THE PLANK NOVEMBER 18, 2009
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Josh Gerstein at Politico flags a pretty dubious argument (see also here) against seeking the death penalty for the alleged 9/11 plotters: They're being tried in New York, which doesn't currently have a death penalty statute, so doesn't it offend federalism for federal prosecutors to seek the death penalty there?
No, it doesn't. As a strictly legal matter, federal criminal law and state criminal law are entirely separate bodies of law; a state government (formally, at least) does not control or influence federal prosecutions within its jurisdiction. And as a theoretical matter, the whole point is that a federal crime isn't just a crime against the citizens of the state in which it was committed; it's a crime against the people of the United States. Montanans and Tennesseeans have just as strong an interest as New Yorkers in determining what the punishment should be for federal crimes committed in New York.
That's not to say there aren't federalism concerns implicated here. There certainly are--just not in this particular case. In contrasting the case of the 9/11 hijackers with a Bush-era death penalty prosecution in Vermont (another non-death-penalty state) that angered some liberals, Gerstein notes:
Critics complained that Ashcroft was pursuing the death penalty over the objection of local U.S. attorneys and in cases where there was no particular federal interest. In the 9/11 case, prosecutors appear to be on board and the national quality of the crimes is evident.
Think about the implications of that for a minute. Under what confused theory of federal-state relations is it acceptable for the federal government to prosecute crimes where there's "no particular federal interest," as long as the feds don't impose the death penalty? The offense to federalism is the fact of federal involvement in such cases, not the punishment sought. The federalization of criminal law is a huge problem--there are lots of federal crimes, especially involving drugs and guns, that shouldn't be federal crimes at all. But when there is a federal interest, as there obviously is in the 9/11 case, the state's concerns need to take a backseat. Federalism isn't about simply deferring to state preferences; it's about keeping the federal government out of state affairs and, equally important, about keeping the states out of federal affairs.
It's not that the federalization of criminal law isn't without benefits. I worked at a U.S. Attorney's Office last summer, and it feels pretty awesome to be able to deploy the resources of the federal government to go after miscellaneous malefactors threatening the public. (And states with overburdened law-enforcement and criminal-justice systems, like California, are often all too eager for the help.) But there's no justification for forcing the citizens of state A to pay taxes to protect citizens of state B from local harms that they aren't willing to tax themselves to be protected from. And, somehow, making assistant U.S. attorneys (and summer law-student interns!) feel like their jobs are awesome doesn't really strike me as a great rationale for expanding the reach of federal criminal law.
4 comments
This is an excellent and thoughtful consideration of the role of the federal government in criminal law. I'd love to see TNR do more on this subject, in print, and possibly help to build a new liberal or progressive consensus about the appropriate place and limits on federal and state criminal law. With the terrorism trials, we have leading Republicans like Jeff Sessions saying publicly that the pendulum has swung too far in the direction of "individual liberty," as though liberty is a bad thing. There is a real opening here for liberals or progressives to take ownership of criminal justice issues -- and more broadly the defense of legitimate state sovereignty and individual liberty. Republicans are afraid to prosecute criminals, they're afraid to punish terrorists, and they're afraid to let states do their jobs. That's a huge opening, if Democrats are smart enough to seize it.
- rhubarbs
November 18, 2009 at 10:05am
"But there's no justification for forcing the citizens of state A to pay taxes to protect citizens of state B from local harms that they aren't willing to tax themselves to be protected from." Of course there is, I am sure there are a lot of local harms that are as much a function of location (like border states where drug violence spills across the border). You can argue how much and to what extent, but stating there is no justification is simply isn't true. rhub, whether it is cowardice or craven opportunism, the Republicans have simply been disgraceful. We arrest Mexican kingpins and try them, even though the cartels have shown an incredible willingness to kill any and every law enforcement official. They really are an order of magnitude more dangerous yet I have heard no one call for military trials for these guys. Yet give one of these guys an arab accent and Republicans will shit themselves silly. I think the Dems problem is not to call them out for their cowardice. Screw them, you bring these jihadists mutts to an American maximum security prison, hire me, I will work there (why not, great benefits, security, etc.)
- blackton
November 18, 2009 at 10:46am
More unprincipled mewlings from the hide-under-the-bed-crowd. They are like robots: Obama administration does anything, they spew. In this case, they argue strenuously for cowardice. How can they even face their kids? Ray Kelly is the best police commisioner on the planet - he and the feds have kept us New Yorkers safe for years now. I pity any city that thinks its protected from terrorism compared to New York. We are the safest possible place for these trials. The Queen of England the Queen Mum refused to leave the city of London with actual bombs falling all around them, people dying, with their home as the ultimate prize of their enemy (who was sort of winning at that point). The Israeli's tried Eichmann in front of a jury and WE'RE suddenly too precious and in danger to use the same system? I am awed by Attorney General Holder's courageous decision, sobered and delighted at the same time. I refuse to live in fear of a bunch of two bit thugs and I'm honored to have a chance to walk the walk of my ideals by watching these people be put away in my courthouse. Long live the Constitution. The people attacking Holder mostly don't live anywhere near danger or risk of any sort, unless breaking a leg on the way to the fridge counts. And yet they whimper and whine that the bad guys are gonna get em. They are a joke. I'll use the Queen and the Israeli's as my inspiration thanks. Not John Yoo, Lindsay Graham and the rest of the cowardly, hysterical little girls that constitute the right.
- WandreyCer
November 18, 2009 at 2:15pm
Wandrey, I object strongly to what you wrote. I mean, have you met a little girl recently? Today's girls are smarter, stronger, and just all-around ballsier than most adult men. Don't insult American girlhood by comparing the cowards of the Republican Party to little girls. The country music lyric "I'm more man than you'll ever be / And more woman than you'll ever get" applies here. Jump to the 2:20 mark to hear the Meat Purveyors explain it.
- rhubarbs
November 18, 2009 at 4:16pm