Ties Go to the Ones With the Biggest Cojones

My first thought was to call it a draw, but that's not quite right.  It's more like a double header, where the visitors win the first game and lose the nightcap.  Except that in this nightcap, the home team didn't participate, so that's not quite right either.  Maybe it's a square dance where after spinning his partner around, the one dancer lets her go and then just does a solo.  Until he trips.

Fuck it.  I don't actually have a good analogy or metaphor.

This is about the continuing - but now apparently concluded - saga of Jason Pleau and Lincoln Chafee and Eric Holder.  It's about the death penalty and the feds and the sovereign state of Rhode Island which turns out not to be all that sovereign.  And it's about, as it so often is, a struggle between the Rule of Law and the Law of Rule in which, by the end, neither is even much relevant any more.

Really, the correct analogy may be to withering on the line, though that's not really right, either.

Anyway, and in case you don't remember the back story and are too lazy to read the earlier posts to which I'm even providing a link (here), here's the guts of the plot as I wrote it in the most recent post on the case which I called Goliath - One More Time.

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.

Which, as I'd earlier predicted, decided not to hear the case and Pleau went to the feds to be capitally charged, maybe.  

Except that having emerged victorious from the constitutional crisis that didn't exist, having shown that they're bigger and badder than diminutive Rhode Island and can do whatever they want because they're the feds and Law of Rule and all that shit.  Having so demonstrated, that they could try to kill Jason Pleau because death in prison wasn't a sufficient sentence for him.  Having done all that.
This from the AP story by Susan Campbell with Chris Raia.

Changing his plea to guilty on Wednesday afternoon, an accused killer avoided the death penalty and will instead spend the rest of his life in prison.
Jason Pleau, accused of murdering David Main during a 2010 robbery, pleaded guilty on three federal charges on Wednesday and agreed to serve a life sentence in prison with no possibility for parole.

Which kind of leaves it where it was before all the legal squabbling between Rhode Island and feds.  Pleau was willing to plead to LWOP then.  He did plead to it now.

If there was any doubt before, it's dispelled now.  This had nothing to do with Jason Pleau or justice (whatever that might be) or even the death penalty, which was merely the excuse.  It had nothing to do with the Rule of Law. It was all about the feds proving that their dick was bigger than Rhode Island's.  

Don't get me wrong.  It's a good thing that they won't be pursuing death against Pleau.  But LWOP has been a ready option from the beginning - one the feds refused so they could make a point.

About the Law of Rule.  Which, of course, won.

And the Rule of Law. 

Which of course lost.

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.

BECAUSE SOMETIMES THEY PUT THE RUBBER HOSES AWAY AND CHEER THE BAD GUYS ON - The States Thumbing Their Noses at the Courts So They Can Kill People Edition

It's right there in the Constitution, the second clause of the Sixth Article. We call it the "Supremacy Clause."

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

And it's been settled (although sometimes unsettling) since Marbury v. Madison in 1803 that

[i]t is emphatically the province and duty of the judicial department to say what the law is.

Which would seem to put the decisions of the federal courts pretty clearly into the controlling power of the Supremacy Clause.

That's regardless of whether Andy Jackson ever really said, in response to the Court's declaration in Worcester v. Georgia,

John Marshall has made his decision; now let him enforce it

Jackson successfully defied the Court.  States and communities that tried to defy orders to integrate their schools after Brown v. Board of Education, not so much (thanks, initially at least, to Eisenhower's grudging willingness to send in the national guard to enforce the Court's decisions).  And despite much grumbling and dissatisfaction, and a promise by Newt to refuse to obey Supreme Court decisions should he be elected President (whew, dodged that bullet), when the courts decide something, it's to be obeyed.

The remedy isn't defiance, it's appeal to a higher court.

In Rhode Island, Governor Chafee will almost certainly be surrendering Jason Pleau to the feds so that they can try to kill him. After the back and forth and back ending in a loss before the First Circuit sitting en banc (opinion here), Chafee (and Pleau) asked the Supreme Court for a stay until they can get a ruling on their appeals. But Breyer, without opinion, turned them down.  And, as I say, Pleau will almost certainly be given to the feds - maybe as soon as Tuesday.

That's the one part of the Rule of Law that tends really to count.

Remember, there was no insurrection after Bush v. Gore.  Clinton didn't refuse to leave the White House.  Gore didn't set up a separate government.  No state has tried to secede since Appomatox.

And while there has certainly been plenty of defiance of general principles (see Arpaio, Joe, and County, Maricopa, for instance) once the dust settles and the courts order and the appeals are over, they kinda sorta, and with lots of muttering, pretend to do what they're told.

Unless, it seems, they're told to stop killing people. From AP.

California on Friday joined other states in defying a federal government order to turn over a key execution drug.
. . .
U.S. District Judge Richard Leon in March ruled that the Food and Drug Administration erred in allowing the prisons to import the foreign-made drug. The judge ordered the FDA to confiscate all foreign-made sodium thiopental and to warn prisons that it was now illegal to use the drug. The FDA followed the Washington D.C.-based judge's order and sent demand letters to prisons. But beginning with Nebraska on April 20, more than a dozen states have refused to comply with the FDA order.

They're not just appealing.  They're not seeking a stay pending appeal.  They're just refusing.

Nyah, nyah.  You can't make us.

California Department of Corrections and Rehabilitation lawyer Benjamin Rice and the other states with foreign-bought sodium thiopental contend they aren't bound by the ruling made by a federal judge in Washington D.C. 

Maybe.  Maybe not.

But it isn't their decision to make.

Don't want to obey? Ask for a stay and appeal.

Is it a full-blown constitutional crisis.  Maybe not full-blown. Court orders are, in fact, defied all the time.  The typical remedy is to hold the person or entity in contempt, lock someone up, add daily and accumulating fines - maybe huge ones, until compliance.

Or they can treat it as civil disobedience. You know how that works.

 

Pepper spray.

Fire Hoses.

Beating the shit out of people.

Because some things can't be tolerated.

 

So here are some questions.

Why hasn't DOJ done anything? Why hasn't Obama? Where's the national guard? The dogs? The fire hoses? The pepper spray?

Where's the fucking outrage?

Why aren't the law and order types jumping on the state for refusing a court order?

Oh, yeah. How foolish of me.

DOJ isn't complaining about the states defying the courts because it wants them to.  It's appealing the orders to confiscate the drugs.

I mean, let's be serious about this.

We're talking about the government killing people.

Can't let something like the Supremacy Clause get in the way.

Law of Rule.

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.

Goliath v. David

From Milton Valencia in the Boston Globe:

According to federal court records, [Jason] Pleau and two codefendants staked out a Shell gasoline station manager, David M. Main, a 49-year-old from Lincoln, as he prepared to make a $12,542 deposit at a Citizens Bank branch in Woonsocket.
Pleau, who was waiting in hiding near the bank, shot Main several times in the head before fleeing with the money.
Pleau’s codefendants are in custody awaiting trial on federal charges. Pleau was brought before state courts for parole violations.

Pleau got 18 years for those violations.  He's willing, Valencia says in the article, to plead guilty to the robbery and the murder and accept a sentence of death in prison.  Since Rhode Island, which is where all this happened, doesn't have a death penalty, you'd think that would be the end of things.

You'd be wrong.

See, Citizens is a federally insured bank.  That means the feds can bring criminal charges against Pleau because they say he committed a crime there.  And if they want, they can go after the death penalty for the crime.  They haven't formally decided to go for death yet, though it's a given they plan to. (Don't worry about the details of federal capital law.  They don't matter here.) Anyway, they can't prosecute Pleau if they can't get their hands on him.  So they asked Rhode Island to turn him over.

Now that sort of thing is usually simple enough.

Feds want.  Feds get.

Typically, the feds get an ad prosequendum writ which just orders the state to give the guy up.  But there's another way, and it's the way the feds chose to go after Pleau.

There's this thing called the Interstate Agreement on Detainers which basically says that when State A (say Rhode Island) is holding someone State B (say the federal government*) wants to prosecute, State A has to turn him over to State B.

Unless the Governor of State A doesn't want to.

[T]here shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.

Lincoln Chafee is the Governor of Rhode Island.  He figures the death penalty violates his state's public policy (or they'd have one), so he "disapprove[d] the request."  Here's the guts of the statement from his office.

"My disapproval of the federal government's request should in no way minimize the tragic and senseless nature of Mr. Main's murder," Governor Chafee said. "The person or persons responsible for this horrific act must, and will, be prosecuted and punished to the full extent of the law. I extend my deepest sympathy to Mr. Main's family for their unspeakable loss."
"Despite the horrific nature of this crime, however, the State of Rhode Island would not impose the death penalty," Governor Chafee continued. "In light of this longstanding policy, I cannot in good conscience voluntarily expose a Rhode Island citizen to a potential death penalty prosecution. I am confident that Attorney General Kilmartin and Rhode Island's criminal justice system are capable of ensuring that justice is served in this matter."

So the feds went to court.  They said,

Hey, there's this thing about us being bigger than you.  Civil War and all.  You have to do what we say.  We want Pleau.  Now don't go fucking around with your "conscience."  We don't go for that sort of shit.  Turn him over.

OK, they didn't put it that way, but that's what they meant.  And the judge said,

Right.

And Chafee said, 

Go fuck yourself.

OK, that's not exactly what the judge said, and it isn't how Chaffee put it (at least publicly) either.  And now the case is in the 1st Circuit Court of Appeals.  On a very fast track.  Three sets of briefs were filed just over 2 weeks ago.

• The feds filed.
• Pleau filed.
• Chafee filed.

Here's Chafee's.

Pleau - Chafee Brief

The point is simple. 

The feds say

Eeeek!!!  We may not get our way!!!  Constitutional Crisis!!!

Chafee says

The feds chose to get Pleau from Rhode Island by means of the Interstate Agreement instead of by writ.  The Interstate Agreement says that the Governor can refuse.  I.  If the feds didn't want to deal with the consequences of the Agreement, they shouldn't have invoked it.  Ain't my fault if they're stupid.

Tough noogies.

Chafee has the basic rules of the Law on his side though there are serious procedural problems.

We know that's having the law on your side is not always (not even often) enough.

They held oral argument Wednesday and you can listen to it here.

We'll see.

 

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*The United States is a state for purposes of the Agreement.  Don't ask.  Teams of lawyers and legislators worked tirelessly to enact a law that makes the United States just another state.  It wasn't easy, but they succeeded.