A Territorial Death Penalty Case Carries a Warning for the States

The U.S. Virgin Islands is a self-governing U.S. territory in the Caribbean with an elected governor and legislature. In 1957, its first legislature abolished the death penalty for territorial crimes. Yet nearly 70 years later, the U.S. Court of Appeals for the Third Circuit invoked an act of Congress meant to safeguard criminal defendants’ double-jeopardy rights to open the door to federal prosecutors seeking the federal death penalty for exclusively territorial crimes.

The Third Circuit’s decision this month in United States v. Dangleben affects more than the approximately 87,000 residents of the U.S. Virgin Islands. The court offers a simple blueprint for something far larger: the use of an obscure procedure known as supplemental jurisdiction to allow federal prosecutors to directly charge state crimes in federal court and seek the federal death penalty even when state law, including the state constitution, prohibits the death penalty for those crimes. While state crimes would nominally remain state crimes, the prosecution of them in a federal forum with a federally set punishment would destroy federalism as we know it.

Title 18, section 924(c) and (j) of the U.S. Code permits the death penalty when a person commits a “crime of violence or drug trafficking crime” that “may be prosecuted in a court of the United States” that “causes the death of a person through the use of a firearm” under circumstances where “the killing is a murder.” But the U.S. Constitution prohibits Congress from exercising a general police power — that is, codifying garden-variety crimes. Federal crimes must rest on Congress’s enumerated powers, such as its authority over interstate commerce or federal property. These crimes are virtually the only ones that federal prosecutors may charge in a federal district court. For instance, to charge someone with murder under federal law, prosecutors must show not just that a traditional murder occurred, but also that it occurred on federal property, crossed state lines, targeted a federal official, or had some other federal hook.

But there are a very small number of exceptions that allow federal courts to hear criminal cases that do not involve federal crimes. One exception is unique to the U.S. Virgin Islands: Congress allows the U.S. District Court of the Virgin Islands to exercise so-called “supplemental criminal jurisdiction” to adjudicate territorial crimes that arise from the same transaction as federal crimes. Thus, the U.S. Attorney in the Virgin Islands may charge a defendant with the federal offense of being a felon in possession of a firearm violation of 18 U.S.C. § 922(g)(1) and as part of the same prosecution also charge the defendant with the Virgin Islands offense of unauthorized possession of a firearm in violation of 14 V.I.C. § 2253(a).

Why did Congress vest the Virgin Islands district court with this unique jurisdiction? It dates to an obscure legal principle — the single-sovereign doctrine — that the U.S. Supreme Court first recognized in 1907 in Grafton v. United States and recently reaffirmed in 2016 in Puerto Rico v. Sanchez Valle. In those decisions, the Court effectively held that criminal defendants in U.S. territories possess greater double-jeopardy rights than those in the states. While the Court has interpreted the Double Jeopardy Clause of the Fifth Amendment to permit successive prosecutions by federal and state governments for essentially the same offense, Grafton and Sanchez Valle declined to extend that rule to the territories. Thus, territorial prosecutors in Puerto Rico cannot charge a defendant in territorial court for illegally selling firearms in violation of territorial law if federal prosecutors already successfully prosecuted the defendant for the same transactions in federal court for violations of analogous federal gun trafficking statutes.

Congress, territorial governments, and individual U.S. Attorneys’ Offices have addressed the practical implications of Grafton and Sanchez Valle in different ways. In Puerto Rico, Congress took no action; instead, the Puerto Rico Department of Justice and the U.S. Attorney for the District of Puerto Rico entered a Memorandum of Understanding to determine which entity prosecutes which crimes in which court. But in the U.S. Virgin Islands, Congress proactively vested the U.S. District Court of the Virgin Islands with supplemental criminal jurisdiction and allow the U.S. Attorney for the Virgin Islands to simultaneously charge U.S. Virgin Islands crimes that are similar or connected to federal crimes in a single proceeding — without requiring the consent of the Virgin Islands Department of Justice.

It is this obscure procedure the Third Circuit invoked in Dangleben to allow federal prosecutors to seek the death penalty for purely territorial crimes. The logic is surprisingly simple. As noted earlier, 18 U.S.C. § 924(c) and (j) allow federal prosecutors to seek the death penalty if the defendant “causes the death of a person through the use of a firearm” where “the killing is a murder” while committing a “crime of violence or drug trafficking crime” that “may be prosecuted in a court of the United States.” The federalization of the death penalty for local crimes in the U.S. Virgin Islands largely hinges on the use of the singular “a court of the United States” in section 924(c)(1)(A). The Third Circuit reasoned that all Virgin Islands crimes “may be prosecuted in a court of the United States” — the U.S. Virgin Islands District Court, by virtue of the supplemental criminal jurisdiction statute. Therefore, if a person uses a firearm to commit a crime of violence under Virgin Islands law, and someone dies under circumstances that could meet the federal definition of murder (which includes the felony-murder rule), federal prosecutors can seek the federal death penalty — even if the death penalty is not an available punishment if the same crime were charged in a territorial court.

While supplemental criminal jurisdiction is unique to the U.S. Virgin Islands, the concept has a familiar civil-law cousin. Since 1990, federal district courts have exercised supplemental civil jurisdiction over state law claims that form part of the same case or controversy as federal claims. The Supreme Court has upheld that arrangement despite recurring federalism concerns. Congress could attempt to extend the Dangleben decision nationwide by creating a criminal analogue that confers supplemental criminal jurisdiction in all federal district courts.

The danger in Dangleben, then, is not only what it means for the U.S. Virgin Islands. What happened first in the U.S. Virgin Islands could become a model for circumventing the death penalty for state crimes in Hawaii, Massachusetts, Virginia, and every state that has chosen to limit or outlaw capital punishment. Given the extraordinarily low threshold for federal firearms charges — nearly every gun has at some point traveled in interstate commerce — a national supplemental criminal jurisdiction statute could turn many firearm-related murders into federal cases overnight. Indeed, Congress could smuggle the federal death penalty into state criminal law through the machinery of jurisdiction. Our federalist criminal justice system may be far more fragile than we previously thought.

Anthony M. Ciolli is practicing faculty at St. Mary’s University School of Law. He was formerly the president of the Virgin Islands Bar Association and serves as special assistant to the Chief Justice of the Virgin Islands. The views expressed herein are solely my own and not those of the judicial branch of the Virgin Islands, the Virgin Islands Bar Association, or any of their officers or employees.