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Making the Simple Complicated

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Kevin Johnson has this story in USA Today, titled "Death penalty for Boston bomber a complicated question."  Huh?  What's complicated about it?

At the threshold, there are often complicated questions of federalism in a decision to prosecute a murder in federal court rather than state court.  Does federal jurisdiction extend to this case under the statute and within the limits of the Constitution?  If so, is this a case that should be prosecuted in federal court as a matter of policy?

The policy question was easy in this case.  This was an act of terrorism directed at the United States as a nation.  In any event, we are past the threshold jurisdiction issue, and that is not what the article claims is complicated.

Given that this is a federal case in which death is an available punishment, should the prosecution seek it?  Of course!  That is not complicated at all.  Death should be sought in cases at the upper end of the heinousness scale, and this case pegs the meter.  It was a terrible crime against a great many victims, and no substantial mitigation has come to light.  The mere possibility that the younger brother was influenced by the older is not remotely close to outweighing the extremely aggravated circumstances of the crime, and any claim of actual duress is conclusively refuted by the perpetrator's scrawling in the boat after his brother's death.

The ridiculously long time that federal courts are taking to resolve capital appeals is not a complication of the decision to seek the death penalty.  It is a failure of the Administration to put the priority on these cases that they deserve.  For the collateral reviews, Congress has mandated that "any motion under section 2255 by a person under sentence of death, shall be given priority by the district court and by the court of appeals over all noncapital matters."  See 28 U.S.C. ยง2266(a).  The courts are ignoring this law, and the Administration is not pressing them on it.

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Apropos, do any of this site's learned commentators know what's goign on with the federal lethal-injection litigation? From what I can make out, it's still in DC District Court...and has been since 2006.

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