Piling On: The Mangione Case
Luigi Mangione now faces criminal charges in both state and federal courts for the killing of Brian Thompson. How can this be? What about Double Jeopardy? Can the government pile on this way?
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Justice in Brief
In the Southern District of New York, the US Attorney’s Office filed a complaint charging a captain in the Islamic Revolutionary Guard Corps with murder for killing an American in Iraq.
In the Central District of California, two people were indicted for claiming they were launching new digital asset projects when, in fact, they were keeping the money investors gave them.
In the Middle District of Florida, a Jordanian national entered a guilty plea to damaging various businesses he identified as pro-Israel and leaving behind written threats if the companies continued their support of Israel.
Justice Department Policy: Honored in its Breach
On December 4, Brian Thompson, the Chief Executive Officer of a large national health insurance company, walked toward the hotel where he would present to the company’s shareholders. As he walked down the street, a man appeared behind Thompson, pulled out a gun, and shot Thompson three times, killing him on the spot. The shooter then disappeared into the New York City crowd. An extensive investigation began as law enforcement tracked the shooters movements before and after the killing. This led them to a photo of the alleged shooter taken at the hostel where he stayed for several nights prior to the shooting. Law enforcement released the photo to the public. On December 9, at an Altoona, Pennsylvania, McDonald’s, an employee called the police and informed them that she believed a customer matched the picture the police released. Shortly thereafter, the Altoona police arrested the man, identified as Luigi Mangione, and found several pieces of incriminating evidence, including the gun. He was held on charges in Pennsylvania while the New York District Attorney’s office initiated murder charges against Mangione.
In a typical murder case, there would be no other criminal charges. This is not the typical case. Last week, the Southern District of New York United States Attorney’s Office announced charges against Mangione, arising from the same exact conduct. One of those charges, just like in the state case, was murder. How can this be? Does not the Constitution protect against twice being tried for the same offense? Murder is also a state criminal offense. It is not something the federal government typically prosecutes. How can it do so in this case? Is the Justice Department merely piling on? Are they a stopgap in case the New York District Attorney’s office fails to obtain a conviction?
The answer to these questions rests on something known as the Petite Policy and, in this case, its violation. The Petite Policy is named for a case in the 1960s whereby the Government and defense agreed to dismiss a second case that was brought in a different federal district court than the first case. This resulted in a policy whereby the Justice Department limited the circumstances when such prosecutions could occur. Potential occurrences include not only when two different federal districts pursue charges but when both the state and federal governments pursue prosecutions. In this latter instance, there is no double Jeopardy violation because the US Supreme Court has said that each sovereign may pursue prosecutions to vindicate their respective interests. With growing overlap between federal and state criminal jurisdiction, the potential for abuse loomed large. The Justice Department created a policy to regulate when the Justice Department would bring a successive prosecution after a state decided it would prosecute the offense.
The Petite Policy is enumerated in the Department’s Justice Manual in Section 9-27.240. When considering whether to bring federal charges, the federal prosecutor must consider (1) the strength of the other jurisdiction’s interest in the prosecution, (2) the ability and willingness of the other jurisdiction to pursue prosecutions, and (3) the potential sentence the person will receive. Presumably, if the other jurisdiction has a strong interest in prosecution and it outweighs the federal interest, then the federal government will defer to the other jurisdiction. If the other jurisdiction is ready and able to pursue the prosecution, then, presumably, the federal prosecution will yield to the other jurisdiction. Finally, if the sentence the person will receive in the other jurisdiction is similar to the federal sentence, then the federal government would, presumably, defer to the other jurisdiction.
Applying this to Mangione’s case leads to the conclusion that the federal prosecutors should defer to New York’s District Attorney’s Office. First, the federal government’s interest in pursuing a prosecution is small compared to the state of New York’s interest. In the United States, the states possess what is known as the police power. This means that states are responsible for prosecuting crimes. The murder of Brian Thompson is the quintessential state crime. Prosecutor offices across the country prosecute murders all the time. The killing took place on the streets of Manhattan. Thompson was not a federal employee, nor was he a visiting dignitary from a foreign country. This was also not a hate crime. Thompson was killed because he led a large health insurance company. That represents the only federal interest: Thompson’s effect on interstate commerce. The federal government only has jurisdiction because Mangione allegedly traveled between states while he stalked Thompson prior to the killing. On the whole, the balance of interest tips far to not prosecuting the case at the federal level.
There is also no doubt that the New York District Attorney’s Office is ready and willing to pursue charges against Mangione. In fact, they were the first to file murder charges. Filing these charges was necessary to get Mangione from Pennsylvania to New York. They wasted little time doing so. The office is also able to do so. It is one of, if not the, top prosecutor’s office in the United States. It has a long tradition of excellence. For example, it was the only office to prosecute Donald Trump successfully. The Justice Department could not accomplish this. Further, this is not a complicated case. According to the Southern District of New York’s criminal complaint, it appears as if law enforcement can follow Mangione from his hostel to the crime scene to a bus departing New York City. He was found in possession of several items connecting him to the crime. This is all to say that a conviction is highly likely.
Finally, Mangione’s sentence will not be greater in the federal courts. If convicted in New York, he will get life in prison. Short of the death penalty, the federal courts cannot give Mangione a longer sentence. Therefore, there is no significant benefit to prosecuting the case in federal court.
This means that there is nothing that requires the federal government to pursue these charges and, in fact, pursuing the charges violates the Petite policy. Why pursue them? There are three potential answers.
*This is a high-profile case. It generated huge national interest. It involves the moral question about health insurance company policies. The US Attorney’s office wants to be part of that.
*The prosecution is a second chance. When announcing the federal criminal complaint, the Justice Department said that the state prosecution will go first. By filing the case now, the Government tolls any statute of limitations concerns and, should a jury acquit Mangione, the federal government will get its chance.
*They could. The federal charges utilize the federal firearm statutes. The Justice Department Petite Policy can be ignored. This is the most troubling rationale. It says that Department policy is irrelevant. This has significant implications for prosecutorial independence. The Southern District of New York US Attorney’s office is renowned for its independence from both political influence and Justice Department influence. The Southern District of New York could have pursued the case without approval from the Department. It could ignore Department policy.
In situations such as this, there must not only be independence but accountability.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!