The Undermining Influence of the Federal Death Penalty on Capital Policymaking and Criminal Justice Administration in the States

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I. INTRODUCTION

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

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

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

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

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

II. THE SUBSTANTIAL FEDERAL INTEREST IN THE DEATH PENALTY

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

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

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

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

Three federal legislative enactments compose the modern federal death penalty. Following the Supreme Court's invalidation of all death penalty statutes in Furman v. Georgia in 1972, (21) the United States did not reinstate the death penalty for federal offenses until 1988 with the passage of the Anti-Drug Abuse Act. (22) The availability of the federal death penalty expanded further with the Violent Crime Control and Law Enforcement Act of 1994, which contained the Federal Death Penalty Act (FDPA). (23) The FDPA prescribes procedures for implementing the death penalty in relation to over sixty substantive crimes. (24) The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) added four more crimes to the list of death-eligible federal offenses. (25) It cannot be said that the majority of these crimes reach criminal conduct directed against the United States as an entity, nor can it be said that the substantive crimes describe behavior that is not proscribed by the criminal codes of each of the fifty states. For example, among the most frequently charged federal capital crimes are the use of a gun to commit homicide during and in relation to a crime of violence or drug trafficking in violation of 18 U.S.C. [section] 924(j), murder in aid of racketeering activity in violation of 18 U.S.C. [section] 1959(a), and murder in furtherance of a continuing criminal narcotics enterprise in violation of 21 U.S.C. [section] 848(e)(1)(A)--all targeting conduct proscribed by every state. (26)

That the federal government has the ability to prosecute virtually every homicide in the United States as a capital crime does not, of course, mean that it does or will, or that the states have been supplanted as the primary prosecutors of human-on-human violence. (27) Since 1988, the Attorney General of the United States has authorized capital prosecutions against 441 defendants. (28) This number represents a tiny fraction of cases in which the federal government could assert its criminal jurisdiction and charge an offense that carries the death penalty.

One factor acting as a restraint on the number of federal criminal prosecutions is the Department of Justice's centralized review process. Unlike state-level county prosecutors, the United States Attorneys of the ninety-three judicial districts spanning the fifty states, Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands are not autonomous actors when it comes to capital prosecutions. Should a United States Attorney wish to prosecute a defendant capitally, he or she must submit a memorandum to the Attorney General's Review Committee on Capital Cases (known as the Capital Review Committee). The Attorney General makes the final decision about whether to seek the death penalty, (29) and once the Capital Review Committee has authorized a capital prosecution, the United States Attorney must seek permission from the Attorney General to reduce the charges. (30) The ultimate decision rests with the Attorney General, who may override the local prosecutor's preference. (31)

An express goal of this centralized authorization policy is to achieve uniformity in charging decisions across jurisdictions:

   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. (32)

Thus, department policy requires that each decision to seek or not to seek the death penalty "be set within a framework of consistent and even-handed national application of Federal capital sentencing laws." (33) The Capital Review Committee is populated with an eye toward national uniformity. According to departmental testimony presented to the United States Senate: "The Committee members were selected based on their abilities to synthesize facts and to fairly and uniformly evaluate arguments regarding the application of the Federal death penalty statutes." (34)

Uniformity and consistency in capital charging decisions are laudable goals, especially given that modern death penalty jurisprudence posits arbitrariness as the chief vice against which the Eighth Amendment guards. (35) The virtue of the Capital Review Committee is that by allowing the same group of individuals to review and issue recommendations on most potentially capital federal cases, (36) some consistency may be achieved. Yet, aside from this procedure, the substantive values by which the committee makes its determinations are under-articulated, (37) especially in light of the expanse of territory and citizenry over which the Department presides and the virtually unlimited scope of federal criminal jurisdiction. The Department concedes that "Federal law enforcement resources and Federal judicial resources are not sufficient to permit prosecution of every alleged offense over which Federal jurisdiction exists." (38)

A separate policy relating to dual state and federal jurisdiction provides some further principles. Departmental policy dictates that scarce federal resources are not to be expended where state law targets federally proscribed conduct and enforcement of state law is thorough and effective. (39) In such instances of overlapping jurisdiction, a federal prosecution should be undertaken "only when the Federal interest in the prosecution is more substantial than the interests of the State or local authorities." (40) The interest of the state in prosecution of the offense is indicated in the nature of the offense, identity of the offender or victim, and the amount of investigative resources already devoted by the state. (41) The federal interest may be heightened where the criminal activity reached beyond the boundaries of a single local prosecutorial jurisdiction (42) and where the "ability and willingness of the State to prosecute effectively and obtain an appropriate punishment upon conviction" is lacking. (43)

The policy supports federal prosecution where a state is unlikely to obtain an "appropriate punishment." What exactly is considered to be appropriate punishment is not defined, but by inference, this phrase must relate to the severity of the sentence. Because federal prosecution aimed at correcting a state sentence deemed inappropriate for its severity would be an absurd use of resources and ultimately inconsequential--since the more lenient federal punishment will not prevent the state from executing its sentence--the import of the policy is that federal prosecutions are utilized when the array of potential state sentences is deemed too lenient.

The concept of "appropriate punishment" is mirrored in the Department's policy regarding successive federal-state prosecutions. Because the Double Jeopardy Clause allows a federal prosecution following a state prosecution, (44) the federal government may initiate a second prosecution in order to vindicate a substantial federal interest. Such prosecutions are governed by a second discretionary policy, the "Petite Policy." (45) The purposes of this policy are (1) to "protect persons charged with criminal conduct from the burdens associated with multiple prosecutions or punishments for substantially the same act(s) or transaction(s)"; (2) to allow for the "vindicat[ion] of substantial federal interests through appropriate federal prosecutions"; (3) to promote efficient use of departmental resources; and (4) to facilitate federal-state cooperation in law enforcement. (46) The policy requires the prior approval of the Attorney General "whenever there has been a prior state or federal prosecution resulting in an acquittal, a conviction, including one resulting from a plea agreement, or a dismissal or other termination of the case on the merits after jeopardy has attached." (47) Approval is contingent upon the satisfaction of three prerequisites:

   [F]irst, 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. (48)

Although the charging policy speaks of uniformity, this is in tension with the admittedly limited resources of the federal government and indeed with the empirical reality of federal criminal prosecutions. Both the capital charging policy and the Petite Policy imply that a state is capable of delivering full vindication of federal interests, so long as punishment is sufficiently severe. Where state laws, policies, or norms favor the same or greater level of punishment for a certain crime, the local norm is observed, either by virtue of a federal prosecution whose sentencing outcome is similar to that which would be attained in a state prosecution, or, more likely, by federal abstention from prosecution. Where state laws, policies, or norms favor less punishment, the norm may be supplanted by a successive or overriding federal prosecution.

B. EXAMPLES OF FEDERAL PROSECUTIONS

The existence of dual jurisdiction over potentially capital crimes raises questions about the exact parameters of "appropriate punishment" and the existence of a "substantial federal interest" in obtaining a particular sentencing outcome. Some examples of the application of the Department's policies in actual cases suggest that in certain instances, in the judgment of the Department, the only appropriate punishment is a death sentence, without which the substantial federal interest would be unvindicated.

1. Prosecutions Initiated in Federal Court Where the Death Penalty Is Unavailable in the State

The federal prosecution of Alan Quinones predated the Ronell Wilson trial, discussed supra, but was similar in several respects. Quinones was accused of murdering an undercover New York City Police Department (NYPD) officer in the Bronx. (49) Although Quinones's criminal behavior fit within the federal charge of murder in furtherance of a continuing criminal enterprise, the crime was arguably local: he was a relatively small-time drug dealer; the victim was part of an NYPD investigative team; the murder was in retaliation for an arrest by the NYPD; the murder took place in the Bronx and was investigated by the NYPD. Capital punishment was (at the time) available in New York, but the Bronx District Attorney, Robert Johnson, has a policy of not seeking the death penalty. (50) As Johnson is the longest serving district attorney in Bronx history, (51) this policy evidently meets with local approval, although at times it has been challenged by higher state authorities. The Governor of New York had successfully removed Johnson from the trial of another defendant accused of killing an officer of the NYPD. (52) By removing the matter from Johnson's control, the federal charges against Quinones obviated the need for a similar political scuffle. Although the United States Attorney recommended against seeking the death penalty in the case, the United States Attorney General overrode this recommendation. (53) The Justice Department pursued the capital charge, it said, in order to ensure consistency of capital punishment across the country. (54) The federal jury convicted Quinones, but he was given only a life sentence. (55)

A federal forum afforded the option of a death sentence for Alfonso Rodriguez, Jr., who was convicted and sentenced to death by a federal jury in the District of North Dakota. (56) The crime had been sensationalized in the national media; Rodriguez, a convicted sex offender recently released from prison, was convicted of killing a vivacious white college student whom he had kidnapped from a mall parking lot. (57) It was the first death sentence handed down within the territorial jurisdiction of that state in nearly one hundred years. (58) Similarly, in 2005 Donald Fell received a federal death sentence for a crime that partially took place in Vermont, (59) a state without the death penalty. (60) Notably, Fell was tried only after the Attorney General rejected his plea agreement with the United States Attorney's Office for the District of Vermont. (61) His death sentence was the first one delivered by a jury in Vermont in nearly fifty years. (62)

2. Simultaneous State and Federal Prosecutions

In Tennessee, two brothers, Robert and Antonio Carpenter, faced dual murder prosecutions in state and federal court, stemming from the abduction and murder of a local woman from a fast-food restaurant drive-in in 1999. (63) Federal authorities charged the brothers under the federal carjacking statute. (64) In what was, at the time, a rare occurrence, the United States Attorney General authorized federal prosecutors to seek the death penalty against the Carpenter brothers, despite the fact that they were presently facing the death penalty in state court. (65) However, the state prosecution was on uncertain grounds. Defense attorneys for the Carpenter brothers, who are African-American, filed a motion to dismiss the capital charges, predicated on the assertion that District Attorney Elizabeth Rice engaged in a pattern and practice of racial discrimination in seeking the death penalty. (66) The federal death penalty was authorized only after the defense motion was filed. (67)

In this instance, the federal and state trials proceeded concurrently, requiring the Carpenters to defend themselves in two forums simultaneously. The concurrent trials, combined with the federal trial court's desire to keep a "crisp" schedule in order to move the case "at a steady pace," (68) created a logistical nightmare for the defense. On July 23, 1999, Fayette County Circuit Court Judge Jon Kerry Blackwood ordered the Carpenter brothers to undergo psychiatric exams. (69) State prosecutors requested the exams in order to determine the defendants' competency to stand trial, as well as their mental states at the time of the offense. (70) At this time, the Carpenters had not yet been appointed counsel in the state proceedings, (71) but their appointed counsel in the federal proceedings did complain, in federal court, about the state-ordered psychiatric evaluations. (72) Without the ability to intervene in the state proceedings, federal defense attorneys were left to rely on assurances from state prosecutors, delivered via federal prosecutors, that the state evaluation would not take place for a month, leaving state defense attorneys (once appointed) enough time to contest the order issued by the state judge. (73) Ultimately, the Carpenters pleaded guilty to lesser charges in federal court. (74) In state court, Robert Carpenter was declared mentally retarded and thus ineligible for the death penalty. (75) Antonio Carpenter was found guilty of first-degree murder largely on the basis of his federal plea, which was entered as evidence against him in state court, (76) but the jury rejected the death penalty and instead sentenced him to life in prison without the possibility of parole. (77)

3. Federal Prosecutions Following Reversal of State Convictions

In other instances, federal capital prosecutions have been initiated only after state convictions have been reversed in the state appellate process for Fourth Amendment violations. In North Carolina, Richard Jackson was convicted of first-degree murder and sentenced to death, but the North Carolina Supreme Court reversed the conviction on the grounds that Jackson's confession should not have been admitted at his trial because local police officers continued to question Jackson after he invoked his right to counsel. (78) On remand, Jackson entered a plea and avoided a death sentence in North Carolina but was subsequently indicted on similar federal charges. Although Jackson objected to the admission in federal district court of evidence that had been collected by authorities after his state court plea--Jackson argued that federal authorities were moved to prosecute him vindictively on the basis of statements and interviews that he had given while in jail, apparently unaware of their potential use in a subsequent federal prosecution--he did not object to the admission of his confession in federal court. (79) Thus, the federal court did not need to determine the voluntariness of Jackson's confession, the issue on which the state appellate court had found reversible error. Jackson was convicted and sentenced to death by a federal jury in 2001. (80)

The issue that was averted in Jackson's case arose in the federal prosecution of Samuel Ealy. Charged in relation to three murders arising out of a criminal ring led by a local mayor in West Virginia, Ealy was acquitted of state murder charges in 1991. (81) In his subsequent federal trial on charges arising out of the same underlying facts, the district court rejected the notion that it was bound to follow the West Virginia court's determination that certain evidence had been obtained in violation of Ealy's Fourth Amendment rights. Collateral estoppel did not apply because the federal government was not a party to the state prosecution. (82) In determining the issue de novo, the court acknowledged that the legal principles remained the same, but credited testimony from law enforcement officers, whereas the state trial court had not. (83)

4. Federal Prosecution Following State Acquittal

Kenneth Barrett was tried twice in Oklahoma state court on murder charges before being tried, convicted, and sentenced to death in relation to the same incident by a federal jury. (84) Barrett was a suspected methamphetamine producer, and state and local authorities joined forces to investigate him. They executed a "no-knock" search warrant at Barrett's property after midnight. During the execution of the warrant, Barrett fatally shot an Oklahoma Highway Patrol officer in an unmarked vehicle from inside his house. (85) A jury was unable to reach a verdict in his first state trial, and another jury acquitted him of intentional murder at his second trial, convicting him instead of a lesser-included offense and sentencing him to thirty years in state prison. (86) A central issue in those trials and in the subsequent federal trial was whether Barrett was aware that the late night visitors to his property were in fact police officers and not just run-of-the-mill trespassers. (87) The federal court also had to resolve whether the warrant violated Oklahoma state law, which required warrants to be executed between the hours of 6 a.m. and 10 p.m. absent certain exceptional circumstances. (88)

Similarly, Claude Dennis was tried capitally in federal court in relation to a murder for which he was acquitted in Virginia state court. (89) Dennis was charged with that murder, among others, after a joint federal-state task force reinvestigated the case. (90) Dennis originally faced charges in the 15th Judicial Circuit of Virginia, which is comprised of the city of Richmond. However, the federal jury was drawn from the Eastern District of Virginia, a much broader area that includes the suburbs of Richmond. As a federal court noted in a related case, "By bringing the case in federal court, the United States will likely obtain a jury composition that could not exist in the Circuit Court for the City of Richmond absent a Batson violation." (91)

5. Federal Prosecution When New Evidence Emerges After State Conviction

Federal authorities again took a second bite at a death sentence in the case of Brent Simmons, who was convicted for the murder of his ex-girlfriend and her boyfriend, both students at James Madison University. Simmons was charged in a local court in Virginia, but the jury deadlocked on the issue of guilt. Simmons accepted a plea to second-degree murder and was sentenced to twenty years in jail. (92) Years later, new evidence emerged that made the case against Simmons stronger. (93) State prosecutors were prevented by the Double Jeopardy Clause of the Fifth Amendment (as incorporated by the Fourteenth Amendment) from reopening the case. However, federal authorities were able to bring capital charges against Simmons for the same acts based on anti-stalking provisions of the Violence Against Women Act. (94)

In sum, the above cases indicate that federal prosecutions are not limited to instances in which the states are unwilling or unable to criminalize and prosecute the underlying conduct. (95) Instead, by terms of the Petite Policy, the state sentences in each of these cases …