08/10/2011 11:53 am ET Updated Oct 10, 2011

Whose Prosecution Is it Anyway?

There is a battle for state's rights in an unusual locale -- Rhode Island. It has to do with a man, Jason Pleau, who is charged with murder for gunning down a gas station manager outside a Woonsocket bank in that state. At issue is this; Rhode Island does not have the death penalty, and Governor Chafee is fighting not to transfer Pleau to federal court for prosecution because of the fear that the federal government will seek the death penalty. In fact, a court order has issued telling the state to turn him over, and Governor Chafee is fighting a battle not to do so. The Boston Globe " target="_hplink">agrees with the sentiment expressed here -- after all, Pleau has agreed to plead guilty and serve life without parole for his crime, saving millions in taxpayer funds to prosecute him, and untold misery for the victim's family in having to relive their loss in court.

Governor Chafee's concerns are legitimate -- what possible reason could the federal government have for wanting to take over this prosecution if it were not seeking the death penalty? Pleau can only do life without parole once after all. Others have opined that Chafee's stance sets a dangerous precedent -- if Governor Chafee can resist this federal court order, might not Governor Perry in Texas refuse to implement our new health care law? A fair point substantively, but a different one as a legal matter. This is not a global refusal to obey a court order, but rather a legal position being taken by the executive branch in Rhode Island before a court which may indeed rule against it.

There is another issue here as well -- which is the over-criminalization of our society, and the over-federalization of criminal prosecutions. It may sound simplistic, but we don't need anywhere near the number of criminal statutes we have -- murder was illegal yesterday and will be tomorrow, but we keep on passing bill after bill to make it illegal in various circumstances. Certainly there has been a need in recent time to write statutes that reach crimes via the internet -- certainly no one would have anticipate that need fifty years ago, but there are just too many laws now.

And double jeopardy -- remember that? Well as long as the federal government can add an "element" that isn't in the state crime (for example an arson murder with an accelerant in state court can also be an arson with an incendiary device and murder in federal court) allows prosecution by BOTH governmental authorities for the same acts. Yes, you heard me right; a person can plead guilty to a minor drug sale in state court, do his time (most likely under a year for a small amount of drugs) and be arrested again for the identical act and prosecuted in federal court where the draconian sentences will up the ante to five to ten years. At a huge personal cost to the inmate, to the society to which he will return minus those years of his life, any skills and with little or no ability to find employment. I have written about the need to end drug prohibition and to tax and treat instead, but that is not the issue I wish to address today.

The Department of Justice has a standard for taking on a capital prosecution that requires a "substantial federal interest" and requires that the federal government consider, among other things, the ability of the state to adequately prosecute and punish the offense. There is no doubt that Rhode Island can do that, and there is every reason to question the desire of the federal government to step in under these circumstances.

The federal government should stop over-prosecuting and allow Rhode Island to accept Mr. Pleau's plea.

If we are serious about conserving our resources, about upgrading our credit rating, about solving rather than reacting to our problems, well we should recognize that we have limited resources in this country -- the recent budget debates and rancorous parrying back and forth certainly illustrate that. Others have commented that no one wants to touch certain entitlements for fear of backlash. How about the most expensive of all programs besides defense -- the prison industrial complex? Why on earth should we double prosecute the same offenses, double punish them and double (at least) the cost both in human and financial terms of those offenses?