The Federal Death Penalty as a Safety Valve

Fifteen states do not have a death penalty, and yet the federal government can federally prosecute capital cases on historically state-prosecuted violent crimes. This note discusses several problems related to the way non-death penalty states interact with the federal government, and seeks to offer resolutions where possible. For instance, what keeps the federal government from encroaching on a state's ability to choose not to have a death penalty? Can a state or defendant stop the federal government in court? What stops federal prosecutors from unilaterally taking over cases to seek a death sentence? Finally, do state legislatures feel like they can have it both ways, saving the political capital it might require to reinstate a death penalty, and instead having federal prosecutors take the most egregious cases? Is the federal death penalty really a safety valve for the most heinous offenders in states with no death penalty? This note comes to several conclusions. First, there is generally no judicial remedy when federal prosecutors choose to seek charges without discrimination or invidious motive. Second, it is not the intent of the Justice Department to substitute their judgment for the state's by replacing state death penalties with the federal death penalty. Third, the changes Attorney General Ashcroft made to the Death Penalty Protocol lead reasonable observers to the conclusion that the Justice Department does substitute their judgment for the state's, and those changes should be undone. Fourth, while state legislatures may view the federal death penalty as a safety valve, there is not much the Justice Department can, or should, do about it