A Minnesota jury last month convicted former Minneapolis police officer Derek Chauvin of three murder and manslaughter charges for killing George Floyd on May 25, when Floyd died while he was pinned facedown to the pavement for nine and a half minutes. Today the Justice Department announced that a federal grand jury has indicted Chauvin for violating 18 USC 242 by depriving Floyd of his constitutional rights under color of law.
If it seems like the federal government is trying to punish Chauvin a second time for killing Floyd, that's because it is. Under the controversial "dual sovereignty" doctrine, however, serial state and federal prosecutions for the same conduct do not violate the Fifth Amendment's ban on double jeopardy. Even if you accept that premise, it is reasonable to ask what purpose a second prosecution serves and whether it is just to punish Chauvin twice.
The most serious state charge against Chauvin, unintentional second-degree murder, carries a maximum penalty of 40 years in prison and a presumptive sentence of 12.5 years. The two federal charges, which allege that Chauvin violated 18 USC 242 by using "unreasonable force" and by failing to render medical aid after Floyd became unresponsive and no longer had a detectable pulse, carry a maximum penalty of life in prison or execution when the offense causes someone's death.
Douglas Berman, a sentencing expert at The Ohio State University's Moritz College of Law, notes that federal guidelines recommend that judges classify a crime like this based on the underlying offense. If that offense was deemed to be second-degree murder, for instance, the base offense level would be 38, which corresponds to a sentencing range of 235 to 293 months for a defendant with no criminal record. If the underlying crime was treated as voluntary manslaughter, the offense level would be 29, implying a sentencing range of 87 to 108 months. For reckless involuntary manslaughter, the offense level would be 18, meaning a sentencing range of 27 to 33 months.
Berman adds that "there can be all sorts of viable arguments for departures and variances." He says that is "one of many reasons I think this will get hammered out as a plea deal whenever Chauvin's status in the state system is 'settled.'"
The elements of the federal crimes, which require proving that Chauvin "willfully" violated Floyd's constitutional rights, are superficially different from the elements of the state crimes. But to convict Chauvin of unintentional second-degree murder, the state jury had to conclude that he intentionally committed third-degree assault, meaning he knew his use of force was not legally justified. If so, he also should have known that his use of force violated the Fourth Amendment's ban on "unreasonable" seizures, which is the essence of the main federal charge.
According to the Supreme Court, none of that matters. Even when two levels of government define the offense the same way, the Court has said, serial prosecutions do not qualify as double jeopardy. In a 2019 case involving a man who was separately prosecuted for violating state and federal laws that prohibit people with felony records from possessing firearms, the Court reaffirmed the familiar but puzzling logic of the dual sovereignty doctrine: Since two "separate sovereigns" had criminalized the defendant's conduct, it constituted two distinct offenses under the Double Jeopardy Clause. Notwithstanding appearances, then, he was not prosecuted twice "for the same offense."
Still, the fact that the Justice Department can prosecute Chauvin for the same actions that resulted in his state convictions does not necessarily mean it should. The situation would be different if a state were unwilling or unable to punish police abuse, as frequently happened in the Jim Crow South. In such cases, the possibility of a federal prosecution is an important backstop that clearly serves the interests of justice. And it is a legitimate function of the federal government to vindicate the constitutional rights of people victimized by police when no one else is prepared to do so.
By that standard, a second indictment that the Justice Department announced today, which charges Chauvin with violating 18 USC 242 by assaulting a teenager in 2017, is more defensible. According to that indictment, Chauvin, "without legal justification," held the 14-year-old by the throat and struck him "multiple times in the head with a flashlight." Since Chauvin was not charged under state law in connection with that incident, he was never prosecuted for this alleged use of unreasonable force.
In the Floyd case, however, the state vigorously prosecuted Chauvin—perhaps too vigorously, since Minnesota's quirky felony murder law allowed prosecutors to treat an unintentionally lethal assault, which ordinarily would be charged as manslaughter, as murder instead. But even without that count, Chauvin would still face a presumptive sentence of 150 months for third-degree murder (although the propriety of that charge is also a matter of dispute).
While some people might think that penalty is not severe enough, it is the punishment recommended by the Minnesota Sentencing Guidelines Commission, which was charged with doing so by the state legislature. And since we still don't know what Chauvin's state sentence actually will be, it is premature to say whether it is proportionate to his crime.
In any case, federal prosecutions aimed at "correcting" the criminal penalties that states deem appropriate second-guess the good-faith decisions made by state legislators and judges. Given the broad sweep of federal law, that practice opens the door to routine interference in cases that should be handled by state courts. The Justice Department's history of bringing duplicative "hate crime" charges against people who also face state prosecution for the same conduct suggests how arbitrary those decisions can be. Since the Constitution does not give the federal government a general "police power," the Justice Department should step in only when there is a clear federal interest that cannot be vindicated by state prosecution.
The federal charges against the three officers who witnessed or assisted Floyd's prolonged prone restraint—J. Alexander Kueng, Thomas Lane, and Tou Thao—are dubious for similar reasons. The indictment charges Thao and Kueng with violating 18 USC 242 by "willfully fail[ing] to intervene to stop Defendant Chauvin's use of unreasonable force." It also charges Lane, Thao, and Kueng with violating that law by "willfully fail[ing]" to render medical aid.
Although Lane helped restrain Floyd by holding down his legs, he also repeatedly suggested that Floyd should be rolled onto his side, a position in which it would have been easier for him to breathe. Those suggestions, which Chauvin rejected, may explain why Lane was not charged with failing to intervene.
Because the federal charges specify that the conduct of Chauvin's three colleagues "resulted in bodily injury to, and the death of, George Floyd," they carry the same maximum penalty (life or execution) as the charges against Chauvin. Meanwhile, all three officers have been charged under Minnesota law with aiding and abetting Chauvin's state crimes, which theoretically exposes them to the same state penalties that Chauvin faces. Their state trial is scheduled to begin on August 23.
Kueng, Lane, and Thao are all at least morally complicit in Floyd's death, although to different degrees and certainly not to the same extent as Chauvin, who was the senior officer at the scene and was mainly responsible for the assault that killed Floyd. Whether Kueng et al. are legally guilty of aiding and abetting manslaughter and murder is more debatable, especially with respect to Thao.
Thao, who began working for the Minneapolis Police Department in 2008, showed appalling indifference to Floyd's plight, assuring concerned bystanders that Floyd, despite his many complaints that he could not breathe, was fine. But Thao did not participate in restraining Floyd and was following Chauvin's lead in concluding that Floyd's life was not in danger. Kueng and Lane, both rookie officers, likewise can be expected to argue that they reasonably trusted Chauvin's judgment.
After the aiding and abetting charges were filed last year, Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, noted that they are "legally valid under Minnesota law" but "rely on some fringe doctrines of accomplice liability." Those doctrines, "which have long been criticized by progressive reformers, create expansive strict liability for minor participants in group crimes."
Even if one or more of these three officers is acquitted in state court, they will still face federal prosecution for the same conduct. And if they are convicted in both state and federal court, they will be punished twice. That prospect is especially troubling given their limited involvement in Floyd's death.
The shocking bystander video of Chauvin kneeling on Floyd rightly provoked nationwide outrage and led to protests across the country. But Chauvin and the other officers should be punished for what they did, not for the crimes of similarly brutal or negligent cops. If the Justice Department is prosecuting Chauvin, Kueng, Lane, and Thao to make a statement about the broader problem of police abuse, it is misusing its powers and perverting the criminal justice system.