BRUNSWICK
Maine was one of the first three states to abolish capital punishment, also known as the death penalty, in 1887. No one has been executed by the state in the 130 years since, and most Mainers would assume that means that no person who commits a crime in Maine could receive the death penalty, no matter the severity of the crime.
But technically, they would be wrong.
Though rarely used and often forgotten, the federal government reserves the right to issue the death penalty for a select number of crimes — ranging from treason and the use of weapons of mass destruction to large-scale drug trafficking or first degree murder. Since 1972, only three people have been killed by the federal government this way: Timothy McVeigh, Juan Raul Garza and Louis Jones Jr. Boston Marathon bomber Dzhokhar Tsarnaev received a death sentence in 2015, though that decision is being appealed.
“The federal death penalty is extremely rare,” said ACLU of Maine Legal Director Zach Heiden. “I think that people don’t often understand that there are two justice systems in our country: A state-based system for each state, and then a federal system that overlays that.”
The federal system makes it difficult to obtain a death penalty. The decision to seek the death penalty must come from the U.S. Attorney General, and defendants can only be sentenced to death with a unanimous recommendation from the jury.
Boston bombing
The Boston Marathon bombing offers a good example of how a federal death penalty case could play out in Maine. Tsarnaev was a student in Massachusetts, committed crimes in Massachusetts and was ultimately tried in Massachusetts — a state that has similarly abolished the death penalty. However, since he was brought up on federal charges and tried in a federal court, the federal death penalty was applicable.
Then-U.S. Attorney General Eric Holder announced that the federal government would seek the maximum penalty, and a jury ultimately recommended lethal injection. Since the practice is banned in Massachusetts, any such death row inmate would be transferred to a state that allows the death penalty, generally United States Penitentiary, Terre Haute in Indiana.
So while it remains unlikely, the possibility does exist that a Maine resident could be issued the death penalty by a federal court for a federal crime committed in Maine — even though the state itself has abolished the practice.
Though the last person executed by the state was Daniel Wilkinson in 1885, there have been several sporadic attempts to reintroduce the practice in Maine. All have failed to gain serious traction — so far.
In 2015, Sen. Bill Diamond, D-Windham, sponsored a bill to reinstate the death penalty for individuals who sexually assaulted and then killed a child. The legislation, however, didn’t go very far.
Gov. Paul LePage has also made headlines in his repeated calls to reinstate the death penalty for interstate drug traffickers, a call that was repeated by some Republican candidates last November. Last year, the governor even appeared to call for vigilante-style violence against drug traffickers.
“In Maine, we have constitutional carry,” said the governor in an interview last year. “Load up and get rid of the drug dealers.”
When asked by a reporter, LePage clarified that he wasn’t calling for vigilantism. He has, however, repeatedly called for the death penalty for people bringing drugs into the state. In a radio interview last week, LePage reiterated his view.
“I wish there was capital punishment and we would eradicate (drug trafficking) much quicker,” said LePage.
According to a 2016 poll by Pew Research Center, nearly half of Americans support the death penalty — though that shows a sharp drop over the last 20 years. According to Pew, opposition to the death penalty is the highest it’s been in four decades.
The Thin Blue Line Act
The federal death penalty was in the news again last week with the passage by the House of Representatives of The Thin Blue Line Act, sponsored by Rep. Vern Buchanan, R-Florida. The legislation would nominally expand the federal death penalty by including “the killing or attempted killing of a law enforcement officer, firefighter, or other first responder” as an aggravating factor that could lead to capital punishment.
“This could, in theory, make it more likely that federal criminal defendants might get the death penalty in Maine if they were convicted, which is contrary to the political views of the people of Maine,” said Heiden.
Maine’s two representatives split on the issue, with 1st District Rep. Chellie Pingree, D-Maine, voting against the bill, and 2nd District Rep. Bruce Poliquin voting in favor.
“Our men and women in blue, in Maine and across our nation, make extraordinary sacrifices and put their lives on the line every day to protect our families and our communities,” said Poliquin when asked to explain his vote. “We must have their backs. I’m proud to join a bipartisan group of my colleagues today in pushing through this legislation to ensure that justice is done for all those who do our officers harm, from the local level up.”
Regardless of any opposition to the death penalty, Heiden argued that the bill is unnecessary.
“I don’t think it’s helpful to add another factor to the list of factors considered for death penalty cases. There are already 16, this would add a 17th. Under existing law, prosecutors already have the ability to seek the death penalty when a police officer or first responder is a victim of murder,” said Heiden.
“Finding new ways of convincing courts that they need to punish people more harshly or longer does not seem to be in the national interest,” he added.
The Thin Blue Line Act has not yet been taken up by the Senate.
A representative of the Maine Association of Police did not return a request for comment.
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