In addition to this modest upsurge in § 848 death cases, 1992 saw a nationwide Justice Department effort to resuscitate in the courts the unconstitutional pre-Furman federal death penalty statutes which it has tried without success to revive by Congressional action ever since 1973. Obviously frustrated by its failure to persuade Congress to get the federal courts back into the death-sentencing business on a large scale (and also by its failure to persuade the Sentencing Guidelines Commission to write its own death sentencing procedures in the mid-1980s) the Department of Justice brought four cases in late 1991 and 1992 in which it has tried to persuade federal district judges to create and enforce whole capital sentencing schemes on their own on a case-by-case basis.

The Government's legal theory is that because most of the pre-Furman federal death statutes have some fairly unusual facts as the basis for federal jurisdiction--such as that the homicide victim was a federal judge, law enforcement officer or witness, or that the killing was committed with a mail bomb--those jurisdictional elements of the offense can do constitutional double duty as the equivalents of statutory aggravating circumstances. The Government relies on Lowenfield v. Phelps, 484 U.S. 231 (1988), which held that the eighth amendment "narrowing" requirement of Furman v. Georgia can be satisfied by a narrow definition of the substantive offense of murder itself, rather than only by the use of aggravating sentencing factors. According to the DOJ, all but one or two of the federal death statutes are "narrow" enough as is, and so no further statutory narrowing is required from Congress to get these statutes cranked up and running again. As for the other eighth amendment details which the Supreme Court has required ever since Gregg and Woodson--such as bifurcated trials, consideration of aggravating and mitigating evidence, adequate instructions on how the jury is to arrive at its sentencing decision, and so on--the Government has been arguing that district court judges should simply create their own sentencing schemes, using as their guide the rock-bottom constitutional minimum requirements spelled out in Supreme Court decisions.

Although this position is the direct opposite of what the DOJ has been telling Congress and the courts ever since Furman, for the last year or so the Government has been pressing ahead with its new plan to use the courts to bring the long dead-and-buried federal death statutes back to life. The first attempt came in early 1991 in Philadelphia, when the U.S. Attorney (with the personal authorization of the Attorney General) was actually permitted to death-qualify a jury in a federal witness-murder trial. The government's effort became moot, however, when the jury convicted of a lesser, noncapital offense. Since that first Philadelphia case, the resistance has stiffened: federal district judges in Mississippi, Alaska, and Pennsylvania have granted pretrial defense motions to dismiss death notices brought under pre-Furman statutes providing for death in the murder of federal officers ( 18 U.S.C. § 1114 ), homicide by mail bomb ( 18 U.S.C. § 1716 ), and murder of a witness ( 18 U.S.C. § 1512 ).

The Government's "zombie statute" theory did receive a little encouragement in July, 1992, when a New Orleans district court signed onto to the Government's brief and denied a defense motion to dismiss a death request brought in a post office murder case under 18 U.S.C. § 1114 . Since then, however, the whole screwy strategy seems to have started to unravel. In the Alaska mail bombing case, United States v. Cheely et al., the Ninth Circuit on Sept. 3, 1992, denied a stay of the (noncapital) trial pending the Government's appeal of the district court's pretrial order striking the death penalty, citing as its reason that the Government had not shown a likelihood of success on the merits of its appeal. On November 5, a district court in Philadelphia granted the defendant's motion to strike the death penalty in a case brought under 18 U.S.C. § 1512 (murder of a witness), United States v. Burke, 52 Cr.L. 1172 (E.D.Pa. 1992), bringing the Government's won-lost record in the district courts to 1-3. Its solitary "win," moreover, in the New Orleans case, is becalmed behind the Government's lead zombie appeal, United States v. Woolard, which was argued before a visibly skeptical panel of the Fifth Circuit on November 3. Assuming that the new administration does not share its predecessor's newfound enthusiasm for judicial hyperactivism in pursuit of death, this peculiar episode may be just about over.

Although both houses of the 102nd Congress passed crime packages containing a greatly expanded federal death penalty, the 1991-92 crime bill foundered on Bush Administration opposition, and died as a result of a Republican filibuster in the Senate. The ostensible reason for the Administration's opposition to the compromise crime bill was its moderate habeas reform provisions: the more cynical view was that the Administration had actually promised the NRA that it would kill any crime package containing the "Brady Bill" handgun control measure, and opposition to the minutiae of the habeas reform language in the conference bill was a politically handy fig-leaf. Whatever the reason, this opposition killed what had earlier appeared to be almost the certain enactment of Gregg-type sentencing procedures to implement a broad range of federal capital offenses.

While there is no likelihood that the Clinton Administration will put federal executions at the center of its domestic agenda, as its predecessor attempted to do in 1991-92, the new Administration may press for a crime package including a federal death penalty in the next Congress. If it does, there are several areas in which the 1991-92 House/Senate conference death penalty measure requires modification. These include:

• elimination of the proposed death penalty for non-homicidal drug trafficking offenses;

• restriction of death-eligible homicides to those involving actual intent to kill;

• clarification of jury's right to consider and impose noncapital sentencing alternatives (life without parole, etc.);

• ensuring that disparate treatment of equally culpable co-defendants is listed as a statutory mitigating factor, as it is in § 848;

• removing "use of a firearm" as a statutory aggravating factor sufficient to support imposition of the death penalty;

• creating statutory right to individualized sentence--i.e. right to severance of defendants at the penalty phase in all joint capital trials.

 

On November 30, Attorney General Barr proposed regulations which would establish lethal injection as the method of execution in federal cases, arrogate to the Federal Bureau of Prisons the power to set execution dates, and limit media and other access to death row inmates in the week prior to execution. Barr cited the "growing number" of federal death penalty cases as the reason why the promulgation of execution regulations in the waning days of the Bush Administration had become "imperative," but with the federal death row population still standing at one (and that case, U.S. v. Chandler, still on direct appeal, with oral argument set before the 11th Circuit on January 13, 1993), Barr's real intention just may have been to garner a last burst of death penalty publicity before he leaves office.

Whatever his intentions, the proposed regulations have already raised controversy. If promulgated, they will mark the first time that the executive rather than the legislative branch has selected the method of execution, and also the first time since at least the early 19th century that the executive rather than the federal courts asserted the power to set dates of execution. Among major death penalty jurisdictions, only South Africa authorizes the prison system to schedule as well as carry out executions: every American state with capital punishment places the date-setting authority in the trial or appellate courts, or in the governor. Apparently committed to promulgating these regulations before leaving office, Attorney General Barr permitted only 30 days of public comment. Comments received prior to the due date of December 30 included protests from correctional officials, press organizations, medical experts, a coalition of national and state legal groups, House Judiciary subcommittee chairman Don Edwards (D.-Cal.), and many others.

The most unwelcome of the innovations threatened by the federal courts' entry into capital trial litigation is the multi-defendant sentencing hearing. Mega-trials in drug conspiracy cases have long been routine in the federal courts: with § 848 ,(e) some of these cases now threaten to produce mega-death sentencing hearings. Both the Virginia and Oklahoma trials scheduled for trial in January, 1993, involve three capitally-charged defendants, and raise the prospect of a single jury being asked simultaneously to fashion "individualized" sentences for each of three convicted offenders. Such multi-defendant capital sentencing hearings are rare in state capital cases, and many states prohibit them by statute or discourage them by court decision. There is no such tradition in the federal courts, however, and the forthcoming decision of the Supreme Court in Zafiro v. United States threatens to make the prospects for guilt-phase severance of defendants even more bleak in most cases. Death, however, is different: motions now pending in Oklahoma and Virginia show that joined capital sentencing hearings create insoluble conflicts between the constitutional rights of co-defendants, and increase the risk that racial and ethnic stereotypes will substitute for the individualized consideration of mitigating evidence. Whether such hearings become the exception or the norm in federal capital trials remains to be seen.

Another aspect of federal criminal litigation which has proved especially problematic in the capital context is the "rocket docket" approach of many district courts. Although the need for exhaustive factual, scientific and legal investigation and preparation in capital cases obviously requires much more than the usual Speedy Trial Act time limits, two of the first § 848 cases (including United States v. Chandler, in which a death sentence was actually imposed) were rushed to trial within two months of indictment. Fortunately, most of the trial courts in the now-pending crop of § 848 cases have taken a somewhat more realistic approach by granting motions for continuance to allow time for adequate guilt and penalty phase preparation. While the Oklahoma case remains set for trial within five months of indictment, a minimum pretrial period of nine months to one year appears to be emerging as the norm in federal capital cases.

Another tradition of the federal courts that is proving troublesome in the capital sentencing context is their reliance on judge-conducted (and often superficial) voir dire examination of prospective jurors. Given the extraordinary discretion with which capital jurors are entrusted, and the susceptibility to bias of the capital sentencing decision, capital cases require an especially sensitive and probing exploration of each juror's preconceptions, beliefs, racial attitudes, and possible biases.

While § 848 requires that the Government apprise the defendant prior to trial of the nonstatutory aggravating factors which it will seek to prove at the penalty phase, the statute gives no guidance as to how specific such notice must be. Some federal prosecutors are now taking the view that the most general notice will suffice, and that defendants are not entitled to sufficient notice to permit investigation and rebuttal of the Government's allegations. This is an area which will require aggressive litigation in order to stake out a right to meaningful notice of all of the facts to be proven in support of the Government's demand for death.

In the first appeal of a death sentence imposed under 21 U.S.C. § 848, United States v. Chandler, one of the primary sentencing issues concerns the fact that Mr. Chandler's jury was instructed only to decide whether to recommend a sentence of death, and was never told that the defendant would serve a sentence of life imprisonment without possibility of parole if the jury decided against the death penalty. The result of this omission was that the jury decided Chandler's fate without any assurance that he would not be sentenced to a short prison term, or else promptly released on parole, if he was not sentenced to death. Jury research in many capital punishment states is now revealing that juror misconceptions about the likelihood that capital defendants will be quickly released by "revolving door" prison systems unless they are executed constitute a powerful source of arbitrariness and error in the imposition of the death penalty. It is obviously essential that juries receive accurate instructions about the alternative to a death sentence in order to eliminate this wild card for death.

The Federal Death Penalty Defense Newsletter is produced from time to time by the Federal Death Penalty Resource Counsel Project for the benefit of federal public defenders and CJA panel attorneys. Comments, thoughts and suggestions concerning the defense of federal capital prosecutions, as well as information about new or potential federal death cases in your district, should be directed to:   Kevin McNally David Bruck 513 Capitol Avenue 1247 Sumter St. Suite 302 P.O. Box 1243 P.O. Box 11744 Frankfort KY 40602 Columbia SC 29211 Telephone: 502/227-2142 Telephone: 803/765-1044 Fax: 502/227-4669 Fax: 803/765-1171