A principled governor invoking “state’s rights” to defy federal policy. Aggressive local officials overriding state decisions. A federal court angrily affirming its own power. An anguished dissent attacking a power-hungry Congress.
United States v. Pleau has all the elements of a great federalism battle (including, by the way, largely symbolic stakes). But don’t expect to see Rhode Island Governor Lincoln Chafee’s “state’s rights” stand hailed by Republican conservatives: Chafee is blocking the federal government in order to show his disapproval of the federal death penalty. The result, decided May 7 by the First Circuit Court of Appeals, is now in the Supreme Court’s in-basket. Pleau deals with important issues of policy, morality, and history. But because this is the United States, the language of the dispute is that of federalism—a pastime that Professors Edward L. Rubin and Malcolm Feeley once dubbed “a national neurosis.”
The case began on September 20, 2010, when Jason Wayne Pleau, along with two companions, staked out a convenience store in Woonsocket, Rhode Island. They shadowed the manager, David D. Main, as he carried a bag of cash receipts to a branch of Citizens Bank. Outside the bank, Pleau confronted Main with a pistol. When the manager tried to sprint to safety, Pleau killed him.
The three were arrested soon after; Pleau was sent back to Rhode Island to begin serving time for parole violation. The other two were brought into federal court on charges of violating the Hobbs Act, which punishes robbery or extortion that “obstructs, delays, or affects commerce.” Jose Anibal Santiago pleaded not guilty; Kelley Marie Lajoie cut a plea deal with federal prosecutors.
At this point the feds issued a “detainer” for Pleau to the state authorities. “Detainer” is an important term in this dispute, so don’t tune out: it means a “request for temporary custody” issued under a statute called the Interstate Agreement on Detainers Act. The statute is basically a domestic treaty among the 50 states and the federal government on how to handle situations where one prisoner faces charges in multiple places. Under the IADA, one state can ask another for temporary custody of the prisoner in order to clear up the charges. But the IADA places two conditions on the use of detainers; first, the state requesting custody has to agree to give the prisoner a trial within 180 days. Second, the governor of the state that has the prisoner has 30 days to decide whether to refuse to allow the prisoner to be moved.
Rhode Island’s Governor is Lincoln Chafee, a former Republican Senator turned Independent. When the detainer request hit his desk, he refused to allow the transfer. The federal charges against Pleau, he said, carried a possible penalty of death.
Prosecutors had made no decision about whether to seek the death penalty; federal courts have sentenced 61 defendants to death since 1989. Only three, including Timothy McVeigh, have been executed. But Rhode Island has no death penalty, and Chafee personally opposes capital punishment. He would not turn over a prisoner to face even a possible death sentence.
At this point, U.S. Attorney Peter Neronha tried a different approach. He obtained a federal writ called “habeas corpus ad prosequendum,” an ancient form of request from one court to another to turn over a prisoner to stand trial in the court issuing the writ. Pleau opposed the move, and meanwhile offered to plead guilty to state bank robbery charges, with a sentence of life in prison but no execution. Rhode Island joined the case on Pleau’s side. The U.S. had filed a detainer, the state argued; now it is bound by the IADA. Last year, a panel of the First Circuit Court of Appeals agreed. The United States, two of the judges reasoned, was a party to the agreement, and thus was bound by its terms. Once having sought a detainer, it could not now dodge its obligations to abide by the Act. (Had Neronha proceeded in reverse order—habeas first--the writ would probably have been valid, with no opportunity for Chafee to intervene.)
The panel split 2-1; Judge Michael Boudin, one of the federal bench’s brightest intellectual lights, bitterly dissented. He argued that the IADA was intended by Congress to limit the action of prosecutors, not to give up federal courts’ pre-existing power to issue habeas writs. On May 7, the full Court held for the federal government. Boudin wrote this opinion, citing the Supremacy Clause of the Constitution, which makes the Constitution, federal statutes, and valid treaties “the supreme law of the land,” superseding state law. “State interposition to defeat federal authority,” he wrote tartly, “vanished with the Civil War.”
The author of the original opinion, Judge Juan Torruella, wrote an impassioned dissent. The Supremacy Clause, he said, is “the recurrent ‘Big Brother’ argument that is used by the federal government when it attempts to push its weight against the states.” It is also, he ... as framed by the majority, one of conflict between a federal law and Rhode Island's contrary position or preference,” he wrote. “[T]he issue here is how two federal statutes interact, a determination in which the Supremacy Clause plays no part.”
Chafee has announced that Rhode Island will petition the Supreme Court to review the First Circuit’s decision. “The State of Rhode Island must seek to protect both the strong states’ rights issues at stake and the legitimacy of its longstanding public policy against the death penalty,” he said.
It’s hard to handicap a case that pits “state’s rights” (which the Court sometimes loves and sometimes doesn’t) against the death penalty (which the Court pretty much supports when used against competent adults). But the Court may take the chance to clarify the status of the IADA.
Torruella’s background sheds light on his “state’s rights” ire; a native of Puerto Rico, he was a judge in San Juan before being appointed to the Court of Appeals, and he is the author of a book on the Insular Cases, in which the Supreme Court held that Puerto Rican are U.S. citizens—but that they don’t have the same rights to self-government as “real” U.S. citizens. Indeed, his highest-profile opinions have been concurrences and dissents in the long-running case of Igartúa v. United States, a series of challenges to the exclusion of Puerto Rico from representation in the House and in the electoral college. In one such opinion, Torruella wrote,
the federal courts continue to recognize the almost absolute power of Congress to unilaterally dictate the affairs of Puerto Rico and her people. So long as that is the case, the practicality of the matter is that Puerto Rico remains a colony with little prospect of exerting effective political pressure on the elected branches of government to take corrective action.
A properly framed decision changing this state of affairs, Torruella wrote, would be the equivalent of Puerto Rico’s Brown v. Board of Education.
Watch these deep, indeed transcendent, political issues swirl: Chafee’s principled opposition to state-imposed death; Boudin’s allegiance to the power of federal courts as the lynchpins of law; Torruella’s deep anger on behalf of those kept under colonial domination, with the blessings of the courts, for more than a century.
But the argument has actually been framed in terms of the decidedly strange idea of “dual sovereignty,” in which the state and federal governments, like God the Father and God the Holy Ghost, somehow inhabit the same space under the same Constitution remaining one and yet mystically separate at the same time.
Is this truly a “national neurosis,” or a constructive way for Americans to talk about transcendent issues—Senate Bill 1070, for example, gay marriage, or the death penalty—without tearing each other to pieces?