I thought I would flag an interesting issue from U.S. v. Fell, 571 F.3d 264 (2d Cir. 2009) (denial of rehearing in banc). Two people commit three murders and cross state lines in the process. Federal prosecutors in Vermont (the state that is deemed to be the proper venue for trial) decline to seek the death penalty in part because Vermont does not have the death penalty. The DOJ overrules this decision and orders that the death penalty be pursued. A Vermont jury convicts and sentences the defendants to death.
What are the federalism implications of this case? One thought is that if a state bars capital punishment, federal prosecutors should take that into account when deciding what sentence to seek. They would not, however, be bound to reject capital punishment just because the state does not have it. Another is that the application of the death penalty in a state that does not have it is “unusual” and raises a valid Eighth Amendment claim for anyone who receives that federal sentence. A third idea is that obtaining a “death qualified” jury in a state that opposes capital punishment requires the dismissal of so many jurors that it creates a Sixth Amendment claim. Finally, one might say that all three of these questions depend on the nature of the offense. If somebody assassinates the President or sets off a dirty bomb in a state that lacks capital punishment, few would be troubled if the feds superseded state law. A crime that looks like a garden-variety murder, however, might be a different story.