What Can the Rumble in Rhode Island Tell us About the Obama Administration and the Death Penalty?

By Matt Kaiser, an attorney at The Kaiser Law Firm PLLC. Mr. Kaiser blogs at Federal Criminal Appeals Blog.

Barack Obama’s views on the death penalty as a presidential candidate were not unlike his views on other subjects. Then candidate-Obama thought that the death penalty should be reserved for cases of horrific crime – but only when procedural protections are in place and it can be carried out humanely. He wasn’t going to take a hard line against the death penalty, but still thought it should be reformed.

Since he’s been in office, for the most part, that’s what his Department of Justice has done. There appears to be a decline in the Department of Justice seeking the death penalty against people who are involved in the drug trade and kill other drug dealers. It’s sad to say that these kinds of crimes are common enough that they generally don’t count as particularly heinous. The Department’s actions reflect the president’s views, in this instance.

Moreover, the pace of federal executions has slowed during Obama’s presidency, though this is not the result of presidential action. The federal government’s execution protocol uses a particular drug – sodium thiopental – and that drug is in short supply. The Department of Justice has to modify its protocol before it can go forward with any executions using a different drug; modifying a DOJ protocol takes time. As a result, it’s likely that President Obama will not see a federal execution during his first term in office.

All of this makes for a high-stakes, but odd, fight between the Department of Justice and Rhode Island Governor Lincoln Chafee.

Jason Pleau has been accused of shooting a gas station manager outside of a bank during a robbery in Rhode Island. Admittedly, Pleau appears to have a violent past. He has agreed to plead guilty in state court, and would receive a sentence of life without the possibility of parole.

The sentence, though, may not be good enough for President Obama’s Department of Justice. Because the federal government can prosecute Pleau – the bank where the shooting happened is federally insured – the U.S. Attorney’s Office in Rhode Island has charged Pleau with a death-eligible offense. Though the federal government hasn’t decided whether to seek Pleau’s death, it is absolutely a possibility.

This has resulted in a bizarre showdown over Pleau. He’s in state custody in a Rhode Island jail. The federal government has demanded that he be turned over. Gov. Chafee, refuses to turn him over to the federal government because he is opposed to the death penalty. Rhode Island itself is a strong anti-death penalty state – the last execution in the state was 150 years ago.

A U.S. District Court in Rhode Island ordered the governor to release Pleau to federal officials. The case is now before the First Circuit, and Gov. Chafee has intervened in the appeal.

At bottom, the case turns on how a writ issued from a federal court interacts with the Interstate Agreement on Detainers. Under the Interstate Agreement on Detainers, which governs when different sovereigns in the United States transfer people in their custody to one another, a governor can refuse a transfer. Yet, when a district court issues a writ, a governor cannot – assuming the writ was lawfully granted. The question is whether the Interstate Agreement on Detainers limits the district court’s ability to issue a writ.

As the district court pointed out, “[i]t appears that this is the first time a governor has dishonored a request by the United States under the IADA for temporary custody of a state prisoner.”

The case raises interesting federalism questions, but they need to be looked at through the lens of the United States’ role in the Interstate Agreement on Detainers. If the United States is a co-sovereign, like the other states in the Agreement, does it give up a Supremacy Clause argument behind a writ? After all, for purposes of the Agreement, the United States is a “state.” This seems, therefore, like less of a threat to federalism.

Stepping back from the legal issue though – why is this happening? Chafee really doesn’t like the death penalty and doesn’t want to allow a potential federal death case based on conduct in his anti-death state to go forward. His motivations are clear.

Why, however, is Obama’s Department of Justice taking this action? This isn’t the kind of case where the facts are so heinous that the president thinks the death penalty is appropriate. And, surely, the Department of Justice is not obsessed with ensuring that this arcane legal point about the Interstate Agreement on Detainers is settled.

I would like to think that this is explainable by something other than the Department of Justice fighting back because Gov. Chafee is not acquiescing. It isn’t clear, to me at least, that there’s a policy decision behind this fight, other than that the federal government stands behind the view that it gets to do whatever it wants.