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.

As part of the evi­den­tiary hear­ing, both sides pre­sent­ed evi­dence of declin­ing sup­port for the death penal­ty, agree­ing that sup­port has fall­en near­ly 20% since 1985. However, Judge Crawford ruled that the defense had not shown that there was a nation­al con­sen­sus against cap­i­tal pun­ish­ment. Ultimately, Judge Crawford wrote, ​“it remains very hard for any of us to tol­er­ate a legal regime which orders that one per­son should live and anoth­er should die based upon a selec­tion process which is demon­stra­bly flawed at the lev­el of jury decision-making.” 

Fell is sched­uled to go to tri­al in February 2017.