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The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 Fordham Urb Fordham Urban Law Journal Volume 26 | Number 3 Article 1 1999 The edeF ral Death Penalty: History and Some Thoughts About the Department of Justice's Role Rory K. Little Hastings College of the Law, University of California Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Criminal Law Commons Recommended Citation Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 Fordham Urb. L.J. 347 (1999). Available at: https://ir.lawnet.fordham.edu/ulj/vol26/iss3/1 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. The edeF ral Death Penalty: History and Some Thoughts About the Department of Justice's Role Cover Page Footnote Associate Professor of Law, Hastings College of the Law, University of California, [email protected]. J.D., 1982, Yale; B.A., 1978, University of Virginia. This article is available in Fordham Urban Law Journal: https://ir.lawnet.fordham.edu/ulj/vol26/iss3/1 THE FEDERAL DEATH PENALTY: HISTORY AND SOME THOUGHTS ABOUT THE DEPARTMENT OF JUSTICE'S ROLE Rory K. Little* Introduction ................................................ 349 A. Overview of the Article .......................... 351 B. From the Hanging of Victor Feguer to the Millennium............ 355 I. History of the Federal Death Penalty .................. 360 A. The Framers' Actions ...................... 360 B. From 1790 to the 1897 Act to Making the Federal Death Penalty Fully Discretionary ...... 366 C. The Twentieth Century to Furman: Unguided Federal Discretion ........................ 369 D. Cases and Legislative Efforts from Furman through Gregg and McCleskey ................... 372 E. The 1988 CCE Death Penalty Statute ........... 381 F. The 1994 Federal Death Penalty Act ............ 385 1. Political Origins of the FDPA ................ 385 2. Summary of the FDPA ....................... 388 3. Detail about the 1994 Procedures and Comparison to CCE .......................... 392 a. Aggravating and Mitigating Factors Under the CCE and FDPA Statutes ..... 399 * Associate Professor of Law, Hastings College of the Law, University of Cali- fornia, [email protected]. J.D., 1982, Yale; B.A., 1978, University of Virginia. Thanks to Hastings Dean Mary Kay Kane and Academic Dean Leo Martinez for their support, including a semester's research sabbatical and a Summer Research stipend. Thanks also to Attorney General Janet Reno and former Deputy Attorney General Jamie S. Gorelick for allowing me to participate in the important work of the Capital Case Review Committee in 1996-97. Further thanks to Fordham University School of Law and Professor Bruce Green for the symposium invitation for which this Article was originally developed, and to Professor Jay Pottinger at Yale Law School who sponsored an early talk on the topic. I am very grateful for helpful comments from Vik Amar, Scott Bales, Ash Bhagwat, Richard Boswell, David Bruck, Stephen Cly- mer, Kevin DiGregory, Kirby Heller, Evan Lee, Rick Marcus, Calvin Massey, Robert McGlasson, David Reiser, David Runke, Reuel Schiller, Jonathan Schwartz, Louis Schwartz, William W Schwarzer, Scott Sundby, and William K.S. Wang. Elizabeth Wendell Butler of the Fordham Urban Law Journal was an effective, patient editor. Finally, my Hastings student research assistants Stephen Brundage, Laurel Derry and Brian Owens provided excellent and tireless assistance, as did indefatigable typists Ted V. Jang and Barbara Topchov. 348 FORDHAM URBAN LAW JOURNAL [Vol. XXVI b. Appeals, Implementation, and Results... 403 G. DOJ Implementation ............................ 406 1. The DOJ Capital Case Protocols ............. 407 2. A Personal Account of How the Death Penalty Review Committee Works ........... 419 3. Results of the DOJ Death Penalty Review Process ....................................... 428 4. The Department's Discretion and Its Choice to Pursue National Uniformity ............... 431 II. Administration of the Federal Death Penalty - Changing Roles and Some Remaining Challenges ......... 440 A. The Role of the Individual Federal Death Penalty Prosecutor ............................... 441 1. Declining, Selecting, and Charging Cases .... 441 2. Litigating Federal Death Penalty Cases ...... 445 3. Costs, Careful Attention, and Moral Im plications .................................. 447 B. DOJ Administration of the Federal Death Penalty - A Good Start But There are Large Opportunities For Improvement ................. 450 1. Achieving National Uniformity in the Face of Regional Diversity ........................... 450 a. Lack of Uniformity in Submissions to Main Justice - Amend the Protocols ... 455 b. Disuniformity in Charging and Plea- Bargaining 7- an Intractable Problem?.. 462 i. Why Disuniformity and Skewed Samples Result in Federal Death Penalty Administration ............... 467 ii. A Possible Study of Potential Federal Capital Cases ......................... 472 2. The Disturbing Persistence of Racial D isparity ..................................... 476 3. The Inevitable Manipulability of Language .. 490 C. The DOJ's Role, Revisited ...................... 500 D. The Emerging "Stevens Solution" ............... 502 C onclusion ................................................. 507 1999] FEDERAL DEATH PENALTY 349 Introduction Federal crimes have been accompanied by death penalties since the First Congress's first crime bill in April 1790.1 However, unlike state prosecutors, federal prosecutors have not had to evaluate po- tential death penalty cases until the last few years.2 From 1972, when the Supreme Court declared fully discretionary death penalty statutes unconstitutional in Furman v. Georgia,3 until 1988, when Congress enacted statutory procedures for imposing the death pen- alty for certain violations of the Continuing Criminal Enterprise ("CCE") statute,4 no constitutional federal death penalty provi- sions were on the books. The 1988 procedures, however, applied only to a single federal code section (CCE), which is infrequently charged.6 It was not until 1994 that Congress enacted generalized 1. See 1 Stat. 112-19 (1790). 2. In response to the Supreme Court's invalidation of all extant death penalty procedures in Furman v. Georgia, 408 U.S. 238, 257, 314 (1972), "the legislatures of at least 35 states ... enacted new statutes that provide[d] for the death penalty." Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) (per curiam) (Stewart, J.). Although some of these new State statutes have had to be revised in light of other post-Furman deci- sions, see, e.g.,Woodson v. North Carolina, 428 U.S. 280 (1976) and Roberts v. Louisi- ana, 428 U.S. 325, 328 (1976) (invalidating mandatory capital punishment statutes enacted in response to Furman), it is still the case that many states have been imple- menting capital punishment since the mid-1970s. 3. 408 U.S. 238 (1972). 4. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7701, 102 Stat. 4181, 4387-95, (codified at 21 U.S.C. § 848(e)-(r) (Supp. 1998); see infra Part I.E. (discussing the 1988 statute). 5. Of course, many federal statutes enacted before Furman did provide for death as a possible penalty, and they remained on the books after Furman. See, e.g., 18 U.S.C. §§ 794, 1111, 2031 (1986). David Bruck of the Federal Death Penalty Re- source Center has aptly described these surviving but likely unconstitutional death penalty provisions as "zombie statutes." RANDALL COYNE & LYN ENTZEROTH, CAPI- TAL PUNISHMENT AND THE JUDICIAL PROCESS (1995-96 Supp.) at 105 n.4. Between 1972 and 1988, Congress did enact three new federal death penalty provisions, for air piracy, witness-killing, and espionage (military personnel only). See infra notes 174- 178 and accompanying text; U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CAPITAL PUNISHMENT 1993 (1994), [hereinafter CAPITAL PUNISHMENT 19931. But be- cause no federal statutory procedures responsive to Furman and Gregg existed, neither the pre- nor post-Furman death penalty statutes were employed because of grave doubts regarding their constitutionality. See 5 Op. Off. Legal Counsel 224 (1981) (opining that general federal death penalty provisions are unconstitutional af- ter Furman and Gregg); see, e.g., United States v. Harper, 729 F.2d 1216, 1224-26 (9th Cir. 1984) (declaring unconstitutional the death penalty provision of the general espi- onage statute, 18 U.S.C. § 794, due to lack of statutory procedures). 6. See infra note 187. This is not to say never charged. In fact, five of the 20 federal defendants currently on death row have been convicted and sentenced under the 1988 CCE provisions. Death Penalty Information Center, Federal Death Row Prisoners (visited Jan. 26, 1999) <http://www.essential.org/dpic/fedprisoners.html> [hereinafter Federal Death Row Prisoners]. FORDHAM URBAN LAW JOURNAL [Vol. XXVI federal death penalty procedures and extended them to over forty federal offenses, in the Federal Death Penalty Act of 1994 ("FDPA"). 7 In 1996, Congress added another four federal offenses to the death-eligible list.8 Thus, as a general proposition, the cur- rent generation of federal prosecutors has been in the business of death penalty prosecution for only the last four years.9 There has been virtually no scholarly presentation of the history
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