The question in the title of this post is prompted by this notable new filing in the case of US v. Mangione, which is titled “Defendant Luigi Mangione’s Motion To Preclude The Government From Seeking The Death Penalty.” The filing, which is summarized in this New York Times piece, covers lots of ground, develops an array of arguments, and overall makes for an interesting read. Its biggest ask is set out this way: “because the Attorney General’s direction to the S.D.N.Y. prosecutors — issued publicly, as a press release — to seek a death sentence for Mr. Mangione is political, arbitrary, capricious, a breach of established death penalty protocol and has now indelibly prejudiced this process, the Government should be precluded from seeking the death penalty.”
I am not surprised that Mangione’s attorneys are attacking his federal capital prosecution even before he has been indicted in federal court. But I am intrigued by certain arguments set out in this filing, particularly the suggested that the exercise of prosecutorial discretion “unabashedly for political reasons” make a (capital) prosecution illegal or improper. I expect that the US Justice Department will respond to the filing by asserting that its decision to pursue a capital charge against Mangione was not at all political (or arbitrary or capricious). But suppose DOJ responded by revealing that polling data and other overtly “political” reasons impacted the decision; does a (capital) prosecutiorial decision become legally problematic if “unabashedly political”?
I have put “capital” in parethesis above because there are established constitutional arguments for greater procedural limits on death penalty cases. In many Eighth Amendment decisions over the last half-century, the Supreme Court has imposed all sorts of special rules on capital punishment tracing back to the 1972 landmark ruling in Gregg v. Georgia that required jurisdictions to develop laws to minimize the risk of arbitrary or capricious death sentencing. But Eighth Amendment “super due process” capital rulings do not, to my recollection, bar prosecutors from considering “political reasons” in capital charging. And, of course, if the federal capital case against Mangione moves forward, he will receive all the trial/sentencing processes that the Supreme Court has said the Eighth Amendment requires for death penalty cases.
Then again, as set forth in US v. Armstrong, 517 U.S. 456 (1996), the Supreme Court has stated prosecutorial discretion is subject to constitutional limits based on the Equal Protection Clause:
[A] prosecutor’s discretion is “subject to constitutional constraints.” United States v. Batchelder, 442 U.S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), is that the decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification,” Oyler v. Boles, 368 U.S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the system of prosecution amounts to “a practical denial” of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886)….
The requirements for a selective-prosecution claim draw on “ordinary equal protection standards.” [Wayte, 470 U.S.], at 608. The claimant must demonstrate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Ibid.
I can imagine an argument that a “political” focus in the exercise of prosecutorial discretion amounts to an “an unjustifiable standard such as race, religion, or other arbitrary classification” if one could show, for example, that a prosecutor pursued charges only against Republicans but never against Democrats. But the Mangione team is not quite making that kind of contention here. Rather, the “political” gripes in Mangione’s Motion seem to take issue essentially with the new death penalty policies adopted by the Trump Administration, policies which it does seem fair to say are influenced to some degree by “politics.” But is there really anything legally problematic here? Put more sharply, is it realistic to expect any prosecutors to be able to entriely avoid having their (capital) charging discretion influenced, in some way, by criminal justice policies and politics?