Recent debate over a criminal justice reform bill has resurrected a bad idea: getting the federal government involved when a local law enforcement officer is murdered, for purposes of imposing the death penalty. This proposal is not just in contravention of the constitutional principles upon which America was founded—it's also part of a disingenuous effort to manufacture outrage against the bill.
Sen. Tom Cotton (R–Ark.) has been one of the most outspoken critics of the FIRST STEP Act, which will likely be voted on by the Senate this month. Sen. Mike Lee (R–Utah)—a former federal prosecutor and staunch advocate for criminal justice reform—did a stellar job dissecting Cotton's objections at National Review. Undeterred, Cotton has continued to oppose the bill to the extent that he's been accused of supporting amendments not to achieve better reforms, but to serve as a "poison pill" to tank the bill's chance of passage.
On Monday, Cotton tweeted his support for several amendments, including one filed by Sen. Pat Toomey (R–Pa.) that "would raise the penalty for felons who murder police officers or first responders by ensuring that capital punishment is an option."
When a jury in a federal case considers whether to impose the death penalty, the jury must consider certain "aggravating" factors. Current law states that if the murder victim is a federal law enforcement officer or federal prosecutor, this fact shall weigh as an aggravating factor in favor of the death penalty. The Thin Blue Line Act provides the same level of justice to local law enforcement officers, prosecutors, and first responders. It also enhances the penalty when a defendant targets a law enforcement officer, prosecutor, or first responder solely because that individual has chosen to protect and serve.
Any time a police officer is killed in the line of duty, it evokes strong reactions. Still, involving the federal government in these cases is unnecessary and violates the Constitution's well-designed division of powers between the federal government and the states.
According to a review by the National Conference of State Legislatures, the death penalty is currently legal in 31 states, each of which has statutes setting forth the specific crimes for which capital punishment may be imposed, as well as procedural requirements that must be followed.
Murder is illegal in all 50 states, and additional penalties are commonly imposed when the victims are law enforcement officers killed while performing their duties.
In my home state of Florida, there is a clear list in the Florida Statutes of what murders are considered to be capital felonies, including premeditated murder and felony murder (murders that are committed during the commission of certain serious felonies, like rape, kidnapping, or aggravated child abuse). Included in this section are "resisting an officer with violence to his or her person" and "aggravated fleeing or eluding with serious bodily injury or death," which would cover many circumstances in which police officers are killed in the line of duty.
Capital felonies are punishable by either death or life in prison, and there are specific procedures for the jury and judge to follow in weighing the circumstances and imposing a sentence. One aggravating factor that may be considered to support the death penalty is if the victim "was a law enforcement officer engaged in the performance of his or her official duties."
Additionally, in cases where the death penalty was not imposed, there is a mandatory life sentence for murders of law enforcement officers, as well as for attempted first- or second-degree murder and attempted felony murder where the intended victim is a law enforcement officer.
These are the laws that the Florida legislature, controlled by Republican majorities for over two decades, has seen fit to enact when our police officers are killed. The statutes have been repeatedly amended and challenged in the courts, as is fitting when the government is seeking to deprive a citizen of life itself.
Where is the need for the federal government to be involved in this process? A Florida law enforcement officer who is an employee of a local government agency in Florida gets killed while on duty in Florida. The entire criminal case will be handled in Florida, and the defendant will be tried in a Florida court, under Florida laws and criminal procedure rules. If the victim were a federal officer, or a local officer officially assisting a federal law enforcement agency in their duties, that's a different story––and one already under the umbrella of existing federal law.
While campaigning in December 2015, President Donald Trump notably promised to sign an executive order imposing the death penalty for killing police officers. This proposal drew condemnation across the partisan aisle, not only for the obvious executive overreach and the shaky legal grounds regarding requiring the death penalty—current death penalty laws at both the state and federal level allow it to be considered for certain egregious crimes, but never mandated—but also for Trump's proposed evisceration of federalism.
This latest effort by Toomey and Cotton to amend the FIRST STEP Act is no better. Cotton's rhetoric reveals an attempt to paint his opposition to the bill as based on support for law enforcement and public safety, but federal overreach into an area of law already adequately addressed by state law will not make us any safer.