Jurisdiction can be the difference between life and death.
And that may be the dilemma facing authorities now deciding where to prosecute accused racist mass-murderer Dylann Storm Roof.
If South Carolina — which has the death penalty but no hate crime law — tries Roof, he could get the needle. However, if he is convicted of hate crimes under federal law, the route to the death penalty is a lot more convoluted.
That leads to the big question: Is it more important to prosecute the case as a hate crime, or does a death sentence send a stronger message?
“I suspect that ... there’s a debate going on about that right now,” said Brad Bailey, a criminal defense attorney and former federal prosecutor. “The death penalty doesn’t apply in federal court here per se, and so that has to be something the decision makers are thinking about and talking about.”
Under the federal hate crime law, committing murder as an act of racial bigotry alone doesn’t carry the death penalty. But religious bigotry does. Prosecutors would have to prove Roof damaged religious property or, by force, attempted to prevent someone from enjoying their religious beliefs, to make him eligible for the death penalty.
Basically, prosecutors would have to package race and religion together to execute Roof.At Vox, Dara Lind explains that the federal government usually prosecutes only when states aren't doing their job, which seems not to be the case there.
Federal and state prosecutors usually figure out which one of them is in the best position to bring a case to trial, for efficiency's sake. It's plausible that federal prosecutors are still negotiating with each other, and with South Carolina, about whether they want to file federal charges.
In deciding whether to take Roof to federal court for a hate crime or to state court for murder, federal and state prosecutors have a choice to make. If they want to send a message that the Charleston massacre was especially abhorrent, they can charge Roof with a federal hate crime. But if they want to guarantee the swiftest possible conviction — and death sentence — then state court might be the way to go.
South Carolina law clearly prohibits murder; Roof is accused of murdering nine people. So there's no reason he can't simply be tried, convicted, and sentenced in South Carolina court. Traditionally, as long as states have been willing to take someone to trial for murder, the federal government has chosen not to file separate charges of its own.
The problem has been when states aren't willing to prosecute, or when they can't successfully bring someone to justice. "Often the federal government will act as a backstop to state prosecutions if they feel the state may have gotten it wrong," says [former federal prosecutor Alex] Little. And when it comes to attacks on African Americans, they've often felt the stateshave gotten it wrong: as with cases in the mid-20th century when local prosecutors weren't willing to charge whites for attacks on black people, and the 1993 federal trial of the police officers who beat Rodney King — after they were acquitted by a Los Angeles jury with no black members.
But regardless of whether South Carolina has come to terms with its racist history, the state government seems pretty eager to convict Roof. Gov. Nikki Haley has said that "we will absolutely want him to get the death penalty." So it doesn't look like the federal government is going to need to step in.