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Case 5:01-cr-00012-gwc Document 668 Filed 11/16/15 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT UNITED STATES OF AMERICA ) ) VS. ) CRIMINAL 5:01-cr-00012 ) DONALD FELL ) __________________________________ ) DEFENDANT DONALD FELL’S DEFENDANT MOTION TO PRECLUDE THE DEATH PENALTY AS A PUNISHMENT BECAUSE THE DEATH PENALTY, IN AND OF ITSELF, CONSTITUTES AN UNCONSTITUTIONAL PUNISHMENT Now Comes Donald Fell, through his undersigned counsel and moves this Honorable Court for an order dismissing and/or striking the Amended Notice Of Intent To Seek Penalty Of Death. (Doc. 609). For the reasons set forth more fully in the accompanying memorandum in support, the administration of the federal death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty's penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use under evolving standards of decency. WHEREFORE, for the reasons described in greater detail in the accompanying Memo- randum, Mr. Fell respectfully requests this Court to dismiss and/or to strike the Amended Notice Of Intent To Seek Penalty Of Death on the ground that the federal death penalty, in and of itself, constitutes a legally prohibited cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments. Case 5:01-cr-00012-gwc Document 668 Filed 11/16/15 Page 2 of 3 Dated at San Francisco, California, this 16th day of November, 2015. Respectfully Submitted, MICHAEL N. BURT KERRY B. DeWOLFE JOHN T. PHILIPSBORN By: /s/ Michael N. Burt Law Office of Michael Burt 1000 Brannan Street Suite 400 San Francisco, California 94103 415-522-1508 (phone) 415-522-1506 (fax [email protected] Counsel for DONALD FELL 2. Case 5:01-cr-00012-gwc Document 668 Filed 11/16/15 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on November 16, 2015, I electronically filed with the Clerk of DEFENDANT DONALD FELL’S DEFENDANT MOTION TO PRECLUDE THE DEATH PENALTY AS A PUNISHMENT BECAUSE THE DEATH PENALTY, IN AND OF ITSELF, CONSTITUTES AN UNCONSTITUTIONAL PUNISHMENT using the CM/ECF system. The CM/ECF system will provide service of such filing(s) via Notice of Electronic Filing (NEF) to the following NEF parties: Michael N. Burt, Esq. Kerry B. DeWolfe, Esq. John Phillipsborn William B. Darrow, Esq., Assistant United States Attorney Bruce R. Hegyi, U.S. Dept. Of Justice I also caused to be served, by U.S. Postal Service, the following non-NEF party: Donald Fell Register Number 05306-010 The Metropolitan Detention Center P.O. Box 329002 Brooklyn, NY 11232 Dated at San Francisco, California, this 16th day of November, 2015. By: /s/ Michael N. Burt Law Office of Michael Burt 1000 Brannan Street Suite 400 San Francisco, California 94103 415-522-1508 (phone) 415-522-1506 (fax [email protected] Counsel for DONALD FELL 3. Case 5:01-cr-00012-gwc Document 668-1 Filed 11/16/15 Page 1 of 143 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT UNITED STATES OF AMERICA ) ) Plaintiff, ) No. 5:01-CR-00012 ) v. ) ) DONALD FELL ) Dept: Hon. Geoffrey W. Crawford ) District Court Judge Defendant. ) MEMORANDUM IN SUPPORT OF DEFENDANT DONALD FELL’S MOTION TO PRECLUDE THE DEATH PENALTY AS A PUNISHMENT BECAUSE THE DEATH PENALTY, IN AND OF ITSELF, CONSTITUTES AN UNCONSTITUTIONAL PUNISHMENT Case 5:01-cr-00012-gwc Document 668-1 Filed 11/16/15 Page 2 of 143 TABLE OF CONTENTS I. INTRODUCTION .......................................................1 II. PROCEDURAL HISTORY................................................6 III. ARGUMENT ..........................................................7 A. General Fifth and Eighth Amendment Principles .........................7 1. Inherently Barbaric Punishments................................8 2. Excessive and Disproportionate Punishments ......................9 3. Arbitrary or Discriminatory Punishments........................11 B. Almost 40 Years of Studies, Surveys, and Experience Strongly Indicate That The Procedural Protections Built Into The Federal Death Penalty Have Failed To Achieve Their Goal Of Reliable, Rational, Consistent, Fair, Non-Arbitrary, and Non-Discriminatory Application of The Death Penalty. ...............18 1. “Cruel”—Lack of Reliability ..................................18 2. “Cruel”—Arbitrariness ......................................35 a. The Problem in General................................35 b. More Than 25 Years Of Experience With The Federal Death Penalty Has Demonstrated That It Operates In An Arbitrary, Capricious, Irrational And Discriminatory Manner. ..........37 1. Introduction: the failure of the federal death penalty experiment ....37 2. The federal death penalty is imposed and carried out in an arbitrary and capricious manner that is akin to being struck by lightning: Revisiting the constitutional premise of Furman v. Georgia in the context of the federal death penalty. ............................39 3. The federal death penalty as actually sought and imposed and what the figures mean...............................................47 ii Case 5:01-cr-00012-gwc Document 668-1 Filed 11/16/15 Page 3 of 143 4. The absence of a principled basis for distinguishing between cases where the federal death penalty is imposed from cases where it is not imposed renders the federal death penalty unconstitutional. ..........50 5. The Federal Death Penalty is unevenly applied on a regional basis and suffers from intractable problems of racial discrimination in the targeting of minority and male defendants and a demonstrated race/gender-of- victim effect. ..............................................60 a. Introduction. .........................................60 b. The 2000 DOJ Study ..................................62 c. The persistent capricious circumstance of region.............68 d. The continuing and unabated practice of targeting males and minorities for the federal death penalty, the long-documented “white-victim effect,” and the emergence of a “white female victim effect” further demonstrate the arbitrary and irrational operation of the federal death penalty.....................75 (1) The law on race and the death penalty. ..............77 (2) The effect of gender of defendant, and of race and gender of victim in the application of the FDPA. ............84 3. “Cruel”-Other Sources of Unreliability and Arbitrariness ...............94 a. Arbitrariness Produced by Prosecutorial Discretion..........94 b. Arbitrariness and Unreliability Induced by Doomed Efforts to Predict Future Danger ................................101 4. “Cruel”- Excessive Delays...................................105 5. “Unusual”- Decline in Use of the Death Penalty Under Evolving Standards of Decency ......................................112 6. The Doctrine of Stare Decisis ................................126 IV. CONCLUSION .......................................................130 iii Case 5:01-cr-00012-gwc Document 668-1 Filed 11/16/15 Page 4 of 143 TABLE OF AUTHORITIES Cases Andrews v. Davis 798 F.3d 759 (9th Cir. 2015) ..............................................74 Arave v. Creech 507 U.S. 463 (1993) ....................................................102 Arizona v. Rumsey 467 U.S. 203 (1984) ....................................................126 Arlington Heights v. Metropolitan Housing Dev. Corp. 429 U.S. 252 (1977) .....................................................81 Atkins v. Virginia 536 U.S. 304 (2002) ............................................9, 10, 20, 49 Barnette v. West Virginia Board of Education 47 F. Supp. 251 (S.D. West Virginia) ......................................127 Batson v. Kentucky 476 U.S. 79 (1986). .....................................................81 Baze v. Rees 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) ................9, 16, 110, 128 Bolling v. Sharpe 347 U.S. 497 (1954) .....................................................81 Bordenkircher v. Hayes 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) ............................95 Bowers v. Hardwick 478 U.S 186 (1986) ....................................................122 Bullington v. Missouri 451 U.S. 430 (1981) .....................................................82 Bush v. Gore 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) ...........................74 iv Case 5:01-cr-00012-gwc Document 668-1 Filed 11/16/15 Page 5 of 143 Chandler v. United States 193 F.3d 1297 (11th Cir. 1999) ............................................27 Chandler v. United States 218 F.3d 1305 (11th Cir. 2000) ............................................27 Chapman v. United States 500 U.S. 453 (1991) ......................................................7 Coker v. Georgia 433 U.S. 584 (1977) .....................................................9 Coleman v. Balkcom 451 U.S. 949 (1981) ...............................................109, 111 Davis v. Ayala 135 S. Ct. 2187 (2015) ..................................................107 DeGarmo v. Texas 474 U.S. 973 (1985) ..................................................95, 97 Eddings v. Oklahoma 455 U.S. 104 (1982) ...............................................11, 36, 50 Enmund v. Florida 458 U.S. 782 (1982) ..................................................9, 10 Ford v. Wainwright 477 U.S. 399 (1986) .....................................................29 Furman v. Georgia 408 U.S. 238 (1972) ................................................ passim Gardner v. Florida 430 U.S.
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