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 (Brooklyn, 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