Summary of the Problem:  The death penalty was reintroduced to the federal criminal system in 1988 and has grown in application over the years, especially during the previous administration.  The increase in federal capital prosecutions can partially be attributed to the Federal Death Penalty Act of 1994, which expanded the number of death-eligible offenses.  However, another contributing factor has been the U.S. Attorney General's affirmative agenda to seek capital sentences, often in direct contravention of local U.S. Attorneys' own recommendations not to seek the death penalty.  The mechanism by which this agenda was implemented during the past eight years is a complex bureaucratic system, initiated by regulation in 1995, USAM 9-10.010 et seq., that requires the U.S. Attorney General to review every federal death-eligible case throughout the nation, and to decide whether the death penalty will be sought in any or all of them, regardless of the recommendation of the local U.S. Attorneys.  This overcentralization of the federal death penalty's decision-making process has proved cumbersome, slow, and extremely costly and has resulted in more frequent federal capital prosecutions in jurisdictions that have abolished the death penalty under state law.  Removing the requirement that all capital cases be reviewed by the U.S. Attorney General would restore capital-case procedure to the more streamlined, efficient, and less intrusive system that prevailed prior to 1995, when only affirmative requests to seek the death penalty required approval by the U.S. Attorney General.       

       Moreover, increasing federal capital prosecutions, without remedying the extreme racial disparities, further exacerbates the preexisting inequities in the death penalty system.  Since 1988, approximately 73% of all approved capital prosecutions have been against defendants of color, and white federal defendants are almost twice as likely as defendants of color to have the death penalty reduced to life sentences through plea bargains.  The U.S. Department of Justice's own study reveals that over 40% of all requests for capital prosecutions came from only 5 of the 94 federal districts.  The failure to address this pervasively unequal application of the death penalty sends an unacceptable message that the value of a defendant's life falls along racial lines.   

Proposed Solutions:

Executive:

1.  Collect and regularly review all data concerning factors relevant to the imposition of the death penalty.

2.  Stay all federal executions and place a moratorium on federal capital charges pending an independent study of the death penalty system that examines racial disparities, prejudicial errors, adequacy of legal representation, and other inequities in capital prosecutions.

3.  Decentralize the decision to seek capital sentences by removing the requirements in the U.S. Attorneys' Manual that Main Justice review all cases eligible for the death penalty, except where the U.S. Attorney requests permission to seek the death penalty, thereby eliminating situations in which local prosecutors' decisions not to seek capital punishment are overruled by Main Justice. 

4.  Exempt people with mental illness and/or developmental disabilities from capital prosecutions.

5.  Reform the process for presidential pardons to create greater transparency, reduce the backlog, and ensure equal access regardless of wealth or political influence.

6.  Monitor compliance with provisions prohibiting imposition of the death penalty based on race, ethnicity, or national origin, based on, inter alia, statistical evidence.

Legislative Changes: 

1.  Expressly prohibit imposition of the death penalty based on race, ethnicity, or national origin.

Ø    Amend Title 28 of U.S. Code

2.  Establish an inference that race, ethnicity, or national origin was the basis of the death sentence through evidence that race, ethnicity, or national origin was a statistically significant factor in decisions to impose the sentence.

Ø    Amend Title 28 of the U.S. Code

3.  Bar the government from rebutting an inference that race, ethnicity, or national origin was the basis of the death sentence through mere assertions that it did not intend to discriminate or that the imposed sentence satisfied the statutory criteria for the death penalty unless it can prove that death sentences were sought in all cases fitting such criteria.

Ø    Amend Title 28 of the U.S. Code

4.  Require public officials to collect data on all factors relevant to the imposition of the death penalty and to make that data publicly available.

Ø    Amend Title 28 of the U.S. Code

5.  Eliminate the increased number of peremptory challenges given to federal prosecutors in capital cases, which has created a perverse incentive to seek death sentences when they are not warranted.

Ø    Amend Fed. R. Crim. P. 24(b)

6.  Exempt people with mental illness and/or developmental disabilities from capital sentences.

Ø    Amend 18 U.S.C. § 3596

        Legislative Appropriations (Solutions w/ Funding Requests):  Fund an independent study of the federal death penalty system that examines racial disparities, prejudicial errors, adequacy of counsel, and other inequities in capital prosecutions to make recommendations for legislative reform.

Jurisdiction:

Executive Branch:  U.S. Department of Justice

Legislative Branch:  Senate and House Judiciary Committees

Background:

       Executive Branch:  President Clinton requested the U.S. Department of Justice to conduct a study of the federal death penalty, which was released on September 12, 2000.  This study, called "The Federal Death Penalty System:  A Statistical Survey (1988-2000)," demonstrated pervasive racial disparities.  For example, from 1995 to 2000, the defendants in 80% of the cases submitted by federal prosecutors for death penalty approval were people of color.  During that same time period, over 40% of the cases seeking death penalty approval came from only 5 of the 94 federal districts.  On June 6, 2001, the U.S. Department of Justice issued a supplement to its September 2000 report, called "The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review."  This report has been criticized for its conclusions of racial fairness in the federal death penalty system despite substantial statistical evidence showing otherwise.  Both reports are available at http://www.usdoj.gov/dag/pubdoc/dpsurvey.html and http://www.usdoj.gov/dag/pubdoc/deathpenaltystudy.htm.

       Legislative Branch:  The federal death penalty was reinstated in the Drug Kingpin Act of 1988.  In 1994, Congress passed the Federal Death Penalty Act as part of the Violent Crime Control and Enforcement Act of 1994 ("omnibus crime legislation"), which significantly expanded the number of federal capital offenses and established a system for imposing, reviewing, and implementing the sentence of death.  Rep. John Conyers, Jr. (D-MI) drafted the Racial Justice Act to also be a part of the 1994 omnibus crime legislation as a congressional response to the U.S. Supreme Court's decision in McClesky v. Kemp, 481 U.S. 279 (1987) (see infra).  The Racial Justice Act prohibited executions imposed on the basis of race under state or federal law and established an inference that race was the basis of a capital sentence through evidence that it was a statistically significant factor in decisions to seek or impose the death penalty.  Although the measure passed in the House, it died in the Senate by a 58-41 vote. 

       Judicial Branch:  In McClesky v. Kemp, 481 U.S. 279 (1987), the U.S. Supreme Court held that statistical evidence of race disparities in the imposition of the death penalty did not violate the Eighth and Fourteenth Amendments to the U.S. Constitution because it did not demonstrate intentional race discrimination in a specific defendant's trial.  The Subcommittee on Federal Death Penalty Cases of the Committee on Defender Services of the Judicial Conference of the United States released a report in May 1998, called "Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation."  This study found that the number of federal capital prosecutions more than doubled after passage of the Federal Death Penalty Act of 1994, and that the cost of defending capital cases was almost quadruple the cost of defending non-capital cases.  This report is available at http://www.uscourts.gov/library/dpenalty/1COVER.htm.

Potential Allies, Potential Opposition, and Public Opinion:

Potential Allies: 

• American Bar Association
• American Civil Liberties Union
• The Constitution Project
• Amnesty International
• Charles Hamilton Houston Institute for Race and Justice
• Death Penalty Information Center
• Equal Justice Initiative of Alabama
• Human Rights Watch
• NAACP Legal Defense & Educational Fund, Inc.
• National Association of Criminal Defense Lawyers
• National Coalition to Abolish the Death Penalty
• National Legal Aid & Defender Association
• Sentencing Project
• Southern Center for Human Rights
• Center for Community Alternatives
• International CURE
• Virginia CURE

Public Opinion:  Since passage of the Federal Death Penalty Act in 1994, support for the death penalty has decreased from an all-time high of 80% in 1994 to 64% in 2007.  When asked whether the death penalty or life imprisonment is a better penalty for murder, more respondents chose life imprisonment over the death penalty for the first time in Gallup's most recent polling of this question in 2006.  Moreover, an overwhelming majority of respondents do not believe the death penalty should be imposed on people with mental illness or mental retardation: in a 2002 poll, 75% opposed executing people with mental illness and 82% opposed executing people with mental retardation.  More information on the Gallup Poll of the death penalty is available at http://www.gallup.com/poll/1606/Death-Penalty.aspx. 

For Further Information: 

American Bar Association, "Mental Illness and the Death Penalty," Resolution 122A, available at http://www.abanet.org/media/docs/122A.pdf.

American Civil Liberties Union, "Federal Death Row: Is it Really Color-blind?  Analysis of  June 6 Department of Justice Report on the Federal Death Penalty" (June 6, 2001), available at http://www.aclu.org/capital/federal/10592pub20010614.html.

American Civil Liberties Union, "The Persistent Problem of Racial Disparities in the Federal Death Penalty" (June 25, 2007), available at http://www.aclu.org/pdfs/capital/racial_disparities_federal_deathpen.pdf.

Amnesty International, "United States of America: Death by Discrimination - the Continuing Role of Race in Capital Cases" (Apr. 24, 2003), available at http://www.amnesty.org/en/library/info/AMR51/046/2003.

David C. Baldus, "Letter from Professor David C. Baldus to the Honorable Russell D. Feingold, committee On the Judiciary, U.S. Senate, Regarding DOJ Report on the Federal Death Penalty System" (July 1, 2001), 14 Fed. Sent. R. 49, available at 2001 WL 34779379.

David C. Baldus & George Woodworth, Race Discrimination and the Legitimacy of Capital Punishment: Reflections on the Interaction of Fact and Perception, 53 DePaul L. Rev. 1411 (2004).

David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: an Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998).

John H. Blume et al., Post-McCleskey Racial Discrimination Claims in Capital Cases,              83 Cornell L. Rev. 1771 (1998).

Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of The Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

Center for Justice in Capital Cases, "Race to Execution Symposium," 53 DePaul L. Rev. 1403 (2004).

Erwin Chemerinsky, Eliminating Discrimination in Administering the Death Penalty: The Need for the Racial Justice Act, 35 Santa Clara L. Rev. 519 (1995).

Death Penalty Information Center, Federal Death Penalty, available at http://www.deathpenaltyinfo.org/federal-death-penalty.

Death Penalty Information Center, Race and the Death Penalty, available at http://www.deathpenaltyinfo.org/race-and-death-penalty#resources.

Equal Justice Initiative, Death Penalty-Racial Bias, available at http://eji.org/eji/deathpenalty/racialbias.

Federal Death Penalty Resource Counsel, available at http://www.capdefnet.org/fdprc/.

NAACP Legal Defense and Educational Fund, "Symposium on Pursuing Racial Fairness in Criminal Justice: Twenty Years after McCleskey v. Kemp," 39 Colum. Hum. Rts. L. Rev. 1 (2007), available at http://hrlr.razummedia.com/journal.php.

Charles J. Ogletree, Jr., Black Man's Burden: Race and the Death Penalty in America, 81 Or. L. Rev. 15 (2002).

PBS, Independent Lens, "Race to Execution," available at http://www.pbs.org/independentlens/racetoexecution/.

Scott Phillips, Racial Justice in Capital Punishment: Blind Justice Requires a Blindfold, American Constitution Society for Law and Policy (October 2008), available at http://www.acslaw.org/files/Phillips%20Issue%20Brief.pdf.

Barry Scheck, Innocence, Race, and the Death Penalty, 50 How. L. J. 445 (2007).

Ronald Tabak, Racial Discrimination in Implementing the Death Penalty, American Bar Association, Section on Individual Rights and Responsibilities (Summer 1999), available at http://www.abanet.org/irr/hr/summer99/tabak.html.

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7.

Principles for the Design and Reform Of Sentencing Systems: A Background Report http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7.

Mandatory Justice:  The Death Penalty Revisited http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf/