DOJ Questioned About Racial Disparities in Federal Capital Charging

On October 21, 1993, Congressional Black Caucus members Craig Washington (D-Tex), Bobby Scott (D-Va) and Mel Watt (D-NC) used the occasion of a House Judiciary subcommittee hearing on the 1993 crime bill to challenge Deputy Attorney General Philip Heymann on the reasons for the almost monochromatic pattern of death penalty prosecutions under federal law since passage of the "drug king-pin" death penalty statute in 1988. Citing records maintained by the Federal Death Penalty Resource Counsel Project, Washington noted that 22 out of 30 cases in which the Department of Justice had authorized death prosecutions involved African-American defendants, and half of the eight remaining cases involved Hispanics. Rep. Washington charged that "if some redneck county in Texas had come up with figures like that, you'd been down there wanting to know why." Asked by Rep. Watt to produce an explanation within one week for the seemingly lopsided pattern of capital charging by the federal government, Heymann said that he would respond within two weeks. (More than two months later, Rep. Watt had still not heard from DOJ). At the time of the hearing, every one of the twelve (later reduced to ten) federal capital defendants awaiting trial were African-American. Heymann did promise that the Department was studying ways of ensuring evenhanded and careful review prior to authorizing the death penalty in future cases.

The issue of DOJ guidelines for capital charging decisions surfaced again during the Senate crime bill debate in November. Reacting to the racially lopsided pattern of capital prosecutions under § 848, Sen. Edward Kennedy informed the Department that he was considering offering an amendment which would have written such guidelines into the bill's death penalty provisions. Senator Kennedy was dissuaded, however, by DOJ assurances that the Department would soon produce acceptable guidelines or standards on its own.

 

Jury Imposes Triple Death Sentence in Virginia

On February 16, 1993, a Richmond, Virginia federal jury imposed death sentences on three defendants under the "drug king-pin" capital punishment provisions of 21 U.S.C. § 848(e). United States v. Richard Tipton, James Roane, Cory Johnson, et al., 3:92CR68 (E.D.Va.). This case marks the first three-defendant capital sentencing hearing in a federal court in the post-Furman era. Over the defendants' repeated objections, the trial judge submitted the issue of punishment of all three capital defendants to a single jury, after permitting each defendant to present his mitigation case in sequence.

Tipton involved a series of 11 murders by small-time inner-city crack cocaine dealers whose own backgrounds constituted a virtual encyclopedia of urban social pathology. As the defendants' lawyers presented their evidence in mitigation, the jury heard harrowing stories of physical, emotional and sexual abuse and abandonment in childhood, exposure to extreme violence, untreated neurological impairment, and on and on. This appears to be the sort of defendant--rather than the hypothetical "drug kingpins" of political rhetoric--against whom the federal death penalty has been, and continues to be, primarily aimed.

Death Notice Withdrawn Against Mentally Retarded "Kingpin"

In the Richmond case, the government also had sought the death penalty against a fourth defendant, Vernon Thomas. His case was severed from his co-defendants due to the Attorney General's delay in approving the death notice, and trial was set for April 26, 1993. Shortly before trial, defense counsel served notice that the defendant was mentally retarded, a condition which precludes imposition of the death penalty under 21 U.S.C. § 848(l). On April 23, moments before the beginning of a pretrial evidentiary hearing on the mental retardation issue, the government formally withdrew its request for the death penalty, and the case proceeded to trial (and conviction) non-capitally.

The federal death penalty was enacted in 1988 to punish "drug king-pins" who commit murder in order to protect or extend their operations. The conclusion of the Thomas case, in which the government was forced to drop a death prosecution which had been personally authorized by the (former) Attorney General of the United States in order to avoid a judicial finding that the accused "king-pin" was mentally retarded illustrates just how wide is the gap between the reality of capital litigation and the politicians' overheated rhetoric.

Fifth Circuit Refuses to Refurbish Pre-Furman Statute

In United States v. Woolard, 981 F.2d 756 (5th Cir. 1993), the Fifth Circuit finally reburied the pre-Furman death penalty statutes which the Department of Justice had exhumed and attempted to revive in five "zombie statute" cases brought in Pennsylvania, Lousiana, Mississippi, Idaho and Alaska in 1991 and 1992. In Woolard, the first of the "zombie" cases to reach an appellate court, DOJ had requested the Fifth Circuit to order a Mississippi federal district court to create a Gregg-type capital sentencing scheme from whole cloth in order to apply a pre-Furman capital statute (18 U.S.C. § 1114) to the murderers of a federal game warden. Rejecting this request, the Fifth Circuit held that the formulation of a constitutional "guided discretion" capital sentencing system is a legislative function that cannot be taken over wholesale by a court. In July, the Clinton Administration decided not to seek Supreme Court review in Woolard.

A similar pretrial Government appeal was argued in early August before a 9th Circuit panel, with Alaska Federal Public Defender Nancy Shaw representing the defendant. U.S. v. Cheely, (D. Alaska No. A92-073-CR). However, since the 9th Circuit has already denied a Government request to stay the Cheely trial pending appeal, it's likely that the 9th will soon join the 5th in holding that the rewriting of federal death sentencing procedures is a job for Congress, not federal district courts.

DOJ Promulgates Lethal Injection Regulations

As expected, the Bush Administration promulgated controversial execution regulations during its last week in office in January, 1993, brushing aside constitutional concerns and objections from correctional and medical experts. 58 Fed. Reg. 4898 (Jan. 19, 1993). The regulations, unless struck down by the courts, would establish lethal injection as the method of execution of federal prisoners, and would require the Bureau of Prisons to reschedule dates of execution as well as to carry the executions out. Since the selection of a mode of execution has been the sole prerogative of Congress ever since 1790, the Bush Administration's effort to fill this gap in the nation's current federal death penalty laws by bureaucratic edict is certain to spawn more litigation. in June, a Richmond, Virginia federal district judge declared the regulations invalid and refused to implement them while passing sentence.

Federal Jury Imposes Death Sentence on Low Ranking Co-Conspirator in Oklahoma: More Culpable Defendants Get Life Imprisonment

On March 23, 1993, a federal jury in Muskogee, Oklahoma sentenced John McCullah to death for the drug-related murder of a used car lot employee. This marked the third time a federal jury has imposed a death sentence under the 1988 "drug king-pin" death penalty provision of 21 U.S.C. § 848. Mr. McCullah is also apparently the first federal public defender client to receive a death sentence in a federal court.

Like the three Virginia defendants sentenced to death in February, McCullah was one of three capitally-charged co-defendants who were convicted at a joint trial. Unlike the single three-defendant capital sentencing hearing which produced the triple death sentences in Richmond, however, the procedure followed in Muskogee was to conduct serial sentencing hearings for each defendant, with the trial jury rendering its sentencing verdict on one defendant before hearing aggravating and mitigating evidence about the next. Following this procedure, the trial jury first rejected the death penalty for the two key players in the drug conspiracy, Muskogee businessman Norwood Hutching and longtime Los Angeles drug dealer Ramon Molina, before agreeing a death sentence for McCullah. The government's evidence tended to show that McCullah, a brain-impaired 26-year-old ex-con, had only a marginal connection to the drug conspiracy, but was closest to the actual killing which underlay the capital § 848 count.

The results of the McCullah trial illustrate the critical flaw in the notion of using the death penalty for drug "king-pins" who commit drug-related homicides: the more of a "king-pin" a defendant is proven to be, the less likely he is to be anywhere in the vicinity when a murder occurs. Thus in McCullah, the two major operators in a coast-to-coast cocaine distribution ring could plausibly claim not to have been fully aware of the murder before it occurred, and the jury was left to vent its retribution on a dim-witted order-taker who had almost no prior relationship to the drug ring itself, but who was present when the murder occurred.

Murder, in other words, is a blue-collar job, and the higher up the chain of responsibility the prosecution tries to bring a capital prosecution, the less likely it is to convince a jury to impose the death penalty. The result is that 21 U.S.C. § 848, advertised when it was enacted just before the 1988 election as a way of cracking down on murderous "big-time" drug dealers, has so far resulted in death sentences for a handful of small fry.

Eleventh Circuit Panel Upholds First Federal Death Sentence

On July 19, 1993, a panel of the 11th Circuit affirmed the first death sentence imposed by a federal court under a post-Furman death sentencing scheme. United States v. Chandler, 996 F.2d 1073, reh. den., 5 F.3d 1501 (11th Cir. 1993). On the way to affirming the death sentence, the Chandler panel dismissed a long list of statutory and constitutional claims concerning the district court's sentencing determination. An Alabama federal jury had voted to impose the death sentence in April, 1991 after convicting Chandler under the 1988 Anti-Drug Abuse Act of having solicited the murder of a former member of his marijuana-growing business. The main witness against him was the triggerman, who testified under a grant of immunity for the killing. Among the claims rejected:

• that both 21 U.S.C. § 848(k) and the eighth amendment require a sentencing jury to be informed of the alternative sentence which will be imposed (life without parole) if the jury does not impose the death penalty;

• that § 848 requires the jury to report its findings concerning mitigating factors;

• that the jury should not have been misled into thinking that only a unanimous verdict for life could avert a death sentence or a mistrial, whereas § 848 actually treats the failure to reach unanimity on sentence as a decision against death; and

• that § 848's treatment as a statutory aggravating factor the sentencing jury's threshold finding that the defendant's conduct satisfied the minimum intent requirement of Tison v. Arizona violates the "narrowing" requirement of Godfrey, Maynard, Clemons, and Stringer.

The Chandler panel consisted of Judges Birch, Fay, and Edmondson.

Despite the disappointing outcome at the court of appeals level, the outlook in Chandler has brightened somewhat with the Supreme Court's grant of certiorari in Simmons v. South Carolina, No. 92-9052 (October 4, 1993). In Simmons the Court will address the constitutionality of withholding from a capital sentencing jury the fact that under state law, the jury's "life" sentence alternative actually means life without parole. Because Chandler's jury was given no information at all about the sentence to be imposed if the jury rejected the death penalty, the claim advanced in Simmons clearly encompasses Chandler, and it seems likely that the Supreme Court will, at a minimum, hold Chandler's certiorari petition until Simmons is decided. The petition in Chandler was filed December 29.

Death Imposed on Federal Defendant in Texas

On August 2, a Brownsville, Texas federal jury sentenced a Hispanic drug dealer to death in connection with the murders of three other drug traffickers in the Brownsville area. United States v. Juan Raul Garza, No. CR 93-0009 (S.D.Tex.). Attorney General Barr authorized the prosecution to seek the death penalty in December, 1992. At the penalty phase the government introduced evidence that the defendant had been responsible for several other drug-related homicides which were committed in Mexico.

In Congress

The 1993 crime bill passed by the Senate just before the Thanksgiving adjournment includes the usual kill-em-all-and-let God-sortem-out panoply of death penalty measures. In addition to the death-for-drug-dealers provision which had also been contained in the nearly-enacted 1991 crime bill conference report, the Senate revived Sen. D'Amato's extravagant proposal to federalize all gun murders, and to render them punishable by death. The Senate's death penalty procedures generally tracked the 1991 conference report procedures, which is to say that they include a number of virtually all-inclusive statutory aggravating factors, such as that the murder was committed "after substantial planning and premeditation," or that it involved a fact (such as the murder of a federal officer) which is simply the federal jurisdictional element required for conviction. The effect of the Senate procedures, in sum, is to consign the life-or-death issue in virtually every federal homicide to the unfettered discretion of the jury.

The Senate bill does contain a few small improvements over the 1991 conference report procedures. It clearly states, as does the one existing federal death penalty statute, 21 U.S.C. § 848(m)(8), that relatively lenient treatment of a co-defendant or equally culpable accomplice is a statutory mitigating factor. And it removes any doubt but that federal juries may consider the alternative of life without possibility of parole when deciding whether to impose the death penalty: under the Senate provisions, an LWOP verdict is made available to the sentencing jury as a "middle option" between death and an unspecified sentence of less-than-LWOP, to be imposed by the judge. This will ensure no replication of the "blind sentencing" dilemma which occurred in the first federal death penalty case, United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993) (jury not required to be informed of the alternative sentence when deciding whether to impose the death penalty), and incidentally should ensure that the federal procedures will be constitutional even if the Supreme Court rules in favor of the petitioner in Simmons v. South Carolina, No. 92-9059, cert. granted 114 S.Ct. 57 (Oct. 4, 1993) (whether Due Process Clause or Eighth Amendment entitles capital defendant to inform sentencing jury that "life imprisonment" alternative means life without possibility of parole).

A corresponding House crime bill drafted by Judiciary Chairman Jack Brooks, H.R. 3131, while generally similar to the Senate bill, would have discarded the (probably unconstitutional) death-for-drugs provisions, and contained no death-for-gun-murders provision. However, in late October Chairman Brooks decided to delete the death penalty (and habeas corpus) titles from his crime proposals, and broke up the rest of the omnibus crime measure bill into smaller and largely noncontroversial bills which have now passed the House. How House conferees will treat the draconian federal death penalty provisions of the Senate crime bill remains to be seen.

Pending Federal Death Penalty Prosecutions

In early December, the government withdrew death penalty notices against two Macon, Georgia defendants awaiting trial on two 848(e) homicide counts. Both of these defendants, like all of the ten other defendants still awaiting federal capital trials, are African-American. The pending cases include five co-indictees in a single Detroit case (only three of whom have been apprehended), and one defendant each are in Buffalo, N.Y., Harrisburg, Pa., Washington, D.C., Atlanta, Ga., and Tampa, Fl. The roster of death-sentenced federal prisoners still stands at six, from a total of four cases in Alabama, Virginia, Oklahoma and Texas.

The Federal Death Penalty Resource Counsel Project, an initiative of the Death Penalty Subcommittee of the Federal Defender Advisory Committee, assists defenders and panel attorneys in the defense of federal capital cases. Resource Counsel David Bruck and Kevin McNally request the assistance of federal defenders and CJA panel attorneys in tracking potential and pending federal death penalty cases throughout the United States. Please contact:

David Bruck	Kevin McNally
P.O. Box 11744	P.O. Box 1243
Columbia SC 29211	Frankfort KY 40602
(803) 765-1044	(502) 227-2142
Fax: (803) 765-1171	Fax: (502) 227-4669