Goliath - One More Time

Both of you who've been waiting with bated breath: Your wait is over. The Supremes decided.

Actually, they decided not to decide.  Which is, of course, a decision.

This is about Jason Pleau.  And it's about little Rhode Island and the Big Bad Wolf Department of Justice and how the Law of Rule trumps the Rule of Law yet again to the surprise of just about nobody who pays attention to these things, though Michelle Smith, writing for the AP notes that Lincoln Chaffee, Little Rhodie's governor, was "visibly shaken" when he heard.

Here's the story.  Jason Pleau, Jose Santiago, and Kelley Lajoie allegedly plotted to rob David Main of the receipts from a gas station where he worked.  As the robbery supposedly went down, the three are said to have ended up taking some $12,542 as Main was about to deposit it at branch of Citizens Bank. In the process, it's alleged, Pleau shot and killed Main.  Charged under Rhode Island law, Pleau can get, and is willing to accept, LWOP, death in prison.  But Citizens is a federally insured bank and the feds decided that they want to try Pleau.  And they want to have him executed.

The standard way the feds would proceed is to file for a writ which would require Rhode Island to turn Pleau over.  For whatever reason, they took another approach, trying to get Pleau through the Interstate Agreement on Detainers.  The thing is that the IAD allows the governor of the state holding the prisoner sought to refuse.  Which Governor Chaffee, knowing that RI doesn't have a death penalty and not wanting to see the feds prosecute just to notch a killing on the holster of their hypodermic needle.

So the feds took Pleau and Chaffee and Rhode Island to court.  Federal court, of course.  Goliath v. David I called it.  

No surprise, Goliath (that's the feds) won Round 1.  So the little guys with the slingshot appealed, and won and then lost in the court of appeals. Rounds 2 and 3.  Goliath Wins, I wrote.  The next stop was the Supreme Court, the 9 guys and gals in the black dresses in the big courthouse in DC.

Who, as I said at the top of the page, today decided not to decide.

The feds had been screaming that if David won there would be a constitutional crisis.  Hell, there was already a constitutional crisis which forced the litigation, they said.  That's nonsense, of course.  Just as it's nonsense that the feds won.  They didn't even come close to having the law on their side.  But they were the feds.  In federal court.  The elephant in the room.  Goliath.  The Law of Rule.

And there was David.  Tiny. Little Rhodie.  The smallest state.  With a Governor from neither major party.  (Albeit with amicus support of the National Governor's Association, seven states attorneys general, the ACLU, the Cato Institute.  And moral support from this blawg.)

The thing about David and Goliath is that it's a cool story and a noteworthy one precisely because David wins.  Man bites dog.

That's not the way it usually happens.  Not in this world.

When the berobed ones in DC decided not to hear the case (without explanation or noted dissent, but that's usually the way and doesn't mean much), that left things as they were after Round 3.

Which means it's over.  The feds get Pleau.  To keep him.  To try to kill him.

Oh, Pleau has already filed a motion in federal court asking the judge to take death off the table as a possibility because Rhode Island has no death penalty.  But you know where that's going.

On the other hand, Pleau probably won't be sentenced to die.  Most death penalty cases end up with lesser sentences and there's no particular reason to think this will be the exception (though it's certainly possible). 

Sadly, nobody in Congress is arguing that not pursuing this sort of nonsense is one way they could simply and usefully shave a few bucks off the budget.

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.