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Welcome to civilised society Nebraska! :) Good to see another state abolish this but as someone not too familiar with how the US law system works why is someth

Welcome to civilised society Nebraska! :) Good to see another state abolish this but as someone not too familiar with how the US law system works why is something like this decided at the state level? Shouldn't something like government sanctioned killing of humans be controlled at a federal level? Also does the federal government have a position on capital punishment?

koenigdavidmj 11y ago
Capital punishment still exists for federal crimes, which is why the Boston bomber was given the death penalty despite his offense occurring in Massachusetts, which doesn't have it at the state level. Also, federal law isn't simply a grab bag of "really important" laws, with states only existing to handle smaller, more trivial things. In theory, federal law is restricted to addressing the things enumerated in the Constitution. In practice, one of those is regulating interstate commerce, which since [1] has steadily increased in scope. Nonetheless, a federal law banning capital punishment would still need to be written with that in mind. 1: http://en.wikipedia.org/wiki/Wickard_v._Filburn http://en.wikipedia.org/wiki/Wickard_v._Filburn
- dragonwriter 11y ago
  > In theory, federal law is restricted to addressing the things enumerated in the Constitution. [...] Nonetheless, a federal law banning capital punishment would still need to be written with that in mind. Considering 8th Amendment incorporation under the 14th Amendment and the enforcement clause of the 14th Amendment, that shouldn't be too difficult, without even coming anywhere near the Commerce Clause.
  - tptacek 11y ago
    Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. Meanwhile: if capital punishment ever is held to be "cruel and unusual", no federal legislative action will be needed to abolish it; SCOTUS will do it by fiat.
    - dragonwriter 11y ago
      > Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. SCOTUS has never held that disadvantaging the disabled is intrinsically a violation of the Due Process Clause of the 14th Amendment (relevant, as the provision under which it has incorporated the 8th against the states), nonetheless, it has held that Congress acted within its power under the enforcement clause of the 14th (and did not violate State reserved powers under the 11th) in, under the ADA, requiring access to courthouses. While the enforcement clause of the 14th is a fairly lightly litigated power, its pretty clear that it does extend beyond the things where legislation is not necessary because any violation of the law Congress might impose to under the enforcement clause would already necessary be prohibited by the bare text of the Amendment, which seems to be your position.
      - tptacek 11y ago
        Prepared to be wrong, but: I don't think the federal government can pass laws that bind on state criminal sentencing laws, or on state judges. For instance, SCOTUS has held that federal sentencing ranges don't bind state courts, nor do sentences falling outside those ranges fail for being unreasonable. The federal government can bind state courts not to violate the constitutional rights of the accused, and so for instance Washington can't pass laws requiring judges to apply mandatory sentences based on facts not established by juries. But those actions belong to the federal courts, not Congress. I don't think Congress can pass a law banning state capital sentences.
        learc83 11y ago
        I bet they could something...something... interstate commerce. Ban the import and sale of lethal injection drugs, ban the manufacture of gas chambers and electric chairs, and force states to use firing squads at the very least.
- mindslight 11y ago
  Wickard v. Filburn is one of the federal government's great Godel contradictions, allowing it to prove anything thus rendering the law meaningless. Under the dubious justification of the Tsarnaev case, shoplifting candy from the corner store is under federal jurisdiction since in the age of social media it could incite people in other states to do the same.
  - tptacek 11y ago
    You're implying Filburn gives the federal government unfettered power to regulate commerce, but it doesn't; there are limits both in Filburn and in subsequent SCOTUS cases. See for instance the syllabus for US v Lopez (95).
    - mindslight 11y ago
      Those limits were created by the federal government itself. It can always revise them as needs change, and is thus in reality unconstrained. This is akin to kids establishing rules while playing make believe.
      - tptacek 11y ago
        Those limits were held to exist by SCOTUS, not by statute.
        mindslight 11y ago
        And?
        tptacek 11y ago
        It's not very interesting to argue that a state might change its mind on some question, because that's always true, and there's no way to rebut or even engage that argument. On the other hand, I thought maybe you were suggesting that Congress could pass a law relying on the "Godel inconsistency" of Filburn to usurp state authority. Well, no, they can't; they're bound by the judicial precedents that fence Commerce Power authority in.
ovulator 11y ago
It is controlled at the federal level, in a sense, in that it is allowed. The individual states can then decide to abolish it. Though a Supreme Court ruling did effectively abolish the death penalty federally from 1972-1976. http://en.wikipedia.org/wiki/Furman_v._Georgia http://en.wikipedia.org/wiki/Furman_v._Georgia
tptacek 11y ago
In practice, this is how federal change happens: enough states make a policy change so that the perceived cost of a unifying federal change is low --- or, enough states make a policy change that the value in unifying the law around it is high enough to outweigh SCOTUS's presumption in favor of the legislature. At any rate: every state that abolishes capital punishment gets us closer to a consistent country-wide federally enforced abolition of capital punishment. 7 more states need to defect from capital punishment, and then the majority of US states will have abolished it. Unfortunately, the three most populous US states (California, Texas, and Florida) are all staunchly pro-execution (the next two, NY and IL, have both abolished).
- pcwalton 11y ago
  Well, sort of staunchly, in California's case--Prop 34 failed by just 4 points, there has been an average of 1 execution carried out per 3 years post-Gregg, and the courts are presently halting it...
__z 11y ago
>why is something like this decided at the state level? The US Constitution is set up to give states some power and the feds other power. Simplistic explanation - There are two kinds of courts in the US - federal courts and state courts. Federal courts hear cases involving US law while Nebraska courts hear cases involving Nebraska law. Here's an overview - http://www.fjc.gov/federal/courts.nsf/autoframe!openform&nav=menu1&page=/federal/courts.nsf/page/152 http://www.fjc.gov/federal/courts.nsf/autoframe!openform&nav... >Criminal cases involving federal laws can be tried only in federal court, but most criminal cases involve violations of state law and are tried in state court. We all know, for example, that robbery is a crime, but what law says it is a crime? By and large, state laws, not federal laws, make robbery a crime. There are only a few federal laws about robbery, such as the law that makes it a federal crime to rob a bank whose deposits are insured by a federal agency. Examples of other federal crimes are bringing illegal drugs into the country or across state lines and use of the U.S. mails to swindle consumers. Crimes committed on federal property, such as national parks or military reservations, are also prosecuted in federal court. >Federal courts may also hear cases concerning state laws if the issue is whether the state law violates the federal Constitution. Suppose a state law forbids slaughtering animals outside of certain limited areas. A neighborhood association brings a case in state court against a defendant who sacrifices goats in his backyard. When the court issues an order (called an injunction) forbidding the defendant from further sacrifices, the defendant challenges the state law in federal court as an unconstitutional infringement of his religious freedom. >Some kinds of conduct are illegal under both federal and state laws. For example, federal laws prohibit employment discrimination, and the states have added their own laws. A person can go to federal or state court to bring a case under the federal law or both the federal and state laws. A case that only involves a state law can be brought only in state court. So Nebraska writes its own laws and uses its own courts to enforce said laws which it decides the punishment for. However, said punishment has to follow the US Constitution - if it isn't federal court can "override" Nebraska law, but only if they are breaking the Constitution. The Constitution prohibits "cruel and unusual punishment" however the Supreme Court of the United States says the death penalty isn't "cruel and unusual punishment." - here is some cases involving capital punishment - http://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_decisions_on_capital_punishment http://en.wikipedia.org/wiki/List_of_United_States_Supreme_C... So yes, the feds can get rid of the death penalty two ways. Either the US Supreme Court declares death penalty as unconstitutional or the US Constitution is specifically amended to prohibit the death penalty. >does the federal government have a position on capital punishment? Yes, there is a federal death penalty for certain federal crimes.
baddox 11y ago
Why should something like government sanctioned killing of humans be controlled at a federal level? I don't see any intrinsic reason to believe one over the other, except for one's own general beliefs about whether local or non-local government is better.

koenigdavidmj 11y ago

Capital punishment still exists for federal crimes, which is why the Boston bomber was given the death penalty despite his offense occurring in Massachusetts, which doesn't have it at the state level. Also, federal law isn't simply a grab bag of "really important" laws, with states only existing to handle smaller, more trivial things. In theory, federal law is restricted to addressing the things enumerated in the Constitution. In practice, one of those is regulating interstate commerce, which since [1] has steadily increased in scope. Nonetheless, a federal law banning capital punishment would still need to be written with that in mind. 1: http://en.wikipedia.org/wiki/Wickard_v._Filburn http://en.wikipedia.org/wiki/Wickard_v._Filburn

dragonwriter 11y ago
> In theory, federal law is restricted to addressing the things enumerated in the Constitution. [...] Nonetheless, a federal law banning capital punishment would still need to be written with that in mind. Considering 8th Amendment incorporation under the 14th Amendment and the enforcement clause of the 14th Amendment, that shouldn't be too difficult, without even coming anywhere near the Commerce Clause.
- tptacek 11y ago
  Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. Meanwhile: if capital punishment ever is held to be "cruel and unusual", no federal legislative action will be needed to abolish it; SCOTUS will do it by fiat.
  - dragonwriter 11y ago
    > Since SCOTUS has already held that capital punishment is not intrinsically "cruel and unusual", I'm not sure how the 8th Amendment gives the federal government the power to regulate state capital sentences. SCOTUS has never held that disadvantaging the disabled is intrinsically a violation of the Due Process Clause of the 14th Amendment (relevant, as the provision under which it has incorporated the 8th against the states), nonetheless, it has held that Congress acted within its power under the enforcement clause of the 14th (and did not violate State reserved powers under the 11th) in, under the ADA, requiring access to courthouses. While the enforcement clause of the 14th is a fairly lightly litigated power, its pretty clear that it does extend beyond the things where legislation is not necessary because any violation of the law Congress might impose to under the enforcement clause would already necessary be prohibited by the bare text of the Amendment, which seems to be your position.
    - tptacek 11y ago
      Prepared to be wrong, but: I don't think the federal government can pass laws that bind on state criminal sentencing laws, or on state judges. For instance, SCOTUS has held that federal sentencing ranges don't bind state courts, nor do sentences falling outside those ranges fail for being unreasonable. The federal government can bind state courts not to violate the constitutional rights of the accused, and so for instance Washington can't pass laws requiring judges to apply mandatory sentences based on facts not established by juries. But those actions belong to the federal courts, not Congress. I don't think Congress can pass a law banning state capital sentences.
      - learc83 11y ago
        I bet they could something...something... interstate commerce. Ban the import and sale of lethal injection drugs, ban the manufacture of gas chambers and electric chairs, and force states to use firing squads at the very least.
mindslight 11y ago
Wickard v. Filburn is one of the federal government's great Godel contradictions, allowing it to prove anything thus rendering the law meaningless. Under the dubious justification of the Tsarnaev case, shoplifting candy from the corner store is under federal jurisdiction since in the age of social media it could incite people in other states to do the same.
- tptacek 11y ago
  You're implying Filburn gives the federal government unfettered power to regulate commerce, but it doesn't; there are limits both in Filburn and in subsequent SCOTUS cases. See for instance the syllabus for US v Lopez (95).
  - mindslight 11y ago
    Those limits were created by the federal government itself. It can always revise them as needs change, and is thus in reality unconstrained. This is akin to kids establishing rules while playing make believe.
    - tptacek 11y ago
      Those limits were held to exist by SCOTUS, not by statute.
      - mindslight 11y ago
        And?
        tptacek 11y ago
        It's not very interesting to argue that a state might change its mind on some question, because that's always true, and there's no way to rebut or even engage that argument. On the other hand, I thought maybe you were suggesting that Congress could pass a law relying on the "Godel inconsistency" of Filburn to usurp state authority. Well, no, they can't; they're bound by the judicial precedents that fence Commerce Power authority in.

ovulator 11y ago

It is controlled at the federal level, in a sense, in that it is allowed. The individual states can then decide to abolish it. Though a Supreme Court ruling did effectively abolish the death penalty federally from 1972-1976. http://en.wikipedia.org/wiki/Furman_v._Georgia http://en.wikipedia.org/wiki/Furman_v._Georgia

tptacek 11y ago

In practice, this is how federal change happens: enough states make a policy change so that the perceived cost of a unifying federal change is low --- or, enough states make a policy change that the value in unifying the law around it is high enough to outweigh SCOTUS's presumption in favor of the legislature. At any rate: every state that abolishes capital punishment gets us closer to a consistent country-wide federally enforced abolition of capital punishment. 7 more states need to defect from capital punishment, and then the majority of US states will have abolished it. Unfortunately, the three most populous US states (California, Texas, and Florida) are all staunchly pro-execution (the next two, NY and IL, have both abolished).

pcwalton 11y ago
Well, sort of staunchly, in California's case--Prop 34 failed by just 4 points, there has been an average of 1 execution carried out per 3 years post-Gregg, and the courts are presently halting it...

__z 11y ago

>why is something like this decided at the state level? The US Constitution is set up to give states some power and the feds other power. Simplistic explanation - There are two kinds of courts in the US - federal courts and state courts. Federal courts hear cases involving US law while Nebraska courts hear cases involving Nebraska law. Here's an overview - http://www.fjc.gov/federal/courts.nsf/autoframe!openform&nav=menu1&page=/federal/courts.nsf/page/152 http://www.fjc.gov/federal/courts.nsf/autoframe!openform&nav... >Criminal cases involving federal laws can be tried only in federal court, but most criminal cases involve violations of state law and are tried in state court. We all know, for example, that robbery is a crime, but what law says it is a crime? By and large, state laws, not federal laws, make robbery a crime. There are only a few federal laws about robbery, such as the law that makes it a federal crime to rob a bank whose deposits are insured by a federal agency. Examples of other federal crimes are bringing illegal drugs into the country or across state lines and use of the U.S. mails to swindle consumers. Crimes committed on federal property, such as national parks or military reservations, are also prosecuted in federal court. >Federal courts may also hear cases concerning state laws if the issue is whether the state law violates the federal Constitution. Suppose a state law forbids slaughtering animals outside of certain limited areas. A neighborhood association brings a case in state court against a defendant who sacrifices goats in his backyard. When the court issues an order (called an injunction) forbidding the defendant from further sacrifices, the defendant challenges the state law in federal court as an unconstitutional infringement of his religious freedom. >Some kinds of conduct are illegal under both federal and state laws. For example, federal laws prohibit employment discrimination, and the states have added their own laws. A person can go to federal or state court to bring a case under the federal law or both the federal and state laws. A case that only involves a state law can be brought only in state court. So Nebraska writes its own laws and uses its own courts to enforce said laws which it decides the punishment for. However, said punishment has to follow the US Constitution - if it isn't federal court can "override" Nebraska law, but only if they are breaking the Constitution. The Constitution prohibits "cruel and unusual punishment" however the Supreme Court of the United States says the death penalty isn't "cruel and unusual punishment." - here is some cases involving capital punishment - http://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_decisions_on_capital_punishment http://en.wikipedia.org/wiki/List_of_United_States_Supreme_C... So yes, the feds can get rid of the death penalty two ways. Either the US Supreme Court declares death penalty as unconstitutional or the US Constitution is specifically amended to prohibit the death penalty. >does the federal government have a position on capital punishment? Yes, there is a federal death penalty for certain federal crimes.

baddox 11y ago

Why should something like government sanctioned killing of humans be controlled at a federal level? I don't see any intrinsic reason to believe one over the other, except for one's own general beliefs about whether local or non-local government is better.