The Misguided Quest for Geographic Uniformity in Capital Punishment:
Why It Conflicts With Constitutional Jury Trial Rights

By MICHAEL C. DORF

Wednesday, Feb. 19, 2003

Earlier this month, Attorney General John Ashcroft overrode U.S. Attorneys in New York and Connecticut in a dozen cases in which the local federal prosecutors had recommended not pursuing the death penalty. Citing an interest in the even-handed application of federal law, the Attorney General argued that whether someone faces capital charges should depend upon the severity of the crime, rather than the locale in which he is tried.

The Attorney General's enthusiasm for equal application of the death penalty is laudable. It would also be nice to see that enthusiasm extended to other forms of inequality, including, especially, racial disparities. Still, some justice is better than no justice. Egalitarians should welcome this first step, regardless of whether it leads to further steps, right?

Wrong. In some contexts, there is indeed a strong interest in the nationally uniform application of federal law. But in the context of decisions whether to charge defendants with a capital offense, the interest in uniformity is outweighed by the constitutional right to trial by a jury drawn from the state in which the crime occurred.

One Area Where Uniformity Is Desirable: Federal Regulation of Business

The delegates to the Philadelphia Convention of 1787 had recently experienced the vices of a weak central government under the Articles of Confederation .

Their solution, expressed in our Constitution, was twofold. First, they empowered the federal government to regulate on matters of national importance. Second, under the Supremacy Clause of the Constitution, they ensured that acts of Congress would displace contrary state laws.

The framers were wise to lodge the power to regulate interstate commerce in the national government, and their wisdom has long contributed to national prosperity. The reason is plain: When Congress has acted to supersede state law in a particular area, interstate businesses need only comply with one set of rules, rather than fifty different sets. As a result, they save compliance costs and run a smaller risk of incurring penalties for legal violations they failed to anticipate.

Consider, for example, the federal law requiring warnings on cigarette packages and advertisements. It both specifies the mandated warnings and forbids state and local governments from requiring additional warnings. As a result, cigarette makers do not need to design different packages and advertisements for each state.

Of course, if you oppose smoking, you might think it's a good idea to raise the cost of selling cigarettes. But if you do, you very probably also think that it's better to do so through a tax that puts the added revenue in the government's hands--where it can be used to defray health costs associated with cigarettes--than by effectively requiring cigarette makers to use up a larger portion of their sales receipts on packaging and advertising costs.

Money spent by businesses to comply with fifty different sets of state regulations, is usually money wasted. Rarely does it make sense for the states to differ widely on an issue with a substantial impact on interstate business, yet sometimes they do, and that may mean it's a good idea for the federal government to intervene.

Another Area Where Uniformity Is Desirable: Civil Rights

The interest in nationally uniform federal law extends beyond the business context, however. After the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were enacted to extend basic civil and political rights to formerly enslaved African-Americans uniformly, throughout the Union.

Thus, these Amendments not only made a definitive stand against slavery and related inequalities; they also made a definitive stand for federal uniformity. They not only said that there was only one correct answer to the question whether one person may enslave another; they also proclaimed that to that question, the whole country had to give the same answer.

Likewise today, federal civil rights statutes are typically defended on the ground that certain conduct--such as employment discrimination on the basis of race, religion, sex, and disability--should be prohibited nationally, not just in those states that choose to prohibit it. The result is that there is a federally-mandated minimum of anti-discrimination protections, but that state and local governments can choose to provide additional protection if they wish.

Laws that Apply Nationally Often Should Also Apply Uniformly

Suppose there is a strong interest in treating a given problem uniformly across the nation, with a federal law that applies in every state. Generally, there is also a strong interest in having that law apply the same way in every state, too. Without true uniformity in practice, many of the benefits of uniformity are lost.

Consider one particular area of interstate business: intellectual property. Article I, Section 8, Clause 8, of the Constitution reflects a judgment that intellectual property, unlike other forms of property, should be defined by federal, rather than state, law. Accordingly, federal law sets the terms of copyrights, patents and trademarks

Given that fact, it is entirely appropriate that the Patent and Trademark Office operates as a centralized federal bureaucracy. Having supposedly uniform federal patent and trademark law applied in various ways by regional branch offices (or by state officials charged with implementing federal law) would largely defeat the purpose of having a uniform law in the first place.

However, not every federal law demands uniform national application. Consider environmental regulation.

Risks to the environment differ in different settings. A level of pollution that is acceptable in a sparsely populated area may be unacceptable in a densely populated one. A substance that is harmless in one ecosystem may be deadly in another. Accordingly, federal statutes like the Clean Air Act and the Clean Water Act expressly invite cooperative--and thus varied--enforcement by the states. Moreover, the Environmental Protection Agency is organized in regional offices, each of which has substantial autonomy.

In the environmental context, federal law is best seen as setting a national floor but then encouraging customization of state and local regulatory efforts to suit state and local needs.

The Constitutional Basis for Death Penalty Disuniformity

Is federal death penalty policy the sort of issue that should be handled uniformly throughout the country, or is it better suited to state and local variation?

At first blush, the answer seems clear: Whether a defendant is charged with a capital offense should depend solely on the heinousness of the act, not where the crime is alleged to have occurred. Like the Thirteenth Amendment's prohibition on slavery, this is a matter for uniform national treatment.

This is the answer Attorney General Ashcroft has given, and it is the reason he has tried to get Connecticut and New York to toe his death penalty line. Yet the picture is not so simple, for federal criminal law is one area where the framers of the Constitution insisted on protecting a measure of disuniformity.

In two separate places--Article III, which concerns the federal judiciary, and the Sixth Amendment, which concerns federal criminal trials--the Constitution guarantees that federal criminal trials shall be conducted in front of a jury, and in the state where the crime is alleged to have occurred.

Why? Because juries were in the eighteenth century, and remain today, the voice of the community--a local voice that is distinct from the aggregate of national public opinion. In guaranteeing an in-state venue for criminal trials, the Framers expressed the judgment that criminal justice was, to some extent, properly governed by local or regional, not national, standards.

On the death penalty, there are currently striking regional differences in public attitudes. For instance, jurors in Connecticut, New York and other northeastern states are much more reluctant than jurors in other parts of the country to impose the death penalty. Ashcroft clearly thinks they should be more enthusiastic about doing so.

But why? The defendant is constitutionally guaranteed Connecticut and New York jurors if he commits a crime in those states--not Virginia or Texas jurors. And this is what Connecticut and New York jurors are like.

Prosecutors Who Don't Seek Death Are Often Only Responding to State Standards

Rather than attacking jurors directly, Ashcroft has tried to shift argumentative ground and attack prosecutors instead--implying that they decline to recommend the death penalty because of personal qualms.

In reality, however, a prudent federal prosecutor--even if he himself strongly favors the death penalty--will be more reluctant to charge a case capitally in the northeast than he would be in other jurisdictions. Capital cases require additional procedural safeguards, and can be tied up in court for a very long time. In part as a result, they are considerably more expensive to prosecute than comparable cases seeking imprisonment as a penalty.

So if the jury probably won't impose death, seeking death is not a wise option for the prosecutor, who can seek life imprisonment, and fully ensure public safety that way. Accordingly, prosecutorial resources will often be better spent on other priorities, rather than on the largely futile effort to obtain a death sentence.

Indeed, seeking death could actually cause prosecutors to lose their case entirely, as Alan Vinegard, former United States Attorney for the Eastern District of New York (covering Brooklyn and environs) has said. He has pointed out that jurors who know that a conviction could result in a capital sentence might actually acquit defendants they would otherwise convict--and in this way, seeking death could disastrously backfire, putting a dangerous person back on the street.

Ashcroft Is Actually Blaming Juries, Not Prosecutors, and Doing So Unfairly

In end then, to blame the prosecutors, as the Attorney General does, is to blame the juries. After all, it is the juries and their views that lead the prosecutors to calculate that seeking death won't work.

But before blaming juries in New York and Connecticut for being too "soft," it is worth noting that the Constitution anticipates that jurors in different states may differ in their views, and finds nothing wrong with that. Federal patents may be the same nationwide but under our Constitution, federal criminal jury trials are meant to differ state by state to some extent.

The impulse to insist on a nationally uniform capital charging policy may spring from a laudable concern for equal justice. But the constitutional right to jury trial in the state where the crime is committed should act as a strong counterweight to that impulse.


Michael C. Dorf is Professor of Law at Columbia University.

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