The Coming Federalism Battle in the War Over the Death Penalty
40 Pages Posted: 28 Nov 2016 Last revised: 7 Jan 2018
Date Written: November 17, 2017
From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a State that did not authorize the death penalty for the same conduct. However, since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in non-death penalty States. And in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty States. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level. While some federal capital defendants in non-death penalty States have raised constitutional objections in their cases based on federalism principles, these objections have uniformly been rejected at the district court level. However, no federal courts of appeals has yet addressed these objections.
Currently, thirty-one States authorize capital punishment while nineteen do not. The category of non-death penalty States includes some of the Nation’s most populous, such as New York, Illinois, and Michigan. In the coming decades, it is likely that other large States, such as California and Pennsylvania, and perhaps even Texas, will abandon the death penalty. It is also likely that capital punishment will be retained in many States, particularly in the South and West, and at the federal level. Given these premises, the use of the federal death penalty in non-death States, which is now mostly a side issue in the death penalty debate, may take on more prominence. As the demand for retribution against the very worst murderers in these States continues, future pro-death penalty Attorneys General will likely bring more of these cases in federal court. Moreover, Congress may continue to expand federal jurisdiction over murders that have tenuous connections to interstate commerce. In short, we may soon see a federalism battle in the war over the death penalty.
Keywords: Federalism, Death Penalty, Capital Punishment
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