Federal Death Penalty News and Developments: 2004

The American Prospect Issues Special Report on U.S. Human Rights

The latest edition of The American Prospect features a series of articles by prominent writers and human rights leaders regarding the effect of the international movement for human rights on the U.S. Two of the articles highlight U.S. death penalty policies. Yale Law School Dean Harold Hongju Koh points out the conflict between the U.S.'s efforts to support international human rights and our domestic practices such as the use of the juvenile death penalty. "In my view, by far the most dangerous and destructive form of American exceptionalism is the assertation of double standards. For by embracing double standards, the United States invariably ends up not on the higher rung but on the lower rung with horrid bedfellows - for example, such countries as Iran, Nigeria, and Saudia Arabia, the only other nations that have not in practice either abolished or declared a moratorium on the imposition of the death penalty on juvenile offenders."
A second article, Criminal Justice and the Erosion of Rights by human rights scholar Deborah Pearlstein, examines the impact of legislation such as the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and The PATRIOT Act on capital cases. Pearlstein notes, "While human-rights observers have rightly focused on terrorism-related developments in the U.S. criminal justice system, the trend toward limited procedural protections for defendants and a shrinking judicial role well predates the September 11 attacks. Indeed, security has been a central justification for rights-limiting changes in the criminal-justice system for decades." Among the other authors in the series are Anthony Lewis, John Shattuck, Gay McDougall, Cass Sunstein, Gara LaMarche, and Mary Robinson. (The American Prospect, October 2004) See International Death Penalty and Juvenile Death Penalty.


Catholic Bishops Oppose Expansion of Federal Death Penalty for Terrorism

Cardinal Theodore E. McCarrick, the Catholic Archbishop of Washington and acting as Chairman of the Domestic Policy Committee of the United States Conference of Catholic Bishops, has urged House and Senate conferees working on anti-terrorism legislation to report out a final bill that would not expand the federal death penalty for terrorists. McCarrick wrote a letter to House and Senate leaders crafting their final version of the National Intelligence Reform Act (S. 2845). The House version of that bill contains provisions to expand the federal death penalty, but the Senate version does not. McCarrick wrote:

"The cowardly acts of September 11 and their tragic human costs still haunt our nation. There can be no diminishing the horror of terrorism or the responsibility of those who employ wanton violence on the innocent. As you know, the bishops of the United States oppose the use of the death penalty in any instance. Catholic teaching on capital punishment is clear: If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority should limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person (Catechism of the Catholic Church). Congress need not go any further. Secondly, we feel strongly that terrorists are not going to be deterred by the death penalty. In fact, many terrorists believe that if they die committing an act of terrorism they will become martyrs. At the very least, it would seem that executing terrorists could make them heroes in the minds of other like-minded advocates of terror. As pastors, we believe that the use of the death penalty under any circumstances diminishes us as human beings. As we said in Confronting a Culture of Violence: 'We cannot teach that killing is wrong by killing,'"

(October 25, 2004, Statement from the United States Conference of Catholic Bishops) See New Voices.


Ashcroft's Push for Death Penalty Met With Juror Resistance

Despite efforts by U.S. Attorney General John Ashcroft to broaden the use of the federal death penalty, less than a third of the federal death penalty trials since 2001 have resulted in a death sentence. Of the 34 federal capital cases Ashcroft authorized, 23 did not result in the death penalty. Critics say that this poor record suggests waning public enthusiasm for executions and that juries and judges see through what many believe to be weak cases for the federal death penalty.
Ashcroft, who claims that broader use of the federal death penalty will remedy the documented geographic disparities in federal capital sentencing, is a long-time supporter of capital punishment. He has pushed federal prosecutors around the country to go against their own objections and be more aggressive in identifying cases that could qualify as capital. Much of that effort has been focused on states that have banned or rarely impose capital punishment. In some instances, the Justice Department chief has overridden local federal prosecutor's plea bargain agreements. In prior administrations, federal prosecutors were given the freedom to determine the usefulness of such plea bargains without oversight, but a new policy put into place by Ashcroft ensures that all federal prosecutor decisions are now reviewed in Washington. Under Ashcroft's administration, 65 defendants are facing capital trials, compared with a high of 39 under former Attorney General Janey Reno. (Los Angeles Times, September 29, 2004).


Nichols' Sentencing Demonstrates Heavy Burden On Jurors

After deliberating for 20 hours over three days, the jurors who recently found Terry Nichols guilty of murder in the 1995 Oklahoma City bombing expressed some of the anguish that choosing between life and death caused them. "It was tough. We had found it much easier to arrive at a guilty verdict, but the penalty phase was much harder," said juror Terry Zellmer. Cecil Reeder, a Korean War veteran who supported the death penalty for Nichols, said, "This shook me as deep as I've ever been shook in my life." Some of the jurors implied that Nichols' religious conversion in the years after the bombing and the fact that he was not in Oklahoma City on the day of the bombing may have contributed to 4 or 5 votes for life. The jury's split verdict leaves the sentencing for Nichols to the judge, who by law cannot impose a death sentence. Nichols is already serving a life without parole sentence on a federal conviction in the bombing. (Dallas Morning News, June 13, 2004)


Another Federal Death Penalty Case Results in Life Sentence

After less than five hours of deliberation, jurors in a federal death penalty case in Maryland returned life sentences for two men convicted earlier of federal drug conspiracy charges and firearms violations. The federal case against Michael Taylor and Keon Moses was the first time since 1998 that U.S. prosecutors in Baltimore had sought a death sentence. The life sentences for Taylor and Keon continue a national trend identified last year by the Federal Death Penalty Resource Counsel Project. In an August 2003 report, the Project noted that 20 of the 21 most recent federal death penalty cases had resulted in life sentences and that federal juries had voted for life in 38 of 43 capital cases since 2000. Taylor and Keon, both in their early 20s, were raised in one of Baltimore's most dangerous and notorious public housing complexes. Attorneys for the men presented evidence to jurors outlining their clients' troubling history of neglect and drug abuse. (Baltimore Sun, April 29, 2004) See Life Without Parole.

Federal Appeals Court Overturns District Court Ruling

A federal appeals court overturned the ruling of U.S. District Judge William K. Sessions III, who had ruled in a Vermont case that the federal death penalty law's relaxed standards for presenting evidence at sentencing was unconstitutional. The appeals court ruling said judges are "evidentiary gatekeepers" and thus may decide what is relevant for the sentencing phase of death penalty trials. (Associated Press, March 2, 2004)


Recent Developments in the Federal Death Penalty

• Federal prosecutors dropped charges against Darrell Rice shortly before he was to face capital charges for two murders in Shenandoah National Park. New forensic evidence cast doubt on the case against Rice, despite the fact that Attorney General John Ashcroft had made a public announcement of Rice's indictment employing a new law in 2002. (Washington Post, Feb. 7, 2004).

• A federal judge threw out a jury's (July 2003) verdict of guilt in the capital case of Jay Lentz, accused of murdering his wife. Lentz has been granted a new trial and the judge's ruling accused the prosecutors of deliberately and recklessly placing improper evidence before the jury. The prosecutors are appealing the judge's ruling. (Washington Post, Feb. 7, 2004).

• On the grounds that his federal indictment did not include the aggravating factors necessary to support his execution, the Court of Appeals for the 8th Circuit reduced Billie Jerome Allen's death sentence to life in prison in February 2004. Allen was sentenced to death by a jury in 1998 following his conviction for murder in the course of a bank robbery. In June 2002, the U.S. Supreme Court vacated Allen's death sentence and remanded the case back to the Eighth Circuit for reconsideration in light of the Court's ruling in Ring v. Arizona. (February 5, 2004, St Louis Post Dispatch).

• Gary Sampson pleaded guilty to the carjacking and murder of two Massachusetts men. A jury returned a death verdict for Sampson on December 23, 2003. U.S. District Judge Mark L. Wolf formally sentenced Sampson to death, but ordered that the execution be carried out in New Hampshire, which has not held an execution since 1939. (Boston Globe, January 30, 2004).

• The federal government has set June 8 as the execution date for David Paul Hammer. Hammer pleaded guilty in 1998 to the murder of his prison cellmate in 1996. He has vacillated back and forth about waiving his appeals and this is his third execution date. (Terre Haute Tribune Star, Feb. 12, 2004).

New Hampshire House Leader Says Federal Order Could Result in State Death Penalty Repeal

Just hours after a judge ordered that a death sentence handed down in federal court in Massachusetts be carried out in New Hampshire, the N.H. House Democratic Leader, Peter Burling, said the state should renew its consideration of legislation to repeal the death penalty. "I think the issue is so profoundly divisive and so completely founded on people's core values that there be some response," said Burling. "I think most of us believed we'd never see an execution in New Hampshire. It's easy to become complacent." New Hampshire has not had an execution since 1939, and the state does not have anyone on its death row. But federal Judge Mark Wolf recently ordered that Gary Sampson's execution be conducted in New Hampshire. The case was tried in Massachusetts, but since that state does not have the death penalty, the judge was required to pick an alternative state for the execution, and he chose New Hampshire. In 2002, N.H. legislators voted to repeal capital punishment, but then Governor Jeanne Shaheen vetoed the measure. This year, lawmakers are already considering legislation to limit the state's death penalty by banning the execution of juvenile offenders. (Boston Globe, January 30, 2004) See New Hampshire.