News and Developments 2006: Federal Death Penalty

Although no jury has returned a death sentence in a federal case in Puerto Rico in modern times, more cases are pending, raising concerns among many citizens.  Puerto Rico bars the death penalty in its constitution.  However, a U.S. Court of Appeals decision in 2001 held that the federal death penalty can be applied there.  This decision overturned a lower court that ruled the use of the federal death penalty in the Commonwealth would be unconstitutional.  The issue has not been reviewed by the U.S. Supreme Court.  "It’s still an open issue for the U.S. Supreme Court to decide," said death penalty counsel William Matthewman.  Opponents of the death penalty point to the fact that American Indian tribes get to choose whether the federal death penalty applies on their land.

A federal judge presiding over the Aryan Brotherhood murder trial in Santa Ana, California, has ruled that the Sixth Amendment to the U.S. Constitution, which requires that defendants be given the opportunity to confront and cross examine witnesses testifying against them at trial, applies to at least part of the federal death penalty sentencing procedure as well.  The U.S. Supreme Court ruled in 2004 in Crawford v. Washington that testimonial evidence from a person against a defendant cannot simply be presented in the form of a document, but instead the witness must be present for cross examination.  U.S. District Judge David Carter ruled that Crawford applies to federal death penalty sentencing, as well.  "Because the death penalty is uniquely different in its finality and severity, increased scrutiny is required at every step of the capital process to ensure that death is the appropriate penalty," Carter wrote.  Some of the government's evidence relies on incidents that occurred 30 years ago, and it did not plan to present witnesses to back up all of its case.

A recent RAND Corporation study of the federal death penalty from 1995 to 2000 found no evidence of racial bias. Even though the investigators found that the death penalty was more often sought against defendants who murdered white victims, researchers ultimately concluded that the characteristics of the crime, and not the racial characteristics of the victim or the defendant, could be used to make accurate predictions of whether federal prosecutors would seek the death penalty.

The percentage of federal death penalty cases resulting in death sentences has declined from the 1990s to the present.  Since 1991, juries chose a death sentence in 51 cases compared with 93 cases that ended with a sentence of life in prison, according to Federal Death Penalty Resource Counsel, a rate of 35% for death sentences.  Since 2000, juries have returned 29 death sentences and 69 life sentences, a rate of 30%.