Federalism and Capitol Punishment: New England Stories

Abstract

Application of the federal death penalty to crimes committed in states that have abolished capital punishment is a tiny problem with a disproportionately powerful scholarly impact. Federal death sentences represent only 0.53% of death sentences imposed in the United States. Even more striking, only six individuals, out of 3,242 on death row nationwide, currently await execution on federal capital charges for crimes committed in states that have abolished capital punishment. Yet, in an era of alarmism over the federal government’s role in enforcing criminal laws, an increasing body of scholarly literature has focused on the federalism concerns posed by this rare capital punishment practice. Overwhelmingly, scholars have argued that federal death sentences should be constitutionally impermissible for crimes committed within the borders of abolitionist states strictly on federalism grounds. This Article examines the prevailing scholarly view that federalism concerns trump Supremacy Clause arguments and render the federal death penalty unconstitutional when applied within the boundaries of abolitionist states and offers a different view. It argues that, contrary to prevailing scholarly wisdom, courts have correctly permitted the federal government to dictate its own sentencing practices given prevailing Supremacy Clause precedent; and moreover that there are two major policy advantages in having federal authorities bring capital charges when particularly egregious cases arise in abolitionist states. First, federal capital prosecution can serve as a “safety valve,” insulating local communities from political pressures that might otherwise lead to more widespread application of capital punishment or derail state abolitionist movements. And second, federal capital charges provide opportunities for uniformity of application that may address longstanding concerns regarding racial inequities in the imposition of death sentences.

Keywords: capital punsihment, death penalty, federalism, Death Penalty Protocal, Department of Justice, state capital punsihment