Tossing a Mokney Wrench Into the Machinery of Death

West Virginia has it's issues, but one thing I take a great deal of pride in about my home state is that we got rid of the death penalty in 1965. Although there are some occasional rumblings about bringing it back, it never really gets anywhere. Why should it? The state has one of the lowest crime rates in the nation and couldn't really afford the cost of actually implementing it, anyway.

But the state's law isn't the final word on whether somebody in West Virginia might face the death penalty. The feds can step in and prosecute a case that falls within their jurisdiction and can, if they so desire, seek the death penalty. They did just that a few years ago in the case of a Mingo County man charged with killing a drug informant.  After securing a conviction and death sentence, the conviction was tossed out due to some issues with a juror. The retrial ended in another conviction, but no death sentence. The feds squandered millions of dollars in the effort.

That case sprang to mind when I read about a battle of wills going on between the governor of Rhode Island, Lincoln Chafee and the local United States Attorney over the fate of Jason Wayne Pleau. Pleau is serving a state sentence in Rhode Island that's set to expire in 2028. He is also charged, in federal court, with a robbery and murder for which the feds could seek the death penalty.

The feds submitted a request to the governor under the Interstate Agreement on Detainers Act asking for Pleau to be turned over for proceedings in federal court. The governor said no:

Chafee based his denial, believed a first in the nation, on Rhode Island’s longstanding rejection of the death penalty. Chafee said Pleau’s lawyers told him their client would agree to plead guilty in state court and face life without parole, the maximum penalty under Rhode Island law.

Undeterred, the feds went to the federal district court and applied for a writ of habeas corpus ad prosequendum, which is the usual means of bringing someone in state custody into federal court to, say, testify in someone else's trial. Chafee's lawyers (and Pleau's) argued last week to the First Circuit Court of Appeals that the feds couldn't get the writ because, once they invoked the IADA, they were bound by Chafee's decision to not hand Pleau over. The IADA does give a governor that power, but apparently nobody else ever thought to actually exercise it.

Chafee's argument has some gut appeal, but I'm not sure it will ultimately prevail (it didn't in the court below). For one thing, I'm not sure that Congress ever intended the IADA to act as a permanent bar on transferring someone from state custody. For another, it seems that if Chafee prevails it means that, in the future, the feds should just avoid the IADA all together and apply for the writ. Cut out the possibility of gubernatorial obstruction completely. If that happens, what's the point of the federal government being a part of the IADA?

That being said, the IADA provision allowing Chafee to decline the feds' request has to mean something, too. After all, he can't prevent Pleau from being tried by the feds completely - they'll just have to wait until he's released from the Rhode Island prison. And given the difference between the feds and Rhode Island when it comes to the death penalty, isn't that a legitimate basis to deny the request? Other countries, when dealing with extradition matters, can force the feds to take the death penalty off the table before they turn over a defendant, why shouldn't the states do the same?

In the end, I expect the First Circuit (and maybe the Supremes afterwards) to hold that Chafee has to turn Pleau over. But I'm willing to be pleasantly surprised if it turns out otherwise.