• Faithfully Executed? The Legal and Rational Imperative of Declining to Seek the Federal Death Penalty in Abolitionist States

    Faithfully Executed? The Legal and Rational Imperative of Declining to Seek the Federal Death Penalty in Abolitionist States

    by Francesca Procaccini, JD ’15

    I. Introduction

    Prosecutorial discretion bestows both a power and a duty—it confers control, and demands restraint. In the federal system, this discretion derives from the prosecutor’s role as an Executive officer, charged with the responsibility and the authority to faithfully execute the law. The power element permits the prosecutor to make choices about when, where, and how to execute the law, while the duty element confines that range of choice to rational, legal, and ethical options. In the context of capital punishment, the choice to impose the death penalty for a federal capital offense must be constrained by the relative value and efficacy of seeking the death penalty, as well as the degree to which that choice comports with the purposes of criminal prosecution and the fundamental rights of the accused. In other words, the prosecutor may execute, but only in faithful conformity with law and reason.

    This Article argues that the choice to seek the death penalty for federal crimes prosecuted in states that have abolished capital punishment does not accord with either law or reason. First, it is an inefficient and ineffective strategy that imposes unnecessary burdens and costs on the criminal justice system without achieving any unique law-enforcement benefits. Second, the federal death penalty, as currently authorized and applied, is constitutionally problematic, which imposes a special duty on the Justice Department to curtail its use whenever it has rational and legitimate reasons to do so. The Department of Justice should, therefore, adopt a policy against seeking the death penalty when prosecuting capital cases[1] in abolitionist[2] states.

    II. The Federal Death Penalty

    This country’s very first law establishing federal crimes and their punishments authorized the use of capital punishment,[3] immediately launching the federal government on a long, controversial, and sometimes tortuous path to the execution of 343 federal defendants.[4] Although public and political opposition to the federal death penalty existed from the beginning, it was not until the mid-twentieth century that the Supreme Court established precedents casting doubt on its constitutionality, including a novel interpretation that the Eighth Amendment’s prohibition on cruel and unusual punishment is measured against an “evolving standard of decency that marks the progress of a maturing society.”[5] Throughout the 1960s, lawyers for the abolitionist cause argued that the United States had progressed to a point where the national “standard of decency” no longer tolerates capital punishment,[6] and that allowing jurors unfettered discretion to impose a death sentence violates due process.[7]

    In the 1972 landmark case of Furman v. Georgia, the Supreme Court held that granting jurors unlimited discretion results in arbitrary capital sentences, in violation of the Eighth Amendment.[8] The Court did not declare the death penalty per se unconstitutional, but established its constitutional contours by declaring the death penalty “cruel and unusual” whenever the punishment is disproportionately severe, inflicted arbitrarily, offensive to society’s sense of justice, or not more effective than a less severe penalty.[9] With its decision, the Court effectively invalidated all forty death penalty statutes in the United States, including the federal death penalty.

    Furman’s holding left open the possibility for states to rewrite their death penalty statutes to eliminate arbitrariness in capital sentencing; and within the next three years alone, twenty-seven states did just that.[10] The revised death penalty statutes generally required judges and juries to follow established capital sentencing guidelines that accounted for aggravating and mitigating factors. The Supreme Court upheld guided-discretion death penalty statutes in the 1976 case of Gregg v. Georgia, thereby reestablishing a constitutional method for administering capital punishment.[11] The sweeping trend to restore the death penalty—which reached an all-time high of thirty-five states—tapered around 1980, and there was little change in the number of abolitionist and retentionist states for the next twenty years.[12] Since the turn of the century, however, support for the death penalty has markedly and rapidly declined. At this point, a total of thirty-three states have abolished or practically abandoned capital punishment.[13]

    It was precisely during the post-1980 lull in the movement to restore capital punishment at the state level, caused in part by the political failure of certain states to pass the necessary legislation, that Congress voted to resurrect the federal death penalty. The Anti-Drug Abuse Act of 1988 made murders committed in the course of a drug enterprise a capital offense, terminating a sixteen-year moratorium on the federal death penalty.[14] In 1994, Congress passed the Federal Death Penalty Act, which expanded the number of capital crimes to sixty, including three that do not involve murder.[15] Finally, in the wake of the Oklahoma City bombing, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which attempted to streamline and quicken death penalty appeals and petitions for habeas relief.[16] Among other restrictions, AEDPA constrains post-conviction federal court review of death sentences by establishing tighter deadlines, minimizing opportunities for evidentiary hearings, and permitting the filing of only one habeas corpus petition.[17] All federal death penalty cases are subject to AEDPA, raising the concern that the current review process denies defendants adequate opportunity to prove innocence or show their conviction was constitutionally defective.[18]

    A. The Numbers

    Since the reinstatement of the federal death penalty in 1988, the Department of Justice has initiated capital prosecutions against 498 defendants.[19] One hundred of these cases arose in non-death penalty states.[20] Juries have been called upon to decide whether to impose the death penalty in 232 of these cases, and have sentenced 78 defendants to death.[21] After only 3 executions and 13 reversed or withdrawn sentences, 62 defendants remain on federal death row.[22] Federal prosecutors have won about ten percent of the death verdicts they have sought in abolitionist states, and more than half of those sentences were overturned at some point on appeal.[23] Today, seven defendants tried and sentenced in non-death penalty states reside on federal death row and await execution.[24]

    B. The Department of Justice Federal Death Penalty Protocol

    The passage of the Federal Death Penalty Act of 1994 prompted Attorney General Janet Reno to promulgate the Department of Justice Death Penalty Guidelines and Procedures (“the protocol”), establishing a uniform process and set of criteria for determining when the federal government will seek the death penalty.[25] The protocol directs U.S. Attorneys to submit all death penalty-eligible cases to a Capital Review Committee in Washington D.C. with a recommendation for or against seeking the death penalty; the committee reviews the case and makes a determination for the Attorney General’s final approval.[26]

    The protocol requires the committee to make an individualized assessment of the facts and law applicable to each case and to assess how substantial the federal interest in the prosecution is, especially as compared to the interests of state or local authorities.[27] The degree of federal interest in a case depends largely on two measures. The first concerns whether the underlying crime substantively implicates national law enforcement prerogatives, such as national security, interstate criminal conduct, the integrity of the federal justice system, or the security of federal property.[28] The second measure is whether a federal trial will advance the core purposes of federal prosecution: effective punishment, protection of the American public, specific and general deterrence, and rehabilitation,[29] while ensuring the rights of individuals are scrupulously upheld.[30] Once a sufficient federal interest is established, the standards governing the determination of whether to seek the death penalty are “fairness, national consistency, adherence to statutory requirements, and law-enforcement objectives.”[31]

    The protocol has undergone very few substantive changes since it was first promulgated. One notable revision during the George W. Bush Administration instructed all U.S. Attorneys to consider the inability or unwillingness of the State to seek the death penalty as a factor militating in favor of federal capital charges.[32] The change resulted in more federal death penalty prosecutions in abolitionist states, and a higher frequency of capital cases ordered over the objection of local Assistant United States Attorneys (AUSAs). The Obama Administration changed course by deleting this instruction and by adding the direction to consider a defendant’s “willingness to plead guilty and accept a life or near-life sentence.”[34]

    These guidelines should be applied in light of DOJ’s institutional mission to “promote the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the Federal criminal laws.”[35] The purpose of implementing policies to regulate prosecutorial decision-making is not simply to achieve organizational effectiveness, but also to inspire “confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.”[36] Without a reasoned and fair policy regulating the use of capital punishment, the prosecution of the most serious offenses will be neither effective nor legitimate.

    III. Imposing the Federal Death Penalty in Non-Death Penalty States is Contrary to the Duties and Priorities of the Justice Department.

    The decision to seek the death penalty in a federal case prosecuted in a state that has abolished capital punishment is not a fair or cogent decision, nor is it consistent with the Justice Department’s own stated objectives and criteria for pursuing capital prosecutions. Part A of this section shows how the federal death penalty belies the Department of Justice’s fundamental interest in advancing the core purposes of federal prosecution by sacrificing law-enforcement objectives and the reasoned exercise of prosecutorial authority without achieving any more effective punishment or greater protection of the public than a life sentence would accomplish. The federal death penalty hinders democratic governance and accountability and is administered inconsistently across the country. Part B explains how the decision to seek the death penalty, especially in non-death penalty states, perpetuates a system of punishment that tarnishes the constitutional rights of defendants. It has become clear that the death penalty creates an unacceptable risk of executing innocent people and results in intolerable levels of racial discrimination, both of which dangerously confound the government’s duty to ensure public confidence in the criminal justice system.

    A. Seeking the Federal Death Penalty in Abolitionist States is Neither Smart nor Effective Prosecution.

    Prosecutors face uniquely burdensome obstacles when trying a capital case in a non-death penalty state. The time, effort, and resources needed to secure a final capital sentence are inordinate, imposing great costs on the Department of Justice and on the public. Moreover, the challenges and expenses of seeking the death penalty do not yield any net law-enforcement advantage or substantially advance a federal interest. Current policy is therefore antithetical to the Department of Justice’s commitment to smart, effective, and just law enforcement.

    1. It is Unduly Burdensome to Secure a Capital Conviction in an Abolitionist State.

    Prosecuting a capital case in a non-death penalty state presents distinctive challenges due to the higher degree of opposition to the case from key actors and institutions.

    Local Support. Prosecutors rely heavily on local law enforcement officers and witnesses to establish their case and present it successfully to a jury. Yet it has been state and local officials from non-death penalty states and territories who have complained most about decisions to seek the federal death penalty in their jurisdictions. For example, the governor of Puerto Rico openly protested the decision to try a capital case in his territory, even filing an amicus brief on behalf of the Puerto Rican government in support of the defendants, all while local officials and the public angrily resisted offering the federal government any support to prosecute the case.[37] A similar issue arose in Massachusetts when federal prosecutors sought cooperation from local law enforcement during the ongoing appeal of Gary Sampson’s death sentence. A spokesperson for the Suffolk County District Attorney stated: “For many of our citizens here in Boston, the death penalty is unacceptable. For us to cooperate with a federal investigation that could potentially lead to the execution of the perpetrators could have a chilling effect on the cooperation of the community.”[38]

    The Judge. The presiding judge may influence and disrupt a capital trial even more than the non-cooperation of local law enforcement and witnesses. The judge will set the trial schedule, determine how many defense motions to hear and to grant, adjudge evidentiary questions, impose procedural safeguards, and review the weight of the evidence throughout the trial with the power to dismiss charges. Some federal judges sitting in non-death penalty districts have used their position to severely inhibit or at least discourage prosecutors from seeking the death penalty. Judge José Fusté in Puerto Rico declined to continue a trial against three defendants accused of a drug-related homicide when the government submitted its notice of intent to seek the death penalty, notwithstanding a proper showing of aggravating factors.[39] Some judges exert more informal pressure, including issuing harsh and embarrassing criticisms of the decision to seek the death penalty. While presiding over the capital trial of “the last Don” Joseph Massino when Attorney General John Ashcroft resigned, Judge Nicholas Garaufis halted proceedings and ordered the government “to resubmit the matter to the new Attorney General for his consideration.”[40]

    The Prosecutor. Most important to the smooth operation of any federal trial is the ability and resolve of the AUSA to vigorously prosecute the case. There are several reasons why AUSAs in non-death penalty states often refuse or are deeply opposed to working on a capital case, besides possibly sharing their community’s prevailing stance on the issue. Professionally, the AUSA may fear ostracization or believe that violating a community norm may damage his or her career. These cases attract high levels of attention, yet enjoy a very poor track record of success. For example, federal prosecutors in New York failed 14 consecutive times to win a death sentence before securing the first one in over 50 years in 2007.[41] The low success rate of death penalty cases is one reason why many AUSAs are reluctant to try them: “One thing about U.S. attorneys is that they don’t like to lose . . . [and] if you’re going to ask the kind of case a U.S. attorney would least like to lose, it would be an expensive, long and high-visibility trial.”[42] AUSAs are also reasonably confident that they know their case and the wisdom of seeking the death penalty better than attorneys in Washington. No prosecutor aspires to partake in a prosecution strategy they view as jeopardizing their ability to perform their job effectively or as contrary to the interests of justice.[43]

    The choice by AUSAs to oppose or refuse to work on capital cases in non-death penalty states can create serious problems, including a shortage of capable AUSAs to prosecute a case. In the Boston U.S. Attorney’s Office, for example, over half of the AUSAs refused to work on the Boston Marathon Bombing case, including the chief of the Criminal Division and the chief of the Anti-Terrorism and National Security Unit.[44] Reluctance to seek the death penalty also contributed to the publicly controversial purge of U.S. Attorneys under Attorney General Ashcroft.[45] Reportedly, several of the deposed U.S. Attorneys were not meeting the Administration’s expectations for recommending the death penalty.[46] One fired U.S. Attorney, Paul Charlton of Arizona, testified before the Senate Judiciary Committee that he was dismissed for objecting to the Attorney General’s insistence that he seek the death penalty in a murder case based solely on circumstantial evidence.[47] The controversy caused the DOJ to implement a rule forbidding prosecutors from making public complaints about internal disputes over seeking the death penalty.[48]

    Ultimately, the Department of Justice depends on its AUSAs to largely agree with the policies they must operate under. As death penalty scholar Rory Little has observed: “People don’t mind being told what they can’t do, but they really resent being told what they have to do. Lawyering is an art, and if your heart’s not in it, juries figure that out pretty quickly.”[49] And juries hold all the power in capital cases. Statistics confirm what common sense would suggest: “the death penalty is a much harder sell in New York or Minneapolis or Boston than in Houston or Dallas or Montgomery.”[50] Notwithstanding the goal of imposing the death penalty uniformly, most federal death sentences are still handed down in retentionist states.[51]

    A counterargument offered against the proposal to instate a blanket ban on seeking the death penalty in abolitionist states is that the option of bringing capital charges helps prosecutors secure cooperation agreements and plea deals for life-without-parole sentences. Removing the death penalty from the equation does not jeopardize either of these functions, however. The best data indicates that a prosecutor’s probability of securing a plea for a life sentence has no correlation to the availability of the death penalty.[52] In fact, many abolitionist states boast some of the highest percentages of life-without-parole prisoners.[53] There is good reason to believe that federal prosecutors do not use the death penalty as a plea bargaining tool anyway, as the DOJ Death Penalty Guidelines and Procedures explicitly prohibits such conduct. While a defendant’s willingness to plead guilty is a factor the Department of Justice considers in determining whether to pursue a capital case, the protocol remains clear that “[t]he death penalty may not be sought, and no attorney for the Government may threaten to seek it, solely for the purpose of obtaining a more desirable negotiating position.”[54] Prosecutors are also well aware that leveraging the death penalty to secure a life sentence presents constitutional issues[55] and serious ethical dilemmas regarding the adequacy of defense counsel’s representation and the heightened risk of wrongful convictions and false confessions.[56]

    As for securing cooperation agreements from defendants facing capital charges, prosecutors agree that the key to good cooperation is timeliness.[57] Yet “absent the authorization of the Attorney General, the [AUSA] may not enter into a binding plea agreement that precludes the United States from seeking the death penalty.”[58] Such authorization, sought by submitting the case to the DOJ Capital Review Committee, takes time, and no defense counsel would advise cooperating before knowing whether the government plans to seek the death penalty.[59] Additionally, the current ability of the Attorney General to change course and pursue the death penalty after a cooperation agreement has been signed fosters a level of uncertainty that encourages defendants not to cooperate at any point, for fear the government will initiate a capital case against them after they have already provided their full use.[60] A blanket policy against seeking the death penalty would encourage cooperation by assuring defendants that they need not “save” their cooperation to later stave off a capital trial.

    The State. Imposing the death penalty in abolitionist states may also present the more practical problem that these states are unable or unwilling to perform an execution. For example, then-Governor Mitt Romney denied the federal government consent to execute Gary Sampson in Massachusetts after a Massachusetts jury sentenced Sampson to death. Romney cited both the state’s technical inability and moral unwillingness to participate in the execution. The Governor of New Hampshire agreed to allow the execution to occur in his state, where one of Sampson’s carjacking murders had taken place; however, the state was wholly unprepared to carry this burden. Although New Hampshire allows the death penalty, and so performing the execution there did not present the same moral dilemma as in Massachusetts, like many retentionist states New Hampshire has not actually executed anyone in decades. The state has no lethal injection chamber and the gallows New Hampshire may legally use to hang convicted persons when lethal injection is unavailable were dismantled in 1992. State officials are also often unwilling to participate in the execution process: state-employed doctors refuse to administer the drugs[62] and, even in retentionist states, corrections officers who work on death row are increasingly resigning due to work-related trauma and depression.[63]

    Unlike New Hampshire, most retentionist states only permit lethal injection as the method of execution, which has also caused significant problems in states’ ability to carry out the death penalty. First, a series of botched executions raised significant concerns about the constitutionality of lethal injection, prompting judges and state lawmakers in fifteen states to indefinitely suspend the death penalty until a more reliable lethal injection protocol could be established.[64] Although the Supreme Court affirmed that the use of midazolam to sedate the condemned is constitutional,[65] notwithstanding the risk that the drug may not induce unconsciousness, states continue to review their lethal injection protocols to ensure the condemned is fully insensate to pain at the time the lethal drug is injected.[66] Second, the drugs used for lethal injections are becoming increasingly unavailable, as the countries in Europe that manufacture these drugs ban their exportation to the United States.[67] To continue executions despite this shortage, at least four states have procured lethal concoctions from compounding pharmacies, having promised to protect the anonymity of the pharmacies involved and the drugs produced.[68] This censorship is also attracting judicial scrutiny, however, and moratoriums on all executions have been ordered in four more states until the laws shielding the manufacturers of these drugs are more fully examined.[69]

    The Victims. Finally, death penalty litigation exerts an awful toll on victims and their families. Many victims in non-death penalty states do not support seeking the death penalty from the beginning, and many more become tremendously frustrated and resentful of the process as it drags on.[70] The post-conviction relief process is exceedingly long and arduous, often lasting over a decade, and many times it never results in the actual execution of the perpetrator.[71] This wait wears on victims, exacerbating divisions within victims’ families over the death penalty and compounding the difficulty of healing from the loss of a loved one.[72]

    2. Capital Cases Require Outsized Expenditure of Costs and Resources.

    The average cost of a federal capital trial is $620,932—about eight times the average cost of a federal murder trial in which prosecutors decline to seek the death penalty.[73] For this disparity in cost, however, prosecutors nationwide have won a death sentence in only about one-quarter of federal death penalty cases[74]—and in only about one-tenth of capital cases in abolitionist states. The bulk of this enormous cost is spent providing the defendant an adequate defense. Reducing the cost of a death penalty trial by decreasing defense costs is not a solution, however, as defendants who receive the least amount of attorney services are more than twice as likely to be sentenced to death.[75]

    The cost of a capital trial is not only measured in money and resources, but is also reflected in cases not brought and crime-prevention initiatives not funded.[76] Mary Jo White, U.S. Attorney for the Southern District of New York from 1993–2002, reported that her office prosecuted up to ten death-eligible racketeering cases a year as non-capital cases. Had she sought the death penalty, her office would only have had the resources to bring one or two such cases a year.[77] The other major cost of death penalty litigation is the foregone “time, money, and energy spent trying to secure the death [penalty, which] would have been better spent improving this country’s mental-health and educational institutions, which may help prevent crimes such as the ones presented [in capital cases].”[78]

    The first person to receive the death penalty since the reinstatement of federal capital punishment was sentenced in 1993 and remains on death row today.[79] Nearly half of all federal death row inmates have spent over a decade awaiting execution, with seventy percent having been sentenced seven or more years ago.[80] The cost of confining and providing for these defendants is borne entirely by taxpayers.[81] The average length of time spent on federal death row—and thus the cost of confinement—is only likely to increase as the DOJ continues to direct prosecutors to seek the death penalty while simultaneously enforcing a moratorium on all federal executions due to concerns about lethal injection.[82]

    3. The Death Penalty Does Not Achieve Deterrence, Incapacitation, Rehabilitation or Retribution Beyond What a Life Sentence Accomplishes.

     The death penalty is an exceptional criminal punishment not only because death is different,[83] but because it either flouts or fails to achieve the core purposes of criminal punishment: rehabilitation, incapacitation, retribution, and deterrence.[84] By its very nature, the death penalty is “unique in its rejection of rehabilitation . . . unique . . . in its absolute renunciation of all that is embodied in our concept of humanity.”[85] And while at first it may appear that death is the epitome of incapacitation, in truth death incapacitates a dangerous person from harming the public no more effectively than a life sentence in a maximum-security prison.[86]

    In one view, death is the strongest form of retribution available to revenge the most odious offenses; however, the extreme delays, costs, and uncertainties attending the actual execution of one sentenced to death dampen this assertion.[87] Indeed, there is little certainty that any inmate currently on federal death row will actually face execution, as only three out of seventy-eight condemned prisoners have been executed since the reinstatement of the federal death penalty in 1988.[88] Arguably, a death sentence inflicts extra psychological and emotional stress on a prisoner, above what a life sentence would cause, and the incarceration conditions on death row are often worse than those imposed on prisoners serving life sentences. However, the sad reality is that most prisoners incarcerated in super-max prisons suffer the exact same conditions as death row inmates, enduring dehumanizing existences rife with deprivation, humiliation, and alienation.[89] In these conditions, any additional suffering that a death sentence might inflict is likely negligible—that is, if the prospect of death doesn’t actually provide a sense of relief by affording the hope of ending a degraded existence.[90]

    Finally, many believe incorrectly that the extreme nature of death makes for an extremely effective deterrent against the worst crimes.[91] FBI data shows, however, that every state without capital punishment in 2008 had a homicide rate at or below the national average.[92] Additionally, eighty-eight percent of expert criminologists now conclude that the death penalty does not act as a deterrent to homicide.[93] Three-quarters of these same experts also agree that, “debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems.”[94] This statement rings especially true in light of the success the federal government has had in developing far more accurate and effective tools to combat drug and gang-related crime in the last five years,[95] which comprise the majority of death-eligible federal offenses and result in a significant percentage of federal death sentences.[96]

    4. The Federal Death Penalty Has Not Served a Sufficiently Federal Interest in Non-Death Penalty States.

    The Department of Justice routinely measures the degree of its federal interest in preventing a certain type of crime when allocating prosecutorial resources. A state’s law-enforcement priorities factor into this analysis, as does a state’s disagreement with the federal government over whether certain conduct constitutes a crime. For example, the Justice Department has determined that it is often imprudent to enforce the federal drug laws prohibiting the use and sale of marijuana in states that have legalized the practice. The analysis that led to this policy decision involved the recognition that the local and innocuous use of marijuana does not implicate a distinctly federal interest and that enforcing the federal marijuana laws would not substantially advance any federal law enforcement priorities.[97] The DOJ should apply the same policy-making reasoning to its stance on seeking the death penalty in abolitionist states. Such an analysis would inevitably lead to the conclusion that too often the underlying crime prosecuted as a federal death penalty case does not implicate a distinctly federal interest and that seeking the death penalty unnecessarily disrupts the balance between state and federal law enforcement. Accordingly, a policy refraining from allocating resources to capital prosecutions in non-death penalty states would be a sound rule, in line with federal interests and respectful of the traditional power of states to define and impose punishment for violent offenses. As Chief Justice Rehnquist recognized for a majority of the Supreme Court:

    “The Constitution requires a distinction between what is truly national and what is truly local . . . . In recognizing this fact we preserve one of the few principles that has been consistent since the [Constitution] was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States . . . . Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”[98]

    Current law permits almost every murder committed in the United States to be tried as a federal death penalty case.[99] An analysis of the 100 capital prosecutions pursued in non-death penalty states reveals that fewer than one-sixth of these cases actually involved crimes of a distinctly federal nature, such as terrorism or murders of federal officers, witnesses, informants, or inmates.[100] The vast majority of cases involved murders whose only distinguishing feature (apart from the ultra-gruesome and depraved nature of the crime) is a connection to drugs or interstate activity.[101] While the federal government certainly has an interest in preventing and punishing drug-related and interstate violence, the affected states have at least an equal stake in this interest. Finally, nearly one-eighth of these cases involved non-distinct homicides that only fell within the federal government’s jurisdiction because part of the crime fatefully occurred on federal land or involved the use of the postal service.[102]

    This federalization of the death penalty concerns even some prominent proponents of capital punishment. Professor Robert Blecker of New York Law School, who espouses an unapologetic advocacy for the retributivist use of capital punishment, has objected that, “Federal criminal law is only supposed to apply in those rare instances where there is truly a national crime. The federal government is moving in with what are, to be generous, tenuous reasons. It’s the wrong government prosecuting.”[103] Because most federal capital offenses involve crimes that historically were competently prosecuted by the state, a prominent federal judge has argued that, “as a general rule, U.S. attorneys who choose to leave the prosecution and punishment of murderers to the states do not offend any legitimate federal interest.”[104]

    Beyond not serving a substantial federal interest, the use of the federal death penalty is detrimental to the values of democratic governance and accountability. The origin of the modern federal death penalty actually has its roots in the usurpation of the state democratic process. After the Supreme Court’s decision in Gregg, the New York State Legislature voted to reinstate capital punishment. Governors Carey and Cuomo vetoed all such bills for sixteen consecutive years, however, with the state legislature unable to muster the necessary votes for an override.[105] Intolerant of the democratic deadlock, U.S. Senator Alfonse D’Amato of New York introduced legislation in Congress to make drug-related killings a federal capital offense, for the stated purpose of combatting drug violence within New York.[106] In effect, therefore, the federal death penalty was established to circumvent a state’s democratic judgment and prerogative for dealing with a quintessentially state problem.[107]

    State prosecutors in New York later followed Senator D’Amato’s example. New York voters eventually approved the reinstatement of the death penalty by electing Governor Pataki, who prominently campaigned on the issue and signed the legislature’s bill upon entering office.[108] Support among voters and elected officials waned quickly, however, and when the New York Court of Appeals struck down a part of the law in 2004, the legislature voted against restoring the state’s death penalty.[109] It was at this point that the Staten Island District Attorney turned to the federal government for a workaround in an effort to still secure a death sentence against a man who was then undergoing a state capital prosecution for killing two NYPD officers.[110] The U.S. Attorney for the Eastern District of New York agreed to prosecute the case as a gang-related murder under the RICO statute, eventually securing a death sentence for the same crime in the same state that had just rejected that very outcome.[111]

    This pattern repeats itself across non-death penalty states,[112] and it is antithetical to the core principles upon which our federalist system is built. The continuous insistence since the Founding era on local control of criminal law—an insistence that was a necessary predicate to the drafting and ratification of the Constitution—is steeped in the belief that a close proximity between the people and their representative lawmakers increases political accountability and the opportunity for self-governance.[113] Localizing the promulgation and enforcement of criminal justice bestows on each individual citizen a comparatively larger influence over the legal regime they must live under, abide by, and contribute to as jurors and taxpayers. That influence results in the criminal law better reflecting local priorities, norms, and values, thereby increasing the democratic legitimacy and responsibility for choices made about crime and punishment. When these decisions are made by a distant and proportionately less representative government, both political accountability and civic responsibility suffer. Now, local politicians and citizens alike are free of the burden of making consequential decisions about whether death is a moral, effective, and appropriate remedy to extract from those who commit the worst offenses. When it is possible for the people of Massachusetts to enjoy the moral satisfaction of having rejected the death penalty and have the retributivist satisfaction of sentencing Dzhokhar Tsarnaev to death for the Boston Marathon Bombings, then the people and the state abdicate the privileges and duties of a federalist system of government.

    5. The National Application of the Federal Death Penalty Does Not Achieve Nationally Uniform Punishment.

    The death penalty is so integrally shaped by local culture and custom that the federal government is not able to administer capital punishment consistently across the country. To begin, not all cases in places where it is legally possible to seek the death penalty are reviewed by the DOJ Capital Review Committee, either because local AUSAs do not view the case as falling under a death-eligible offense or because these cases are deferred for state prosecution.[115] Achieving true national uniformity, including the elimination of unconscious racial bias in the decision not to seek the death penalty, “is not possible so long as many exercises of prosecutorial discretion continue to go unreviewed.”[116] Moreover, the likelihood of convincing a jury to unanimously recommend a death sentence, as federal law requires,[117] will also vary widely across the country and depend significantly on whether a region’s “cultural milieu opposes capital punishment and has undergone no (or little) local implementation of the death penalty.”[118]

    In addition to the futility of achieving true national uniformity, the virtue of attempting to apply the death penalty evenly is not necessarily worth the attendant risks and consequences. Some prosecutors in districts with strong opposition to the death penalty believe that their ability to win a guilty verdict in a capital case is jeopardized by the decision to seek the death penalty because jurors “know that one way to avoid sitting through gut-wrenching victim impact testimony and having to decide whether a defendant lives or dies is to acquit on the capital charge.”[119] Even if the jury convicts and returns a sentence of life without parole, the real costs of having tried the case as a capital prosecution—costs in time, money, resources, and cases forgone or understaffed—may outweigh the theoretical value of national consistency.[120]

    B. The Federal Death Penalty Tarnishes the Rights of Defendants and Erodes the Integrity of the Criminal Justice System. 

    The Department of Justice is committed to vigorously enforcing federal law while vehemently protecting the constitutional rights of the accused, thereby promoting public confidence in the criminal justice system. Although the Constitution contemplates the availability of the death penalty (through the Fifth Amendment), and the Supreme Court has repeatedly held that capital punishment itself is not unconstitutional,[121] emerging data suggests that the federal death penalty, as currently applied, impinges a defendant’s Fifth, Sixth, and Eighth Amendment rights. Two U.S. Supreme Court Justices seriously called the constitutionality of the death penalty into question just last Term,[122] and several district court judges have ruled that the Federal Death Penalty Act is unconstitutional based on studies purporting to show inherent fallibility and bias in the system. The fact that the federal death penalty is increasingly viewed as a constitutionally tenuous and deleterious punishment, which shakes public confidence in our justice system, militates in favor of the Justice Department finding rational and legitimate ways of curtailing its use.

    1. Due Process of Law

    The federal death penalty operates in tension with procedural and substantive due process by depriving a meaningful number of innocent people the opportunity to prove their innocence and by creating an intolerable risk of executing an innocent person. The Constitution mandates that no person shall be deprived of life without due process of law in order “to protect the individual from erroneous or mistaken punishment that the government would not have inflicted had it found the facts in a more reliable way.”[123] Accordingly, what process is due correlates with “the risk of an erroneous deprivation of [life] through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.”[124] Procedural rules that “[tend] to diminish the reliability of the [capital] sentencing determination” may, therefore, violate due process.[125] Yet current federal capital-sentencing procedures allow for substantial, outcome-determinative error. For example, federal law permits conviction based solely on circumstantial evidence,[126] on the uncorroborated testimony of an accomplice,[127] and on eyewitness testimony, which data and experience have shown is the single greatest cause of wrongful convictions in both capital and non-capital cases.[128] Not only are factual errors common, but appeals courts have detected reversible legal errors in nearly 7 out of every 10 capital convictions—an unusually high rate of error suggesting that death penalty trials are particularly fallible.[129] Disconcertingly, the rate of legal error is thought to be less than the probable rate of factual errors in capital convictions.[130] The problem may be further compounded by the degree to which prosecutorial misconduct infects capital cases; the exonerations of eleven death row inmates who were wrongfully convicted after prosecutors in their cases failed to turn over exculpatory evidence[131] gives credence in the death penalty context to the suggestion by one judge that there is an “epidemic of Brady violations abroad in the land.”[132] In total, 156 death row inmates from the state and federal systems have been exonerated of the capital crimes they were convicted of since the reinstatement of the death penalty.[133] These exonerations confirm that the procedural safeguards built into capital sentencing—including stringent standards of proof and numerous opportunities for appellate and habeas review—still produce a substantial risk of unreliable determinations of guilt and erroneous deprivations of life.[134] For this reason, even former-Attorney General Eric Holder strongly disagrees with the notion that the government has never executed an innocent person, leading him personally to oppose the death penalty.[135]

    The stark fallibility of capital sentencing procedures also suggests that executions will deny a significant number of innocent defendants the necessary time to discover and present conclusive proof of their innocence. DNA exonerations alone prove three truths about capital punishment: first, traditional trial processes and appellate review do not prevent numerous innocent people from being convicted and sentenced to death; second, it is possible for new, conclusive evidence of innocence to emerge long after trial and appellate processes conclude; and third, new tools capable of illuminating wrongful convictions can and likely will be developed. Thus, while it is certain that proof of innocence often exists, it is impossible to know when that proof will become available. In fact, the best evidence indicates that convincing proof of innocence most often does not emerge until more than a decade after conviction.[136] Eliminating the opportunity to collect and present that proof through execution unduly burdens the right to procedural due process.

    Criminal procedures that result in a high rate of wrongful capital convictions also risk the state-sponsored execution of innocent persons, which the Supreme Court has suggested may violate substantive due process[137] by contravening a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”[138] Under this analysis, the federal death penalty infringes substantive due process by creating a constitutionally intolerable risk of the government violating a meaningful number of innocent peoples’ fundamental right not to be executed.

    2. Cruel and Unusual Punishment

    The Supreme Court’s decision in Furman v. Georgia still supplies the governing standard for evaluating the constitutionality of the death penalty under the Eighth Amendment—criminal penalties and procedures that produce arbitrary punishments or offend society’s sense of justice, as measured against an “evolving [standard] of decency that marks the progress of a maturing society,” violate the prohibition against cruel and unusual punishment.[139] In response to a steady stream of evidence showing a breadth of error and racial bias in the capital punishment system, and in recognition of the nation’s growing rejection of the death penalty, the Supreme Court may soon declare the death penalty unconstitutional.[140]

    Furman and its subsequent precedents establish that a death penalty system that carries “a substantial risk that [the punishment will be] inflicted in an arbitrary and capricious manner”[141] or “a significant probability that [the decision is] influenced by impermissible considerations” is constitutionally intolerable.[142] It is unnecessary under the Eighth Amendment to prove individual discrimination; a “pattern of arbitrary and capricious sentencing” within “the sentencing system as a whole” suffices to establish a constitutional violation.[143] Successive studies reveal that the federal death penalty is plagued by irrational and impermissible racial bias. A DOJ review of the federal death penalty as it was administered between 1995–2000 shows that 80% of the 682 defendants who faced capital charges were minorities, as were 74% of the 183 defendants who U.S. Attorneys recommended receive the death penalty.[144] More recent analyses confirm the overwhelming bias and arbitrariness in the system, including a finding that those who kill whites are over three times more likely to be sentenced to death than those who kill blacks and over four times more likely than those who kill Latinos.[145] The uneven application of the death penalty, where the ratio of those who are executed to those who are eligible for execution is 1:326, suggests “that the death penalty is still as arbitrary and unpredictable as being struck by lightning.”[146]

    Moreover, over the past two decades not a single state has adopted the death penalty, while nine states have legally or effectively stopped the practice within the past seven years alone. This change shows that nearly a fourth of all states that reinstated the death penalty post-Gregg have now rejected it, bringing the number of states where capital punishment is outlawed to twenty-two.[147] Likely, state legislators and governors are responding in part to the dramatic decrease in popular support for the death penalty. For the first time in recent history, a national poll found that a majority of Americans (52%) prefer life without parole as punishment for convicted murderers, with just 42% preferring the death penalty.[148] Other polls confirm that support for the death penalty is at a historic low, having fallen over 20% since it peaked in 1994—the year Congress passed the Federal Death Penalty Act.[149] These statistics are only compounded by the widespread international condemnation of capital punishment in the United States, which a majority of the Supreme Court has deemed relevant to the determination of whether a punishment is cruel or unusual.[150]

    One scholar has argued that the Eighth Amendment specifically prohibits the federal government from imposing the death penalty for crimes committed in non-death penalty states.[151] Reading the Bill of Rights from an originalist and Anti-Federalist perspective, Professor Mannheimer argues that the Eighth Amendment is not only a direct restraint on the federal government’s power over the people, but also a preservation of the states’ sphere of autonomy over the administration of criminal justice.[152] The imposition of a federal punishment that a state rejects, therefore, violates the structural protections embodied in the Eighth Amendment and constitutes cruel and unusual punishment.

    3. Sixth Amendment Protections

    Lastly, the federal death penalty flouts the fair-trial guarantees of the Sixth Amendment to confront and cross-examine adverse witnesses and have all elements of a criminal offense proven by admissible evidence.[153] The Federal Death Penalty Act requires imposition of the death penalty on a finding of mental culpability and statutory aggravating factors, which the Supreme Court has held are the functional equivalents of elements of a capital offense.[154] As such, a defendant is entitled to cross-examine adverse witnesses and require that all facts are proven by admissible evidence during capital sentencing. Yet the Federal Death Penalty Act permits imposition of the death penalty based on potentially unreliable and untested evidence “that is not subject to the Sixth Amendment’s guarantees of confrontation and cross-examination, nor to rules of evidentiary admissibility guaranteed by the Due Process Clause to fact-finding involving offense elements.”[155] This apparent relaxation of constitutional rights and standards “invites abuse, and significantly undermines the reliability of decisions to impose the death penalty.”[156]

    IV. Conclusion

    A fair administration of the laws has never entailed blind adherence to statutory directives, but consists of the rational and legitimate use of discretion to faithfully execute the law. That discretion is most appropriately used to ensure the effective and just enforcement of the criminal laws. As such, the faithful execution of the federal death penalty requires a revision of the Department of Justice’s current death penalty protocol to bar capital prosecutions in non-death penalty states.



    [1] See generally 18 U.S.C. 1324 (murder related to the smuggling of aliens); 18 U.S.C. 32–34 (destruction of aircraft, motor vehicles, or related facilities resulting in death); 18 U.S.C. 36 (murder committed during a drug-related drive-by shooting); 18 U.S.C. 37 (murder committed at an airport serving international civil aviation); 18 U.S.C. 115(b)(3) [by cross-reference to 18 U.S.C. 1111] (retaliatory murder of a member of the immediate family of law enforcement officials); 18 U.S.C. 241, 242, 245, 247 (civil rights offenses resulting in death); 18 U.S.C. 351 [by cross-reference to 18 U.S.C. 1111] (murder of a member of Congress, an important executive official, or a Supreme Court Justice); 18 U.S.C. 794 (espionage); 18 U.S.C. 844(d), (f), (i) (death resulting from offenses involving transportation of explosives, destruction of government property, or destruction of property related to foreign or interstate commerce); 18 U.S.C. 924(i) (murder committed by the use of a firearm during a crime of violence or a drug-trafficking crime); 18 U.S.C. 930 [by cross-reference to 18 U.S.C. 1111] (murder committed in a federal government facility); 18 U.S.C. 1091 (genocide); 18 U.S.C. 1111 (first-degree murder); 18 U.S.C. 1114 [by cross-reference to 18 U.S.C. 1111] (murder of a federal judge or law enforcement official); 18 U.S.C. 1116 [by cross-reference to 18 U.S.C. 1111] (murder of a foreign official); 18 U.S.C. 1118 (murder by a federal prisoner); 18 U.S.C. 1119 [by cross-reference to 18 U.S.C. 1111] (murder of a U.S. national in a foreign country); 18 U.S.C. 1120 [by cross-reference to 18 U.S.C. 1111] (murder by an escaped federal prisoner already sentenced to life imprisonment); 18 U.S.C. 1121 (murder of a state or local law enforcement official or other person aiding in a federal investigation; murder of a state correctional officer); 18 U.S.C. 1201 (murder during a kidnapping); 18 U.S.C. 1203 (murder during a hostage taking); 18 U.S.C. 1503 [by cross-reference to 18 U.S.C. 1111] (murder of a court officer or juror); 18 U.S.C. 1512 [by cross-reference to 18 U.S.C. 1111] (murder with the intent of preventing testimony by a witness, victim, or informant); 18 U.S.C. 1513 [by cross-reference to 18 U.S.C. 1111] (retaliatory murder of a witness, victim, or informant); 18 U.S.C. 1716 (mailing of injurious articles with intent to kill or resulting in death); 18 U.S.C. 1751 [by cross-reference to 18 U.S.C. 1111] (assassination or kidnapping resulting in the death of the President or Vice President); 18 U.S.C. 1958 (murder for hire); 18 U.S.C. 1959 (murder involved in a racketeering offense); 18 U.S.C. 1992 (willful wrecking of a train resulting in death); 18 U.S.C. 2113 (bank-robbery-related murder or kidnapping); 18 U.S.C. 2119 (murder related to a carjacking); 18 U.S.C. 2245 (murder related to rape or child molestation); 18 U.S.C. 2251 (murder related to sexual exploitation of children); 18 U.S.C. 2280 (murder committed during an offense against maritime navigation); 18 U.S.C. 2281 (murder committed during an offense against a maritime fixed platform); 18 U.S.C. 2332 (terrorist murder of a U.S. national in another country); 18 U.S.C. 2332a (murder by the use of a weapon of mass destruction); 18 U.S.C. 2340 (murder involving torture); 18 U.S.C. 2381 (treason); 21 U.S.C. 848(e) (murder related to a continuing criminal enterprise or related murder of a federal, state, or local law enforcement officer); 49 U.S.C. 1410 (death resulting from aircraft hijacking).

    [2] States that have abolished the death penalty are referred to as “abolitionist” states; states that retain the death penalty are referred to as “retentionist” states.

    [3] See generally Crimes Act of 1790, ch. 9, 1 Stat. 112.

    [4] See The Federal Death Penalty: An Overview, Death Penalty Focus (Feb. 2011), http://www.deathpenalty.org/article.php?id=46 [http://perma.cc/24S8-6344].

    [5] Trop v. Dulles, 356 U.S. 86, 101 (1958).

    [6] See generally Robert Bohm, DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States (1999).

    [7] See generally McGautha v. California, 402 U.S. 183 (1971).

    [8] 408 U.S. 238 (1972).

    [9] Id. at 282.

    [10] See State Death Penalty Laws, ProCon, http://deathpenalty.procon.org/view.resource.php?resourceID=001172 [https://perma.cc/4E8W-ZCQB] (last updated Aug. 13, 2015).

    [11] See generally Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976),  collectively referred to as Gregg v. Georgia or the Gregg decision.

    [12] See State Death Penalty Laws, supra note 10.

    [13] Michigan, Wisconsin, Maine, Minnesota, Hawaii, Alaska, Vermont, Iowa, West Virginia, North Dakota, Massachusetts, Rhode Island, New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland, and Nebraska have abolished the death penalty; Kansas, New Hampshire, Colorado, Wyoming, and Oregon have executed between zero and two people since 1976; Pennsylvania, Montana, Kentucky, Idaho, and South Dakota have executed three people since 1976; Arkansas, California, Nevada, and North Carolina have not carried out an execution in over eight years. Number of Executions by State and Region Since 1976, Death Penalty Information Center, http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 [https://perma.cc/XXQ2-HT7U] (last updated Dec. 9, 2015).

    [14] See Anti-Drug Abuse Act of 1988, 21 U.S.C. §§ 848(e), (g)–(r). Since its enactment, six people have been sentenced to death under the Anti-Drug Abuse Act, though none has been executed. Bohm, supra note 6.

    [15] See generally 18 U.S.C. §§ 3591–3598.

    [16] See generally 28 U.S.C. §§ 2241–2266.

    [17] See 28 U.S.C. §§ 2255.

    [18] See Bohm, supra note 6.

    [19] Federal Death Penalty, Federal Death Penalty Resource Counsel (Sept. 22, 2015), https://www.capdefnet.org/FDPRC/pubmenu.aspx?menu_id=94&id=2094 [http://perma.cc/7LHK-ETWZ].

    [20] Federal Capital Prosecutions Arising in Non-Death Penalty States, Federal Death Penalty Resource Counsel (June 23, 2015), https://www.capdefnet.org/FDPRC/WorkArea/DownloadAsset.aspx?id=5749 [https://perma.cc/LDA5-TWNV].

    [21] Juries imposed 151 life sentences and 81 death sentences out of 232 possible death penalty verdicts—three defendants received a death sentence twice and three defendants received death verdicts, but new trials were granted and life sentences resulted. Between 1995 and 2000, federal juries chose life sentences over death sentences by a ratio of 5:4. Federal Death Penalty, supra note 19. In the first decade of the 21st century, that ratio increased to more than two life sentences for every death sentence. The Federal Death Penalty: An Overview, supra note 4.

    [22] See List of Federal Death Row Prisoners, Death Penalty Information Center (June 26, 2015), http://www.deathpenaltyinfo.org/federal-death-row-prisoners [https://perma.cc/42GU-53MX].

    [23] Death penalty: States say no but feds say yes, SFGate (Apr. 24, 2013, 4:00 AM), http://blog.sfgate.com/crime/2013/04/24/death-penalty-states-say-no-but-feds-say-yes/ [https://perma.cc/LH4V-RXX7].

    [24] Federal Death Row: State Where Crime was Committed, Death Penalty Information Center, http://www.deathpenaltyinfo.org/federal-death-penalty [https://perma.cc/PF4A-5R4C].

    [25] See U.S. Attorney’s Manual  § 9-10.000 et seq, http://www.justice.gov/usam/usam-9-10000-capital-crimes [https://perma.cc/85WZ-5FHD].

    [26] Capital Review Committee, U.S. Attorney’s Manual  § 9-10.130, http://www.justice.gov/usam/usam-9-10000-capital-crimes#9-10.130 [https://perma.cc/7B3W-VFSH] (last updated Apr. 2011).

    [27] See DOJ Memorandum Regarding Federal Prosecution Priorities (Aug. 12, 2013), http://www.justice.gov/sites/default/files/ag/legacy/2014/04/11/ag-memo-substantial-federal-interest.pdf [https://perma.cc/9CL2-8TZM].

    [28] See Substantial Federal Interest, U.S. Attorney’s Manual  § 9-10.110, http://www.justice.gov/usam/usam-9-10000-capital-crimes#9-10.110 [https://perma.cc/8WFD-DHXL] (last updated Apr. 2014).

    [29] See Selecting Charges—Charging Most Serious Offenses, U.S. Attorney’s Manual  § 9-27.300, http://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution#9-27.300 [https://perma.cc/42DB-5CMR]; Consideration to be Weighed in Determining Sentencing Recommendations, U.S. Attorney’s Manual  § 9-27.740 [https://perma.cc/YEJ9-BRML].

    [30] See Purpose, U.S. Attorney’s Manual  § 9-27.110, http://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution#9-27.110 [https://perma.cc/6A8X-FL5J].

    [31] Standards for Determination, U.S. Attorney’s Manual  § 9-10.140, http://www.justice.gov/usam/usam-9-10000-capital-crimes#9-10.140 [https://perma.cc/9KQF-FUY6] (last updated Apr. 2011).

    [32] See Substantial Federal Interest, U.S. Attorney’s Manual  § 9-10.090(C) (June 25, 2007), http://www.justice.gov/sites/default/files/dag/legacy/2010/08/17/dag-memo-06252007.pdf [https://perma.cc/8MPZ-78R5] (“Relevant to this analysis are the ability and willingness of the authorities in each jurisdiction . . . conditions, attitudes, relationships, and other circumstances that enhance the ability to prosecute effectively . . .”).

    [33] Ashcroft overruled the recommendation of prosecutors not to seek the death penalty twelve times in his first year as Attorney General, and directed the government to seek the death penalty in half of all cases in which it was legal to do so. Attorney General Gonzales followed suit, ordering prosecutors to seek the death penalty over their objections twenty-one times in 2006 alone. See Margaret E. Ross, The Federal Death Penalty in Massachusetts, Massachusetts Citizens Against the Death Penalty Newsletter (Oct. 2002); Amy Goldstein, Fired Prosecutor Says Gonzales Pushed Death Penalty, Washington Post (June 28, 2007), http://www.washingtonpost.com/wp-dyn/content/article/2007/06/27/AR2007062702310.html [https://perma.cc/74L7-V8UM].

    [34] See DOJ Memorandum Regarding 2011 Protocol Revisions (July 27, 2011), http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/death-penalty-protocol.pdf [https://perma.cc/6CM4-V7T4].

    [35] Preface, U.S. Attorney’s Manual  § 9-27.001, http://www.justice.gov/usam/usam-9-27000-principles-federal-prosecution#9-27.001 [https://perma.cc/4Z4Z-LMLP]; see also Holder Memorandum Announcing DOJ Protocol Revisions (Apr. 7, 2014), https://www.capdefnet.org/FDPRC/WorkArea/DownloadAsset.aspx?id=5930 [https://perma.cc/VWE4-BMUU] (“[The protocol] will ensure that decisions whether to seek capital punishment continue to be made in a deliberative, even-handed and consistent manner, with proper individualized consideration of the appropriate factors relevant to each case, and that the Department’s resources are appropriately focused on those cases that require the most attention and deliberation.”).

    [36] Preface, U.S. Attorney’s Manual  § 9-27.001, supra note 35.

    [37] See J.J. Gass, It’s Not About Federalism #10: The Death Penalty, Brennan Center for Justice at NYU School of Law (July 2013), http://penn.betatesters.com/brennan01.html [https://perma.cc/7EPZ-ZYPB].

    [38] Alan Greenblatt, Death From Washington, Governing (May 2007), http://www.governing.com/topics/public-justice-safety/Death-Washington.html [https://perma.cc/8YZP-UAU9].

    [39] United States v. Colon-Miranda, 985 F. Supp. 36, 39–40 (D.P.R. 1997).

    [40] David Hechler, U.S. death penalty in wake of Ashcroft, Nat’l L.J. (Nov. 29, 2004), http://www.deathpenaltyinfo.org/node/1320 [https://perma.cc/MQC9-UM84].

    [41] Greenblatt, supra note 38.

    [42] Id. (quoting Franklin Zimring, Professor of Law, U.C. Berkeley School of Law).

    [43] See generally John Gleeson, Supervising Federal Capital Punishment: Why The Attorney General Should Defer When U.S. Attorneys Recommend Against The Death Penalty, 89 Va. L. Rev. 1697 (2003).

    [44] Interviews with two Assistant U.S. Attorneys in the Appeals Unit, U.S. Attorney’s Office for the District of Massachusetts, in Boston, Mass. (Dec. 5, 2014).

    [45] See Greenblatt, supra note 38.

    [46] See Stuart M. Gerson, Inside the Justice Department and the U.S. Attorneys Controversy, Washington Post (Mar. 14, 2007), http://www.washingtonpost.com/wp-dyn/content/discussion/2007/03/13/DI2007031300985.html [https://perma.cc/C4L6-JYTG].

    [47] Ari Shapiro, Fired U.S. Attorney Testifies on Death Penalty, NPR (June 27, 2007), http://www.npr.org/templates/story/story.php?storyId=11478152 [https://perma.cc/5L7Z-NWYU].

    [48] See U.S. Attorney’s Manual  § 9-10.040 (June 25, 2007), http://www.justice.gov/sites/default/files/dag/legacy/2010/08/17/dag-memo-06252007.pdf [https://perma.cc/8MPZ-78R5].

    [49] Hechler, supra note 40.

    [50] Greenblatt, supra note 38 (quoting Franklin Zimring, Professor of Law, U.C. Berkeley School of Law).

    [51] See id.

    [52] See Death Penalty Not Needed to Secure Plea Bargains, Death Penalty Focus, http://www.deathpenalty.org/article.php?id=556 [https://perma.cc/E79E-LC86].

    [53] See id.

    [54] Conditional Plea Agreements, U.S. Attorney’s Manual § 9-10.120, http://www.justice.gov/usam/usam-9-10000-capital-crimes#9-10.120 [https://perma.cc/B83F-R4KQ] (last updated Apr. 2014).

    [55] See generally United States v. Jackson, 390 U.S. 570 (1968) (holding that compelling defendants to waive their rights not to plead guilty and to a jury trial through threat of having the death penalty imposed is unconstitutional).

    [56] See generally Michael L. Radelet et al., In Spite of Innocence: Erroneous Convictions in Capital Cases (1992) (compiling evidence that innocent defendants plead guilty to avoid death).

    [57] See Hechler, supra note 40.

    [58] Conditional Plea Agreements, U.S. Attorney’s Manual § 9-10.120, supra note 54.

    [59] See Hechler, supra note 40.

    [60] Gleeson, supra note 43, at 1727; see also Karen Branch-Brioso, Ashcroft Takes Active Stance on Death Penalty; Critics Say It Undermines Local Judgment, St. Louis Post-Dispatch, Feb. 7, 2003, at A1 (“With the cooperators, the obvious problems are that one, the local prosecutor signs these people up and once they’ve signed that deal, they’ve got real problems if the deal doesn’t go through because now they can’t go back to the street. . . . So what that means is, fewer people will take the risk of exploring the cooperation, because they know there’s a much greater risk now of it falling through.”)

    [61] See The Social History of Crime and Punishment in America: An Encyclopedia 1216 (Wilbur R. Miller ed., 2012).

    [62] See Bill Keller & Tim Golden, Eric Holder on His Legacy, His Regrets, and His Feelings About the Death Penalty, The Marshall Project (Nov. 17, 2014), https://www.themarshallproject.org/2014/11/17/eric-holder-on-his-legacy-his-regrets-and-his-feelings-about-the-death-penalty [https://perma.cc/ASH9-3NFV].

    [63] See Alex Hannaford, Inmates Aren’t the Only Victims of the Prison-Industrial Complex, The Nation (Sept. 16, 2014), http://www.thenation.com/article/181607/inmates-arent-only-victims-prison-industrial-complex [https://perma.cc/32EP-PW92].

    [64] See Death Penalty in Flux, Death Penalty Information Center, http://www.deathpenaltyinfo.org/death-penalty-flux [https://perma.cc/9VQK-HDZ8].

    [65] See generally Glossip v. Gross, 135 S. Ct. 2726 (2015).

    [66] See Death Penalty in Flux, supra note 64.

    [67] See Matt Ford, Can Europe End the Death Penalty in America?, The Atlantic (Feb. 18, 2014), http://www.theatlantic.com/international/archive/2014/02/can-europe-end-the-death-penalty-in-america/283790/ [https://perma.cc/W86U-CBWZ].

    [68] The Death Penalty in 2013: Year End Report, Death Penalty Information Center, http://deathpenaltyinfo.org/documents/YearEnd2013.pdf [https://perma.cc/8QNF-CEUQ].

    [69] Id.; see also Death Penalty in Flux, supra note 64.

    [70] See Maura Kelly, Capital punishment: an offence against victims’ relatives, The Guardian (Apr. 7, 2011), http://www.theguardian.com/commentisfree/cifamerica/2011/apr/07/capital-punishment-texas [https://perma.cc/W67F-HVD8].

    [71] See Greenblatt, supra note 38.

    [72] See, e.g., Aundre Harron, Murder Victims’ Families Say Death Penalty Does More Harm than Good, Casetext (Aug. 31, 2015), https://casetext.com/posts/murder-victims-families-say-death-penalty-does-more-harm-than-good [https://perma.cc/FPP2-N94J]; State braces for Tsarnaev, Sampson death penalty trials, 7 News WHDH (Nov. 8, 2014), http://www.whdh.com/story/27334753/state-braces-for-tsarnaev-sampson-death-penalty-trials [https://perma.cc/3MK5-37H2].

    [73] Jon B. Gould & Lisa Greenman, Report to the Committee on Defender Services, Judicial Conference of the United States, Update on the Cost and Quality of Defense Representation in Federal Death Penalty Cases, at 25 (Sept. 2010), www. uscourts.gov/file/fdpc2010pdf [https://perma.cc/63SG-DDSH].

    [74] Id. at 10.

    [75] Id. at 44.

    [76] See William Glaberson, Prosecutors Seek Fewer Executions, Signaling New Wariness, N.Y. Times (Sept. 21, 2003), http://www.nytimes.com/2003/09/21/nyregion/prosecutors-seek-fewer-executions-signaling-new-wariness.html [https://perma.cc/5E9A-L8XF].

    [77] Hechler, supra note 40.

    [78] Nichols v. Heidle, 725 F.3d 516, 559 (6th Cir. 2013) (Martin, J., concurring).

    [79] See List of Federal Death Row Prisoners, supra note 22.

    [80] Id.

    [81] See generally Richard Dieter, Death Penalty Information Center, Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis (Oct. 2009), http://www.deathpenaltyinfo.org/documents/CostsRptFinal.pdf [https://perma.cc/64NA-22LS].

    [82] See Keller & Golden, supra note 62.

    [83] See, e.g., Ford v. Wainwright, 477 U.S. 399, 411 (1986); Harmelin v. Michigan, 501 U.S. 957, 994 (1991).

    [84] See Ring v. Arizona, 536 U.S. 584, 614–15 (2002) (Breyer, J., concurring) (noting “the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to incapacitate offenders, or to rehabilitate criminals”).

    [85] Furman, 408 U.S. at 306 (Stewart, J., concurring).

    [86] See, e.g., Jonathan R. Sorensen & Rocky L. Pilgrim, An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. Crim. L. & Criminology 1251, 1256 (2000) (finding an average repeat murder rate of .002% among murderers whose death sentences were commuted).

    [87] See Glossip v. Gross, 135 S. Ct. 2726, 2764–69 (2015) (Breyer, J., dissenting).

    [88] List of Federal Death Row Prisoners, supra note 22.

    [89] See, e.g., Helon Redmond, Supermax prisons: 21st century asylums, Al Jazeera (Aug. 5, 2011), http://www.aljazeera.com/indepth/opinion/2011/08/201185145425908206.html [https://perma.cc/SS76-ZFEN]; Sal Rodriguez, FAQ, Solitary Watch, http://solitarywatch.com/facts/faq/ [https://perma.cc/MG3V-GRGV].

    [90] See Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am. J. Psychiatry 1450, 1453–54 (1983); ACLU, A Living Death: Life Without Parole for Nonviolent Offenses 8 (2013), https://www.aclu.org/report/living-death-life-without-parole-nonviolent-offenses [https://perma.cc/B4FE-MFQM].

    [91] See, e.g., Glossip, 135 S. Ct. at 2748–49 (Scalia, J., concurring).

    [92] See Death Penalty Facts, Amnesty International (July 2011), http://www.amnestyusa.org/sites/default/files/pdfs/deathpenaltyfacts.pdf [https://perma.cc/TF4Q-HESY].

    [93] Michael L. Radelet & Traci L. Lacock, Do Executions Lower Homicide Rates?: The Views of Leading Criminologists, 99 J. Crim. L. & Criminology 489, 501 (2009).

    [94] Id. at 502.

    [95] See, e.g., U.S. Department of Justice’s Violence Reduction Network, Bureau of Justice Assistance, U.S. Department of Justice, https://www.bja.gov/Programs/vrn.html [https://perma.cc/3VYN-S2HS].

    [96] See Federal Capital Prosecutions with Current Death Sentences, Federal Death Penalty Resource Counsel (Oct. 2014), https://www.capdefnet.org/FDPRC/WorkArea/DownloadAsset.aspx?id=5621 [https://perma.cc/TUT2-5PDV].

    [97]See Cole Memorandum on Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf [https://perma.cc/L4G8-RDLH].

    [98] United States v. Morrison, 529 U.S. 598, 599 (2000).

    [99] See The Federal Death Penalty: An Overview, supra note 4.

    [100] Federal Capital Prosecutions Arising in Non-Death Penalty States, supra note 20.

    [101] Id.

    [102] Id.

    [103] Greenblatt, supra note 38.

    [104] Gleeson, supra note 43, at 1722.

    [105] See Greenblatt, supra note 38.

    [106] Id.; see Anti-Drug Abuse Act of 1988, Pub.L. 100–690, 102 Stat. 4181.

    [107] See Greenblatt, supra note 38.

    [108] James Dao, Death Penalty in New York Reinstated After 18 Years; Pataki Sees Justice Served, N.Y. Times (Mar. 8, 1995), http://www.nytimes.com/1995/03/08/nyregion/death-penalty-in-new-york-reinstated-after-18-years-pataki-sees-justice-served.html [https://perma.cc/LQ6X-9BY9].

    [109] See Michael Powell, In N.Y., Lawmakers Vote Not to Reinstate Capital Punishment, Washington Post (Apr. 13, 2005), http://www.washingtonpost.com/wp-dyn/articles/A47871-2005Apr12.html [https://perma.cc/3FWA-7Q7Z].

    [110] See Shaila K. Dewan, U.S. Indicts Man in Death of Detectives in Gun Buy, N.Y. Times (Nov. 23, 2004), http://www.nytimes.com/2004/11/23/nyregion/23indict.html [https://perma.cc/76Y4-K6K4].

    [111] Mosi Secret, Decade Later, Still Seeking a Rare New York Execution, N.Y. Times (July 11, 2013), http://www.nytimes.com/2013/07/12/nyregion/decade-later-still-seeking-a-rare-new-york-execution.html?_r=0 [https://perma.cc/DEV7-PX4P].

    [112] See Federal Capital Prosecutions Arising in Non-Death Penalty States, supra note 20.

    [113] See generally Michael J. Zydney Mannheimer, Self-Government, The Federal Death Penalty, and the Unusual Case of Michael Jacques, 36 Vt. L. Rev. 131 (2011–2012).

    [114] See The Death Penalty in 2013, supra note 68 (reporting that three-fourths of all state and federal executions in 2013 occurred in three states and 82% took place in southern states).

    [115] See Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice’s Role, 26 Fordham Urb. L.J. 347, 354 (1999).

    [116] Id.

    [117] See 18 U.S.C. § 3593(d) (2006).

    [118] Little, supra note 115, at 469.

    [119] Gleeson, supra note 43, at 1719.

    [120] See id. at 1720.

    [121] See, e.g., Herrera v. Collins, 506 U.S. 390 (1993); Glossip v. Gross, 135 S. Ct. 2726 (2015).

    [122] See Glossip, 135 S. Ct. at 2776–77 (Breyer, J., dissenting) (finding “it highly likely that the death penalty violates the Eighth Amendment.”).

    [123] Ingraham v. Wright, 430 U.S. 651, 692 (1977).

    [124] Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

    [125] Beck v. Alabama, 447 U.S. 625, 638 (1980).

    [126] United States v. Russell, 971 F.2d 1098, 1108–09 (4th Cir. 1992).

    [127] United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993).

    [128] See Jon O. Newman, Make Judges Certify Guilt In Capital Cases, Newsday, July 5, 2000, at A25.

    [129] See James S. Liebman et al., A Broken System: Error Rates In Capital Cases, 1973–1995, Colum. L. Sch., June 12, 2000, at 32, http://www2.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf [https://perma.cc/S5RY-LUG4]; see also Nancy J. King, Fred L. Cheesman & Brian J. Ostrom, Final Technical Report: Habeas Litigation in U.S. District Courts, National Center for State Courts, Aug. 21, 2007, at 51–52, https://www.ncjrs.gov/pdffiles1/nij/grants/219558.pdf [https://perma.cc/PW8N-ZKHE] (noting that the rate at which capital petitioners obtained habeas relief was thirty times higher than the rate for non-capital cases).

    [130] See James S. Liebman et al., A Broken System, Part II: Why There Is So Much Error In Capital Cases, And What Can Be Done About It, Colum. L. Sch., Feb. 11, 2002, at 25, http://www2.law.columbia.edu/brokensystem2/report.pdf [https://perma.cc/9C75-36BG].

    [131] Innocence Cases, Death Penalty Information Center (Dec. 2014), http://www.deathpenaltyinfo.org/node/4900#145 [https://perma.cc/8YQW-BCSM].

    [132] United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013).

    [133] Innocence: List of Those Freed From Death Row, Death Penalty Information Center (Oct. 12, 2015), http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row?scid=6&did=110 [https://perma.cc/LR4B-7QXL].

    [134] See United States v. Quinones, 196 F. Supp. 2d 416, 417 (S.D.N.Y. 2002), rev’d, 313 F.3d 49 (2d Cir. 2002).

    [135] Keller & Golden, supra note 62. Justices Breyer and Ginsburg argue that this lack of reliability is “cruel” in violation of the Eighth Amendment, rather than the Due Process Clause. Glossip v. Gross, 135 S. Ct. 2726, 2756–59 (2015) (Breyer, J., dissenting).

    [136] Innocence: List of Those Freed From Death Row, supra note 133 (calculating the average number of years between being sentenced to death and exoneration to be 11.3 years).

    [137] See Herrera v. Collins, 506 U.S. 390, 419 (1993) (O’Connor, J., concurring).

    [138] Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

    [139] Trop v. Dulles, 356 U.S. 86, 101 (1958).

    [140] The Supreme Court reversed itself on the constitutionality of executing the mentally retarded in only 13 years (Penry v. Lynaugh, 492 U.S. 302 (1989) to Atkins v. Virginia, 536 U.S. 304 (2002)) and on executing juveniles in only 16 years (Sanford v. Kentucky, 492 U.S. 361 (1989) to Roper v. Simmons, 543 U.S. 551 (2005)).

    [141] Gregg, 428 U.S. at 188.

    [142] McCleskey v. Kemp, 481 U.S. 279, 322–23 (1987).

    [143] Gregg, 428 U.S. at 200.

    [144] Marc Lacey & Raymond Bonner, Reno Troubled by Death Penalty Statistics, N.Y. Times (Sept. 13, 2000), http://www.nytimes.com/2000/09/13/national/13DEAT.html [https://perma.cc/K88B-AEE9].

    [145] Glenn Pierce & Michael Radelet, Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, The Empirical Analysis, 46 Santa Clara L. Rev. 1, 22 ( 2005).

    [146] Richard C. Dieter, Death Penalty Information Center, Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976 (July 2011), https://perma.cc/ZMX3-SLAH.

    [147] Nineteen states have legally abolished the death penalty and three states (OR, WA, and PA) have instituted moratoriums on its use. State Death Penalty Laws, supra note 10.

    [148] Damla Ergun, New Low in Preference for the Death Penalty, ABC News (June 5, 2014), http://abcnews.go.com/blogs/politics/2014/06/new-low-in-preference-for-the-death-penalty/ [https://perma.cc/E7AX-YAER].

    [149] National Polls and Studies, Death Penalty Information Center (Nov. 2015), http://deathpenaltyinfo.org/national-polls-and-studies#Pew;CBS [https://perma.cc/E2Z8-L45L].

    [150] See Roper v. Simmons, 543 U.S. 551, 575–76 (2005) (“The laws of other countries and [] international authorities [are] instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.'”). The U.S. is fifth worldwide in the number of executions it carries out, behind China, Iran, Iraq, and Saudi Arabia, while just outnumbering Somalia. Death penalty 2013: Small number of countries trigger global spike in executions, Amnesty International (Mar. 26, 2014), http://www.amnestyusa.org/news/press-releases/death-penalty-2013-small-number-of-countries-trigger-global-spike-in-executions [https://perma.cc/ET73-88G4].

    [151] See generally Michael J. Zydney Mannheimer, When the Federal Death Penalty Is “Cruel and Unusual”, 74 U. Cin. L. Rev. 819 (2006).

    [152] See id.

    [153] See Apprendi v. New Jersey, 530 U.S. 466, 466–67 (2000).

    [154] See Ring v. Arizona, 536 U.S. 584, 614 (2002) (Breyer, J., concurring).

    [155] United States v. Fell, 217 F. Supp. 2d 469, 489 (D. Vt. 2002), vacated, 360 F.3d 135 (2d Cir. 2004).

    [156] Id. at 489–91.

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