an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
While reading a student paper, I was informed that Attorney General Gonzales will by May 14 make a decision as to seeking the death penalty for someone charged with killing an undercover agent in Puerto Rico. One of the points of the paper is that Puerto Rico bans the death penalty in its constitution and, of course, Puerto Rico has no vote in Congress with regard to legislation that imposes the death penalty. An earlier episode in which AG Ashcroft insisted on seeking the penalty (a decision upheld after litigation in the 1st Circuit) resulted in an acquittal by the local jury, widely ascribed to its antagonism to the death penalty. A second capital case resulted in the jury voting for a life sentence rather than the death penalty.
Whatever one thinks of the death penalty, it appears quite obvious that the decision to seek capital punishment will be a mixture of inefficacious and antagonizing to those Puerto Ricans who believe that they were promised a measure of genuine "sovereignty" in the "compact" the Congress passed in 1950. There are, of course, all sorts of technical constitutional questions about the ability of one Congress to bind another--I think that the "compact" is probably not binding--but we're ultimately talking about the proper relationship between the US and what remains the world's largest colony (i.e., a territory held by a national polity that does not give the territory any participation rights in the national polity itself). Many Washingtonians describe themselves as colonists, but, after all, they at least have three votes in the Electoral College. (These all raise further questions, of course, about the "democratic nature" of certain aspects of the US polity.) Posted
by Sandy Levinson [link]
Cry me a river.
How many times since 1950 has the issue been put to Puerto Rico residents, and how many times have they overwhelmingly voted for the status quo?
They know which side of the Internal Revenue Code their bread is buttered on.
kipesquire is simply wrong with regard to his statement about "overwhelmingly vot[ing] for the status quo." Puerto Ricans seem almost evenly split (roughly 47-47) between statehood and commonwealth, with the remainder preferring independence. Indeed, I think there is a looming political/constitutional crisis if enough Puerto Ricans switch to statehood and actually petition for same. What exactly would Congress do, and what reasons would they offer for a hesitation to grant Puerto Rico the same kind membership in the US community that France, say, does with regard to St. Pierre and Miquelen, which are represented in the French parliament.
Furthermore, they pay social security and medicare and relatively high local taxes. I doubt the internal revenue is the primary mover; I would suspect a greater problem would be the conflict between a Spanish-language state and a House ever so determined to make English the official language of the US.
The issue of local control and the death penalty is a serious issue. On the one hand, the federal government clearly has an interest in its laws being enforced equally across the board. (For instance, one doesn't want someone to think that the punishment for a particular federal felony will be lighter in Massachussets than it will be in Georgia.)
On the other hand, I can't look at this issue without seeing it through the prism of the expansion of the federal criminal code to lots of crimes that really should be handled at the state and local level. In other words, while it may be perfectly appropriate for the federal government to proscribe the penalty for assassinating a federal official, for instance, it seems quite a bit less appropriate that the federal government is imposing sentences that localities would not impose for all sorts of offenses that not that long ago would have been tried and punished locally.
This goes far beyond the death penalty-- issues of mandatory minimums, drug offenses, medical marijuana, etc., all raise this issue. I would hope that the Justice Department has specific procedures and showings that are required before they will authorize a punishment that local law does not permit. This being the Bush Administration, however, I doubt the analysis is more than "hey, we can get the death penalty and they can't, ergo, let's fry 'em". (Remember how they moved the Malvo prosecution to Virginia?)
That reminds me. The Court of Appeals for the 7th circuit ruled yesterday in US v Craft that Craft's motion for acquittal in his arson case should have been partially granted because for some of the buildings he alledgedly set fire to, there was insufficient evidence that they were used in interstate commerce. Is it just me or is this a bit of an extreme case of federal overreaching by any standard?