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).