Dual Sovereignty is a Double Edged Sword

The notion of dual sovereignty almost always comes up in a retributive way, as the feds jump in to rescue a botched state prosecution, circumventing double jeopardy and vindicating the public’s lust for vengeance.  Few people complain because the target of the second arrow is invariably someone publicly hated, and so we applaud the fact that they won’t “get away with it.” 

After all, since we all know they’re evil and deserve to be punished, why let a little thing like a state acquittal stand in the way of a mulligan.  Until first term Rhode Island Governor Lincoln Chafee decided that to say “no.”

The backstory is fairly straightforward, defendant Jason Wayne Pleau is accused of fatally shooting a gas station manager outside a bank in Woonsocket, RI, last September.  A basic murder case, the kind that states routinely handle. Pleau is already in prison doing 18 years for various parole and probation violations, and agreed to cop on the murder to life without parole.  Nothing unusual here.

Except that the United States Attorney for Rhode Island, Peter Neronha, thinks Pleau should be put to death for his crime, and so he put in the papers under the Interstate Agreement on Detainers, a mechanism that provides for one jurisdiction to hand over a body to another.  The plan was for the feds to prosecute him before Rhode Island could finish its prosecution.  They would give the body back eventually.  After it was cold.

The Governor did something that no one else, apparently, had ever before done. He said no.  Per the IAD, the request is sent to the governor, who signs his approval and the locals hand off the body to the feds.  Lincoln Chafee decided that he wasn’t going to sign.  He decided that Pleau, a Rhode Island residents, should be subject to punishment in the manner Rhode Island believed appropriate, and that didn’t include his execution. 

The feds were outraged that some punk governor of some state that could barely be seen on a map would have the temerity to say no. No?  No one says no to the United States of America.  Having been rebuffed on the detainer, they went back to the well for a Writ of Habeas Corpus Ad Prosequendum, which doesn’t require any signoff, but Chafee responded, “too late.” 

Inexplicably, the feds went to their own courts to compel Rhode Island to capitulate rather than carpet bomb Newport.  And surprisingly, the First Circuit refused to compel Rhode Island’s governor to bend to the will of the feds.

Via Howard Bashman, the  court held that the IAD expressly requires the approval of the sending state, Rhode Island, and that the governor, therefore, has the power to say no.  It as if a state is an actual entity, a real sovereign, in control of its own domain.  It’s as if a state is more than a cheering section for its local sports teams and a taxing authority.  Lincoln Chafee made the State of Rhode Island real.

The decision relies on the authority of the state under the IAD, noting that the feds, having chosen that mechanism first, can’t go back to the well and grab the body under an ad prosequendum writ.  The question was left unaddressed whether the State of Rhode Island could refuse to comply with such a writ, issued by a federal court, raising some really fun Supremacy Clause and federalism issues, which will have to wait for another day. 

The federal government tried one last ditch effort (carpet bombing still being off the table) to push the Circuit:

The United States insists that Governor Chafee’s objection to the transfer of Pleau on grounds of Rhode Island’s abhorrence of the death penalty is “not a valid basis” for refusing the request, and that allowing a governor to refuse an IAD request on public policy grounds “would be directly at odds with the IAD’s goal of ensuring fast and orderly transfers.” The United States cites no cases in support of this proposition, but rests its argument on the statutory text, which states that a requesting sovereign “shall be entitled to have a prisoner against whom he has lodged a detainer . . . made available.” 18 U.S.C. App. § 2, art. IV(a) (emphasis added).

The United States’ textual argument is unconvincing. It is true that Article IV(a) states that a requesting sovereign “shall be entitled” to have a prisoner made available to him after a detainer has been lodged. However, the United States neglects to mention that a few lines later, Article IV(a) explicitly qualifies this statement, and states that this is “provided . . . [t]hat there shall be a period of thirty days . . . within which period the Governor of the sending State may disapprove the request for temporary custody or availability.” 18 U.S.C. App. § 2, art. IV(a).

In other words, the United States of America’s bottom line is that no lily-livered state’s abhorrence of the death penalty can stand in the way of the government’s right to fry ’em.  The court was unpersuaded.

It is uncontroversial that a governor may block a prisoner’s transfer to a receiving state other than the United States, and we have already explained why Article IV(a) applies with equal force to the United States. As to the issue of timeliness, the IAD specifies a thirty-day time frame for a governor to decide whether or not to grant the request, and so long as a decision is rendered in that time frame, it is entirely unclear how it would matter to the speed of a transfer what reason a governor had for accepting or rejecting a transfer request.

It’s not that the governor’s reason was a good one, but that the governor, as the representative of a sovereign, can have any darn reason he wants.  Rhode Island is a sovereign.  Rhode Island can just say no.

This isn’t to say that the First Circuit didn’t stick in a little snub of the government’s desire to push the plunger, as it added in footnote 3:
We pause to note that the crimes Pleau is alleged to have committed — armed robbery and murder — are quintessential state crimes, and betray on their face no hint of any uniquely federal interest. See United States v. Jiménez-Torres, 435 F.3d 3, 14-15 (1st Cir. 2006) (Torruella, J., concurring) (objecting to unwarranted extension of federal criminal jurisdiction over traditionally state crimes). Moreover, given that Pleau has already agreed to plead guilty to state charges and accept a life sentence without the possibility of parole, it is frankly unclear what is to be gained from pursuing federal charges in this case, particularly in light of the truly extraordinary costs of capital litigation.

Sure, Rhode Island isn’t the biggest state.  True, it’s residents are disinclined to walk around in cowboy boots like Texans.  Yes, it’s governor graduated from effete Brown University, where recitation of poems is favored.  And yet, he demonstrated the guts to stand up to the demand of the federal government to hand over one of his citizens, a really bad one but still one of his, and refuse to be party to the machinery of death.

One life at a time.  It may not be much, but it’s better than one additional execution.

6 thoughts on “Dual Sovereignty is a Double Edged Sword

  1. Rumpole

    Given that US Attorney Peter Neronha was appointed by President Obamba can we infer that President Obama also thinks that Pleau should be put to death for this crime?

    Has President Obama changed his mind since he wrote:

    “While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes–mass murder, the rape and murder of a child–so heinous that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment.”
    Source: The Audacity of Hope, by Barack Obama, p. 58 Oct 1, 2006

  2. SHG

    I wouldn’t think so. The most we can infer is that it didn’t move the President enough to call off the dogs, but it’s likely that this is closer to benign neglect than active involvement.

  3. Rumple

    Must we then infer that US Attorney Peter Neronha does not share President Obama’s view on when it is proper to seek the death penalty.

  4. John Neff

    Thanks for this post I just learned that a Governor I thought opposed the death penalty signed two IADs for death penalty cases.

  5. Thomas Stephenson

    Interesting. Think a governor would have the balls to refuse to sign an IAD on a drug offense that the feds decide the state is punishing too lightly?

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