Death Isn't Welcome Here: Evaluating the Federal Death Penalty in the Context of a State Constitutional Objection to Capital Punishment
Morton, Sean M., Albany Law Review
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. …