Josh Blackman » “Congress would surely be surprised to be told that it had empowered a state governor to veto a federal court habeas writ–designed to bring a federally indicted prisoner to federal court for trial on federal charges– because the governor opposed the penalty that might be imposed if a federal conviction resulted. Of course, Congress has not provided states with any such veto power, and the Supreme Court has already made this clear”

“Congress would surely be surprised to be told that it had empowered a state governor to veto a federal court habeas writ–designed to bring a federally indicted prisoner to federal court for trial on federal charges– because the governor opposed the penalty that might be imposed if a federal conviction resulted. Of course, Congress has not provided states with any such veto power, and the Supreme Court has already made this clear”

October 18th, 2011

This is how Judge Boudin’s dissent begins in a cool First Circuit opinion, where the panel held that “Rhode Island does not have to surrender accused murderer Jason Wayne Pleau to federal prosecutors who asked to have him tried in federal court where, if convicted, he potentially could have faced the death penalty.”

Here is how the panel tees up the issue:

Petitioner Jason Wayne Pleau is accused of the armed robbery and murder of a gas station manager in Rhode Island. Pleau is currently serving an eighteen-year sentence in Rhode Island state prison for parole and probation violations, and has agreed to plead guilty to state charges stemming from the robbery and murder and to accept a sentence of life imprisonment without the possibility of parole. The issue presented in the current petition is whether the United States, after being rebuffed by the state of Rhode Island in its attempt to take custody of Pleau under the Interstate Agreement on Detainers (IAD), 18 U.S.C. App. § 2, may compel the same result by means of a writ of habeas corpus ad prosequendum. The issue is brought to us accompanied by a statement by Rhode Island Governor Lincoln Chafee that he would not transfer Pleau to federal custody because doing so would expose Pleau, a Rhode Island citizen, to a potential death sentence on federal charges, in contravention to Rhode Island’s longstanding rejection of capital punishment. The petition presents a question of first impression in this court, as it appears that never before has a state governor denied a federal request for custody under the IAD. For the reasons stated below, we hold that the federal government is entitled to choose between the IAD and an ad prosequendum writ in seeking custody of a state prisoner for purposes of a federal prosecution, but that once the federal government has put the gears of the IAD into motion, it is bound by the IAD’s terms, including its express reservation of a right of refusal to the governor of the sending state.

This line is great from the dissent.

Instead of a place of confinement, the state prison has been made a refuge against the federal courts.Mauro is plainly to the contrary, and the panel majority’s action cannot survive the inevitable further review now fated for it.

Update: And a somewhat related, cool article.

Stephen R. McAllister (University of Kansas – School of Law) has posted A Marbury v. Madison Moment on the Eve of the Civil War (Green Bag 2D, Vol. 14, p. 405, Summer 2011) on SSRN. Here is the abstract:

On the occasion of its 150th anniversary, this article explores the background and the story of Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861), an important extradition case that the Supreme Court decided on the eve of the start of the Civil War. The case arose after Kentucky indicted a “free man of color” in Ohio for the crime of aiding the escape of a Kentucky slave. The Governor of Kentucky requested that Ohio extradite the defendant, and the Governor of Ohio refused. Kentucky brought an original mandamus action in the Supreme Court against the Ohio Governor in the fall of 1860, the case was heard in February, 1861, and decided in mid-March of that year, only a few weeks before Confederate forces fired on Fort Sumter. Chief Justice Taney wrote the unanimous opinion of the Court, which held that the Ohio Governor had a clear constitutional duty to turn over the fugitive Kentucky sought, but that the Court and Congress lacked the constitutional power to compel the Ohio Governor to do so. The article examines the events surrounding the case, and offers some comments on “Marbury v. Madison moments,” the legacy of Chief Justice Taney, the subsequent career of Governor Dennison, and the principles the case established, one of which the Supreme Court expressly overruled 125 years later.