The Feds vs. The States: Supreme Court must decide Death Penalty Fight

Can the Feds order a state to execute a man?  This is the question that the Supreme Court may ultimately answer regarding Jason Pleau, arrested last year for killing a man during a robbery.  What appeared to be a routine case in Rhode Island, a state of one million people that averages about 30 murders per year, has turned into a legal battle about state’s rights, the 10th Amendment, and the Death Penalty.  And the question of whether a Governor can ever defy a President.

The federal death penalty is legal in every state in America.  There are over 30 federal statutes authorizing the death penalty for any American, including a generic 1st Degree Murder, and it would be difficult to imagine a case that would not qualify under federal law.  Certainly when the people of Rhode Island eliminated the death penalty, they did not consider it would be alright if a courthouse bearing the “United States” logo rather than the Rhode Island “Hope” motto, could sentence a man to die.  The same jury pool of Rhode Islanders would be drawn upon, yet anyone with an objection to the death penalty would be barred from serving on the jury.

Attorney General Eric Holder amended the Federal Death Penalty Protocol (DPP) last year, in an attempt to assist Attorneys General such as Peter Neronha (District of RI) regarding when to seek this punishment.  There is no regard as to whether a state has abolished the death penalty or not, but states that the Feds should only take the case from a state when “the Federal interest in the prosecution is more substantial than the state or local authorities.”  Here, the only factor that seems to apply is the vague “ability and willingness for the state to obtain an appropriate punishment upon conviction.”  Perhaps this is a snub at RI State Attorney General Peter Kilmartin, a career police officer who apparently never handled a felony case.

The DPP guidelines do suggest that victims’ family members be consulted, yet this is a quandry in prosecutions: whether the government stands in for a particular victim, or an entire state.  A victim’s family in Mississippi tried to stop the execution of Henry Curtis Jackson.  He was instead killed by lethal injection yesterday.

After sentencing Jason Pleau to 18 years in state prison for parole and probation violations, a federal grand jury indicted him.  The U.S. Attorney then put in a request to take him into custody under the Interstate Agreement on Detainers Act (IAD).   Governor Lincoln Chaffee (known as the Republican who opposed President Bush on the Iraq war and domestic wiretapping) denied the request under Article IV of the IAD.  The feds then tried to evade this federal Act with a second type of request.  The state asserts that once the federal government puts in a “hold” under the IAD, all future requests to produce Pleau are covered by the provisions of the IAD- no matter what you name it.  This is how it played out, and a three-judge panel of the First Circuit agreed (2 to 1) with Gov. Chaffee, who believes the only reason the federal government would want Jason Pleau is to execute him.  Particularly after Pleau agreed to serve Life Without Parole in state prison.  This is known as the Other Death Penalty.

The Obama Administration, however, asserts that their request was not covered by the IAD for two reasons: (1) the Habeas Corpus ad Prosequendum they filed is outside of the IAD procedures, and (2) the federal government reigns supreme (as laid out in the Supremacy Clause of the constitution) and a governor cannot refuse the request.  The problem with the Feds’ first issue is that the traditional method of transferring prisoners between jurisdictions has been supplanted by the IAD, and they did in fact begin IAD procedures prior to the traditional Habeas.  The title of the paperwork is irrelevant, and the First Circuit agrees.  As for the Supremacy Clause argument, it is difficult for the United States to say they do not need to obey the IAD when they are listed as a party, along with 50 states, D.C., Puerto Rico, and others.  If they have some special status, why bother writing rules that apply to the United States at all?

The First Circuit Court of Appeals, however, credits the United States with the trump card: the Supremacy Clause.  Three judges interpreted a key case to mean the U.S. is above the limitations of the IAD.  Two judges, in their scathing dissent, took the majority to task for what they feel was an “unprincipled” misreading of the key case, U.S. v. Mauro, 436 U.S. 340 (1978).  The dissenting two justices called the ruling “unwarranted and unprecedented,” and “fails the test of common sense.”  As it stands, the split opinions of five judges are the difference between putting the executioner’s hood over the heads of a Rhode Island jury.

It was only a year ago that I, and about a dozen others, testified in the Rhode Island legislature’s bill to posthumously pardon the last man murdered by the People.  Historians testified about the malice of a vindictive crowd, and the racist furor that suspended rational judgment: someone had to pay.  In 1844 it was John Gordon, and seven years later this punishment was abolished for it.  The Public Defender spoke about the current need for best practices in eye-witness identifications and the necessity of videotaped confessions (two reforms advancing in RI).  I spoke about how a similar pair of Irish scapegoats, the Brennan brothers, were railroaded in 1984 for the murder of an Italian landlord in Providence.  They are still in prison.  Here, nobody has argued that Jason Pleau, who was once the catcher on my softball team, is innocent.  However, death penalty supporters are just as certain of guilt when a convicted person is later exonerated.

Rhode Island has filed a petition for certiorari, seeking review in the U.S. Supreme Court.  Justices may find their ideologies torn, such as Antonin Scalia who often speaks of states’ rights in the face of an overbearing federal government, yet he rarely finds a wrong when it comes to the power of the government to exert police powers, and administer the death penalty.  Some say that judges take a moral position, and then manipulate the law to reach it.  Yet as to whether the IAD applies to the federal government, it will be difficult to get around Article II, which reads “(a) ‘State’ shall mean a State of the United States; the United States of America; a territory or possession …”    It will also be difficult to affirm the First Circuit’s belief that Governor Chaffee can’t deny the federal government, where the Act reads “the Governor of the sending State may disapprove the request for temporary custody.”

To do so, the Court might have to say Congress lacked the authority to grant a Governor power over the federal government.  Yet the federal government signed onto this agreement, and now they want out.  Those who advocate for States Rights use it to define marriage, gun laws, and many other issues (it once was a code word for allowing Jim Crow laws), including the Death Penalty.  This legal battle will cost the taxpayers about a million dollars, just to see what will happen to Jason Pleau, a man that none of them likely care an iota about.  Sometimes I wonder what gets people up in the morning.

About Bruce Reilly

Bruce Reilly is the Deputy Director of Voice of the Ex-Offender in New Orleans, LA. He is a graduate of Tulane Law School and author of NewJack's Guide to the Big House. Much of his writing can be found on
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