Last month, the First Circuit Court of Appeals heard oral argument before a packed en banc courtroom in the case of Jason Wayne Pleau (pronounced “Ploo”). To be fair, the courtroom was packed for the next case, a challenge to the constitutionality of the Defense of Marriage Act. It is unsurprising that Pleau wouldn’t be the case that filled the seats. On its face, the case is about the Interstate Agreement on Detainers and the role of the Supremacy Clause when the federal government binds itself as a party to an inter-governmental compact – not as sexy or politically charged of a legal question as the federal government’s refusal to recognize valid same-sex marriages.
On another level, though, United States v. Pleau raises legal questions that deserve more attention than the case is likely to receive. Digging down into the facts underlying the dispute between the Justice Department and the Governor of Rhode Island reveals a clash between federal and state criminal justice policy choices, and calls into question the federal government’s choice to put all the weight of the Supremacy Clause behind its decision to prosecute this particular defendant. The case can actually be seen as being about the location of the primary police power in the American system of constitutional federalism, and it exposes the increasing strain that the modern conception of federal power is placing on the founding era experiment in dual sovereignty. Looking beyond this case and this defendant, Pleau should challenge progressives to think critically about the desirable scope of the federal government’s power under the Commerce Clause.
The First Circuit announced its en banc opinion in United States v. Pleau on Tuesday. The court ruled 3-2 that the Interstate Agreement on Detainers (IAD) does not give Rhode Island Governor Lincoln Chafee the power to refuse a federal writ of habeas corpus ad prosequendum (HCAP). In an opinion by Judge Michael Boudin, the court ruled that the Supremacy Clause gave the federal government the authority to command the transfer of a prisoner through the power of HCAP, and that nothing in the IAD altered that authority. Any other interpretation of the IAD, said the court, would essentially leave states free to thwart federal prosecutions. “Were Pleau and Governor Chafee to prevail, Pleau could be permanently immune from federal prosecution, and the use of the efficient detainer system badly compromised. . . . Instead of a place of confinement, the state prison would become a refuge against federal charges.”
Though Judge Torruella’s dissenting opinion adamantly disagreed with the majority that the Supremacy Clause should be invoked to decide the case, both opinions focused narrowly on the issue of federal authority to compel the transfer of a prisoner and the relative position of the federal government as a party to the IAD. The only reference to the facts of Pleau’s case in the analysis of the inter-sovereign dispute was the following statement from Judge Torruella in conclusion: “The equities of the case, even if they weighed in favor of the United States (and they do not), cannot justify the majority’s result because this court has no authority to ignore the express terms of the IAD.” I want to look more closely at the “equities of the case” and the state of the law that allowed this dispute over prosecutorial venue to arise.
According to the federal indictment, on September 20, 2010, Pleau and two others drove to the Shell Station in Woonsocket, Rhode Island at which David Main was the manager. Pleau was carrying a .38 caliber revolver. Pleau followed Main from the Shell Station to a Citizens Bank location where Main would make the daily deposit for the gas station. Wearing a ski mask, Pleau demanded the money from Main at gunpoint. Main tried to run, and Pleau fired at him multiple times, hitting him in the head and killing him. Pleau then took the deposit bag from Main, ran to a waiting truck and returned to his residence in Providence, Rhode Island. Pleau later fled to New York to evade capture by law enforcement.
Jason Wayne Pleau is undoubtedly a career criminal. His criminal history began with shoplifting, and then graduated to burglary, robbery, and assault with a deadly weapon for beating a prison guard, all before the murder alleged in his current case. Pleau previously offered to plead guilty to state robbery and murder charges in connection with Main’s death, and would have accepted a sentence of life without the possibility of parole.
Unlike the now dismissed state charges, the charges included in the federal indictment would expose Pleau to a potential death sentence. Rhode Island, the state in which the crimes were committed, in 1852 became the second state in the country to abolish the death penalty under state law. Though a narrow capital punishment exception was on the books from 1872 to 1984, Rhode Island has not executed anyone since the initial prohibition was enacted in 1852. Governor Chafee cited this history of death penalty opposition when he initially refused to surrender Pleau to federal authorities.
Pleau’s federal prosecution is part of a trend is federal law enforcement. In 2002, Marvin Gabrion became the first person in the modern era of capital punishment to be sentenced to death in a state that does not authorize capital punishment under state law. Gabrion’s crime was committed in Michigan, the only state that has a longer-standing prohibition on the death penalty than Rhode Island. In 2004, Gary Lee Sampson was sentenced to death in federal court in Massachusetts for two counts of carjacking resulting in death, both of which occurred in Massachusetts. Sampson offered to plead guilty in exchange for a life sentence without the possibility of parole, but the Justice Department rejected his offer and instead decided to pursue the death penalty. The death penalty has been illegal in Massachusetts state prosecutions since 1984, and no one has been executed for crimes committed in the state since 1947.
Each of these defendants, like all current federal death row inmates, could have been tried for murder in state court. The choice to pursue federal prosecutions, and particularly the choice of federal prosecutors in the Pleau case to continue in the face of state-level opposition, challenges the historical understanding that federal law enforcement exists to vindicate uniquely federal interests. Judge Boudin wrote in Pleau that the fact “[t]hat there is an overriding federal interest in prosecuting defendants indicted on federal crimes needs no citation.” The question should not be, however, whether there is a federal interest in the prosecution itself, but rather whether the criminalization of the behavior that the prosecution seeks to sanction serves a legitimate federal interest. Occurrences of dual jurisdiction over the same predicate criminal behavior are occurring more frequently because Congress and courts have ceased to take seriously the requirement that a federal criminal statute vindicate a substantial federal interest.
This realization is what turns Pleau from a routine application of the principles of conflict of laws into a politically-charged demonstration of the reach of the federal government’s Commerce Clause authority. The federal government has the authority to prosecute Pleau under the Hobbs Act, a federal statute that gives federal law enforcement authorities the ability to prosecute any robbery that affects interstate commerce. Professor Michael Mannheimer, who writes extensively on the federalization of criminal law and the reach of the federal death penalty, noted in a blog post about Pleau that “there is lots of outrage these days over the federal government forcing people to buy health insurance; why is there so little over the fact that the federal government can put me in prison if I steal a Snickers Bar at gunpoint from the local gas station?”
The political history of the past few decades has positioned conservatives as the defenders of states’ rights and state sovereignty, and progressives as advocates of a more expansive vision of federal power. Legal history has been no different. Progressives have lamented conservative legal victories such as Morrison and Lopez, which overturned on Commerce Clause grounds federal laws targeting violence against women and guns near schools. It was the Supreme Court’s conservatives who dissented in United States v. Comstock, with the progressives holding that the federal government’s criminal enforcement authority included the necessary and proper ability to civilly detain sex offenders after they have served their criminal sentences. Progressives tend to trust the federal government over the governments of the individual states to strike an adequate balance between individual rights and the collective welfare of society. In the case of the federal death penalty, that balance has clearly been struck in a decidedly conservative direction.
The political system functions as a one-way ratchet for criminal laws and criminal sentences. It will always be politically efficacious for Congresspeople of all political persuasions to advocate for more federal criminal laws and harsher federal criminal sentences. When considering the value of a new federal statute, progressive politicians need to see more than the political message portrayed in the sound bite version of the law, and progressive voters need to see the long term effects of shifting the authority to prosecute all criminal activity to the federal government. Progressive judges and attorneys should recognize that Morrison and Lopez have invited a hard judicial look at the nexus between federal criminal statutes and interstate commerce, and the new scrutiny can applied towards ends much less lamentable than the outcomes actually achieved in those two cases.
The only way to put the decision about appropriate criminal sentencing, and particularly about the application of the death penalty, back into the hands of individual states is to reverse the trend toward the federalization of criminal law. Before that trend can be reversed, progressives must accept that the Commerce Clause should, in fact, have limits. Only that acceptance will allow those limits to be the tool that will empower states to once again control the vindication of the rights of their own citizens. As the jurisdiction of federal criminal law recedes, state authorities like Governor Chafee will be able to stop fighting the will of all powerful federal prosecutors, and can go back to enacting the will of the people of their states.