death penalty statutes without crippling their ability to prosecute the federal death penalty uniformly across districts. Elected officials in the several states, then, may do what it takes to serve their conscience and their voting public. Sometimes that means they will pass death penalty statutes, sometimes that means they will issue press releases declaring that they have persuaded federal prosecutors to seek the death penalty, and sometimes that means they will remain silent as citizens protest outside the courthouse. That, at least, is out of the federal prosecutor‟s hands.