By Jonathan H. Adler
A federal grand jury has indicted Jared Loughner, the crazed gunman who shot Rep. Gabrielle Giffords among others, on a whopping 49 counts. Why so many? Because federal prosecutors are trying out a new theory that would enable them to prosecute Loughner not only for shooting Giffords, her staff, and a federal judge, but also anyone else who attended the event at which Loughner opened fire. The Washington Post reports:
Loughner had already been arraigned on three counts of attempted murder against Rep. Gabrielle Giffords (D) and two aides as they gathered at a Tucson supermarket to meet with constituents.But, employing a novel legal argument, prosecutors persuaded a federal grand jury to indict him on 46 new charges, on the theory that the shootings occurred on protected federal ground, as if it happened in Congress. . . . .
The additional charges were made under a provision in federal civil rights law that is usually applied to hate crimes but can be extended to crimes against any person “participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by the United States.” In this case, that would be Giffords’s “Congress on Your Corner” meet-and-greet with her Tucson constituents.
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The federal law forbids anyone from injuring, intimidating or interfering with any such person, or attempting to do so. . . .
The Post story quotes legal experts questioning the federal government’s novel and expansive theory. One former federal attorney who worked on the Oklahoma City bombing prosecutions noted that the federal government brought federal charges based on the number of federal agents killed, not the total number of people who died. GWU law’s Stephen Saltzburg is also quoted saying the prosecution is adopting an unnecessarily “sweeping view of the federal law.”
The federal government may have a legitimate interest in prosecuting the murder of federal officials, but it is not as if state prosecutors are unwilling or unable to make their own case against Loughner for his remaining crimes. Does federal law offer the prospect of greater punishment? It does not seem so. The death penalty is available in Arizona, just as it is under federal law. So it is not clear to me what purpose the additional indictments serve, other than to unnecessarily complicate what should be a relatively straight-forward case.