Weighing the federal death penalty

The federal death penalty was first enacted in 1790 to punish certain federal crimes, such as treason, piracy and counterfeiting. In 1972, the U.S. Supreme Court rewrote death penalty jurisprudence in Furman v. Georgia. There subsequently was no effective federal death penalty until Congress reinstated the death penalty for drug offenses and certain murders in 1988 and greatly expanded its scope in the Violent Crime Control and Law Enforcement Act of 1994.

Two recent events put the federal death penalty into focus. We do not have answers for the questions that we raise, but believe that they merit thoughtful consideration.

On Dec. 19, the Justice Department brought murder charges against Luigi Mangione for the killing of UnitedHealthcare executive Brian Thompson. Although the government has not yet indicated whether it will seek the death penalty against Mangione, the crime with which he is charged includes the possibility of capital punishment.

On Dec. 23, President Biden announced that he would be commuting the death sentences of 37 of the 40 people on federal death row. The three federal inmates who will remain on death row are: Robert Bowers, who shot and killed 11 people at the Tree of Life Synagogue in Pittsburgh; Dylan Roof, who killed nine people at the Mother Emanuel AME Church in Charleston, South Carolina; and Dzhokhar Tsarnaev, who was responsible for the Boston Marathon bombing in which three people were killed and scores injured.

One impact of the increased scope of the federal death penalty is that persons who commit crimes in states that have abolished capital punishment, such as New York, where Mangione has been charged, and Massachusetts, where Tsarnaev set off bombs at the Boston Marathon, still can face the death penalty. Should the federal government be seeking the death penalty in states where the people of those states have abolished capital punishment?

The Mangione case raises many other interesting questions. The White House’s statement on Biden’s commutations states: “[President Biden] believes that America must stop the use of the death penalty at the federal level, except in cases of terrorism and hate-motivated mass murder.”

Although Mangione is charged with only one murder, stalking and shooting a corporate executive for the policies of a major corporation, clearly smacks of terrorism, albeit domestic terrorism.

Some people believe that capital punishment is morally wrong and never should be a penal option. The trend over the past generation to abolish or restrict capital punishment largely has been fueled more by allegations surrounding the administration of the death penalty – such as the conviction of innocent persons, or a claimed wrongfully disproportionate use against certain groups or classes of people.

President Biden’s commutations cannot be justified because of a belief that all capital punishment is wrong; if it is wrong, there should be no exceptions. If there are to be exceptions, especially with the federal death penalty, where should one draw the line? The Mangione case raises some interesting questions.

Mangione’s case falls outside of the usual criticisms of the death penalty. Although Mangione is presumed to be innocent until proven guilty, from what has been reported in the media, there appears to be little doubt that he wielded the gun that killed Robert Bowers.

It may be that Mangione was suffering from some form of mental illness, but the federal insanity defense was significantly restricted by the Insanity Defense Reform Act of 1994, which was enacted in the wake of John David Hinckley’s successful insanity defense of his shooting of President Ronald Reagan.

Mangione does not belong to any of the classes that disproportionately populate death row. It is often said that there are no millionaires on death row. Mangione, the scion of a wealthy Baltimore County family, would be a notable exception.

Unlike a great deal of the local street drug crime that was federalized in the 1990s, the killing of the chief executive of a national corporation because of the corporation’s decisions clearly is an act that has significant impact on interstate commerce and in which the federal government should have an interest.

A century ago, Nathan Leopold and Richard Loeb kidnapped and murdered a 14-year-old. Like Mangione, Leopold and Loeb were from prominent and wealthy families, who hired Clarence Darrow to defend them.
Darrow’s argument to spare Leopold and Loeb from capital punishment succeeded, and they were sentenced to prison rather than to the gallows. Leopold was paroled after 33 years in prison; Loeb was killed in a prison shower room by a razor-wielding inmate.

It will be interesting to see if the Trump Justice Department seeks the death penalty against Mangione, and whether a modern-day Clarence Darrow can save his life should Mangione ultimately face a death sentencing procedure.

Editorial Advisory Board member Nancy Forster did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.