Abolish the Federal Death Penalty


Ryan McMaken – August 22, 2019

After almost twenty years without an execution, the Federal penal system has decided to proceed with a number of executions. NPR reported last month:

U.S. Attorney General William Barr has instructed the Federal Bureau of Prisons to change the federal execution protocol to include capital punishment, the Justice Department said.

Barr also asked the prisons bureau to schedule the executions of five inmates who have been found guilty of murder. According to the DOJ, the victims in each case included children and the elderly. In some of the cases, the convicted murderers also tortured and raped their victims.

Is the Death Penalty Ever Warranted?

I am not an anti-death-penalty absolutist. That is, in some cases where the testimony and physical evidence is overwhelming — and the crimes are particularly heinous — the death penalty could be warranted, at least in theory.

But given police corruption, incompetent prosecutors, and an over-reliance on circumstantial evidence in court, a great many death-penalty cases are built on a pretty shaky foundation. Moreover, it is extremely likely that innocent people have been executed in the United States whether through errors, or through outright fraud on the part of government officials.

In other words, the death penalty is serious business, and given that government bureaucrats can’t even run the DMV or the VA competently, there’s no reason to assume their criminal-justice skills are anything deserving of our unconditional trust.

Nevertheless, it is conceivable that the death penalty could be justly applied in some cases.

There’s No Need for a Federal Death Penalty

When examining the federal death penalty, however, it quickly becomes apparent that it is simply unnecessary — and should be completely abolished.

State laws already address the need to prosecute violent criminals. Murder, rape, assault, and other violent crimes are already illegal in every state of the Union. If Smith murders Wilson in, say, Pennsylvania, Smith can be tried for murder under Pennsylvania law. This is true even if Smith employs bombs, airplanes, or other tools associated with international terrorism.

There is no need for an extra layer of federal criminal justice. For example, Timothy McVeigh, who was convicted of the Oklahoma City bombing, was certainly eligible to be tried for murder under Oklahoma law. Those who perpetrated 9/11 were certainly eligible to be tried for murder under New York and Virginia laws. But McVeigh was tried for the federal crime of killing a federal agent. Zacarias Moussaoui was prosecuted in federal court for his role in the 9/11 attacks, specifically “conspiracy to murder United States employees,” among other crimes.

Although these sorts of killings are certainly illegal in the states where they occur, the federal government insists on having prerogatives to prosecute defendants under federal law also. This is often done to add an additional layer of possible prosecution, and so that defendants can be prosecuted more than once for the same crime. This is a violation of the Bill of Rights, of course (as explained by Justice Neil Gorsuch) but federal courts have looked the other way on this loophole for years.

Besides, cases of terrorism or international crime rings are hardly what’s behind most capital cases in federal court. We’re not talking about Russian crime bosses or domestic supervillains. On the contrary, nearly all defendants in capital cases in federal court are brought to trial for run-of-the-mill crimes involving drug deals, bank robberies, or other acts that are already violations of state criminal statutes.

Moreover, in some cases, federal prosecutors deliberately go against the wishes of local prosecutors.

Lezmond Mitchell, for example, is a Navajo Indian who was convicted of murdering a Navajo woman and her granddaughter on Navajo land. He is now awaiting execution in a federal prison.

But note the murders took place on Navajo land, and Navajo law does not allow the death penalty. Nonetheless, the federal government inserted itself into the case. According to an analysis by The Intercept:

the U.S. government had forced itself onto the case. For one, because the murder alone was not punishable by death under tribal law, seeking the death penalty was “possible only by virtue of the fact that Mitchell and a fellow Navajo, aged 16, stole a car in connection with the murders they committed,” [ Judge Stephen Reinhardt wrote in a legal dissent on the case.] The Anti Car Theft Act of 1992 had made carjacking a federal crime — and the 1994 crime bill had made carjacking resulting in death a crime punishable by death. “In the absence of the carjacking, Mitchell would not have been eligible for the death penalty.”

“Equally important,” Reinhardt went on, “none of the people closely connected to the case wanted Mitchell to be subjected to the death penalty: not the victims’ family, not the Navajo Nation — of which the victims and perpetrators were all members and on whose land the crime occurred — and not the United States attorney whose job it was to prosecute Mitchell.”

No one directly involved with the case who lived within 500 miles of the reservation demanded the death penalty. But then-US Attorney General John Ashcroft intervened to ensure the death penalty was on the table.

Expanding Federal Powers

The fact that a car theft had allowed the federal government to demand jurisdiction in the Mitchell case reflects a longtime strategy used by federal lawmakers to expand federal jurisdiction over time. By gradually adding more and more federal criminal offenses to the statute books, federal policymakers have made it possible for the federal government to insinuate itself into an ever-growing number of criminal investigations.

The US Constitution, meanwhile, only mentions three federal crimes: treason, piracy, and counterfeiting. Only piracy involves crimes that necessarily occur beyond the jurisdiction of state laws against violent crime. Counterfeiting, in contrast, is merely a type of fraud. And fraud is already illegal in every state. Treason is only a real problem if it involves violent acts against others — in which case it is already covered by state laws against violent crime.

All other federal crimes beyond these three are based on tortured legal reasoning designed to do an end run around the Tenth Amendment. They’re justified under the “necessary and proper” clause or the commerce clause.  They are redundant and largely function to greatly expand federal intervention into each and every American community. Beyond piracy, the entire federal apparatus for criminal prosecutions ought to be abolished. But the federal death penalty is a good place to start. 

This article was originally published at Mises.org. Ryan McMaken is a senior editor at the Mises Institute. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.

Image source: Getty

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