ARBITRARINESS: One U.S. Attorney in Upstate New York Stands Out in Seeking Federal Death Penalty

The U.S. Attorney for Western New York has filed more potential federal death penalty cases than most of his colleagues across the country.  Since taking office in March 2010, William J. Hochul, Jr. has petitioned the Justice Department to seek the death penalty against 24 people, more than his counterparts in cities like Los Angeles, Chicago, Detroit, Miami or cities in Texas.  Only two other federal prosecutors, both from more populous districts than Western New York, have filed as many death cases with Attorney General Eric Holder in the past 2 years.  None of Hochul's cases has yet resulted in a capital trial, much less a death sentence, but they have cost taxpayers more than $661,000 just in the past year.  This expenditure is more than the combined amount spent by the area's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years.  Kevin McNally, who heads the Federal Death Penalty Resource Counsel Project said, "I seriously doubt whether any of [Hochul's] defendants will actually face the death penalty at trial."  The Department of Justice spends an estimated $86 million a year on federal death penalty cases.  Since the reinstatement of the federal death penalty in 1988, three defendants have been executed.  David Kaczynzki, a member of New Yorkers for Alternatives to the Death Penalty, said,  "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money."

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NEW VOICES: Rhode Island's Governor Explains His Resistance to Federal Death Penalty Case

Rhode Island Governor Lincoln D. Chafee (Indep.) recently explained his denial of a request to transfer Jason Pleau to the federal government for a potential death penalty prosecution.  Chafee stated, " As a matter of public policy, Rhode Islanders have long opposed the death penalty, even for the most heinous crimes.  To voluntarily let Mr. Pleau be exposed to the federal death penalty for a crime committed in Rhode Island would be an abdication of one of my core responsibilities as governor: defending and upholding the legitimate public-policy choices made by the people of this state."  In his op-ed in the Providence Journal, the governor noted that Pleau had offered to plead guilty to murder in state court and accept a sentence of life without parole. Chafee rejected the accusation that his actions were driven by a personal opposition to capital punishment. The governor noted that Rhode Island abolished the death penalty in 1852, although a very narrow death penalty statute was put in place afterwards.   That law was finally removed in 1984, and no executions occurred in Rhode Island after 1852.  Read full op-ed below.

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First Federal Death Sentence in Non-Death Penalty State Overturned

On August 3 the U.S. Court of the Appeals for the Sixth Circuit overturned the federal death sentence of Marvin Gabrion, who was convicted of a 1997 murder in a National Forest in Michigan.  Gabrion was the first defendant in the country to receive the federal death penalty for a crime committed in a non-death penalty state since the federal death penalty was reinstated in 1988.  All three members of the judicial panel upheld Gabriion's murder conviction, but two judges called for another sentencing trial because Gabrion's defense team was barred from telling jurors that he would not have faced the death penalty if he had been prosecuted in state court because Michigan does not allow capital punishment. The court held that such information could have served as a mitigating factor, perhaps convincing some jurors not to vote for death.  In deciding Gabrion's direct appeal, the court wrote, "The case was not brought to serve a special national interest like treason or terrorism different from the normal state interest in punishing murder. The jury should be given the opportunity to consider whether one or more of them would choose a life sentence rather than the death penalty when the same jury considering the same defendant's proper punishment for the same crime but prosecuted in Michigan state court could not impose the death penalty."  The federal government had jurisdiction over the crime because the victim's body was found in a portion of a lake in Manistee National Forest that is federal property.  Gabrion was the first person to receive a death sentence in Michigan since 1937.

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DPIC RESOURCE: The Military Death Penalty

The capital arraignment on July 20 of Army Major Nidal Hasan for the murder of 13 people at Fort Hood, Texas, in November 2009 has brought attention to the death penalty in the United States Military. There are currently six inmates on the military death row, which is located in Fort Leavenworth, Kansas. In the last two years, four men have been removed from the military death row after their sentences were reduced to life. The Uniform Code of Military Justice allows the death penalty for 15 offenses, but all current inmates were convicted of premeditated murder or felony murder. Unlike state executions, members of the military cannot be executed unless the President personally confirms the death sentence. A military jury in a capital case must be unanimous in both its verdict and the sentence.  The last military execution took place 50 years ago, on April 13, 1961. U.S. Army Private John A. Bennett was hanged after being convicted of rape and attempted murder. 

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Expensive Federal Death Penalty Case Ends with Life Without Parole

On June 1, a unanimous jury in a federal death penalty prosecution in New York voted to impose a life sentence on Vincent Basciano, an organized-crime leader who had earlier been convicted of murder, racketeering, and conspiracy. The prosecutors’ lead witness against Basciano was Joseph Massino, a former crime boss who agreed to cooperate with the government in order to escape a death sentence for his own crimes. The federal government sought the death penalty for Basciano, who was already serving a sentence of life without parole, despite a request from the trial judge who asked the Department of Justice to reconsider seeking the death penalty because of its high costs and the likelihood that Basciano would spend the rest of his life in prison regardless of the outcome.  At the time of the judge's request, the case had already cost taxpayers $3 million, and the ultimate bill was estimated to be as high as $10 million. After a short deliberation, the jury opted for life without parole because they did not believe the prosecutors’ arguments that Basciano posed a future threat and because other crime figures convicted of worse crimes did not get the death penalty.

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COSTS: Federal Government Spending Millions Pursuing Death Penalty for Inmate with Life Sentence

An expensive federal death penalty trial under way in New York illustrates many of the concerns about such prosecutions.  New York is a state that no longer has its own death penalty.  Nevertheless, the federal government is seeking a death sentence for Vincent Basciano, who is already serving life without parole.  Because the death penalty is being sought, the case has already costs millions of dollars and the final bill will likely be $10 million or more.  Moreover, the chief witness against Basciano is another mob figure, Joseph Massino, himself guilty of at least seven murders but who escaped the death penalty because of his cooperation with the government.  Jim Dwyer, columnist for the New York Times, pointed out, "Before one syllable was heard from the first witness, the judge had approved payments for Mr. Basciano’s defense approaching $4 million; it is likely that similar costs could be attributed to the team of prosecutors. Now that testimony has begun, his publicly paid defense lawyers, plus investigators, were in court on Tuesday; so were four assistant United States attorneys, along with two F.B.I. agents. In addition to the legal costs, there are administrative expenses in running a trial: 1,000 potential jurors were screened for the case; federal marshals are protecting the turncoat mob boss under tight security; and the jurors hearing the case are anonymous and are being provided with protection and escorts to their homes."  In 2010, the judge overseeing Basciano’s trial asked U.S. Attorney General Eric Holder to reconsider seeking the death penalty, given the costs and the fact that the defendant would never be released.  

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STUDIES: USA Today Investigation Reveals Prosecutorial Misconduct in Federal Cases

An in-depth investigation conducted by USA Today found 201 criminal cases in which federal judges determined that U.S. Department of Justice prosecutors violated laws or ethics rules, including the recent prosecution of Senator Ted Stevens of Alaska. The investigation looked at cases since 1997, when Congress enacted a law aimed at ending prosecutorial misconduct. Some of the violations reviewed by USA Today resulted in judges throwing out charges, overturning convictions or rebuking prosecutors. Of the 201 cases, 47 ended in the exoneration and release of the defendant after the violations surfaced. Nino Lyons, for example, was convicted of drug trafficking based on suspicious testimony by prison inmates who were promised early release in exchange for their cooperation. By luck, one of Lyons’s lawyers discovered a discrepancy in one of the witness’s testimony. This led him to hundreds of pages of reports that the prosecution never disclosed.  Lyons’s conviction was overturned and he was declared innocent. In another case, federal courts blocked prosecutors from seeking the death penalty for a fatal robbery because prosecutors failed to turn over evidence. Bennett Gershman, an expert on prosecutorial misconduct, told USA Today that the abuses are becoming systemic and that the system is not able to control such behavior.  With respect to consequences for prosecutors who break the rules, the paper could identify only one federal prosecutor who was barred even temporarily from practicing law for misconduct during the past 12 years.

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ARBITRARINESS: Contract Killer Spared the Death Penalty Despite Seven Murders

Although the death penalty is often described as being reserved for the "worst of the worst" offenders, in practice defendants responsible for many murders are often spared while those who committed arguably lesser offenses are executed.  Oscar Veal  was a contract killer for a large drug ring and murder-for-hire operation. He was convicted of seven counts of murder and eight counts of racketeering conspiracy. However, in exchange for testimony about a drug organization in Washington, D.C., federal prosecutors agreed not to seek the death penalty against Veal.  According to the prosecutors, “[Veal] willingly and purposely killed seven men, motivated by both greed and the desire to please the other members of this violent gang,” but called his cooperation "extraordinary by any measure," and recommended a sentence of 25 years in prison.  Veal's attorney cited other examples in which sentences were reduced in exchange for valuable information.  Phillip "Crazy Phil" Leonetti, a member of  the Philadelphia mob served just 5 years despite a criminal record that included 10 murders, after cooperating with officials.  Salvatore "Sammy the Bull" Gravano, a well-known criminal who cooperated with the government, was sentenced to only 5 years despite his involvement in 19 murders and other crimes.

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Two New Federal Death Sentences in Non-Death Penalty State

On May 29, 2007, a jury in Charleston, West Virginia, recommended death sentences for George Lecco and Valerie Friend for the murder of Carla Collins in order to protect their drug ring.  Prosecutors maintained that Lecco arranged to have Collins killed and that Friend did the shooting in 2005.  Formal sentencing was scheduled for August 23.  The judge is required to follow the jury's recommendation.  These are the first federal death sentences in West Virginia since the federal law was reinstated in 1988.  (Charleston Daily Mail, May 29, 2007).  West Virginia is the sixth state without its own death penalty to have a federal death sentence handed down.  All such sentences have come since 2000.  Valerie Friend will be the second woman on federal death row. 

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