DePaul Law Review Volume 53 Issue 4 Summer 2004: Symposium - Race to Article 16 Execution Death Denies Due Process: Evaluating Due Process Challenges to the Federal Death Penalty Act Joshua Herman Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Joshua Herman, Death Denies Due Process: Evaluating Due Process Challenges to the Federal Death Penalty Act, 53 DePaul L. Rev. 1777 (2004) Available at: https://via.library.depaul.edu/law-review/vol53/iss4/16 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. DEATH DENIES DUE PROCESS: EVALUATING DUE PROCESS CHALLENGES TO THE FEDERAL DEATH PENALTY ACT Who was it? A friend? A good man? Someone who sympathized? Someone who wanted to help? Was it one person only? Or was it mankind? Was help at hand? Were there arguments in his favor that had been overlooked? Of course there must be. Logic is doubtless unshakable, but it cannot withstand a man who wants to go on liv- ing. Where was the Judge whom he had never seen? Where was the high Court, to which he had never penetrated? He raised his hands and spread out all his fingers. 1 -Franz Kafka, The Trial INTRODUCTION In a three-month span in 2002, two district courts declared the Fed- eral Death Penalty Act (FDPA) unconstitutional. 2 United States v. Quinones3 and United States v. Fell4 each held that the FDPA fails to protect the due process rights of federal capital defendants. While the conclusions in Quinones and Fell are noteworthy, the cases are espe- cially significant because each used the Due Process Clause of the Fifth Amendment 5 rather than the Cruel and Unusual Punishment Clause of the Eighth Amendment. 6 Each case applied the Due Pro- cess Clause as "a guarantee of legality itself, legality not of the formal or superficial kind, but of the fundamental, inherent form."' 7 These decisions emphasize that the fundamental interests at stake in capital cases are individual human lives. Quinones and Fell both used the Due Process Clause, but each deci- sion presented a distinct analysis. Quinones, which preceded Fell, 1. FRANZ KAFKA, THE TRIAL 228 (Willa Muir & Edwin Muir trans., 1956) (1937). 2. Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591-3598 (2000). 3. United States v. Quinones, 196 F. Supp. 2d 416 (S.D.N.Y. 2002); United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002), rev'd, 313 F.3d 49 (2d Cir. 2002). 4. United States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002), rev'd United States v. Fell, 360 F.3d 135 (2d Cir. 2004). 5. U.S. CONST. amend. V (stating that no person shall be deprived of "life, liberty, or prop- erty, without due process of law"). 6. U.S. CONST. amend. VIII. 7. RODNEY L. Mor-r, DUE PROCESS OF LAW: A HISTORICAL AND ANALYTICAL TREATISE OF THE PRINCIPLES AND METHODS FOLLOWED BY COURTS IN THE APPLICATION OF THE CONCEPT OF THE "LAW OF THE LAND" 604 (2d ed. 1973). 1777 1778 DEPAUL LAW REVIEW [Vol. 53:1777 used a substantive due process analysis when it considered the consti- tutionality of the FDPA in light of evidence that death penalty systems have failed to distinguish the innocent from the guilty.8 The compel- ling evidence before the Quinones court included over one hundred death row exonerees, some of whom came within hours of execution for crimes they did not commit.9 Fell applied a procedural due pro- cess analysis and examined the validity of the relaxed evidentiary standard at the FDPA sentencing hearing.10 Despite these distinct fo- cuses, an overriding concern for heightened reliability binds Quinones and Fell to each other and to the body of death penalty jurisprudence. By concluding that the FDPA condones lowered reliability,'1 Qui- nones and Fell provide substance to the language of death penalty ju- 2 risprudence that is too often aspirational rhetoric.' The discomfort with the current administration of the death penalty that Quinones and Fell voice does not exist in a vacuum. The etiology of that unease does not reveal a single source. Each decision is both emblematic and a product of the sea change that marks America's attitude toward the death penalty. The decisions do not, however, merely mirror public opinion polls or encapsulate a cause cdhlbre. Both opinions potentially represent significant legal developments in death penalty jurisprudence. This Comment submits that the Due Process Clause presents viable grounds for challenging the constitutionality of capital punishment. As Quinones and Fell show, a due process challenge has a flexibility that the traditional Eighth Amendment challenge lacks. Also, by fo- cusing on the individual rights at stake, due process challenges re- phrase the critical inquiry from institutional concerns to individual rights. This Comment first considers a broad range of perspectives in order to understand the context and implications of Quinones and 8. Quinones, 205 F. Supp. 2d at 257. 9. Id. at 265. 10. Fell, 217 F. Supp. 2d at 490-91. 11. Quinones, 205 F. Supp. 2d at 268; Fell, 217 F. Supp. 2d at 491. 12. See Adam Thurschwell, Federal Courts, the Death Penalty, and the Due Process Clause: The OriginalUnderstanding of the "Heightened Reliability" of Capital Trials, 14 FED. SENT. R. 14 (2001). Thurschwell notes that the Supreme Court's admonishments for heightened reliability and increased accuracy in capital cases have for the most part remained mere rhetoric, as the special protections theoretically afforded to capital defendants under the Eighth Amendment have turned out to be almost valueless in practice. The tendency among academics and defense lawyers has been to bewail this phenomenon as judicial hypocrisy. Whatever the merits of that view as a matter of individual judicial psychology or politics, it has deeper roots in an underlying conceptual weakness in the Court's attempt to use the Eighth Amendment as the primary vehicle for guaranteeing the heightened reliability of capital procedures. Id. at 15 (footnote omitted). 2004] DEATH DENIES DUE PROCESS 1779 Fell. Subpart II(A) discusses current attitudes toward the death pen- alty.1 3 That section surveys how the general public and federal and state legislatures have reacted to the increasing evidence of the rates of error, indications of racial bias, and other important issues involv- ing capital punishment. Subpart 11(B) discusses wrongful convictions and the studies that attempt to discover why they occur. 14 In subpart II(C), the focus switches to the United States Supreme Court's position on the death penalty, which includes a brief summary of the seminal cases and more recent decisions.15 Current and developing attitudes toward capital punishment and the Supreme Court's stance on the issue cre- ate the conflict that surges through Quinones and Fell. After intro- ducing this conflict, subpart II(D) discusses the FDPA by providing a general outline of that statute's history, an explanation of its critical 1 provisions, and a brief sample of cases interpreting it. 6 After discuss- ing the FDPA, Quinones17 and Fell18 are examined. Subpart III(A) discusses briefly the role of the Due Process Clause in capital punishment jurisprudence.1 9 That section shows that the Due Process Clause is available for challenging death sentences, but it has historically been used in a relatively limited capacity. Subpart III(B) then turns to Quinones.20 The central topics of this analysis include: identifying the underlying concerns that motivated the deci- sions, examining the Supreme Court's position on the role of inno- cence in capital cases as represented in Herrera v. Collins,21 answering why the district court applied the Due Process Clause instead of the Eighth Amendment, and discussing how the United States Court of Appeals for the Second Circuit erred by misreading Herrera and fail- ing to address the district court's due process analysis. Subpart III(C) discusses Fell.22 Similar to the Quinones analysis, the discussion of Fell examines the issues that motivated the district court to hold the FDPA unconstitutional. That section discusses the role of the "ele- ments rule" that Apprendi v. New Jersey2 3 announced and Ring v. Ari- 13. See infra notes 28-90 and accompanying text. 14. See infra notes 91-133 and accompanying text. 15. See infra notes 134-179 and accompanying text. 16. See infra notes 180-239 and accompanying text. 17. See infra notes 240-326 and accompanying text. 18. See infra notes 327-381 and accompanying text. 19. See infra notes 384-422 and accompanying text. 20. See infra notes 423-583 and accompanying text. 21. Herrera v. Collins, 506 U.S. 390 (1993). 22. See infra notes 584-766 and accompanying text. 23. Apprendi v. New Jersey, 530 U.S. 466 (2000). 1780 DEPAUL LAW REVIEW [Vol. 53:1777 zona2 4 extended to capital cases. Subpart III(C) contends that the Second Circuit erred when it reversed Fell because it did not view the FDPA sentencing hearing as a distinct trial and also because it con- strued the requirement for heightened reliability in a manner that threatens the reliability of federal capital sentencing hearings. Sub- part III(C) also submits that the rules of evidence should be applied unilaterally to the Government at the sentencing stage, which would increase the reliability of evidence at sentencing and also enable the sentencer to make individualized sentencing determinations. 25 Part IV discusses the impact of Quinones and Fell.26 That section evaluates the importance of the due process analyses applied in Quinones and Fell.