Concerns about the Use of the Federal Death Penalty in Puerto Rico Continue

Although no jury has returned a death sentence in a federal case in Puerto Rico in modern times, more cases are pending, raising concerns among many citizens.  Puerto Rico bars the death penalty in its constitution.  However, a U.S. Court of Appeals decision in 2001 held that the federal death penalty can be applied there.  This decision overturned a lower court that ruled the use of the federal death penalty in the Commonwealth would be unconstitutional.  The issue has not been reviewed by the U.S. Supreme Court.  "It’s still an open issue for the U.S. Supreme Court to decide," said death penalty counsel William Matthewman.  Opponents of the death penalty point to the fact that American Indian tribes get to choose whether the federal death penalty applies on their land.

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NEW RESOURCES: "When the Federal Death Penalty is 'Cruel and Unusual"

A recent law review article by Prof. Michael Mannheimer of the Salmon P. Chase College of Law argues that the federal penalty may violate the Eighth Amendment's proscription against cruel and unusual punishments when it is used in states that do not have the death penalty. Prof. Mannheimer explores the strain of the Eighth Amendment's history that is specifically concerned with limiting the federal government's power to interfere with the norms of individual states. He also notes that there has recently been a marked increase in the use of the federal death penalty in non-death penalty states.
(M. Mannheimer, "When the Federal Death Penalty is 'Cruel and Unusual,'" 74 U. of Cincinnati Law Review 819 (2006)). Read the full article HERE. See Federal Death Penalty and Law Reviews.

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FEDERAL DEATH PENALTY: Judge Rules Defendants Can Confront Sentencing Witnesses

A federal judge presiding over the Aryan Brotherhood murder trial in Santa Ana, California, has ruled that the Sixth Amendment to the U.S. Constitution, which requires that defendants be given the opportunity to confront and cross examine witnesses testifying against them at trial, applies to at least part of the federal death penalty sentencing procedure as well.  The U.S. Supreme Court ruled in 2004 in Crawford v. Washington that testimonial evidence from a person against a defendant cannot simply be presented in the form of a document, but instead the witness must be present for cross examination.  U.S. District Judge David Carter ruled that Crawford applies to federal death penalty sentencing, as well.  "Because the death penalty is uniquely different in its finality and severity, increased scrutiny is required at every step of the capital process to ensure that death is the appropriate penalty," Carter wrote.  Some of the government's evidence relies on incidents that occurred 30 years ago, and it did not plan to present witnesses to back up all of its case.

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Federal Death Penalty Is Focused on New York--Almost All Defendants From Minorities

Although New York's death penalty was overturned by the state's high court in 2004, and the legislature has not reinstated it, the federal government has sought the death penalty more in New York than in any other state except Virginia.  However, none of the federal cases has resulted in a death sentence.

Since the federal death penalty was reinstated in 1988, thirty-seven federal capital cases have been authorized in New York, compared with 50 in Virginia and 385 nationwide, according to data from the Federal Death Penalty Resource Counsel Project.  Of the 37 capital cases in New York, 14 were resolved before going to trial.  Of the 13 cases that have gone to trial, none resulted in a death sentence.  Instead, defendants were sentenced to life without parole.

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RAND Study Finds No Federal Race Bias in Death Penalty From 1995 to 2000

A recent RAND Corporation study of the federal death penalty from 1995 to 2000 found no evidence of racial bias. Even though the investigators found that the death penalty was more often sought against defendants who murdered white victims, researchers ultimately concluded that the characteristics of the crime, and not the racial characteristics of the victim or the defendant, could be used to make accurate predictions of whether federal prosecutors would seek the death penalty. The RAND study examined the files of 652 defendants who were charged with capital offenses while Janet Reno was U.S. Attorney General (between January 1, 1995 and July 31, 2000).

"Our findings support the idea that race was not a factor in the decision to seek the death penalty once we adjusted for the circumstance of the crime," noted Stephen Klein, a RAND senior research scientist and co-leader of the project.

The authors of the study noted its limitations:

[T]he three teams agreed that their analytic methods cannot provide definitive answers about race effects in death-penalty cases. Analyses of observational data can support a thesis and may be useful for that purpose, but such analyses can seldom prove or disprove causation.
. . .
In summary, given the inherent problems in using statistical models under these circumstances, our results need to be interpreted cautiously. There are many reasonable ways to adjust for case characteristics, but no definitive way to choose one approach over another. Bias could occur at points in the process other than the ones studied, such as the decision by federal prosecutors to take a case. Results could be different with other variables, methods, and cases.  Extrapolating beyond the data we analyzed here to other years, other defendants, other points in the decisionmaking process, or other jurisdictions would be even more problematic.

(Executive Summary).

The RAND report notes that U.S. attorney offices in the South forwarded the majority of the 652 cases sent to Reno for review, and this region accounted for about half of the recommendations to seek the death penalty. After reviewing the cases, Reno decided to seek the death penalty for 25% of the 600 defendants she considered. Approximately 50 defendants reached plea agreements after their cases were submitted by U.S. attorneys, but before the attorney general made a decision about whether to seek the death penalty. Most of the homicide cases that were studied were within the same racial group. For example, white defendants were more likely to kill white victims than African Americans or Hispanics.

(RAND Corporation Press Release, "RAND Study Finds No Evidence of Racial Bias in Federal Prosecutors' Decisions to Seek Death Penalty From 1995-2000"). Read the study

See Federal Death Penalty, Arbitrariness, and Race.  At present, there are 44 defendants in the federal system who have received a death sentence--59.1% are members of a  minority race.  Most murders in the U.S. do not enter into the federal system because a decision is made to allow for state prosecution.


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Federal Jury Gives Moussaoui Life in Prison Without Parole

A federal jury voted today that Zacarias Moussaoui should serve a sentence of life in prison without parole despite the government's assertion that his lies to FBI officials contributed to the terrorist attacks of September 11, 2001.  Earlier the jury had found that Moussaoui was responsible for some of the deaths that took place on September 11, and that he was eligible for the death penalty. After weeks of testimony during the sentencing phase of the trial, the jury took 7 days to recommend a sentence of life without parole. In their verdict, the jury unanimously agreed that Moussaoui "knowingly created a grave risk of death" for more than the intended victims of September 11th, and that he committed his acts with "substantial planning," two of the aggravating factors listed in the death penalty statute.

Moussaoui's defense team, with whom he did not cooperate, argued that he is a delusional schizophrenic. They maintained that Moussaoui took the witness stand to confess his role in the September 11 attacks because he wanted to achieve martyrdom through execution. During the sentencing phase, jurors heard testimony from victims' family members, some of whom supported and some who opposed the death penalty for Moussaoui, from mental health experts, and others who were directly impacted by the events of 9/11.

Following the verdict, Terry Rockefeller, whose sister was killed in the World Trade Center attacks, noted, "Had the jury sentenced Zacarias Moussaoui to death we would have turned a man with long-term mental health problems, whose direct responsibility for the 9/11 attacks are tenuous, into a martyr. Evidence introduced during the trial cast significant doubt on Moussaoui’s importance within al Qaeda. . . . [M]ost fundamentally, I oppose the death penalty because I do not want to be the citizen of a state that kills. I do not want to be a party to more violence and killing."

The attacks took the lives of nearly 3,000 people and were the deadliest terrorist attack in U.S. history. The Alexandria courthouse where the trial was held is just miles away from the Pentagon, where one of the 9/11 attacks occured. Federal judge Leonie Brinkema is expected to impose the life sentence on Thursday, May 4.

(CNN & Associated Press, May 3, 2006, and Statement issued by Terry Rockefeller, May 3, 2006). Read the Jury's Verdict Form.  See Federal Death Penalty and Arbitrariness.

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Juries Choosing Death Penalty Less Often in Federal Cases

The percentage of federal death penalty cases resulting in death sentences has declined from the 1990s to the present.  Since 1991, juries chose a death sentence in 51 cases compared with 93 cases that ended with a sentence of life in prison, according to Federal Death Penalty Resource Counsel, a rate of 35% for death sentences.  Since 2000, juries have returned 29 death sentences and 69 life sentences, a rate of 30%. 

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NEW VOICES: Senior Counsel to 9/11 Commission Questions Death Penalty for Moussaoui

In a recent New York Times op-ed, John Farmer, senior counsel to the 9/11 commission and a former New Jersery attorney general, states that seeking the death penalty for Zacarias Moussaoui detracts from U.S. efforts to seek justice against senior Al Qaeda officials who plotted and carried out the 9/11 attacks. Farmer claims Moussauoi, who was in jail as terrorists plotted and carried out the events of 9/11, was not the "20th hijacker" and is a "poor stand in" for more senior level Al Qaeda leaders who are also in U.S. custody:

Through a perverse confluence, Mr. Moussaoui's interest in becoming something in death that he never was in life — important — has combined with the government's interest in executing someone for the 9/11 attacks. The likely result is an odd form of assisted suicide, in which Mr. Moussaoui will claim martyrdom as he is executed, and the United States will claim that the rule of law has been vindicated by bringing a terrorist to justice for 9/11.

Neither claim will be justified. . . .

Zacarias Moussaoui is evil, and there is no doubt that he arrived here determined to kill Americans, but he was not a leader of Al Qaeda. He was not even, as initially reported, the "20th hijacker." He was not in contact with the 9/11 hijackers in the United States. His apprehension in late August 2001 did nothing to disrupt the plot's timing. He sat in jail while the attacks unfolded.

Based on his conduct, he should sit in jail some more. Six floors underground, with one hour outside his cell per week. For, oh, 50 more years or so. He should die there, frustrated and forgotten, embittered and anonymous. This could have been achieved without the catharsis of the penalty hearing.

(New York Times, April 11, 2006).  See Federal Death Penalty, New Voices, and DPIC's page on September 11, 2001.


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NEW VOICES: Mother of September 11 Victim Opposes Death Penalty for Moussaoui

Alice Hoagland's son, Mark Bingham (pictured), was killed on September 11 as he joined with fellow United Airlines passengers to ground a plane that may have been headed toward the White House. Hoagland is urging a life sentence for Zacarias Moussaoui, who faces the death penalty for his role in the terrorist events of that day. In an interview with The Advocate, Hoagland noted that sparing Moussaoui's life would honor "a reverence for all life" and that it would prevent some from viewing him as a martyr. Hoagland, a former flight attendant who is now active in transportation safety issues, stated:

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Does Killing Really Give Closure?

March 26, 2006

Does Killing Really Give Closure?

By Dahlia Lithwick

The past few weeks have been rife with the prospect of closure denied.

The families of Slobodan Milosevic's tens of thousands of victims were ostensibly denied closure when he died before the conclusion of his war crimes tribunal. The decision over where to try exiled Liberian ruler Charles Taylor turns largely on how to afford closure to his victims. And the families of those killed in the Sept. 11, 2001, attacks despaired that government misconduct had ended not only the prosecution, but also their one chance at closure. "I felt like my heart had been ripped out," said Rosemary Dillard, whose husband died in the attack on the Pentagon. "I felt like my husband had been killed again."

The death penalty trial of Zacarias Moussaoui has been touted by the government as a way to bring resolution to bereft families. Hundreds watch the proceedings on remote, closed-circuit televisions. Dozens will testify about their losses. This will be their "day in court." Since as far back as 2002, when then-Attorney General John D. Ashcroft announced he'd seek the death penalty for Moussaoui to "carry out justice," it's been assumed that this outcome would bring closure. Just as, in 2001, when Ashcroft decided that family members of the Oklahoma City bombing victims could witness the execution of Timothy McVeigh on closed-circuit television, he said it would "meet their need for closure."

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