Goliath Wins

The thing about the constitutional crisis is that there was none.

The feds made it up in order to get their way.

And when it came down to it . . . when the proverbial push came to the proverbial shove . . . well, you can pretty much figure what happened.

Really, this is a story of a temper tantrum.

Here's the background (earlier story here).

Jason Pleau is in prison in Rhode Island serving 18 years as a consequence of a bank robbery in which he shot and killed a wholly innocent guy named David M. Main.  The feds want to try him for the death penalty, but they have to get their hands on him, first, and the State of Rhode Island and Providence Plantations doesn't want to give him up because they don't believe in the death penalty by gosh and by golly.

The feds could have got hold of Pleau easily by going to court and filing for a writ of habeas corpus ad testificandum, but they didn't.  Instead, they decided to get him through something called the Interstate Agreement on Detainers.  But the IAD lets the state that's holding someone refuse to turn him over.  Which the Ocean State did (refuse, that is). So the feds filed for a writ, but the law says that once you start down the IAD path, that's your only road.

Except they're the feds, and like I said, they threw a temper tantrum and declared a constitutional crisis.

Little Rhodie wouldn't do what we wanted.  Waaaa!  And he has to, because we said so.  Waaaa!  This is the Civil War all over again.  Waaaa!

To which:

1. Federal District Court: Stop.  I can't stand it.  You win.  Rhode Island, they're bigger than you and bullies so you must do as they say.  Obeying the law is no excuse.
2. First Circuit Court of Appeals panel: Oh my stars.  We can't have temper tantrums.  This is a country founded on the Rule of Law, not the Law of Rule.  The feds made their bed.  Now, let them lie it.
3. First Circuit Court of Appeals en banc: We adhere to the language of the law always except that it doesn't let the feds win, so the language of the law doesn't count.  After all, if Little Rhodie won't turn Jason Pleau over to be tried and then executed, why the republic might collapse.  Just because it has the law on its side doesn't mean it has the law on its side.

OK, nobody actually put it like that, but that's what it was.

And of course it wasn't that neat.  Both in panel and en banc, the First Circuit was split with majority and dissenting opinions.  Both times both sides accused the others of misreading and misapplying decisions from the Supreme Court. In fact, and as a matter of Law, Rhode Island should win.  But we know how much that's worth.

Diddly.

It's a fair bet that Rhode Island will be asking the Supreme Court to resolve this mess.  It's a fair bet, too, that as Doug Berman put it,

the Justices may be disinclined to get into this notable fight.

Yeah.  But it'd be kind of interesting if they would. 

• Federal government says procedural technicalities don't matter.
• Federal government says language of statute doesn't matter.
• Federal government says we're the big guys and states have to do whatever we say.
• Rhode Island says, State's Rights and Federalism.

But let's go back, for a moment.  If the feds had in the first instance done what they usually do,  getting a writ, there'd be no case here.  None of this would have happened.

Instead, they chose a different route.  They chose to use the IAD.  And then they said there's a constitutional crisis because Rhode Island is acting in accordance with the particular statute they elected chose to use.

There is, of course, an underlying issue.  The feds don't just want to prosecute Jason Pleau.  They don't just want to see him in prison forever (he offered to plead to that).  No, they want to kill him. Oh, they haven't yet formally made that decision because there are a bunch of steps they have to take first, and some of them require that they first have him in custody.  But that's their goal.  And Rhode Island (actually, Governor Chaffee) doesn't want them to do that.

Frankly Chaffee's was always something of a quixotic stand.  And we know how those mostly turn out.

Still.