Strengthening Constitutional Self-Government

No Left Turns

Who’s On First?

There has been a lot of smoke cast about over the weekend about who should be first to prosecute the sniper suspects. Maryland is making a hard pitch, saying that because they have more victims, they should get the first chance. Virginia and Alabama are not pleased by such an option, because Maryland is a more liberal state--one with a moratorium on the death penalty, and one in which Mr. Malvo may not be given a capital sentence because he is a minor. The Feds also think that they should get the first shot, asserting that because this is an interstate spree involving extortion and murder, the Hobbs Act applies. Who then should get the first opportunity? The shocking answer is that in the long run, it really doesn’t matter.

Maryland’s prosecutor was on Meet the Press yesterday, trying to make it appear that he wasn’t trying to build a political name off of the prosecution. At the same time, he made at least one clear blunder in his claim that the Federal Government should not bring the claims first: he suggested that this would raise double jeopardy issues. But this neglects the fact that double jeopardy doesn’t apply where charges are brought by different sovereigns, whether the charges are brought by different states, or by the state and the federal government. In Heath v. Alabama, for example, a suspect entered into a plea bargain to avoid the death penalty in Georgia after he kidnapped an individual in Alabama and killed her in Georgia. The U.S. Supreme Court found that this prosecution did not preclude Alabama from prosecuting the individual (and from seeking the death penalty), because Alabama had its own interests as a separate sovereign to vindicate. There is an equally long line of cases supporting such action by the federal government. The one limitation on the federal government is found in the DOJ policy procedures, which precludes federal prosecution after a state prosecution unless the matter raises a substantial federal interest. The bottom line is that if the feds go second, there will be enough momentum within the DOJ to support this internal finding.

So where does this leave the question of who prosecutes first? First, the presumption has to be that Maryland will get the first chance. Contrary to all the commentary, it is not because they have more victims, but rather because the suspects are in custody there. Any transport of the suspects would be an act of comity, something which commonly occurs, but not where there is big political capital on the line. Here, Maryland has solid reasons to prosecute, and the prosecutor will be seeking to make a name for himself, which he can carry to state-wide office. The only entity who may have a chance of short-circuiting this process is the feds. To quote my law school professor, Richard Epstein, when it comes to the federal government, the general rule is "what Lola wants, Lola gets." How the feds would put a squeeze on the locals is unclear to me, but they seem to be the one entity who could make a play--particularly because they could carry out a prosecution in Maryland, and thereby avoid the issues of transferring the suspects out of state. Either way, however, the double jeopardy law does not prohibit Virginia or Alabama from prosecuting the suspects after Maryland. Given the more effecient judicial systems in those states, you can almost be assured that the suspects, if guilty, will be executed in either Virginia or Alabama before their appeals run in Maryland.

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