Death Isn't Welcome Here: Evaluating the Federal Death Penalty in the Context of a State Constitutional Objection to Capital Punishment

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I. INTRODUCTION

Since 1988, twenty-five individuals have been tried and convicted under the federal death penalty statutes.(1) These prosecutions were undertaken in thirteen states,(2) all of which have a death penalty provision under state law.(3) Of course, the absence of a state capital punishment regime in a given state would not bar a federal capital prosecution in that state, provided that the alleged crime is a federal offense.(4) Nevertheless, an "interesting sovereignty and federalism question[]"(5) would arise if a federal prosecution was undertaken in a state that affirmatively prohibited the death penalty as a matter of state law.(6) Suppose, for example, that a state constitution expressly, or by judicial interpretation, defined the death penalty as an impermissible cruel and unusual punishment. Would that prohibition, an unequivocal expression of the particular state's citizenry, act as a bar to federal capital prosecutions within that state? Or would the Supremacy Clause of the federal constitution(7) "render [the state constitutional provision] a legally irrelevant point"?(8)

This comment will examine the exercise of the federal death penalty within the states and the implications that a state constitutional prohibition of capital punishment might have upon that exercise. Accordingly, this comment will begin with a brief examination of the federal death penalty as enacted and applied within the states.(9) The comment will then discuss the Commonwealth of Puerto Rico, a United States territory that has expressly outlawed capital punishment via its own constitution,(10) and the relationship between the Puerto Rico Constitution and federal law, including the exercise of federal capital prosecutions within Puerto Rico itself.(11) Finally, this comment will argue that, with regard to capital punishment, the decision to pursue such a punishment is best left a state prerogative.(12) This section will include an argument that, just as "obscenity" is defined for First Amendment purposes in terms of "`contemporary community standards',"(13) "cruel and unusual punishments" under the Eighth Amendment(14) should be defined according to the local values expressed by individual states through fundamental state law.

II. THE FEDERAL DEATH PENALTY

Thirty-seven years have passed since the last federal execution.(15) In the late winter of 1963, Victor Harry Feguer was publicly hanged in Iowa for the kidnapping and murder of an Iowa physician.(16) Feguer had summoned Dr. Edward Bartels to Feguer's residence in Dubuque, Iowa, held Dr. Bartels at gunpoint, and then transported him to East Dubuque, Illinois.(17) In Illinois, a companion of Feguer proceeded to shoot Dr. Bartels in the back of the head.(18) Feguer later murdered the companion and deposited the body in an Illinois portion of the Mississippi River.(19) Ten days later, Feguer was arrested by federal agents in Birmingham, Alabama after being confused for another federal fugitive.(20) Feguer was subsequently indicted in the Northern District of Iowa and charged with violating the Kidnapping Act(21) for his transport of Dr. Bartels across state lines.(22) A federal jury convicted Feguer and recommended the death penalty.(23) Pursuant to federal law, a sentence of death by hanging was imposed.(24)

Apart from being "the last federal execution in the twentieth century,"(25) Feguer's execution is significant in two other respects. First, "Feguer would not have been executed had state[,] rather than federal, prerogatives controlled;"(26) thus exemplifying the fact that various states and the federal government strongly disagree over capital punishment.(27) Second, imposition of the federal death penalty upon Feguer would appear to have been unconstitutional under Furman v. Georgia.(28) Furman declared the "untrammeled discretion" of juries to impose the death sentence to be unconstitutionally arbitrary(29) and essentially invalidated the capital punishment statutes existing on the books at that time.(30) In fact, no such statute was ever used again in a capital prosecution.(31)

Congress did not enact a series of "generally applicable federal death penalty procedures"(32) until the passage of the Federal Death Penalty Act of 1994 [FDPA].(33) The FDPA mandates that its procedures apply to "any ... offense for which a sentence of death is provided."(34) As for the FDPA's substantive provisions, one commentator has summarized them as follows:

   Section 60003 of the FDPA authorize[s] application of its new procedures
   "if death results" for fifteen federal statutory sections that already
   contained a death penalty.... Sections 60005 through 60024 then newly
   provided possible death penalties for at least seventeen preexisting, and
   ten new, federal offenses.... Accordingly, there were two categories of
   offenses in the 1994 Act for which death was a newly-authorized possible
   penalty: entirely new federal offenses, and pre-existing offenses whose
   language had not previously contained a possible death penalty. Aside from
   the new "super drug kingpin" provisions in Section 60002 and the new
   non-homicidal espionage provision in Section 60003, all the new offenses
   and penalty provisions limit availability of the death penalty to violation
   [sic] in which death results. Because some U.S. Code sections may contain
   more than one offense for which death is now available, and because
   alternative elements in a single statutory section might arguably be
   labeled as separate offenses, ... the exact number of federal offenses made
   death-eligible by the 1994 Act is "open to interpretation...."(35) Needless
   to say, by any estimate the 1994 FDPA substantially increased the
   availability of the death penalty for federal offenders?

For purposes of this article, several points about the federal death penalty must be stressed.(37) At the outset, it must be noted that a majority of the conduct punishable under the federal death penalty is simultaneously a violation of state law. Quite simply, a vast majority of the federal offenses only become death-eligible when the crime results in death to another party.(38) Most assuredly, such conduct would be a violation of a state's murder or homicide statute--perhaps even the state's capital murder statute, provided the state had one. For instance, federal law authorizes the death penalty for murder committed in a particularly "heinous, cruel or depraved manner."(39) Had that crime occurred in New York, for example, the crime would be equally as punishable under the state's own capital punishment scheme as under the federal statute.(40)

In situations where such concurrent federal and state jurisdiction is present, the United States Attorney's Manual provides guidance to federal prosecutors in determining whether to defer to state prosecution or pursue prosecution at the federal level.(41) In short, the federal interest in the prosecution must substantially outweigh the state or local interest in order to merit federal capital prosecution.(42) The United States Attorney's Manual lists three factors that are intended to provide individual prosecutors with guidance in ascertaining the balance of state and federal interests.(43) First, a prosecutor should consider the "relative strength of the State's interest in prosecution."(44) This should include consideration of the "nature of the offense," "the identity of the offender or victim," the primary investigative agency, and the "possibility that prosecution will lead to disclosure of violations which are peculiarly within the jurisdiction of either the Federal or State authorities."(45) Second, the prosecutor should consider whether the "criminal activity reached beyond the local jurisdiction."(46) Third, the Manual instructs a federal prosecutor to consider "[t]he relative ability and willingness of the State to prosecute effectively."(47) This should include a consideration of the likelihood of a successful prosecution at the state level, weighing such factors as the availability of "prosecutorial and judicial resources" and any anticipated "legal or evidentiary problems" that could impede prosecution at the state level.(48)

Significantly, however, United States Attorneys faced with the problem of concurrent jurisdiction with state authorities are not permitted to consider the availability of capital punishment, or lack thereof, under state law.(49) Thus, a given state's lack of a capital punishment scheme does not, by itself, justify federal prosecution.(50)

Apart from this mandated review by individual prosecutors, all potential federal capital cases must also be reviewed by a "[c]ommittee appointed by the Attorney General."(51) This additional layer of review is designed expressly to guard against "racial discrimination in the administration of the Federal death penalty."(52) Moreover, all parties involved--the federal prosecutor, the Attorney General, and the review Committee--are required to determine whether the aggravating factors of the crime(53) outweigh the mitigating factors applicable to the crime in deciding whether the death penalty is justified in a given case.(54) Although this binary review process ostensibly is designed to "promote consistency and fairness" in the application of the federal death penalty,(55) it may also act as a limitation upon exercises of federal authority where state jurisdiction lies as an alternative. Indeed, just as individual prosecutors are required to justify federal prosecution, the Attorney General's review committee is charged with ensuring that federal prosecution is appropriate.(56)

Two other points regarding the federal death penalty are relevant to this discussion. First, the FDPA statutorily provides for the use of state facilities for the purpose of carrying out a sentence of death,(57) despite the fact that the federal government has constructed a federal execution facility in Terre Haute, Indiana.(58) Moreover, the statute recognizes that the mandatory use of state facilities may be problematic if the successful capital prosecution takes place in a state with no capital punishment under state law.(59) By authorizing the trial judge to transfer such a case, post-conviction, to a state that provides for the death penalty,(60) the drafters of the statute apparently recognized the difficulties that federal authorities would face in carrying out a federal prosecution in a state that has not authorized the death penalty under state law.(61) By authorizing a transfer, the statute may avoid a clash of sovereign authorities like that seen in the case of Victor Feguer, whom federal authorities put to death in Iowa in 1963 despite the protestations of the Iowa Governor.(62) This transfer provision implies federal recognition that state opposition to capital punishment, whether expressed by outright prohibition or merely by the absence of a state capital punishment scheme, is a genuine concern. Absent this provision, the federal government could conceivably be put in the politically difficult position of having to implement the death sentence within a sovereign state that has voiced vehement opposition to this ultimate penalty.

Somewhat ironically, the FDPA recognizes the sovereign nature of one type of entity without extending that recognition to the individual states. Under section 3598 of the Act, individuals "subject to the criminal jurisdiction of an Indian tribal government" are not eligible for the federal death penalty unless the particular tribe gives its consent.(63) Where the only basis for federal prosecution is that the crime occurred on Indian land, no federal capital jurisdiction lies unless the tribe says it does.(64) No such analogous provision exists with regard to the states.(65) Where the basis of federal jurisdiction is that the punishable crime occurred within a federal enclave within a state's borders, the federal capital prosecution may proceed unfettered.(66) When the murder occurs in Yellowstone National Park, the States of Wyoming and Montana may not object to the exercise of a federal capital prosecution. But when the murder occurs on a Sioux reservation in Montana, the State of Montana need not object because the prosecution cannot go forward without the consent of the Sioux. This is an anomalous result indeed.

As one commentator has noted, "[t]he [FDPA] dramatically expanded the small base of pre-1994 federal death penalty crimes."(67) With this "dramatic" federalization of the death penalty, a host of states' rights questions arise. Perhaps primary among these is the extent to which the exercise of the federal death penalty unduly intrudes upon an area of traditionally state concern, the enforcement of criminal law.(68) This is a particular problem where the exercise of a federal capital prosecution occurs in a state that has not deemed it necessary to establish its own capital punishment scheme, or, alternatively, has established an outright prohibition on capital punishment. An examination of the federal death penalty as exercised in Puerto Rico, which has constitutionally banned the death penalty,(69) will help illuminate some of the federalism concerns inherent in the federal death penalty itself.

III. PUERTO RICO'S CONSTITUTIONAL PROHIBITION OF CAPITAL PUNISHMENT

A discussion of the exercise of federal capital prosecutions in Puerto Rico must begin with two significant points. First, United States Attorneys in Puerto Rico have submitted the largest number of potential capital cases to the Department of Justice Review Committee of any of the ninety-four federal districts.(70) Thus, a discussion of the applicability of the federal death penalty in Puerto Rico is not an irrelevant one, as the citizens of Puerto Rico appear to be subject to federal capital prosecution to the same, if not a greater, degree than their state counterparts. Second, Puerto Rico expressly, and unequivocally, forbids the use of the death penalty under its constitution.(71) Although one commentator has expressed the view that the effect of this ban is "uncertain,"(72) a federal court recently put an end to any uncertainty--holding, without reservation, that the Federal Death Penalty is "inapplicable" in Puerto Rico.(73)

Of course, Puerto Rico is not a state and its relationship with the federal government is thus considerably different from the typical federal-state relationship.(74) For this reason, a brief overview of the Puerto Rico-United States relationship is warranted.

Following Spain's cessation of Puerto Rico to the United States,(75) Puerto Rico became a "mere territory" of the United States,(76) and thus was subject to unadulterated congressional control under the federal constitution.(77) On July 3, 1950, however, Congress began Puerto Rico's transition from a territory to the status of Commonwealth.(78) With passage of Public Law 600,(79) Congress, "[f]ully recognizing the principle of government by consent,"(80) entered into a "compact"(81) with Puerto Rico wherein Puerto Ricans would be empowered with limited self-rule.(82) Acting in accord with Public Law 600, the Puerto Rican legislature created the Constitution of the Commonwealth of Puerto Rico, which was ratified by the voters of Puerto Rico on March 3, 1952.(83) However, highlighting the diminished …