January 1995

Federal Death Penalty Defense

NEWSLETTER
January 1995

THE 1994 CRIME BILL: NATIONALIZING THE DEATH PENALTY

On September 13, 1994, President Clinton signed the much heralded "crime bill," and the nation embarked upon an unprecedented expansion of the federal death penalty--an effective nationalization of capital punishment. The bill will achieve this by:

(1) adopting Gregg-type procedures applicable to every pre-existing federal death penalty offense;

(2) adding several broad new categories of federal capital crimes, such as virtually all drug-related gun killings, and non-homicidal offenses such as trafficking in very large quantities of drugs; and

(3) employing aggravating factors so all-inclusive as to render death-eligible almost any homicide committed within federal jurisdiction.

Old Capital Crimes

First, the crime bill sweeps through the federal criminal code to revive every single pre-Furman death penalty provision still on the books. By providing for putatively constitutional procedures for imposing death for all offenses already listed as capital, the crime bill effectively restores the death penalty for:

Х destruction of aircraft or motor vehicles resulting in death (18 U.S.C. з 34);

Х espionage (18 U.S.C. з 793);

Х use of explosives resulting in death (18 U.S.C. з 844(d));

Х arson or destruction by explosives of government building or property resulting in death (18 U.S.C. з 844(f));

Х arson or destruction by explosives of property used in interstate commerce resulting in death (18 U.S.C. з 844(i));

Х assassination of the President, Vice-President, etc. (18 U.S.C. з 1751(a));

Х killing while in the commission of bank robbery (18 U.S.C. з 2113(e));

Х killings committed in furtherance of continuing criminal enterprises, or of large-scale drug transactions, or killings of state or federal police officers in furtherance of drug felonies (already rendered capital by 21 U.S.C. з 848(e)et seq.);

Х first degree murder (18 U.S.C. з 1111);

Х first degree murder of a foreign official, official guest, etc. (18 U.S.C. з 1116);

Х kidnapping resulting in death (18 U.S.C. з 1201);

Х first degree murder of federal officers or employees (18 U.S.C. з 1114);

Х death resulting from mailing of nonmailable items (18 U.S.C. з 1716);

Х train wrecking resulting in death (18 U.S.C. з 1992);

Х treason (18 U.S.C. з 2381);

Х air piracy resulting in death (49 U.S.C. з 1473).

New Capital Crimes

Additionally, the crime bill permits the death penalty for a number of existing federal crimes, most of which have been created during recent years. These include:

Х deprivation of civil rights resulting in death (18 U.S.C. зз 241, 242, 245, 247);

Х hostage taking where death results (18 U.S.C. з 1203);

Х interstate travel or use of interstate commerce facilities in connection with murder for hire (18 U.S.C. з 1958);

Х murder in aid of racketeering activity (18 U.S.C. з 1959);

Х genocide (18 U.S.C. з 1091);

Х carjacking resulting in death (18 U.S.C. з 2119);

Хsexual abuse or child molestation resulting in death, committed within federal territorial jurisdiction (18 U.S.C. з 2245).

The bill creates a number of wholly new federal offenses and renders them death-eligible. These include:

Х drive-by shooting (first degree murder by firing weapon into group of two or more persons in furtherance of major drug offense) (18 U.S.C. з 36);

Х gun murder during federal crime of violence, or during drug felony (18 U.S.C. з 924(i));

Х first-degree murder by use of firearm or other dangerous weapon during attack on federal facility (18 U.S.C. з 930(c));

Х first-degree murder of United States national abroad (18 U.S.C. з 1118);

Х murder by federal life-term prison inmate (18 U.S.C. з 1119);

Х murder by escaped federal prisoner (18 U.S.C. з 1120);

Х intentional killing of state or local officer or official working with federal law enforcement officials, or of state correctional officer by federal prisoner or in course of interstate transport of prisoner (18 U.S.C. з 1121);

Х killing federal court officers or jurors (18 U.S.C. з 1503(b));

Х killing witnesses or informants (18 U.S.C. з 1513(a));

Х death resulting from violence against maritime navigation or fixed platforms (18 U.S.C. зз 2280, 2281);

Х death resulting from torture (outside the United States) (18 U.S.C. з 2340(A));

Х death resulting from violence at international airports (18 U.S.C. з 36);

Х murder of United States national by terrorism outside the United States (18 U.S.C. з 2332);

Х death resulting from use of weapon of mass destruction (18 U.S.C. з 2332a);

Х death resulting from alien smuggling (18 U.S.C. з 1324(a)(B)(iv)).

Non-Homicide Crimes

Both houses of Congress voted by lopsided margins to include trafficking in large quantities of drugs--without any related homicide--among the list of capital offenses. See 18 U.S.C. з 3591(b). This decision was made even after the Department of Justice represented that such a measure was probably unconstitutional under Coker v. Georgia, 433 U.S. 584 (1977) (death penalty disproportionate for the crime of rape of an adult woman). Because of the notorious 100:1 disparity in the federal criminal code's treatment of powder and crack cocaine, one of the effects of this legislation is that while 300 kilograms of powder cocaine would be required to subject a trafficker to the death penalty, a mere 3 kilograms of crack cocaine would have the same effect.

Included among these non-homicidal death provisions is another authorizing the death penalty for attempting, authorizing or advising the killing of any officer, juror, or witness--i.e. any snitch--in cases involving a CCE, regardless of whether such killing actually occurs. 18 U.S.C. з 3591(b)(2).

Procedures

The crime bill creates a "weighing" procedure generally similar to that already in use in 21 U.S.C. з 848(e)-(q), the 1988 Anti-Drug Abuse Act death sentencing provisions. The most egregious defect in these provisions is their use of overbroad, "catch-all" aggravating factors such as "substantial planning and premeditation." In addition, the crime bill procedures make maximum use of Lowenfield v. Phelps, 484 U.S. 231 (1988), to "double count" federal jurisdictional elements of the underlying offense (e.g. that the victim was a federal employee) as statutory aggravating factors sufficient to support the death penalty.

One marked improvement from the з 848 procedures is that the crime bill expressly requires the jury to choose between death, "life without possibility of release," and some lesser term of imprisonment. This removes potential Simmons v. South Carolina, 114 S.Ct. 2187 (1994) problems, discussed below.

DIFFERENCES BETWEEN CRIME BILL AND DRUG KINGPIN PROCEDURES

What follows is a very preliminary description of a few obvious differences between the capital sentencing procedures of 21 U.S.C. з 848 and those in the new "crime bill".

Mitigation Findings

Written mitigation findings are arguably required under з 848, but see United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert. denied, 114 S.Ct. 2724 (1994) (jury has option to return mitigation findings under з 848(k), in its discretion). The argument is based on language in з 848, which is unfortunately absent in the crime bill. However, even under the worst interpretation, findings are not precluded by the crime bill procedures, and judges may and should still require them.

Non-Death Option for Jury: the Simmons Fix

Simmons v. South Carolina, 114 S.Ct. 2187 (June 17, 1994) (jury must be informed of LWOP option if parole is not a possibility under state law) helps to end the problem caused by the з 848 jury's ignorance of the noncapital sentence the defendant would receive from the court. The crime bill goes further by providing for a 3-way choice for the sentencing jury (death, life without possibility of release, or some lesser sentence).

Jury Unanimity

The crime bill is a bit vague on the issue of unanimity as to any of the three sentencing options. з 3593(e), standing alone, does seem to require that any of the three recommendations must be unanimous. з 3594 requires a less-than-life sentence unless the jury returns a (unanimous) death or life recommendation under з 3593. This would seem by its terms to cover not only a unanimous less-than-life rec, but also a nonunanimous vote of any sort. з 3593(e) and з 3594 can only be reconciled by holding that unless the jury is unanimous as between death or life without possibility of release, the judge must sentence the defendant to less than life without possibility of release. In any event, this provision as a whole is clearly an improvement over з 848 because of the "Simmons fix".

Life Option Instruction

з 848(k)'s express requirement of a never-have-to-give-death instruction was removed, but semi-mandatory Blystone v. Pennsylvania, 494 U.S. ___, 110 S.Ct. 1078 (1990) language (the jury "shall" impose death when aggravation outweighs mitigation) was deleted from an earlier draft, so the upshot is a highly discretionary statute which should require a "never-have-to-give-death" instruction.

One-Tier, Not Two-Tier, Aggravation

21 U.S.C. з848(n)(1) created a first tier of aggravation which caused no end of constitutional problems. Actually a four prong Tison v. Arizona, 481 U.S. 137, 109 S.Ct. 1676 (1987) threshold mental state finding, (n)(1) was mistakenly labeled as aggravating and weighed in the balance in the life or death decision. It was an "illusory" aggravating circumstance in that it added nothing helpful to the jury's deliberation on the life and death question.

In addition to removal of the "aggravating" designation from the intent factors, see 21 U.S.C. з 848(n)(1), the final "Tison" з 848(n)(1) factor has been tightened up somewhat. The defendant must have "intentionally and specifically engaged in an act of violence," which resulted in the death of the victim, thus satisfying the Tison standard. 18 U.S.C. з 3591(a)(2)(D).

Any Mitigating Circumstance

The general requirement of 21 U.S.C. з 848(m) that the sentencer "shall consider mitigating factors" has been strengthened to "shall consider any mitigating factor, including . . . ."

Defendant's Prior Criminal Record or Prior Conduct?

The no-prior-record mitigator has been narrowed to include only defendants who do not have "a significant prior history of other criminal conduct." з 848(m)(6) referred to the lack of a "significant prior criminal record." The government may argue that this allows consideration of unadjudicated conduct as rebutting the mitigator. However, from a review of the unadjudicated prior bad acts the government has attempted to rely upon in з 848 cases, no profound overall effect is expected.

Catch-All Mitigator

The catch-all mitigator expressly refers to the circumstances of the offense and to the defendant's "record" as well as to his "background or character," but this difference is irrelevant in light of the Lockett v. Ohio, 438 U.S. 586 (1978) principle, requiring that the sentencer consider all relevant mitigating circumstances.

Belief of Government Attorney

Oddly, the notice requirement of з 3593(a) twice refers to the attorney for the government's belief that the death penalty is justified. Thus a prosecutor unable to sign a notice that s/he actually believed the death penalty to be appropriate would presumably be unable to file such a notice. з 848 includes no such reference to any belief on the part of the government's attorney, but merely to the government's intent to seek the death penalty.

Victim Impact Testimony

The crime bill expressly provides for notice of victim impact evidence: з 848, enacted about 18 months after Booth v. Maryland, 482 U.S. 496 (1987) (victim impact evidence unconstitutional), does not.

Notice of Information in Sentencing

The government may argue that the beginning of the general procedural subsection, з 3593(c), seems to broaden the range of "information" beyond that for which notice has been provided, because it says that information "may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592." з 848(j)more clearly limited aggravating "information" to that relevant to noticed statutory and nonstatutory aggravating factors. However, the rest of the subsection seems to limit the government's evidence to that for which notice has been provided, so it is very unlikely this drafting difference is of any significance.

Appellate Review

The appellate review provisions of з 3595 are broader.

(a) The court of appeals must review "the entire record in the case," whereas з 848(q)(2) required only that the court "consider the record" etc. This supports arguments against procedural default in particular settings--especially in trying to broaden the definition of "arbitrary factors."

(b) Several of the appellate issues--passion, prejudice or arbitrary factors, and sufficiency of the evidence of aggravation--are evidently not subject to procedural default, since only other appellate claims must be "properly preserved under the rules of criminal procedure." (c) The Chapman standard is applicable to all errors that can be harmless, including nonconstitutional errors: Kotteakos is apparently inapplicable in review of federal capital sentences. з 3595(2)(C).

Execution Method

The crime bill restores the pre-1984 delegation of executions to the states. 18 U.S.C. зз 3596-97. (The Bureau of Prisons, which now has to figure out how to justify the money it spent building a lethal injection chamber at USP Terre Haute, may try to read this provision as allowing it to carry out executions in Terre Haute which were imposed by federal courts in lethal injection states. The argument may go that only in states which use methods other than lethal injection [such as Florida] will the crime bill procedures apply).

Summary

At a glance, that's where some differences lie. The important ones are clearly (on the plus side) the (n)(1) and Simmons fixes, and on the negative side, the removal of some language regarding the necessity of written mitigation findings. The removal of the death-is-never-mandatory instructional requirement probably does not make much difference, since a pretty strong case can be made from the legislative history (including the comments of Rep. Gekas) that no change from з 848 was actually effected.

APPOINTMENT OF COUNSEL
"LEARNED IN THE LAW APPLICABLE TO CAPITAL CASES"

A small but important change in the crime bill death penalty provision may improve the quality of counsel in federal capital cases. Section 60026 of the bill would amend 18 U.S.C. 3005, the original federal counsel statute which has remained unchanged since 1790.

Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by counsel ~~learned in the law~~; and the court before which the defendant is to be tried, or a judge thereof, shall promptly, ~~immediately~~, upon the defendant's request, assign two such counsel ~~not exceeding two as he may desire~~, of whom at least one shall be learned in the law applicable to capital cases, and who shall have free access to him at all reasonable hours. In assigning counsel under this section, the court shall consider the recommendation of the Federal Public Defender organization, or, if no such organization exists in the district, of the Administrative Office of the United States Courts. The defendant shall be allowed, in his defense to make any proof that he can produce by lawful witnesses, and shall have the like process of the court to compel his witnesses to appear at his trial, as is usually granted to compel witnesses to appear on behalf of the prosecution.

The effect of these amendments are: (1) to make clear that at least one lawyer appointed in a federal capital case must have capital defense expertise, (2) to change the two-lawyer rule from a maximum to a minimum number of lawyers who may be appointed in a capital case, and (3) to formalize the role of the federal defender system in proposing names of qualified lawyers for appointment.

PROSECUTORIAL DISCRETION/DOJ AUTHORIZATION

Under longstanding Department of Justice regulations, DOJ Manual 9-2.148, 10-9.020, federal prosecutors cannot seek the death penalty without the personal authorization of the Attorney General. Requests for the death penalty are initiated from the local, U.S. Attorney level, and are the reviewed by the relevant section of the Criminal Division at the Department of Justice, by the Assistant Attorney General for the Criminal Division, by the Deputy Attorney General, and ultimately by the Attorney General.

Currently, this review process has operated with neither fixed procedures nor substantive criteria. However, Attorney General Reno has assured members of Congress that the Department is in the process of developing policy for reviewing death penalty authorization requests, and that this policy will be in place soon. The procedures may formalize involvement of defense counsel in the pre-approval review process, in order to permit DOJ to take into account mitigating factors which should weigh against capital prosecution. They are also expected to include some sorts of safeguards against racial discrimination in federal capital charging decisions.

MORE QUESTIONS ON RACE AND THE FEDERAL DEATH PENALTY

Prior to negotiating and entering a guilty plea for a noncapital sentence in June of this year, Harrisburg federal defendant Michael Murray brought a challenge to the federal death penalty based on alleged racial discrimination in Justice Department charging decisions. Over strong opposition by the government, Chief Judge Sylvia Rambo ordered discovery of Justice Department files on capital and potential capital cases, noting the fact that nearly 80 percent of all defendants, and 100 percent of all defendants approved for capital prosecution by the Clinton Administration, had been African-American. Judge Rambo's unprecedented discovery order produced the startling assertion that no Attorney General has rejected any request by a U.S. Attorney for authorization to seek the death penalty--with the exception of Murray's own two co-defendants--since the modern federal death penalty was enacted as part of the 1988 Anti-Drug Abuse Act.

Faced with what amounted to a "rubber-stamp defense" of the exercise of its discretion, Judge Rambo ruled on May 27 that Murray had been unable to show that the Department of Justice had based its charging decisions on racial considerations. Judge Rambo did confess to being "puzzled" at the Justice Department's representation that no government agency possessed information concerning the potential "universe" of defendants who could be prosecuted under federal capital punishment laws. Nevertheless, her search for usable information frustrated, she denied Murray's challenge to the administration of the federal death penalty and ordered his trial to go forward. On June 15, after one week of jury selection, the government accepted a plea bargain under which Mr. Murray is expected to receive a sentence of less than 30 years.

On October 28, 1994, the government announced its first capital prosecution since March. Three white Kansas City brothers will face a federal capital prosecution.

SUPREME COURT DENIES REVIEW OF FIRST FEDERAL DEATH CASE

After deferring consideration of the first certiorari petition from a death-sentenced federal prisoner pending its decision in Simmons v. South Carolina, 114 S.Ct. 2187 (June 17, 1994), the Supreme Court denied review on June 20. United States v. David Ronald Chandler, 996 F.2d 1073, 1097 (11th Cir. 1993), cert. denied, 114 S.Ct. 2724 (1994), raised many of the same issues as Simmons. The trial judge in Chandler failed to advise the jury that the defendant would receive life without possibility of parole if the jury failed to sentence him to death. Although the government had admitted in its Supreme Court papers that a decision in favor of Simmons might well justify a remand to the 11th Circuit for reconsideration, the Court nevertheless denied review. A petition for rehearing, relying on Simmons was denied on August 24, 1994. As the first federal death penalty case moved into collateral proceedings under 28 U.S.C. з 2255, the government wasted no time and requested an execution date (on September 13, 1994 -- the effective date of the crime bill). A stay has been granted.

THE FEDERAL DEATH ROW

The Bureau of Prisons is currently building a lethal injection, execution facility at the United States Penitentiary in Terre Haute, Indiana, BOP is also furbishing a maximum security cellblock at Terre Haute for possible use as federal death row housing. At present, however, the BOP apparently has no immediate plans to move the six federal death-sentenced inmates from the state death rows in Oklahoma, Texas and Virginia where they are currently held. The "Alabama prisoner," Ronnie Chandler, was recently moved to Texas.

The construction of the federal lethal injection facility is presumably intended to permit the Bureau to comply with the controversial execution regulations promulgated on the last day of the Bush Administration in January, 1993. However, since the crime bill returns the federal government to the pre-Furman practice of using state facilities and methods of execution for federal death sentences, the Terre Haute facility may be legally obsolete before it's finished.

ANTI-DRUG ABUSE ACT DEVELOPMENTS:
NO GROWTH ON THE FEDERAL ROW

The total number of federal prisoners under sentence of death remains at six. The death row roster has not increased since July, 1993, as more recent capital prosecutions ended in life verdicts in Norfolk, Virginia in March of 1994 (United States v. Jean Claude Oscar) or in plea bargains in the District of Columbia (United States v. Wayne Anthony Perry) and Harrisburg, Pennsylvania (United States v. Michael Murray).

On June 29, 1994, a federal court in Atlanta dismissed capital charges in United States v. George Travis Williams. On October 26, 1994, in a Norfolk, Virginia, case, United States v. Todd Moore, the defendant was sentenced by the Court to life imprisonment. Moore had plead guilty on June 10. Four more cases, involving a total of twelve defendants in Detroit, Miami, Buffalo and Kansas City are awaiting capital trials.

FEDERAL DEATH PENALTY PROSECUTIONS, 1988-94

Following enactment of the first modern federal death penalty statute on November 18, 1988, 21 U.S.C. з 848(e)-(q) (the so-called "drug kingpin" murder provision), the Bush and Clinton Administrations have approved death penalty prosecutions under з 848 against 41 defendants.

The dispositions of these cases to date has been as follows:

Sentenced to death (and now pending on appeal)
6

Sentenced to less than death after jury voted against death
11

Capital prosecution discontinued by government 9

Died prior to arrest 1

Committed suicide during trial 1

Dismissed by the district court 1

Awaiting trial or sentencing on capital charges 12

Of the total of 41 defendants against whom the Attorney General has authorized the government to request the death penalty, seven were white, five were Hispanic, and 29 were African-American. Ten of thirteen of the defendants approved for capital prosecution by Attorney General Reno, and 10 of 13 capital defendants now in pretrial custody, are African-American. In all but three cases (two in which one or more Hispanic defendants killed white Anglo victims and one in which three Caucasian brothers allegedly killed two Mexican drug couriers), the race of the homicide victims were the same as the race of the defendants.

Federal capital cases tried this year:

The federal death penalty cases tried this year were both in Norfolk, Virginia:

Х In United States v. Jean Claude Oscar et al. (E.D.Va. No. 93 CR 131), a Norfolk, Virginia jury refused in March, 1994, to impose the death penalty upon any of three capitally-charged defendants convicted of two crack-related murders. Attorney General Reno authorized capital prosecutions in this case in November, 1993.

Х In United States v. Todd Moore (E.D. Va. No. 2-93CR-162), a New York-based crack cocaine distributor pleaded guilty on June 10, 1994, to an indictment charging him with having ordered the murder of a member of his Newport News, Virginia drug organization. Attorney General Reno approved the death penalty in this case in March, 1994 after Moore, who is mildly impaired, impulsively tried to repudiate the negotiated plea bargain he had agreed to. The government waived a jury for sentencing, and a penalty hearing was held before the district court on September 19-21. On October 27, 1994, the district judge declined to impose the death penalty, and sentenced Moore to life without possibility of release. At the June, 1994 trial of the admitted triggerman in the murder, Derek Kelley, Moore offered to testify as a government witness. However, the government declined to use Moore as a witness, and Kelley was subsequently acquitted of all charges and released.

Capital prosecutions withdrawn

In the following two cases, the government withdrew previously-filed notices of its intention to seek the death penalty and a guilty plea resulted:

Х United States v. Wayne Anthony Perry (D.C.D.C. No. 92-CR-474), an alleged hitman for a D.C. cocaine distribution ring; eight homicide counts. On March 31, 1994, the defendant pleaded guilty to five homicide counts in exchange for the government's dropping the death penalty. He received five consecutive nonparolable life sentences.

Х United States v. Michael Murray (M.D.Pa. CR. No. 1:CR-92-200), involved the killing of a Harrisburg drug dealer by a gang headed by one Jonathan Bradley. DOJ declined to approve the U.S. Attorney's request to authorize the death penalty against Bradley, who allegedly ordered the killing, and against another participant in the shooting, Emmanuel S. Harrison. On June 15, 1994, after jury selection had begun, Murray was permitted to plead guilty for a term of years, and the government withdrew its request for the death penalty.

Federal capital prosecutions

Prosecutions in which the Attorney General authorized the death penalty which are still pending as capital cases in federal district courts involve indictments charging:

Х one black Atlanta drug distributor in connection with three murders. United States v. Williams (N.D. Ga. No. 1:92-CR-142). No trial date is set as yet. In June 1994, the district court dismissed the capital charges against Mr. Williams on double jeopardy grounds, because the government has already secured a conviction and 30-year sentence against him for much of the alleged drug-related conduct. A government motion to reconsider this ruling is pending.

Х United States v. Reginald Brown et al. (E.D.Mich. Cr. No. 92-81127). This case involves six death authorizations against members of a Detroit cocaine distribution organization alleged to be responsible for a total of twelve murders over a 4-year period. The initial authorization occurred during the Bush Administration, but the authorizations were not announced until June, 1993. One defendant, Terrance Brown, has been found dead, apparently a homicide victim. The other five are in custody awaiting three separate trials set to begin in March of 1995.

Х United States v. Darryl Johnson (W.D.N.Y. CR. No. 92-159-C-S), involving three alleged cocaine-related killings by a California connected, Buffalo, New York group. Trial is currently scheduled for January 3, 1995.

Х United States v. Edward Alexander Mack et al. (S.D. Fla. 93-0252-CR-Ungaro-Benages), involves two drug-related murders committed in the course of a Miami narcotics drug trafficking operation. Three defendants are facing the death penalty in this case. Attorney General Reno authorized this capital prosecution in early January, 1994; trial is currently set for April 3, 1995.

Х United States v. Steven Vest, et al. (W.D. Mo. No. 94-00037-01-CR-W-S). Three white brothers were approved for a capital prosecution on October 28, 1994. This is the first approval by the Attorney General since March and the first since litigation in Harrisburg and Detroit over the monochromatic charging practices in federal capital cases. Three defendants are awaiting a current January 5, 1995 trial date, charged with the double homicide of two Mexican drug dealers. One defendant faces a separate murder count in an alleged drug rip-off.

INDIAN TRIBAL OPT-IN CHOICES:
FACILITATING INFORMED CONSENT

In passing the crime bill, Congress recognized that some provisions intended to effect "street crime" will directly impact Native Americans who are subject to federal criminal jurisdiction. In this sense, Native Americans are unique because they are among the few citizens who live in communities on federal land. Congress has allowed Indian tribal governments to elect whether to have three provisions of the new law apply to their members, as follows:

1. Title VI, section 60002, (at 55 Crim. L. Rptr. 2361) regarding application of the death penalty for first degree murder, amends 18 U.S.C. to add з3598, as follows:

з3598. Special provisions for Indian Country

Notwithstanding sections 1152 and 1153, no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in section 1151 of this title) and which has occurred within the boundaries of Indian country, unless the governing body of the tribe has elected that this chapter have effect over land and persons subject to its criminal jurisdiction.

2. Title VII, section 70001(6), (at 55 Crim. L. Rptr. 2366), regarding mandatory life imprisonment for persons convicted of certain felonies (popularly known as "three strikes and you're out") has a similar provision, such that this section will not apply to Indians prosecuted for Indian Country crimes "unless the governing body of the tribe has elected that this subsection have effect over land and persons subject to the criminal jurisdiction of the tribe."

3. Title XIV, section 140001, (at 55 Crim. L. Rptr. 2380) regarding transferring juveniles charged with certain crimes to be prosecuted as adults at age 13, also will not apply to juveniles prosecuted for Indian Country crimes unless the governing body of the tribe has elected that this provision have effect over land and persons subject to its criminal jurisdiction.

While no action by a tribe will result in these provisions not applying, it is important that any tribe considering whether to adopt one or more of these provisions have sufficient information upon which to base their decision. For example, tribal governments need to understand that the tribe would not be able to decide whether the death penalty will be sought in a particular homicide (or whether a particular 13 year old would be treated as an adult, etc.). Rather, the tribe would be turning over to the U.S. Attorney, and ultimately to a federal court jury, the decision whether to impose the death penalty. Each tribe needs to have a realistic view of the composition of the federal jury panel in their district, which may have few Native Americans.

Tova Indritz, Federal Defender for New Mexico, P.O. Box 449, Albuquerque, NM 87103; (505) 766-3293, fax (505) 766-3539, is in the process of putting together a packet of materials on these issues and welcomes any input, suggestions or information. Even federal defenders and other interested persons without Indian Country in their district should share with Tova any materials you have that are useful (e.g., why the death penalty is not a deterrent, how it has a racial impact). Those with Indian Country jurisdiction, please be in touch with Tova.

INDIAN TRIBES SUBJECT TO FEDERAL CRIMINAL JURISDICTION

ALABAMA
Poarch Band of
Creek Indians

ARIZONA
Ak Chin
Cocopah
Colorado River
Gila River
(Pima-Maricopa)
Fort Mojave
Havasupai
Hopi
Hualapai
Kaibab Paiute Band
Mohave-Apache
Navajo Nation
Pascua Yaqui
Quechan
Salt River Pima-
Maricopa Indian of Shoshoni

KANSAS
Iowa of Kansas
Kickapoo Tribe
Prairie Band of Potawatoi
Sac & Fox of Missouri

LOUISIANA
Chitimacha
Coushatta
Tunica-Biloxi

MASSACHUSETTS
Wampanoag

MICHIGAN
Bay Mills
Grand Traverse
(Ottawa & Chippewa)
Hannahville Indian Community
Keweenaw Bay
Lac Vieux Desert Band of Chippewas
Saginaw Chippewa Tribe
Sault Ste. Marie

MINNESOTA
Bois Forte
Red Lake

MISSISSIPPI
Mississippi Band of Choctaw Indians

MONTANA
Blackfeet
Chippewa-Cree (Rocky Boy Reservation)
Confederated Salish & Kootenai (Flthead)
Crow
Fort Belknap
Fort Peck (Assiniboine & Sioux)
Northern Cheyenne

NEVADA
Duck Valley Reservation
Duckwater Shoshone
Ely Colony
Fallon (Paiute/Shoshone)
Fort McDermitt (Paiute & Shoshone)
Fort Mojave
Goshute
Las Vegas Colony
(Paiute)
Lovelock Paiute
Moapa Paiute
Pyramid Lake Paiute
Reno-Sparks Colony
Shoshone Paiute
Summit Lake Paiute
Te-Moak Western
Shoshone Indians of Nevada
Walker River Paiute
Washoe
Carson Colony
Dresslerville Comm.
Stewart Community
Woodfords
Washoe Tribal Farms
Washoe Pinenut
Allotment
Winnemucca
Yerington Paiute
Yomba Shoshone

NEW MEXICO
Acoma
Cochiti
Isleta
Jemez
Jicarilla Apache
Laguna
Mescalero Apache
Nambe
Navajo
Picuris
Pojoaque
Sandia
San Felipe
San Ildefonso
San Juan
Santa Ana
Santa Clara
Santo Domingo
Taos
Tesuque
Zia
Zuni

NORTH CAROLINA
Eastern Bank of Cherokee

NORTH DAKOTA
Standing Rock Sioux
Devils Lake Sioux
Three Affiliated Tribes (Fort Berthold-Arkikara, Mandan, Hidatsa)
Turtle Mountain Chippewa

SOUTH DAKOTA
Cheyenne River Sioux
Crow Creek Sioux
Flandreau Santee Sioux
Lower Brule Sioux
Oglala Sioux
Rosebud Sioux
Sisseton-Wahpeton Sioux
Standing Rock Sioux
Yankton Sioux

OKLAHOMA
Absentee-Shawnee
Alabama-Quassarte Tribal Town (Creek)
Apache
Caddo
Cherokee Nation
Cheyenne-Arapaho
Chickawsaw Nation
Choctaw Nation
Citizen Bank Potawatoi
Comanche
Muscogee Creek Nation
Delaware
Eastern Shawnee
Fort Sill Apache
Iowa of Oklahoma
Kaw
Kickapoo
Kialegee Tribal Town (Creek)
Kiowa
Miami Tribe
Modoc
Osage
Ottawa
Otoe-Missouriа
Pawnee
Peoria
Ponca
Quapaw
Sac & Fox of Oklahoma
Seminole Nation
Seneca-Cayuga Nation
Thlopthlocco Tribal
Town (Creek)
Tonkawa
United Keetooway Band of Cherokee Indians
Wichita
Wyandotte

UTAH
Northwestern Band of Shoshone
Paiute
Skull Valley Goshute
Uintah & Ouray (Ute)

WASHINGTON
Chehalis
Colville
Hoh
Jamestown Band of Klallam
Kalispel
Lower Elwha
Lummi
Makah
Muckleshoot
Nisqually
Nooksack
Port Gamble Klallam
Puyallup
Quileute
Quinalt
Sauk-Suiattle
Shoalwater Bay
Skokomish
Spokane
Squaxin Island
Stillaquamish
Suquamish
Swinomish
Tulalip
Upper Skagit
Yakima

WISCONSIN
Menomine

WYOMING
Arapahoe (Wind River Reservation)
Shoshone (Wind River Reservation)

FEDERAL DEFENDERS PREPARE FOR DEATH PENALTY CASES

Federal Defender offices around the country are preparing for their first federal death penalty case. For example, Maureen Rowley, the Federal Defender for the Eastern District of Pennsylvania, and Ira Kirkendoll, the Federal Defender for the Northern District of Texas, are among those who have taken the following or similar steps:

Х discussions with staff to see who might be interested and able to handle a death penalty case;

Х in-house training in the defense of capital cases;

Х confidential identification of panel attorneys and/or other members of the private bar who might be willing and able to defend a federal capital indictment;

Х establishment of a death penalty working group to prepare for the first case which might include both staff and members of the private bar; and

Х continuing contact with the federal death penalty resource counsel project to prepare for the first cases before the fact. The long awaited death penalty procedures from the Department of Justice hopefully will contain, pursuant to 18 U.S.C. з 3005, an "early warning" notification procedure so that federal defenders and the Defender Services Division may carry out their statutory responsibility to recommend experienced, qualified counsel for appointment in federal capital cases. Beyond this, there is no reason why, and every reason to, have a similar agreement with the local United States Attorney. Federal capital cases are driven by local decision making and not from the top down. Therefore, federal defenders may consider meeting with the United States Attorney and agreeing on early notification if a capital prosecution is being contemplated.

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

Desk/Modem: 502/875-3890

Special thanks to Tova Indritz for her Indian Tribes contribution to this issue.