Self-Government, the Federal Death Penalty, and the Unusual Case of Michael Jacques

In prior work I have argued that the Cruel and Unusual Punishments Clause of the Eighth Amendment should be read to prohibit the federal government from imposing the death penalty for crimes occurring within States that do not authorize capital punishment. This Article elaborates upon that argument and situates it within the particular context of the case of United States v. Michael Jacques. Jacques is being prosecuted for the kidnapping, rape, and murder of his twelve-year old niece, alleged to have taken place entirely within the State of Vermont, which does not authorize the death penalty. Because Jacques allegedly used text messages and a social networking website to facilitate the kidnapping, however, his crime constitutes a federal kidnapping, punishable by death because the victim was killed.This Article suggests that the Anti-Federalist insistence in the founding period on local control of criminal justice, of which Cruel and Unusual Punishments Clause was one aspect, is easily translatable into modern notions of the complementarity of political power, political responsibility, and political accountability. The Anti-Federalists believed that political power was best exercised at the local level. To the extent they were willing to abide a delegation of that power, they demanded that the locus of political power not be too far from the people so that the political decision-makers be held accountable to their constituents. Only in that way can the people take on the benefits and burdens of self-government. The chief benefit of localized self-government is that localized decisions most accurately reflect the needs and sentiments of the community, and are, in that sense, “better” than decisions made by more distant political actors. But this benefit comes at a price: the burden of making difficult decisions. Among the most difficult decisions a polity can make is whether to authorize, seek, and impose the ultimate penalty for the worst criminal offenses. The value of self-government is diminished when those decisions are of no real-world consequence because other, more distant and less accountable officials ultimately decide whether the worst offenders should forfeit their lives. The result is a degradation of political power and the concomitant evaporation of political responsibility. Such is the case where a State feels no need to visit or re-visit the difficult question of capital punishment because the federal government can be relied upon to handle the very worst cases.The criminal procedure protections of the Bill of Rights represent an effort by the Anti-Federalists, those who most strongly pushed for the Bill, to retain localized control over criminal justice, thereby ensuring that the States would enjoy the benefits and burdens of self-government at least in that narrow but critically important realm. These protections should be read as embracing the requirement that the most difficult questions faced by the polity, those of crime and punishment, generally be reserved for the States. In particular, the Cruel and Unusual Punishments Clause should be read as generally preserving state control of the outer bounds of criminal punishment.