STUDIES: Racial and Geographic Disparities in the Federal Death Penalty

A new study published in the Washington Law Review addresses the racial and geographical disparities in the implementation of the federal death penalty. The study, conducted by G. Ben Cohen, Counsel for the Capital Appeals Project in New Orleans, and Robert J. Smith, Counsel for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, concludes that the disparities in the federal death penalty may exist because federal cases do not use a county-level jury pool but instead employ a wider pool from the federal-district level, resulting in the dilution of minority representation in the jury pool. According to the authors, “Capital verdicts become separated from the moral judgments of the community when [there are] fewer minority group members in the jury pool.” They proposed utilizing a county-level jury pool as is done in state cases: “If federal capital juries come from the county where the offense occurred, then prosecutors are left to determine whether to seek the death penalty based on the relative federal interest in the crime (and not the prosecutorial interest to secure a death sentence by any means possible). This solution is also more democratic—the citizens most impacted by the effects of high crime, overly aggressive policing, or poor public policy are the decision-makers responsible for redressing those harms.”

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NEW RESOURCES: Costs of Representation in Federal Death Penalty Cases

A recent report to the Committee on Defender Services of the Judicial Conference of the United States by Jon Gould and Lisa Greenman provided an update on the costs of representation in federal death penalty cases.  The report examined all cases in which the federal death penalty was authorized by the U.S. Attorney General between 1998 and 2004.  The authors found that "The median cost of a case in which the Attorney General authorized seeking the death penalty was nearly eight times greater than the cost of a case that was eligible for capital prosecution but in which the death penalty was not authorized."  (emphasis added). The report found that the median cost for defense representation in a death case that went to trial was $465,602, including $101,592 for experts.  If the authorized case was settled by a plea, the median cost was $200,933, still far greater than the median cost of a death-eligible case in which the death penalty was not sought-- $44,809.  In other words, it is the seeking of the death penalty that considerably raises the costs, even if the case results in a plea bargain and no trial.  These figures do not include prosecution and judicial costs .

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Federal Inmate Faces Execution Despite Clear Evidence of Intellectual Disability

Bruce Webster faces a federal execution despite new evidence--including evaluations by three doctors--indicating he is intellectually disabled. Although the U.S. Supreme Court banned the execution of the “mentally retarded” (now referred to as “intellectually disabled”) in 2002, the U.S. Court of Appeals for the Fifth Circuit in April denied Webster’s request for a hearing on his mental capacity claim. The court found that Webster had exhausted all his appeals and that the court could not consider new evidence unless it related to Webster's innocence.  The fact that the new evidence would make him ineligible for the death penalty under the constitution was insufficient to grant him a hearing.  Judge Jacques Wiener, writing for the Fifth Circuit, contended that the court was limited because Congress passed the Anti-Terrorism and Effective Death Penalty Act in 1996: “We today have no choice but to condone just such an unconstitutional punishment.” The judge agreed that the evidence would show that Webster was intellectually disabled, "If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded." David Bruck, a death penalty expert at Washington and Lee University law school said, "It's an outrageous situation. Sometimes the law just doesn't fit the facts. This is one of those times."

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Federal Judge Asks U.S. Attorney General to Re-consider Death Penalty Over Costs

United States District Court Judge Nicholas Garaufis recently wrote a letter to U.S. Attorney General Eric Holder asking that the government reconsider seeking the federal death penalty in the trial of a reputed mob boss.  According to Judge Garaufis's letter, preparations for the murder trial of Vinny Basciano in Brooklyn, N.Y., have already cost the government over $3 million in legal fees since 2005, and the trial proceedings have not yet begun. "Current circumstances require a candid reappraisal of whether the resources necessary for a death-penalty prosecution should be devoted to this case," Garaufis wrote. The defendant is already serving a life sentence without parole for the murder of another rival.

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LAW REVIEWS: Challenging the Constitutionality of the Federal Death Penalty

A recent article in the Akron Law Review asks whether the Federal Death Penalty Act (FDPA) is in compliance with the Sixth Amendment's right to confront witnesses because it allows hearsay evidence in determining whether a defendant is eligible for the death penalty. During a typical criminal trial, the accused has the right to challenge and cross examine the testimony of state witnesses who must appear in person.  But in a death penalty case, the FDPA allows statements of witnesses not present in the courtroom to be used to determine whether the defendant's case fits one of the aggravating factors necessary for a death sentence.  The article's authors, Michael Pepson and John Sharifi, write: "[A]llowing the government to prove statutory aggravating factors … with testimonial hearsay, even where the defendant has never had an opportunity to cross-examine the declarant(s), is not constitutional."  The authors suggest two constitutional alternatives: doing away entirely with the FDPA or revising the law to include the aggravating-factor determination in the guilt phase of the trial, subject to the usual rules of evidence. This would allow federal capital defendants to confront witnesses regarding the critical question of whether they are eligible for a death sentence.

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