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.”

(W. Ring, ​“Judge in Fell case accepts chal­lenge of law,” Associated Press, February 10, 2016; W. Ring, ​“Donald Fell fights death penal­ty law,” Associated Press, November 17, 2015.) Read Donald Fell’s Motion to Bar Death Penalty here. See Arbitrariness.

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