Academic journal article Journal of Criminal Law and Criminology

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

Academic journal article Journal of Criminal Law and Criminology

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

Article excerpt


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. …

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