Yesterday in the comments to Bill's post, Doug Berman raised the question of whether the Charleston killer should be prosecuted in state or federal court. I will repost my answer here:
State. No question in my mind.Events are moving right along. Valerie Bauerlein reports in the WSJ:
Unlike the Boston Marathon, this was not a national and international event but rather a local church. Also, there is no reason, at this point, to believe this murderer's attack was any kind of terrorist attack on the United States as a nation, as Tsarnaev's was.
There is no state action here, and any effect on interstate commerce is very tenuous. There was a time, half a century ago, when federal criminal law needed to be stretched to cover local cases of violence by individuals with no state action involved because state and local government was unable or unwilling to deliver justice and thus people were denied equal protection of the laws. Those days are long behind us.
The suspect in the shooting spree at a Charleston church that claimed nine lives--Dylann Roof--has been charged with nine counts of murder and one weapon possession charge, police said Friday.Sounds to me like the state authorities don't think it's too soon.
Mr. Roof, 21 years old, is believed to have used a .45-caliber pistol that he reloaded multiple times during Wednesday's massacre, law-enforcement officials said. He is charged with possession of a weapon during the commission of a violent crime. A bond hearing is scheduled for 2 p.m. Friday.* * *Still, Attorney General Loretta Lynch said that while the Justice Department was investigating the case as a hate crime, it was too soon to say whether state or federal authorities would prosecute Mr. Roof on such charges.
What do you think about the bond judge calling Roof's family "victims"? I do not like it at all...
Hadn't heard that. Sounds very strange.
I will clarify my answer to this extent: I would also charge him in federal court only if there is a federal charge that is (a) available without stretching the language of the statute beyond what a normal layman would understand, and (b) carries the death penalty. I think it to be in the public interest to have a "backup death penalty" in case the (likely coming) state version runs into trouble.
A colleague who had trouble signing in to comment asked that I post this comment:
"Kent seems certain that this is a state prosecution because it's so obviously not aimed at 'America' the way the marathon bombing was.
"And yet we now see that Dylann Roof wanted to start a civil war, spat on and burned the American flag, and flew the Confederate flag. If that's not someone who wants to attack America, I don't know what it is."
I will add my own two cents: I continue to believe the national/historical import of this horrible crime, as well as the likely national/historic echoes throughout South Carolina and the rest of the South, perhaps provides unique justifications for this being a "federal first" prosecution with state prosecution serving as the back-up plan.
I would ask the previous poster whether he supports the DP in this case. Layman are not going to be all that interested in which jurisdiction does it. They'll be interested in seeing that the killer gets what he earned.
Please note the "at this point" in the original comment.
Your colleague has some additional facts not known then that do point in the direction of federalizing the case, though in my mind they do not bring it into the same category as Oklahoma City, 9/11, Fort Hood, or the Boston Marathon cases.
I don't think that "national/historic echoes" are a reason to federalize an otherwise local case. On the contrary, I think it would be a potent symbol for the state justice system to deliver justice in this case as a further demonstration of how far we have come since the days when the federal government had to step in and prosecute a local crime because the state and local governments could not or would not.
One more thing: Roof's rants are somewhat reminiscent of Charles Manson. Does anyone recall a demand to federalize the Manson case? I don't.
Fair and interesting comments, Kent, but the Manson case came at a much different point our modern constitutuional criminal history (and I am not sure there were even federal statute on the books at that time that would have authorized an effective federal prosecution back then).
That all said, I wonder who you would like to see go first with a prosecution if we were now to get a modern-day Manson in California. Would you be content with California trying such a "local" mass murderer, even though it seems nearly certain now that the state of California is unable to getting anyone to the death chamber in less than 30+ years? Or might you advocate for federalization because of the enduring inefficacy of California's capital punishment administration?
Didn't my answer to your Maryland question cover that base? Why do you have so much difficulty believing that my commitment to federalism for its own sake is sincere, and not a cover for preferring whichever jurisdiction is more likely to get to the result I favor in the individual case?
Once more, with feeling, if the Manson case came up again today, I would still think it should be prosecuted in state court by the local district attorney.
As for California's death penalty, don't be so sure it can't be fixed in the not-too-distant future. But that is wandering off the topic for this thread. Another time.
Sorry, Kent, I do not mean to question your federalism sincerity --- though I do not recall any efforts you made (or made by C&C) in the Plaeu case in Rhode Island to help Gov Chaffee preserve state authority over federal interference there in what really seemed like a local crime that just happened to be on the bank steps.
What I really meant to question here was when and how and on what grounds it is appropriate for the feds to question the efficacy of a state in prosecuting a case effectively.
I did indeed comment on the Pleau case here at C&C:
I think the feds can and should step in when the state's system has become ineffective in delivering justice so as to deny the federally protected rights to due process and equal protection. That takes an extreme case, and I have mentioned an example previously. No, the obstruction of execution of a state's death penalty doesn't do it.