On August 3 the U.S. Court of the Appeals for the Sixth Circuit over­turned the fed­er­al death sen­tence of Marvin Gabrion, who was con­vict­ed of a 1997 mur­der in a National Forest in Michigan. Gabrion was the first defen­dant in the coun­try to receive the fed­er­al death penal­ty for a crime com­mit­ted in a non-death penal­ty state since the fed­er­al death penal­ty was rein­stat­ed in 1988. All three mem­bers of the judi­cial pan­el upheld Gabriion’s mur­der con­vic­tion, but two judges called for anoth­er sen­tenc­ing tri­al because Gabrion’s defense team was barred from telling jurors that he would not have faced the death penal­ty if he had been pros­e­cut­ed in state court because Michigan does not allow cap­i­tal pun­ish­ment. The court held that such infor­ma­tion could have served as a mit­i­gat­ing fac­tor, per­haps con­vinc­ing some jurors not to vote for death. In decid­ing Gabrion’s direct appeal, the court wrote, ​“The case was not brought to serve a spe­cial nation­al inter­est like trea­son or ter­ror­ism dif­fer­ent from the nor­mal state inter­est in pun­ish­ing mur­der. The jury should be giv­en the oppor­tu­ni­ty to con­sid­er whether one or more of them would choose a life sen­tence rather than the death penal­ty when the same jury con­sid­er­ing the same defen­dan­t’s prop­er pun­ish­ment for the same crime but pros­e­cut­ed in Michigan state court could not impose the death penal­ty.” The fed­er­al gov­ern­ment had juris­dic­tion over the crime because the vic­tim’s body was found in a por­tion of a lake in Manistee National Forest that is fed­er­al prop­er­ty. Gabrion was the first per­son to receive a death sen­tence in Michigan since 1937.

(E. White, ​“Appeals court over­turns rare Michigan death sen­tence,” Chicago Tribune, August 3, 2011). The court also con­clud­ed that the jury should have been required to decide that the aggra­vat­ing fac­tors out­weighed the mit­i­gat­ing fac­tors by a stan­dard of beyond a rea­son­able doubt in order to sen­tence Gabrion to death. The dis­sent­ing judge would have upheld both the sen­tence and the con­vic­tion, believ­ing that the major­i­ty was stretch­ing the notion of what is a mit­i­gat­ing fac­tor too far. Michigan has not had the death penal­ty for over 160 years. See Federal Death Penalty and Sentencing.

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