Vermont

Vermont

Judge Approves Plea Deal in Case That Challenged the Constitutionality of the Federal Death Penalty

A federal judge in Vermont has accepted a plea deal between Donald Fell and federal prosecutors, permanently removing Fell from death row and ending a case that had raised serious questions about the constitutionality of the federal death penalty. Under the terms of the deal, approved by U.S. District Court Judge Geoffrey Crawford on September 28, 2018, Fell will serve a sentence of life without parole for the interstate kidnapping and murder of Teresca King in 2000. Fell and his co-defendant, Robert Lee, abducted King in Rutland, Vermont, and drove her to New York state, where she was killed. Fell was convicted and sentenced to death in federal court in 2005, a sentence he could not have received if he had been tried in state court because Vermont does not have the death penalty. Fell's conviction was overturned and he was granted a new trial in July 2014 as a result of juror misconduct. Federal prosecutors also charged Lee with capital murder, but Lee committed suicide in prison in 2001 before either defendant's case went to trial. In November 2015, Fell's lawyers filed a comprehensive constitutional challenge to the federal death penalty, arguing based on significant racial and geographic inequities in its administration that it was unreliable, arbitrary, and discriminatorily applied. After a two-week-long evidentiary hearing, Judge Crawford found that the federal death penalty "operates in an arbitrary manner in which chance and bias play leading roles" and "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty." He nonetheless allowed the death penalty to remain in the case, writing that as a federal trial judge, he lacked "authority to rewrite the law so as to overrule the majority position at the Supreme Court." Fell's lawyers later unsuccessfully argued based on a March 2018 U.S. Supreme Court decision striking down a federal sports betting law that the federal death penalty violated the 10th Amendment by conscripting state officials to carry out executions. However, Judge Crawford did grant a defense motion to bar prosecutors from presenting various statements made by Lee by prior to his death attempting to shift blame to Fell for King's murder. In July 2018, the U.S. Court of Appeals for the Second Circuit agreed with Crawford, calling Lee's statements "unreliable." The ruling left prosecutors without key evidence to prove the extent of Fell's alleged involvement in the killing, reducing the chances that a jury would return a death sentence in the case. Fell is the 10th prisoner to be permanently removed from the federal death row after having overturned an unconstitutional conviction or death sentence. Sixty-two prisoners are currently on federal death row.

Judge Finds Federal Death Penalty Arbitrary and Unreliable, But Leaves Constitutionality for Supreme Court to Decide

After a two-week long "extensive hearing regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty," U.S. District Court Judge Geoffrey Crawford (pictured) ruled in the case of U.S. v. Donald Fell that the Federal Death Penalty Act ("FDPA") "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty," but nonetheless allowed Fell's capital trial to move forward. Fell, who is awaiting retrial by federal prosecutors in Vermont, had filed a motion asking the judge to find the death penalty unconstitutional under the Fifth and Eighth Amendments. Judge Crawford wrote that, like the state statutes enacted after the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in Furman v. Georgia, "the FDPA operates in an arbitrary manner in which chance and bias play leading roles." But while the court's order contained detailed findings suggesting the death penalty is arbitrarily and unreliably imposed, it stopped short of declaring the death penalty unconstitutional. "A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court," Judge Crawford wrote. "Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself." Judge Crawford found significant problems in numerous aspects of capital proceedings. He found that instead of redressing questions of bias, death penalty jury selection procedures are "a substantial part of the problem" and create as "inherent jury bias" by selecting "jury populations which stack the deck against defendants" in both the guilt/innocence and penalty phases of the trial. He found that "the death penalty continues to be imposed in an arbitrary manner," noting that where the "crime occurs is the strongest predictor of whether a death sentence will result" and "whether the murder victim is white" is also a signficant predictor. Judge Crawford explained that "the arbitrary qualities of the death penalty are most clearly visible through the narrative comparison of crimes which do and those which do not receive death sentences." There is, he said, no principled way to distinguish between which is which.

Court Hearing Under Way on Constitutionality of Federal Death Penalty

A court hearing is under way in the capital trial of Donald Fell in a Vermont federal district court challenging the constitutionality of the federal death penalty. This week, death penalty experts testified for the defense about systemic problems Fell's lawyers say may render the federal death penalty unconstitutional. Fell was sentenced to death in 2006, but was granted a new trial because of juror misconduct. The hearing began on July 11 and is scheduled to continue until July 22. Judge Geoffrey W. Crawford, who is presiding over the hearing and is set to preside over Fell's second trial in 2017, said the hearing will, "create a rich, factual record for higher courts with broader authority to rule on the big questions." On Monday, Craig Haney, a psychology professor at the University of California Santa Cruz, discussed research on the effects of solitary confinement, the conditions under which Fell has been held on death row. "According to the National Commission on Correctional Health Care, anything greater than 15 days is inhumane, cruel and degrading treatment," Haney said. On Tuesday, Michael Radelet, a sociology professor at the University of Colorado, testified about the decline of the death penalty both in use and in public opinion, saying, "Attitudes toward the death penalty have changed more rapidly than any other social issue other than gay marriage." Radelet testified that research has disclosed no evidence that the death penalty deters murder or affects overall murder rates. He also emphasized the prevalence and causes of the 156 wrongful capital convictions as a major problem with capital punishment. “Last year six people were released, most having served 25 years. In 2014, seven were released from death row as innocent. One had been in for 30 years," he said. "The number one cause of error is prejudicial prosecutorial testimony. Prosecutorial misconduct, false confessions, fraudulent forensics.”

Judge Orders Evidentiary Hearing On Constitutionality of Federal Death Penalty

U.S. District Court Judge Geoffrey Crawford has ordered an evidentiary hearing on Donald Fell's (pictured) challenge to the constitutionality of the federal death penalty. In court filings seeking to bar federal prosecutors from seeking death against him in a pending retrial, Fell has argued that the federal death penalty constitutes cruel and unusual punishment in violation of the Fifth and Eighth Amendments to the U.S. Constitution. Among other grounds, he has asserted that the death penalty no longer comports with contemporaneous U.S. values and that there are significant racial and geographic disparities in the manner in which the federal death penalty has been applied. Fell was sentenced to death in Vermont on federal murder charges, a sentence he could not have received in state court because Vermont does not have the death penalty. His conviction was overturned because of juror misconduct, and he is facing a retrial in 2017. In the order calling for a hearing, Judge Crawford wrote, "Preliminarily, and with an open mind about the arguments recently made by both sides, the court is looking at the constitutional challenge to the death penalty." He said that, despite efforts in the 1970s to remedy constitutional problems, "40 years later the question of a systemic violation of the Eighth Amendment remains."

DPIC RESOURCES: New State Pages Now Available

DPIC is pleased to announce the completion of our State Information Pages for all 50 states and the District of Columbia.  These state profiles provide historical and current information on the death penalty for each state, including famous cases, past legislative actions, and links to key organizations and state officials.  For frequently updated information, such as execution totals, the size of death row, or the number of exonerations, see our State-by-State Database.  Readers are encouraged to send additional information, pictures, and links to organizations in their state.  You can reach the State Information Pages through the "State by State" button at the top of every page on our website or under the "Resources" tab in our main menu.

Defendants Begin Systemic Challenges to Constitutionality of Death Penalty

Lawyers for capital defendants and death row inmates across the country have begun to respond to what lawyers in one federal case described as the "clarion call for reconsideration of the constitutionality of the death penalty" issued by Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg in their dissenting opinion in June in Glossip v. Gross. Systemic challenges to the death penalty have been filed in a Vermont federal court and a Utah state trial court seeking hearings to present evidence that the death penalty is administered in a systemically cruel and unusual manner. A Pennsylvania defendant has likewise filed a petition in the U.S. Supreme Court seeking review of her claim that the death penalty is unconstitutionally arbitrary. Attorneys for Brandon Perry Smith allege that while their client and a very small number of other defendants face the death penalty for potentially capital crimes, approximately 150 Utah inmates received life sentences for similar offenses. They seek to depose all 29 of Utah's county attorneys to learn why prosecutors choose to seek the death penalty in certain cases but not others. Gary Pendleton and Mary Corporan, Smith's attorneys, wrote, "The infirmity of Utah's present scheme is apparent. The exercise of prosecutorial discretion becomes arbitrary and capricious by definition when the law establishes no basis for determining when a death-eligible murder, as defined by statute, is charged as a capital offense and when it is charged as a noncapital homicide." Citing the Glossip dissent, lawyers in the federal trial of Donald Fell in Vermont argue that the federal death penalty is unconstitutional because it is unreliable, arbitrary, and discriminatorily applied. They write that "Most places within the United States have abandoned its use under evolving standards of decency," and highlight evidence of significant racial and geographic inequities in the use of the federal death penalty, including that it is overwhelmingly imposed in a small number of states that are also disproportionately responsible for state death sentences. In Walter v. Pennsylvania, death-row prisoner Shonda Walter argues that the assumptions underlying the Supreme Court's reinstitution of the death penalty in the 1970s "have proved wrong, flawed, or illusory." She has asked the Supreme Court to review her claim that American "standards of decency have evolved to the point where the [death penalty] is no longer constitutionally sustainable." 

Sen. Leahy Introduces Bill to Reauthorize Justice for All Act

On February 1, Senate Judiciary Chairman Patrick Leahy (D-Vermont) introduced legislation (S. 250) that would reauthorize the Justice for All Act. The Act, first passed in 2004, provided important tools and assistance to help state and local governments use DNA evidence to convict the guilty and exonerate the innocent. It also bolstered crime victim support services. If re-authorized, the Justice for All Act would direct more resources to improving the quality of representation in state death penalty cases, adjust the requirements to obtain grants through the Kirk Bloodsworth Post-Conviction DNA Testing Grant program so that more states can apply, and allows post-conviction DNA testing at the federal level for defendants who waived their rights in a plea agreement. Senator Leahy said, “The programs created by the Justice for All Act have had an enormous impact, and it is crucial that we reauthorize them. Americans need and deserve a criminal justice system which keeps us safe, ensures fairness and accuracy, and fulfills the promise of our constitution. This bill will take important steps to bring us closer to that goal.” The bill is co-sponsored by senators Al Franken (D-Minn), Tom Harkin (D-Iowa) and Amy Klobuchar (D-Minn).  The National Fraternal Order of Police, the National Sheriffs’ Association, the National District Attorneys Association, and the National Criminal Justice Association have written letters supporting the legislation.

 

Jurisdictions with no recent executions

Although the United States is considered a death penalty country, executions are rare or non-existent in most of the nation: the majority of states—31 out of 50—have either abolished the death penalty or have not carried out an execution in at least 10 years. An additional 6 states have not had an execution in at least 5 years, for a total of 37 states with no executions in that time. Three additional jurisdictions (the District of Columbia, the Federal Government, and the Military) have not had an execution in at least 10 years.

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