Question about Treason in the United States

I just read the Wikipedia article on Treason, under the United States subtitle, it states that Treason is the only crime that is talked about in the constitution and that the punishment should be death.

My question is, how would a person be prosecuted for treason if he commited the act in a state which has abolished the death penalty? (such as Wisconsin)

Would the person be tried in the Supreme Court and then sent to a prison in a different state with the death penalty to await execution?

It’s a federal crime, so it’s tried in federal court, which would impose the death penalty, and the various state laws concerning the death penalty for state crimes have nothing to do with it.

You should also be aware that there are federal courts other than the Supreme Court, and federal prisons. The states cannot dictate how the federal judicial and penal system operate, even though the facilities might be within their boundaries.

In any case, the Constitution says nothing about the penalty for treason, only its definition and the burden of proof:

The federal statute criminalizing treason is codified at 18 USC § 2381 and sets forth the penalty:

So there is considerable variability in the possible sentence for treason. State law regarding capital punishment is irrelevant, as it is currently permitted in the federal system, and if capital punishment were eliminated, you can still lock people up for treason.

Treason prosecutions are pretty rare. Since Congress has the power to make laws against anything the Constitution gives it legislative power over, they can invent crimes like “espionage” which is basically the same thing, but requires only the standard criminal burden of proof. Prosecutions under that category are more common.

Further, since treason is a crime at common law, there’s nothing stopping an individual state from prosecuting someone for it, though I think there are only one or two examples. The only one I know of off-hand is Thomas Dorr.

Actually, has anyone been executed on a federal charge of treason in the US? The Wiki article mentions several prosecutions and a few convictions, but the only one to be executed (John Brown) was a State of Virginia case.

One thing I’ve wondered about: what exactly is “giving aid and comfort” to the enemy for htis discussion? Are doctors (nurses etc) prohibited from giving medical care to Osama Bin Laden (not prison doctors once he’s caught, but ordinary doctors treating an unknown person) because he’s an enemy, or are they excused because of their Hippocratic oath?
If I shelter somebody in my house, do I need to know that he’s an enemy in order to commit treason, or am I also on the hook when I have no idea who the guy is/ when I believe his expertly forged passport that’s he Muhammed Smith?
And who counts as enemy for treason, when the US is not offically at war? Every Taliban, or only Osama Bin Laden? Does it count when it’s done in the US, or if you’re hitch-hiking through the mountains, you meet a guy in a cave, he invites you to a cup of tea, and you give him the latest US magazine you happen to carry with you - is that already giving comfort (information?) to Osama?

Dr. Samuel Mudd was convicted of consipiring to murder President Lincoln, in part because he set John Wilkes Booth’s broken leg when Booth was fleeing after the assassination. It’s not clear exactly how close the connection was between Mudd and Booth, and if Mudd knew at the time that Lincoln had been assassinated.

Not directly on point since the charge was conspiracy to murder, not treason, but it’s one example of how this sort of issue is dealt with.

[nitpick] Almost.


I was going to say Julius & Ethel Rosenberg, but they were convicted of espionage rather than treason.

You have to remember the people who wrote the constitution where themselves “traitors” to the British crown so they were careful to define “treason”

The Framers had also seen how treason charges were used by various European regimes for essentially political reasons, and wanted to avoid that in their new republic; hence the definition and the specific evidentiary requirements in the Constitution.

As friedo says, treason prosecutions are pretty rare nowadays. Neither John Walker Lindh nor Jose Padilla were charged with treason, for instance; there are other offenses (terrorism, giving material aid to terrorists, conspiracy, etc.) which can be easier to prove.

Add piracy to this - Article I, Section 8.

Not even that. They were convicted of conspiracy to commit espionage. No one has been executed on a federal treason conviction.

The problem stems from the fact that the OP incorrectly paraphrased the wiki article. It doesn’t say that it’s the only crime “talked about”, but rather that treason is the only crime defined by the Constitution itself, which I believe ia accurate. The provisions cited by Randy Seltzer and Mr. Moto give Congress the power to define the crimes of counterfeiting and piracy. The Constitution does not define those crimes.

People have been sentenced to death for treason, after the Whiskey Rebellion and Fries’ Rebellion, but in each case presidential pardon prevented execution. (Were these events to occur today, the charges would more likely be “resisting arrest” or “inciting a riot”. In the Eighteenth Century, even in the United States, any resistance to authority severe enough to require the intervention of the militia or the army was apt to be characterized as treason.)

Whoa. Could you please slow down and explain your special logic step you used to get from the first part (which I agree with, generally) to the second part? It sounds as if you think that the definition in the US constititution can not be used (abused) for political reasons because of the way it’s safeguarded?

I don’t see that at all. The only requirement are two witnesses, or the persons own testimony (in the age of waterboarding, that’s no safeguard at all, certainly worse than “real” evidence).
There’s no defintion of who an “enemy” of the US is if the US happens to not be in an offical war - does the President or Congress or Pentagon or CIA decide that? Does the enemy have to be publically known as enemy, or can it be a secret enemy the CIA is hunting?
There’s no definition of what “aid and comfort” means, so it can be anything.

All I see is a blunt stick so broad the President or Congress can apply it to anybody for anything they want, since they can define beforehand what happened - which enemy the accused aided in what way at whatever point in time.

Yes, waterboarding makes proof of terrorism easier than two witnesses.

Gonna be quite a spectacle to waterboard someone in “open court”:

The federal prosecutor would have to prove all of these things in open court. That means they would have to lead evidence, proving beyond a reasonable doubt, that the accused provided aid and comfort, etc. The jury would have to be satisfied on each of the points you raise, based on that evidence.

All of that provides a very substantial protection against the misuse of a treason prosecution - as is shown by how few prosecutions there have been for treason in the 200+ years that the US Constitution has been operating.

constanze, this is just I meant, too. I believe the Framers would be appalled by the suggestion that the government they established would someday resort to waterboarding, torture or “enhanced interrogation techniques.” That’s not why they fought and won a revolution. The Constitution and the rule of law must be protected and upheld if they are to endure; but we have seen far, far too little of that since 2001.

100% correct.