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January 10, 2018

Notable report of AG Sessions seeking more federal death sentences, but what about carrying out those long ago imposed?

The Wall Street Journal has this notable article today headlined "U.S. to Seek Death Penalty More Often for Violent Crimes; Attorney General Jeff Sessions authorizes federal prosecutors to seek capital punishment in two murder cases and is said to be weighing it in others, including Manhattan terror attack." Here are excerpts (with two particular lines emphasized):

The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime.

In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit.  The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016.

The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations.

Mr. Sessions views the death penalty as a “valuable tool in the tool belt,” according to a senior Justice Department official. The official said the death penalty isn’t only a deterrent, but also a “punishment for the most heinous crimes prohibited under federal law.” The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said....

The last federal execution was in 2003. Since 1963, three federal defendants have been executed. The federal government has secured 25 death sentences since 2007, down from 45 death sentences between 1996 and 2006....

Only 2% of death-penalty cases are sentenced in federal court. Several types of murder cases fall under federal jurisdiction, including those involving drug trafficking, racketeering or — in Mr. Madison’s case — interstate domestic violence and interstate stalking.

The Obama administration sought the federal death penalty in at least four dozen cases, fewer than the Bush administration, according to the Federal Death Penalty Resource Counsel, a federally funded program to assist death penalty lawyers. The cases authorized under the previous administration included ones involving terrorism, the killing of children or law-enforcement officers, and murders by prisoners already serving life sentences.

But in recent years, a Justice Department review of the drugs used to execute prisoners prompted an effective moratorium on federal executions.

Mr. Sessions appears to be seeking the death penalty against a broader set of violent crimes. Former Justice Department officials under President Barack Obama said they typically wouldn’t have authorized capital punishment in a case like Mr. Arnold’s, which involves gang-on-gang violence. Murder cases with “victims who were themselves involved in criminal activity” are the ones where death penalty decisions tend to fluctuate by administration, said David Bitkower, a former Justice Department official under Mr. Obama who prosecuted two death-penalty gang cases.

Eric Holder, who served as attorney general from 2009 to 2015, personally opposed the death penalty. Loretta Lynch, Mr. Holder’s successor, called capital punishment “an effective penalty” at her confirmation hearing.

Mr. Sessions has put combating violent crime at the center of his agenda, encouraging prosecutors to pursue longer prison sentences and approving the hiring of dozens of new violent-crimes prosecutors.

The moves come as the death penalty on the state and federal level has been in decline. State executions are hovering near 26-year lows, partly due to dwindling supplies of lethal drugs and growing legal scrutiny from courts....

Former prosecutors say an increase in death-penalty cases could be time-consuming and expensive for both government and defense lawyers. Appeals in death penalty cases can take decades.

There are 61 prisoners on federal death row, compared with more than 2,800 in the states.

The de facto federal moratorium on executions got started more than a decade ago in the run up to the Supreme Court's first review of the constitutionality of lethal injection protocols in Baze.   After Baze resolved the basic constitutionality of lethal injection protocols, and especially after Glossip back in 2015 had the Supreme Court making pretty clear that jurisdictions could lawfully use a number of potential lethal injection drugs, the justification for continuing the de facto federal moratorium on executions became shaky at best.  Consequently, if AG Sessions is really serious about the death penalty as a "valuable tool in the tool belt," he needs to make an effort to make sure that the tool is actually fully operational.  Sending folks to US death row when there are no executions going forward is really just another way to impose LWOP while perpetuating a functional legal fiction.

Notably, this helpful list of all 61 federal death row prisoners from the Death Penalty Information Center reveals that 10 condemned have been languishing on federal death row for two decades or longer, and most have been there more than a decade.  Especially given that Justice Breyer has often argued that long stays on death row violate the Eighth Amendment, AG Sessions might even suggest he is duty bound to try to speed up the federal execution process in order to avoid possible constitutional violations.

January 10, 2018 at 06:06 PM | Permalink


More worthless rent seeking.

Posted by: David Behar | Jan 10, 2018 9:56:27 PM

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