By Mike Dorf
On Thursday of last week, the Justice Dep't announced that it would seek the death penalty for accused Boston Marathon bomber Dzokhar Tsarnaev. The NY Times story reporting the announcement included the following interesting tidbit: "Attorney General Eric H. Holder Jr., who had the final say on whether to authorize prosecutors to seek the death penalty, has said he personally opposes capital punishment. But he has authorized its use many times." There's nothing unprincipled or illogical about AG Holder's position. No AG or other government lawyer will agree with every aspect of the criminal law, but in general, a commitment to separation of powers and the rule of law means that law enforcement officials give priority to the policy judgments reflected in the law, rather than to their own policy preferences.
That principle properly extends to the exercise of prosecutorial discretion, although it only goes so far. Prosecutorial discretion serves various purposes but perhaps the central insight behind it is that as between various places where the government's law enforcement resources should be concentrated, some should be given higher priority than others. One can look to the enacted law itself as part of the basis for making these sorts of judgments. Crimes carrying greater penalties can be presumed to be of higher priority than those carrying lower penalties, for example.
But even factors that are not expressly contained in the relevant legislation may be relevant to the exercise of prosecutorial discretion. For example, the Justice Dep't acts reasonably in declining to enforce federal laws regarding marijuana in those states that have legalized marijuana, either fully or for medical purposes. Principles of federalism are sufficiently important in our system of government to supply a defensible ground for applying different approaches in different states. At the same time, however, a contrary decision would also be reasonable. A chief reason why we have a federal government, after all, is to enact laws that apply uniformly throughout the country. Thus, I think a decision either to prioritize enforcement in marijuana-illegal states or a contrary decision to apply federal law enforcement resources equally across states could be defended as a reasonable exercise of prosecutorial discretion based on federalism, or alternatively, nationalism, concerns.
Meanwhile, the exercise of prosecutorial discretion also sometimes legitimately involves some element of straight-out policy judgment. If Vermont were to legalize heroin, the Justice Dep't could reasonably decide that whereas it goes light on federal enforcement of marijuana laws in states that have legalized marijuana, it won't go light on heroin in Vermont because of a pure policy judgment that heroin is more dangerous than marijuana.
What about the death penalty? Here too, there is room for a variety of views about how to exercise prosecutorial discretion. The fact that the AG would not personally vote for a federal death penalty statute if he were a member of Congress strikes me as an insufficient reason for the AG to decide categorically that he will never seek the death penalty, so I don't necessarily disagree with Holder's approach. But we might want to unpack what Holder means by "personally."
Holder might mean that he "personally" finds the death penalty "icky" or aesthetically unpleasing or undesirable in some other way that is idiosyncratic in the way that judgments about matters of taste often are. But that seems implausible. Most thoughtful people who oppose the death penalty do so for one or more of the following reasons: It is always immoral for the state to deliberately take the life of someone, even someone dangerous and culpable, once he is isolated; the risk of executing an innocent is too great to execute anyone; the death penalty historically cannot be carried out without its being infected by racial, economic and/or other illicit bias; the available methods of execution are unacceptable; and the death penalty fails to deter. None of these reasons is "personal" in the sense that someone might think that a preference for vanilla over chocolate is. Each of them strikes me as at least as valid a basis for the exercise of prosecutorial discretion as a judgment that heroin is more dangerous than marijuana. Accordingly, although I certainly think that AG Holder is permitted to set aside his view that the death penalty is a bad idea, I also think that he would not be abusing his prosecutorial discretion if he decided not to seek the death penalty in any particular case based on a combination of one or more of the foregoing factors and the particular circumstances of the case.
A categorial rejection of the death penalty could be more problematic for the sorts of reasons that some people have objected to President Obama's categorical decision not to enforce certain aspects of the immigration law with respect to certain classes of especially sympathetic non-citizens. The basic objection to categorical prosecutorial discretion is that it looks too much like Presidential nullification of an act of Congress, and thus violates the President's duty to take care that the laws are faithfully executed. But it's not obvious that this objection holds up. If one or more factors suffice to justify a decision not to devote executive resources in a particular case, then those same factors probably ought to suffice to justify the same decision across a category of cases. And indeed, many prosecutors' offices in fact have categorical guidelines governing when and when not to exercise prosecutorial discretion. Ordinarily, we would think of the regularization of such discretion as a virtue, rather than a vice, of government.
In any event, here the AG has decided to set aside his opposition to the death penalty to seek it in the most egregious criminal cases, so the problem arises from the opposite direction: Was Holder required to refuse to seek the death penalty? As noted, I don't think so, but we might want to pay special attention to two sorts of reasons for opposing the death penalty that I have not explored.
First, suppose the AG thought that the death penalty was, under all circumstances, unconstitutional. Would he then have an obligation to exercise his prosecutorial discretion not to seek it? Certain very strongly "departmentalist" views of constitutional interpretation would say yes, at least if we gloss over any differences between the AG and the President by referring somewhat imprecisely to the "Executive." In this view, the Executive, no less than the courts or Congress, has an independent obligation to interpret the Constitution--so that even if the Supreme Court has rejected an argument, the Executive is forbidden from enforcing it. Thomas Jefferson appeared to take this view of the Sedition Act, although the matter is not entirely free from doubt as the Supreme Court had not (and never would) ruled on the constitutionality of the Sedition Act.
The Obama Administration seems to take a milder view of departmentalism, as illustrated in the DOMA litigation. By enforcing but not defending DOMA, the Administration submitted the question to the Supreme Court. Presumably the Administration would have continued to enforce DOMA if the Court had come out the other way in Windsor. So here, the fact that the Supreme Court has rejected the argument that the death penalty is categorically unconstitutional suffices, under the Obama Administration's apparent view, to eliminate unconstitutionality as a ground for the exercise of prosecutorial discretion never to seek the death penalty.
Second, suppose that the AG had a religious objection to the death penalty. Would that be a legitimate ground for exercising prosecutorial discretion not to seek it in any case? Following the logic of RFRA and the arguments advanced in Hobby Lobby and the Little Sisters litigation, we can see how a particular government official might have sufficient reason to recuse herself from death penalty cases--although, as I noted in a local case arising in the same-sex marriage context, even that sort of conclusion may be tricky. But even if our legal norms of religious conscientious objection authorize people to opt out, it hardly follows that an official as high-ranking as the AG gets to set policy for the entire Executive branch of government based on his distinctly religious viewpoint. For an argument that recent developments in both the law and public debate about religious exemptions nonetheless trend in that (indefensibly theocratic) direction, I recommend Garrett Epps' recent Atlantic piece on the Little Sisters case.