How did Luigi Mangione’s cold-blooded execution turn into a ‘stalking’ charge?

While running for president in 2016, then-candidate Donald Trump once famously boasted, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK? It’s, like, incredible.” What’s incredible is that neither Trump in his hypothetical nor Luigi Mangione, the confessed killer of UnitedHealthcare CEO Brian Thompson, could be charged with first-degree murder under either federal or New York State law.Instead, Mangione pleaded guilty to two federal interstate stalking charges resulting in death. The other two federal counts of actually using a firearm to cause death were dismissed by the federal judge earlier this year because, according to her interpretation of the law, which she admitted may seem “tortured and strange,” the underlying stalking conduct did not constitute “crimes of violence” that were the necessary predicate for the murder charges that carried the death penalty. Prosecutors, unfortunately, did not appeal that decision. Recommended Stories So, if Mangione did not stalk his victim, but randomly shot and killed him with a firearm, he would not be subject to federal prosecution. Indeed, after Mangione pleaded guilty to the stalking charges, U.S. Attorney Jamie McDonald made it a point to explain on the courthouse steps that “this was not a spontaneous act of violence.” As for the New York charges facing Mangione, those were only second-degree murder and firearm charges. Under New York law, first-degree charges can be brought only against a killer of a police officer and a narrow list of other victims.Assuming those charges are not dismissed on New York’s double jeopardy law, which his attorneys are now pursuing (except for the felony count of using a fake identification to rent a hostel room), under New York Penal Law, Mangione can plead Extreme Emotional Disturbance, an affirmative defense that can reduce a charge of second-degree murder down to first-degree manslaughter, with a maximum of 25 years in prison. His attorney gave us a preview of that defense during her statement after his federal plea, claiming that he was under extreme pain from his back injury and frustrated with the health insurance process.While Mangione faces up to life in prison by the federal court, with a possibility of clemency or compassionate release in his later years, he never was in any real danger of receiving the death penalty, even if he were convicted under the two federal capital charges. While New York no longer has the death penalty, New York jurors are not inclined to impose it in federal cases. Case in point: the jury spared the life of Sayfullo Saipov, the terrorist who mowed down and killed eight innocent pedestrians on the West Side bike path in a rental truck in 2017. ‘LUIGI: THE MUSICAL’ AND THE LEFT’S GROWING APPETITE FOR VIOLENCEIndeed, it is not inconceivable because of how Mangione is idolized by some for shooting the executive of the health insurance industry, that at least one juror in either the federal or state trial would acquit him, thus resulting in a hung jury.While Mangione is certain to face a long prison sentence, Congress should enact the “Brian Thompson Law,” making it a capital offense to kill anyone in cold blood with a firearm, a weapon, and ammunition manufactured and sold in interstate commerce. And New York should make any cold-blooded killing a first-degree felony, regardless of the identity or status of the victim.Paul Kamenar serves as Counsel for National Legal and Policy Center.