The U.S. Virgin Islands is a self-governing U.S. territory in the Caribbean with an elected governor and legislature. In 1957, the first Congress abolished the death penalty for territorial crimes. But nearly 70 years later, the U.S. Court of Appeals for the Third Circuit invoked a Congressional law designed to protect the double jeopardy rights of criminal defendants, paving the way for federal prosecutors to seek the federal death penalty for exclusively territorial crimes.
This month’s ruling from the Third Circuit Court of Appeals: USA vs Dangleben It affects more than 87,000 residents of the U.S. Virgin Islands. The court offers a simple blueprint for something much bigger. It is the use of an obscure process known as supplementary jurisdiction that allows federal prosecutors to prosecute state crimes directly in federal court and seek the federal death penalty, even when state law, including the state constitution, prohibits the death penalty for those crimes. Although state crimes remain nominally state crimes, prosecuting them in federal court with federally prescribed penalties would destroy federalism as we know it.
Title 18, U.S. Code, Sections 924(c) and (j) authorizes the death penalty for committing a “crime of violence or drug trafficking” that “causes death by the use of a firearm” and is “probable of indictment in a court of the United States” in circumstances where “murder is murder.” But the U.S. Constitution prohibits Congress from exercising general police powers, which means codifying any and all crimes. Federal crimes must be based on enumerated powers of Congress, such as Congress’ powers over interstate commerce and federal property. These crimes are effectively the only crimes that federal prosecutors can prosecute in federal district courts. For example, to charge someone with murder under federal law, prosecutors must prove not only that a traditional murder occurred, but also that it occurred on federal property, crossed state lines, targeted federal employees, or had some other federal entrapment.
However, there are only a few exceptions that allow federal courts to try criminal cases that do not involve federal crimes. One exception is specific to the U.S. Virgin Islands. Congress has authorized the U.S. District Court for the Virgin Islands to exercise so-called “supplemental criminal jurisdiction” to try territorial crimes arising from the same transactions as federal crimes. Accordingly, the Virgin Islands U.S. Attorney may charge the defendant with the federal crime of being a felon in firearms violations under 18 U.S.C. 922(g)(1) and, as part of the same prosecution, also charge the defendant with the Virgin Islands crime of unlawful possession of a firearm in violation of 14 U.S.C. 2253(a).
Why did Congress give the Virgin Islands District Court this unique jurisdiction? It goes back to an obscure legal principle first recognized by the U.S. Supreme Court in 1907: unitary sovereignty. Grafton v. United States and was recently reaffirmed in 2016. Puerto Rico v. Sanchez Valle. In these decisions, the courts held, in effect, that criminal defendants within U.S. territories have greater double jeopardy rights than criminal defendants in individual states. Although courts have interpreted the Double Jeopardy Clause of the Fifth Amendment to permit consecutive federal and state prosecutions of essentially the same crime; Grafton and Sanchez Valle It refused to extend this rule to its territory. Therefore, territorial prosecutors in Puerto Rico cannot charge a defendant in territorial court with illegally selling firearms in violation of territorial law if federal prosecutors have already successfully prosecuted the defendant in federal court for the same transaction in violation of federal gun trafficking law.
Congress, territorial governments, and U.S. Attorneys’ Offices have addressed the following practical implications: Grafton and Sanchez Valle In different ways. In Puerto Rico, Congress took no action. Instead, the Puerto Rico Department of Justice and the U.S. Attorney for the District of Puerto Rico entered into a memorandum of understanding that determines which entities will prosecute which crimes in which courts. However, in the U.S. Virgin Islands, Congress proactively granted supplemental criminal jurisdiction to the U.S. District Court for the U.S. Virgin Islands, allowing U.S. Virgin Islands attorneys to prosecute U.S. Virgin Islands crimes that are similar to or related to federal crimes simultaneously in a single proceeding, without requiring the consent of the U.S. Virgin Islands Department of Justice.
It is this vague procedure that the Third Circuit invoked. dangleben Allows federal prosecutors to seek the death penalty for purely territorial crimes. The logic is surprisingly simple. As noted above, Article 18, Section 924(c) and (j) of the United States Constitution authorizes federal prosecutors to seek the death penalty if the defendant “causes death by the use of a firearm” while committing a “crime of violence or drug trafficking” that “may be prosecuted in the courts of the United States,” and “murder is murder.” The federalization of the death penalty for local crimes in the U.S. Virgin Islands rests largely on the use of the singular “courts of the United States” in Section 924(c)(1)(A). The Third Circuit reasoned that all crimes in the Virgin Islands “may be prosecuted in the courts of the United States, namely, the U.S. Virgin Islands District Court” under the Supplemental Criminal Jurisdiction Act. Therefore, if a firearm is used to commit a violent crime under Virgin Islands law and someone dies under circumstances that could meet the federal definition of murder (including the felony murder provision), federal prosecutors may seek the federal death penalty, even if the death penalty would not apply if the same crime were prosecuted in district court.
Although supplementary criminal jurisdiction is unique to the U.S. Virgin Islands, the concept has familiar civil law similarities. Since 1990, federal district courts have exercised supplemental civil jurisdiction over state law claims that form part of the same case or controversy as the federal claim. Despite repeated concerns about federalism, the Supreme Court upheld the deal. Congress could try to extend it dangleben Enables nationwide decision-making by creating a criminal analog law that gives all federal district courts supplemental criminal jurisdiction.
danger of danglebenSo it doesn’t just mean the U.S. Virgin Islands. What first happened in the U.S. Virgin Islands could serve as a model for avoiding the death penalty for state crimes in Hawaii, Massachusetts, Virginia, and all states that have chosen to limit or outlaw capital punishment. Given the unusually low threshold for federal firearms charges (nearly all guns are in interstate commerce at some point), enactment of the National Supplemental Criminal Jurisdiction Act could turn many firearm-related homicides into federal cases overnight. Indeed, Congress could quietly incorporate the federal death penalty into state criminal law through jurisdictional mechanisms. Our federalist criminal justice system may be far more fragile than we previously thought.
Anthony M. Cioli is a faculty member at St. Mary’s University School of Law. He is a former president of the Virgin Islands Bar Association and serves as a special assistant to the Chief Justice of the Virgin Islands. The views expressed here are my own and do not represent the views of the Virgin Islands Judicial Department, the Virgin Islands Bar Association, or its officers or employees.
