Is Murder in a State Without the Death Penalty a Mitigating Factor in a Federal Death Penalty Case?

In 2002, Marvin Gabrion was convicted of first-degree murder in federal court for the 1997 killing of Rachel Timmerman. Gabrion had allegedly raped Timmerman and she was scheduled to testify against him in state court days before she and her infant daughter disappeared. Timmerman was bound, gagged, and tossed into a lake where she drowned. The body of her infant daughter was never found. After his conviction, a jury found the presence of multiple aggravating factors and Gabrion was sentenced to death.

As it happened, Gabrion killed Timmerman in a National Forest. This made all the difference, as it made Gabrion’s crime a federal offense. Whereas federal law provides for the death penalty for particularly heinous crimes, Michigan does not. Thus had Gabrion committed his crimes somewhere else – perhaps just a few-hundred feet away – he could have looked forward to a long life in the state penitentiary. Instead he’s on death row.

Gabrion argued that Michigan’s lack of a death penalty should have been considered as a mitigating factor during the penalty phase of his trial. The district court did not, and prevented Gabrion’s defense from introducing any evidence to that effect. A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit voided his death sentence on this basis (among others). Yesterday, however, the full circuit, sitting en banc, went the other way. In United States v. Gabrion the court rejected Gabrion’s claim that the murder’s location in a non-death penalty state is a mitigating factor under the either Eighth Amendment or the Federal Death Penalty Act. The vote was 12-4.

Judge Kethledge wrote the opinion of the court, joined by nine of his colleagues (Batchelder, Boggs, Gibbons, Rogers, Sutton, Cook, McKeague, Griffin, and Donald). Judge Clay, joined by Judge Cole, concurred in the judgment. Judge Moore dissented, joined by Judges Martin, White, and Stranch.