Another Judge Rules Federal Death Penalty Unconstitutional
“MONTPELIER, Vt. (AP) - A federal judge declared the federal death penalty unconstitutional Tuesday in the second such ruling in less than three months.

U.S. District Judge William Sessions said the law does not adequately protect defendants’ rights.

“If the death penalty is to be part of our system of justice, due process of law and the fair trial guarantees of the Sixth Amendment require that standards and safeguards governing the kinds of evidence juries may consider must be rigorous, and constitutional rights and liberties scrupulously protected,” he said.

In July, U.S. District Judge Jed Rakoff in New York City became the first federal judge to declare the 1994 Death Penalty Act unconstitutional. He cited evidence indicating that innocent people have been put to death.” (Associated Press, Sept. 24, 2002).

Today’s ruling, in the case of U.S. v. Donald Fell, No. 2:01-CR-12-01 (District Court of Vermont), is based on the U.S. Supreme Court’s decision in Ring v. Arizona holding that certain elements of the death penalty sentencing process are equivalent to a finding of guilt. Judge Sessions therefore concluded that the same rules of evidence should apply to determining death eligibility as are applied to the guilt-innocence phase of the trial. This ruling only applies to this defendant until it is upheld or overturned by a higher federal court.

Judge Declares Federal Death Penalty Unconstitutional
Federal District Court Judge Jed Rakoff has ruled that the federal death penalty is unconstitutional, and it can not be sought in the case before him, U.S. v. Quinones, because the demonstrated risk of executing an innocent person is too great and violates substantive due process. Read the ruling. See also, Innocence.

Attorney General Ashcroft Aggressively Seeking Capital Convictions
The Washington Post recently reported that Attorney General John Ashcroft has been twice as likely as his predecessor to reverse recommendations of federal prosecutors and to order them to seek the death penalty in cases where they had recommended against doing so. In addition, racial disparities have continued to be a problem under Ashcroft’s direction. The Justice Department has sought the death penalty against three times as many black defendants accused of killing whites as blacks who allegedly murdered non-whites. In a follow-up study to a review released last summer, the Justice Department is continuing to study the issues of racial and geographic disparity that have consistently plagued the department’s application of capital punishment since the federal death penalty statue was enacted in 1988. (Washington Post, July 1, 2002). Read the article. See also, DPIC’s Press Release.

First Federal Death Sentence in Non-Death Penalty State
On March 16, 2002, Marvin Gabrion was sentenced to death for a 1997 murder in Michigan’s Manistee National Forest. Although Michigan does not have the death penalty, Gabrion was sentenced under the federal system because the victim was killed on federal property. (Associated Press, 3/16/02) Gabrion’s case marks the first federal death sentence imposed on a defendant in a state that does not have the death penalty since the federal death penalty was reinstated. In Texas, another man, Julius Robinson, was sentenced to the federal death penalty on March 18.

Jury Returns Life Sentence for Second Embassy Bomber
A federal jury in New York deadlocked on a sentence for Khalfan Khamis Mohamed for his role in the 1998 bombing of the U.S. Embassy in Tanzania that killed 11 people and hence he will be sentenced to life without parole. The same jury spared the life of Mohamed’s co-defendant, Mohamed Rashed Daoud Al-‘Owhali, last month when they deadlocked on whether to impose the death penalty in his case. Without a unanimous verdict, Al-‘Owhali could not receive the death penalty.
In Mohamed’s case, the jurors could not agree that the death penalty was appropriate. Among the reasons cited by the jurors for Mohamed’s life sentence were that he was not the leader of the conspiracy, that equally or more culpable conspirators did not receive the death penalty and that execution could make Mohamed a martyr. In addition, all 12 jurors believed that executing Mohamed would cause his family to suffer grief and loss. (CNN.com, 7/10/01)

Prominent Citizens’ Group Voices Concern About Garza Execution; Justice Department Orders Further Study of Federal Death Penalty
Citizens for a Moratorium on Federal Executions (CMFE), a Washington-based group of prominent citizens concerned about the death penalty, criticized the recent execution of federal death row inmate Juan Raul Garza. Prior to the execution, the group called on President Bush to halt federal executions until questions about its disparate application could be resolved. Garza - a Hispanic man convicted in Texas - was executed on June 19, 2001, despite serious questions about whether the federal death penalty is racially and geographically biased. “Mr. Garza’s execution should have been delayed to permit the full investigation of the troubling evidence that mars the federal death penalty process,” CMFE said in a recent press release.
Last year, a Justice Department study found racial and geographic disparities in the federal death penalty, but a recent follow-up report under Attorney General Ashcroft concluded that there was no bias. The report was widely criticized, and Senator Russell Feingold (D-Wisconsin) chaired a Senate judiciary sub committee hearing to address the issue. Following the hearing, the Justice Department announced that a more comprehensive follow-up study of the federal capital punishment system would be completed by the National Institute of Justice. The comprehensive review will attempt to explain the current racial and geographic statistical disparities in cases where federal prosecutors seek the death penalty. (CMFE Press Release, 6/19/01 and New York Times, 6/14/01) Read the new Justice Department study, the September 2000 study, and testimony from the Senate hearing.

Terrorist in Embassy Bombing Will Get Life Sentence
A federal jury in New York deadlocked on whether to impose the death penalty in the case of Mohamed Rashed Daoud al-‘Owhali, convicted last month of 213 counts of murder in the 1998 bombing of the American Embassy in Kenya. Because federal law requires a unanimous verdict for the death penalty, al-‘Owhali will be sentenced to life imprisonment without possibility of parole. Among the reasons cited by the jury forewoman for the impasse included the fear of making al-Owhali a martyr and the feeling among jurors that “life in prison is a greater punishment since his freedom is severely curtailed.” Al-‘Owhali will be formally sentenced on September 12.
The sentencing trial for Khalfan Khamis Mohamed, another defendant convicted in the embassy bombings, is currently underway. The judge in that case ruled that Mr. Mohamed’s lawyers may inform the jury of a recent ruling by South Africa’s highest court that Mohamed was illegally sent to the U.S. after his arrest. (New York Times. 6/13/01)

Justice Department Releases New Race Data as Federal Executions Near
The Justice Department has released a study five days before the first federal execution in 38 years claiming that there is no racial bias in federal capital prosecutions. The report is a follow-up to a study released last year by the Justice Department that found racial and geographic disparities in the federal death penalty. James Alan Fox, a criminologist at Northeastern University, said that the survey does little to answer the basic question of bias. “The prosecutorial decision-making here is what needs to be reviewed,” Fox said. “The problem may well be at the front end, and this seems to ignore that.” (Washington Post, 6/7/01)
Criticism of the new study also came from U.S. Senator Russ Feingold (D-Wisc.), who stated:

The supplemental report released yesterday lacks credibility: It is a case of “we looked at ourselves and there’s no evidence of bias.” Instead of completing a thorough analysis of the racial and regional disparities with outside experts, as outlined by Attorney General Reno, Attorney General Ashcroft collected the additional data – also ordered separately by Attorney General Reno – threw in some statements that there is no evidence of bias and then simply released it as a supplemental report. This report does not dig behind the raw data in the way that an in-depth research and analysis could do.

The supplemental report released yesterday lacks credibility: It is a case of “we looked at ourselves and there’s no evidence of bias.” Instead of completing a thorough analysis of the racial and regional disparities with outside experts, as outlined by Attorney General Reno, Attorney General Ashcroft collected the additional data - also ordered separately by Attorney General Reno - threw in some statements that there is no evidence of bias and then simply released it as a supplemental report. This report does not dig behind the raw data in the way that an in-depth research and analysis could do.

Read Senator Feingold’s complete statement, and comments from Professor David Baldus in response to the Justice Department’s study.

Court Rules Death Penalty Applies in Puerto Rico
A federal appeals court in Boston held that the federal death penalty applies in Puerto Rico. The ruling overturns a district court decision last year that held the death penalty could not apply because citizens of Puerto Rico cannot vote in Congressional elections, and thus have no voice on the issue.

Conservative Leaders Join Moratorium Group in Urging President Bush to Suspend Federal Executions
Citizens for a Moratorium On Federal Executions (CMFE), a Washington-based group of prominent citizens concerned about the death penalty, sent a letter to President Bush this week calling for a halt to federal executions until lingering questions about its fairness can be resolved. The letter was signed by both well-known death penalty opponents and conservative leaders such as Emmett Tyrell Jr., editor in chief of The American Spectator and John Whitehead, founder of the Rutherford Institute. In light of last year’s Justice Department finding of racial and geographic disparities in the federal death penalty, those signing the letter to the new Administration noted the need for further study to ensure evenhandedness in its application of capital punishment. With the possibility of a stay in the McVeigh case, the CMFE focused on the case of Juan Raul Garza, who may be the first federal inmate executed since 1963. Garza, an Hispanic man convicted of murder in Texas, is scheduled to be executed on June 19. Last December, he received a stay of execution from President Clinton to allow further investigation of the disparities reported by the Justice Department. A follow-up study has yet to be released. Garza is seeking clemency from President Bush on the grounds that his death sentence may have been “based on his ethnicity or state of prosecution.” (ABC News.com 6/4/01) Read the letter to President Bush.

Justice Department May Again Release Crucial Information Days Before Federal Execution
Juan Raul Garza, who is scheduled to be executed on June 19th, filed a revised clemency petition asking President Bush to commute his sentence to life without parole. Last year, President Clinton granted Garza a six-month stay to allow for further investigation of the federal death penalty following a Justice Department study that found racial and geographic disparities. “[T]he examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department’s study,” said Clinton. However, no report on any further examination has been issued with the execution less than 30 days away. Garza is a Mexican-American who was prosecuted in Texas, one of the few states responsible for more than half of federal capital prosecutions.
Garza’s clemency petition also cites an Inter-American Commission on Human Right’s report finding that executing Garza would violate U.S. treaty obligations, and recommending that Bush commute Garza’s sentence. Another issue raised in the clemency petition is whether the jury instruction in Garza’s case was unconstitutional in light of a recent Supreme Court case holding that jurors are entitled to know that, if a sentence of death is not handed down, a defendant will be sentenced to life without the possibility of parole. Garza is the only federal death row inmate whose jury did not receive this instruction. (Texas Defender Service Press Release, 5/21/01) Read the Press Release and Garza’s clemency petition.

Federal Execution Delayed
David Paul Hammer, who was scheduled to be the first federal prisoner executed since 1963, was granted a stay to file a federal appeal by January 31, 2001. Previously, Hammer had waived his right to appeal. His execution date had been set for Nov. 15, 2000. (The Oklahoman, 11/1/00) Juan Garza from Texas is still scheduled to be executed under federal authority on June 19, 2001.

Racial Disparity in Federal Death Penalty Plea Agreements
According to data collected by the Federal Death Penalty Resource Counsel Project, white defendants are more likely than black defendants to receive plea agreements in federal death penalty cases. An analysis of 146 cases prosecuted since Congress reinstated the federal death penalty in 1988 shows that while 60% of white defendants have avoided capital punishment through plea bargaining, only 41% of black defendants have reached the same agreements with federal prosecutors. (Chicago Tribune, 7/24/00)

Judge Rules Puerto Rico Not Subject to Federal Death Penalty
U.S. District Judge Salvador Casellas ruled that the federal death penalty cannot be applied in Puerto Rico because residents there have no voting representation in Congress, which passed laws reinstating the federal death penalty. “It shocks the conscience to impose the ultimate penalty, death, upon American citizens who are denied the right to participate directly or indirectly in the government that enacts and authorizes the imposition of such punishment,” wrote Casellas. U.S. Attorney Guillermo Gil said his office will ask the solicitor general to appeal. Puerto Rico’s Constitution prohibits the use of the death penalty, and the U.S. territory has not executed anybody in 73 years. (Orlando Sentinel, 7/19/00)

Clinton Questions Federal Death Penalty
At a White House new conference, President Clinton expressed his concern about the death penalty:

“I am concerned also at the federal level…

…

The issues at the federal level related more to the disturbing racial composition of those who’ve been convicted. And the apparent fact that almost all the convictions are coming out of just a handful of states. Which raises the question whether, even though there’s a uniform law across the country, what your prosecution is may determine, may turn solely on where you committed the crimes. So we, I’ve got a review underway of both those issues at this time.”

(New York Times, 6/29/00).