An
Overview of the Federal Death Penalty Process
by Dick Burr, David Bruck & Kevin McNally
Federal
Death Penalty
|
September
8, 2004
Since 1988, the federal government has taken to trial a total of 98
federal death penalty cases involving 148 defendants in 112 trials. These
148 defendants were culled from larger pool of 324 against whom the
Attorney General had authorized the government to seek the death penalty.
A substantial proportion of these 324 defendants avoided trial by
negotiated plea, or when the government either dropped its request for the
death penalty, or dismissed charges entirely. Eleven were found not guilty
of the capital charge. Two were declared innocent. One was granted
clemency. There have been three executions. In cases where juries actually
reached the point of choosing between life and death, they imposed 70 life
sentences and 40 death sentences. The dispositions of these cases
is summarized below:
|
Executed
|
3
|
|
Sentenced
to death and now pending on appeal or post-conviction
|
32
|
|
Clemency
|
1
|
|
Awaiting
retrial or re-sentencing after reversal on appeal
|
0
|
|
Death
sentence vacated and request for the death penalty withdrawn
|
2
|
|
Death
sentence vacated and NOI dismissed by judge
|
2
|
|
Life
sentences imposed by juries. (One life sentence imposed by judge)
|
70
|
|
Acquittal
|
11
|
|
Capital
charges dismissed before trial on grounds of actual innocence
|
3
|
|
Dismissal
of death penalty by Judge after death notice filed
|
14
|
|
Requests
for the death penalty withdrawn by the government before trial
|
25
|
|
Requests
for the death penalty withdrawn at trial
|
4
|
|
Capital
prosecution discontinued by government due to plea bargain before
trial
|
76
|
|
Capital
prosecution discontinued by government due to plea bargain at trial
|
11
|
|
Committed
suicide/died
|
3
|
|
Lesser
included conviction
|
2
|
|
Awaiting
or on trial on capital charges
|
65
|
|
TOTAL
|
324
|
Of the total of 324 defendants against whom the Attorney General has
authorized the government to request the death penalty, 83 have been
white, 56 Hispanic, 15 Asian/Indian/Pacific Islander/Native American, 3
Arab and 167 African-American. 241 of the 324 or 74%, of the defendants
approved for a capital prosecution by three Attorney Generals to date are
members of minority groups. Twenty of the thirty-one defendants now on
federal death row under active death sentences, or 63%, are non-white.
|
These federal capital cases have been prosecuted, since 1988, pursuant to 21
U.S.C. § 848 (e)
et seq., the Anti-Drug Abuse Act of 1988, and, since 1994, pursuant to 18
U.S.C. § 3591 et
seq., the Federal Death Penalty Act of 1994. Commonly referred to as the
"drug king-pin" statute, the 1988 passage of §
848(e)-(q)
ushered in the modern federal death penalty era. Enactment of the 1994 statute
marked an unprecedented expansion of the federal death penalty and revived every
pre-Furman death penalty provision still in existence.
As a result of the Federal Death Penalty Act of 1994, virtually every homicide
occurring within federal jurisdiction is now death-eligible. Other statutes
relating to the prosecution of capital cases include 18
U.S.C. § 3005 (appointment
of two attorneys for defense in capital cases); 21
U.S.C. § 848
(q)(9)(authorization of reasonably necessary investigative, expert and other
expenses); 18 U.S.C. § 3235 (venue in capital cases); 18
U.S.C. § 3281 (no
time limitation on instituting proceedings in capital cases) and 18
U.S.C. § 3432 (requiring
disclosure of government witnesses and list of venire men at least three days
before trial).
Appointment
of Counsel; Role of Federal Defender
A person indicted in federal court for any death-eligible offense is entitled to
appointment of two attorneys, one of whom must be "learned in the law of
capital cases." 18
U.S.C. § 3005 .
Judicial Conference policy is that "[o]rdinarily, 'learned counsel' should
have distinguished prior experience in the trial, appeal, or post-conviction
review of federal death penalty cases, or distinguished prior experience in state
death penalty trials, appeals, or post-conviction review that, in combination
with co-counsel, will assure high quality representation." Recommendation
1(b), Subcommittee on Federal Death Penalty Cases, Committee on Defender
Services Judicial Conference of the United States, Federal Death Penalty
Cases: Recommendations Concerning The Cost And Quality of Defense (approved
September 15, 1998). More than two attorneys can be appointed to represent a
defendant in a capital case. 21
U.S.C. § 848
(q)(4). Additionally, the statute provides a role for the federal defender in
the recruitment of qualified counsel, and instructs the court to "consider
the recommendation of the federal defender organization . . . ." 18
U.S.C. § 3005 .
In addition to the "learned counsel" requirement of §
3005, minimum
experience standards for attorneys appointed in capital cases are set forth in 21
U.S.C. § 848
(q). Procedures for appointment of counsel and attorney qualification
requirements are further detailed in Volume VII, Chapter VI, section 6.01 of the
Judiciary Guide to Policies and Procedures.
Highly skilled and experienced counsel is critical at every stage of a federal
death penalty proceeding, and it is important from the outset of a case that
death qualified counsel be appointed to provide representation to defendants
charged with a capital crime. Attorneys faced with the possible of appointment
to a death-eligible case are urged to consult with their local Federal Defender
Office and the Federal Death Penalty Resource Counsel Project for resources and
legal support. Project numbers and e-mail addresses are included below.
Department
of Justice Authorization Procedures
The Department of Justice authorization procedures are set forth in section
9-10.000 of the
United States
Attorney's Manual. Promulgated in early 1995, the Department of
Justice Death Penalty Guidelines and Procedures are intended to set forth the
criteria to be utilized by local United States Attorneys and the DOJ in deciding
whether to seek the imposition of the death penalty under federal law. The
procedures also outline certain procedural steps to which United States
Attorneys and Main Justice are supposed to adhere in considering death penalty
authorization requests.
The following is a summary of the Department of Justice policy and procedures in
all federal cases in which a defendant is charged with an offense subject to the
death penalty, regardless of whether the United States Attorney intends to
request authorization to seek the death penalty.
-
The
local United States Attorney's Office cannot seek the death penalty without
prior written authorization of the Attorney General. A detailed death
penalty evaluation memo must be prepared and sent to DOJ by the USAO in
every death-eligible case, whether or not the US Attorney wishes to seek the
death penalty.
-
The
United States Attorney must give notice and an opportunity to be heard to
defense counsel before deciding to request death penalty authorization from
the Attorney General. Defense counsel has the opportunity to present facts,
including mitigating factors, to the United States Attorney for
consideration.
-
Within
the Department of Justice, a review committee has been established to review
each death-eligible case and to recommend to the Attorney General whether
the death penalty should be sought. The DOJ review committee is appointed by
the Attorney General and includes representatives of the Deputy Attorney and
the Assistant Attorney General for the Criminal Division. Members of a
newly-created Capital Crimes Unit within the Criminal Division participate
in the review process, but are not voting members of the committee.
-
Defense
counsel is provided the opportunity to present to the DOJ review committee,
orally or in writing, reasons why the death penalty should not be sought.
The Attorney General will conduct a review and make the final decision about
whether the death penalty will be sought by the government.
-
The
Department will reconsider decisions to authorize the death penalty whenever
changed circumstances are brought to its attention. These may include
newly-discovered evidence bearing on guilt or sentence, non-capital
dispositions for equally culpable co-defendants, etc.
Federal
Death Penalty Resource Counsel Project (FDPRCP)
Established in early 1992 by the Administrative Office of the United States
Courts, Defender Services Division, the Federal Death Penalty Resource Counsel
Project (FDPRCP) is comprised of four veteran capital defense attorneys: David
I. Bruck, Kevin McNally, Richard Burr and Michael Burt. Created for the benefit
of court-appointed CJA panel attorneys and federal defenders, the Project serves
a national clearinghouse for information which might be helpful to defense
counsel appointed in federal capital cases.
The Project monitors all federal death penalty cases and consults with counsel
in areas ranging from the DOJ authorization process to developing mitigation and
working with experts. All three resource counsel attorneys are experienced
capital trial litigators. Their specific responsibilities also include:
-
Identification
and recruitment of qualified defense counsel for possible appointment;
-
Development
of capital litigation training programs and materials to assist federal
defenders and court-appointed private counsel;
-
Responding
to judicial inquiries concerning appointment of counsel, case budgeting, and
the defense function in federal capital cases;
-
Responding
to Congressional inquiries directed at the federal defender system relating
to proposed capital punishment legislation, and,
The Project produces materials related to defending federal capital prosecutions,
including the authorization process, as well as a mitigation handbook. The
Project also provides sample pleadings on recurring issues such as defense
funding, continuance, jury voir dire, discovery, government mental status exams,
severance, penalty phase instructions, etc. These materials are made available
at no cost to appointed counsel. Project attorneys also provide case telephone
and on-site consultation as requested by appointed counsel.
Bureau
Of Justice Statistics
Capital Punishment 2002
Presents
characteristics of persons under sentence of death on December 31, 2002, and of
persons executed in 2002. Preliminary data on executions by States during 2003
are included, and the report summarizes the movement of prisoners into and out
of death sentence status during 2002. Numerical tables present data on offenders'
sex, race, Hispanic origin, education, marital status, age at time of arrest for
capital offense, legal status at time of capital offense, methods of execution,
trends, and time between imposition of death sentence and execution. Historical
tables present executions since 1930 and sentencing since 1973.
Highlights include the following: Of the 6,912 people under sentence of death
between 1977 and 2002, 12% were executed, 4% died by causes other than execution,
and 33% received other dispositions.
Fifty-one women were under sentence of death in 2002, up from
36 in
1992.
After declining for two years, the number of executions increased to 71 during
2002. 11/03 NCJ 201848 This report is one in a series. More recent editions may
be available.
To view a list of all in the series go to the publications page http://www.ojp.usdoj.gov/bjs/pubalp2.htm#cp.
Press release - http://www.ojp.usdoj.gov/bjs/pub/press/cp02pr.htm
Acrobat file - http://www.ojp.usdoj.gov/bjs/pub/pdf/cp02.pdf
(335K)
ASCII file - http://www.ojp.usdoj.gov/bjs/pub/ascii/cp02.txt
(25K)
Spreadsheets - http://www.ojp.usdoj.gov/bjs/pub/sheets/cp02.zip
(zip format 39K)
source: http://www.capdefnet.org/fdprc/contents/shared_files/docs/1__overview_of_fed_death_process.asp
