The Coming Federalism Battle in the War over the Death Penalty

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, 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. And since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in nondeath penalty states. 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 have 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 statescontinues, 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

When the Federal Death Penalty Is Cruel and Unusual

Recent changes to the way the U.S. Department of Justice decides whether to pursue capital charges have made it more likely that the federal death penalty will be sought in cases in which the criminal conduct occurred within States that do not authorize capital punishment for any crime. As a result, since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty. This state of affairs is in serious tension with the Eighth Amendment’s proscription against “cruel and unusual punishments.” A complete understanding of the Bill of Rights can be achieved only by placing primary emphasis on the views of the Anti-Federalists, who conditioned ratification of the Constitution on the inclusion of such a Bill. Such an account of the Bill of Rights recognizes that, with respect to most if not all of its provisions, “structural” and “individual rights” concerns are intertwined. That is, these provisions tie the protection of individual rights to the preservation of State sovereignty from the danger of federal encroachment. In particular, recent scholarship suggests that the criminal procedure protections of the Bill were in large part motivated by a desire on the part of the Anti-Federalists to make it more difficult for the federal government to investigate, prosecute, convict, and punish for crime, traditionally a prerogative of the States. It follows from this that the Eighth Amendment prohibition on “cruel and unusual punishments” was designed primarily to restrain the federal power to punish in a way that conflicts with the norms of an individual State. Thus, the imposition of the death penalty by the federal government in any State that does not impose that mode of punishment constitutes “cruel and unusual punishment” in violation of the Eighth Amendment

The Contingent Fourth Amendment

In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist. The reason for the absence of clear common-law search and seizure rules in 1791 is that the common law differed in important respects among the new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law differed by State. This Article introduces a view of the Fourth Amendment¿the contingent Fourth Amendment¿that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law

The Local-Control Model of the Fourth Amendment

Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated in the scholarly literature on the history surrounding the adoption of the Fourth Amendment. Some adhere to a reading of the historical record that roughly supports the Warrant Model while others have found that history more strongly supports the Reasonableness Model. This Article interprets the historical record differently than either of the two dominant schools, and introduces a third model of the Fourth Amendment: the Local-Control Model. It situates the Fourth Amendment as the culmination of a decades-long, continent-wide struggle by Americans for local control over search-and-seizure policy as against central authority. And it posits the Fourth Amendment as the result of an effort on the part of the Anti-Federalists, those who demanded a Bill of Rights, to maintain local control over search-and-seizure policy. On this view, the Fourth Amendment has a strong federalism component. It demands neither that federal officers generally use warrants for searching and seizing nor that they act pursuant to a general reasonableness standard. Rather, the Local-Control Model supports the view that federal officers must generally follow state law in conducting searches and seizures

Fraudulently Induced Confessions

The jurisprudence on the use of police deception during interrogations is singularly unhelpful. Police may deceive in order to induce a suspect to confess, the courts tell us, unless they go too far. Police are permitted, for example, to feign sympathy for the suspect, lie about the existence of incriminating evidence, and falsely downplay the seriousness of the offense under investigation. But when police engage in other forms of deception, such as by offering false promises of leniency or misrepresenting the suspect’s Miranda rights, courts will balk and declare the resulting confession coerced. Yet neither courts nor commentators have successfully articulated why exactly the line is drawn where it is. Nor have they been able to prescribe how far the police may go with respect to other types of deception, such as misrepresentation of facts extraneous to the interrogation room, before they cross the line. Part of the reason is semantic. In other areas, the law distinguishes between coercion and deception. Coercion is generally thought of as depriving the actor of free will or, to put it more helpfully, putting the actor to an unfair choice of undesirable alternatives. But deception is different. Deception alters the actor’s perception of her choices so that, while she perceives herself to be making a rational choice of the more attractive alternative, a rational actor would have decided differently if she were aware of the true facts. That is to say, while the person under duress is not acting of her own free will, the deceived person is exercising her free will to make a choice that is apparently, but not actually, in her best interests. Thus, police deception is rarely coercive in the true sense of the word. During interrogation, the suspect’s reaction to questioning can be seen as a continuous set of decisions on her part as to whether exercise or forgo the right to remain silent. When police lie about the strength of the evidence against the suspect or falsely promise leniency, the suspect still exercises free will to weigh the costs and the benefits of standing by the right to remain silent and to make a reasoned choice between exercising or forgoing that right. Police deception manipulates that choice by altering the perceived costs and benefits of standing by the right to remain silent, but it does so within a framework in which the suspect exercises free will. Thus, most police deception is noncoercive. Police deception is truly coercive only where, if the false information were true, the suspect would be deprived of the ability to make a fair choice, as where the police point an unloaded gun at the suspect’s head. The problem with most police deception is not that it is potentially coercive but that it is potentially fraudulent. And the key to evaluating noncoercive police deception is materiality, an element of fraud across many different contexts. A confession induced by noncoercive police deception should be suppressed if the deception relates to a fact material to the suspect’s decision to confess. Such a fact is material if, but only if, a reasonable person in the suspect’s position would have attached importance to the fact in deciding whether to exercise or forgo the right to remain silent. This standard explains much of the caselaw in this area. While it might be common for police deception to induce confessions, it is rare that the deception would have caused a reasonable person, particularly one having just been informed of her rights, to speak. Only when, given the deception, a reasonable person aware of her rights would have chosen to forgo the right to remain silent and instead speak can we say that the confession was fraudulently induced and should be suppressed

Not the Crime but the Cover-Up: A Deterrence-Based Rationale for the Premeditation-Deliberation Formula

Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first degree, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder. Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of the relative culpability or dangerousness of intentional murderers. The premeditation deliberation formula, the critics tell us, is incapable of segregating out the worst murderers because it is both under- and over-inclusive. In addition, critics have pointed to the courts’ inability or unwillingness to apply the premeditation deliberation formula in any coherent fashion. Many courts have held that the premeditation and deliberation required to transform a mere intentional, second-degree murder into first-degree murder can be formed in the instant before the killing. Thus do many courts fail to meaningfully distinguish one degree of intentional murder from the other. This second failing appears inextricably related to the first: since many unplanned but intentional murders are as bad as or worse than many planned killings, and their perpetrators at least as dangerous, courts contort the meanings of premeditation and deliberation to allow the most culpable and dangerous murderers to be punished most harshly. These criticisms are founded on the premise that the distinction between first and second-degree murder is grounded solely upon principles of retribution and incapacitation. What the critics have overlooked is that there is a powerful deterrence-based rationale for distinguishing premeditated, deliberate murders from those that are unpremeditated or nondeliberate. Where a murder is premeditated and deliberate, it is much more likely that the murderer has not only planned out the crime itself but has developed a plausible way to avoid or delay detection. Because the value of punishment as a deterrent depends in large part on the likelihood and swiftness of punishment, crimes that are less likely to be punished swiftly, all other things being equal, ought to be punished more severely. Thus, given two equally dangerous and culpable intentional murderers, we are arguably justified in punishing more severely the one who, by virtue of better planning beforehand, is more likely to escape or delay detection