As noted here earlier today, a federal jury returned a death verdict in the killing of two undercover New York police officers. Normally, such a crime would be a state matter. Under the post-1937 view of the Commerce Clause, Congress has the power to extend federal criminal law to crimes with only the most tenuous federal connection, but that power should be used sparingly. In particular, use of federal prosecution in what would normally be a state case in order to impose a sentence that is greater (or less) than the people of the state have decided is appropriate for that crime is a misuse of power.

Sometimes, though, there are special considerations that override general principles of policy. On occasion, federal prosecution has been used when the state system malfunctions and is unable to deliver justice. During the civil rights struggle, for example, it became necessary to prosecute people on federal civil rights violations when the state system would not prosecute them for murder.

New York is a special case regarding the death penalty. When the democratic process has spoken on the subject, it has always decided in favor. When the Supreme Court threw out all existing laws in 1972, New York enacted what the high court implied was required: a mandatory statute. Then in 1976, the Supreme Court did an about face and held, without apology, that such laws were actually forbidden, not required. Fixing this problem was blocked for two decades by legislative deadlock, with the death penalty having enough support to pass the legislature but not override Governor Cuomo's veto.

A death penalty law was finally signed by Governor Pataki in 1995, but then the nightmare recurred. In People v. LaValle, 3 N.Y.3d 88 (2004), the Court of Appeals latched onto an odd provision regarding deadlock instructions to the jury and declared it unconstitutional. That decision was doubtful, but what came next was appalling. Despite a clear and unambiguous severability clause in the statute, the Court of Appeals declared that this minor problem wiped out the entire New York death penalty. It declared itself impotent to fill in the gap of the deleted instruction, even though other courts around the country have had no difficulty filling in such gaps where their statutes are silent. The opponents of capital punishment still do not have the legislative strength to repeal the death penalty law, but they did have enough to block a legislative repair of the statute. Thus, New York has no death penalty despite the presence on its books of an unrepealed and overall constitutional death penalty statute.

In this context, then, the use of federal prosecution is not to defeat the expressed will of the people of the state but rather to supply the justice that a malfunctioning system has failed to provide. It is unfortunate that it has to come to this, but a bending of state-federal line is preferable to docile submission to judicial autocracy.

The New York Court of Appeals has an opportunity to clean up its own mess. In People v. Taylor, there is one more death sentence that has not yet been overturned waiting for that court's review. The Queens District Attorney is asking the court to overrule LaValle, respect the clear severability clause, and reinstate New York's valid death penalty law. CJLF's brief in support is available here.