News and Developments 2008: Federal Death Penalty

UPDATE: The United States District Court for the District of Kansas entered a stay of execution in Private Ron Gray's case on November 26. The U.S. military had scheduled its first execution since 1961 for December 10. Two decades ago, Pvt. Ronald Gray was convicted and sentenced to death by a general court-martial panel at Fort Bragg for murder and rape committed in the Fayetteville area of North Carolina. Earlier, a North Carolina civilian court had convicted him of the same crimes, but that court sentenced him to a series of life terms, rather than death.

Two decades ago, Pvt. Ronald Gray was convicted and sentenced to death by a general court-martial panel at Fort Bragg for murder and rape committed in the Fayetteville area of North Carolina. Earlier, a North Carolina civilian court had convicted him of the same crimes, but that court sentenced him to a series of life terms, rather than death.

In July, President George W. Bush approved the Army’s request to execute Gray. He has been on the military’s death row at Fort Leavenworth, Kansas, since 1988, and is scheduled to be executed by lethal injection by soldiers at the Federal Correctional Complex in Terre Haute, Indiana, which has been the site of executions under the federal death penalty. While the Army has scheduled the execution, there are still important legal issues in the case that have not been fully reviewed.

In June 2008, the Office of Defender Services of the Administrative Office of the U.S. Courts published a report analyzing the cost, quality and availability of defense representation in federal death penalty cases. The report determined that federal capital trials in which the death penalty was sought were substantially more expensive than non-death penalty federal trials; however, a death sentence was handed down in only one-quarter of the cases. In addition, defense expenditures in a federal death penalty case correlated strongly with whether a death sentence was ultimately handed down.

Congress increased the number of offences for which the death penalty could be sought from one to 50 in 1994, resulting in an immediate increase in the number of death-eligible federal defendants. While death-eligible defendants numbered 26 in 1993, that number increased to 63 in 1994 and to approximately 150 every year after that. Of the cases that went to trial seeking the death penalty, only 25% resulted in a death sentence (61 out of 233). Only 14% of the cases in which the Attorney General authorized seeking the death penalty actually resulted in a death sentence. Cases in which the Attorney General authorizes pursuit of the death penalty are significantly more expensive than non-death cases. The average cost of a trial in a federal death case is $620,932, about 8 times that of a federal murder case in which the death penalty is not sought.

After the Pentagon announced earlier this year that it would seek the death penalty for six Guantánamo Bay detainees, little progress has been made in the case. According to The American Lawyer, the military commissions have had difficulties in finding qualified and willing defense attorneys to represent the six men who are accused of planning the September 11 attacks. Tom Fleener, a former military lawyer, said, “I don't believe any [of the 15 attorneys in the office of the chief defense counsel] would meet the standards of the American Bar Association for being lead counsel in a death case."

While civilian lawyers may volunteer to assist the defense, many find the process constrained and costly. The government does not provide financial compensation to volunteer lawyers, even for costs incurred while seeking evidence abroad. Likewise, civilian counsel is not permitted to meet with their clients without video surveillance, and they must obtain security clearance before doing so. The government also has significant liberties in terms of gathering evidence. It may present hearsay evidence as well as evidence obtained by torture as long as the evidence is later obtained in a less coercive manner. The government is not required to turn over exculpatory information.

U.S. Attorney General Michael Mukasey said that he hopes that the Guantanamo prisoners accused of terrorism do not receive the death penalty in the upcoming Military Commission trials because it would give them the martyrdom that they want.  In a recent talk to British economic students, Mukasey said he supports the death penalty, but, "In a way I kind of hope from a personal standpoint ... I kind of hope they don't get it. Because many of them want to be martyrs ....”

Prosecuting attorneys for the military have asked to seek the death penalty for 6 prisoners in Guantanamo accused of terrorism. The Department of Defense has not yet announced whether they will approve the military commission trials as capital cases.