« Sentencing means always watching out how you say you're sorry | Main | What's up at the USSC? Is Booker on the agenda for its hearing next week? »

March 15, 2007

Context-free ruminations on the federal death penalty

In today's New York Times, US District Judge Frederic Block has this interesting op-ed discussing the federal death penalty.  The whole piece raises (and overlooks) a lot of important issues; here is a long snippet:

While New York State does not subscribe to the death penalty for the moment, the federal government does.  Over the last few years there has been a surge in death penalty prosecutions authorized by the United States attorney general, both nationwide and in federal cases in New York.  But these have resulted in disproportionately few death penalty verdicts, at enormous costs and burdens to the judicial system.  A more prudent and realistic approach in the way the government seeks the death penalty is warranted.

Federal death penalty prosecutions reappeared in 1988, and since 1990 the attorneys general have authorized 416 prosecutions nationwide: 180 during the 1990s, an average of 18 per year; and 236 from 2000 to the present, a jump to almost 40 per year. In New York State, 12 were authorized during the 1990s; since then, 30 more. 

Given the time required to prepare and defend against a death penalty prosecution, many of those cases have yet to be tried.  Of those that have been tried, 50 resulted in death penalty verdicts.  But because of the long judicial review process before someone is put to death, there have been only three federal executions, the most notable being Timothy McVeigh's. (One benefit of this protracted process is that 197 state death row inmates have been exonerated.) 

In New York, 17 of the authorized cases have been tried, but only one death penalty verdict returned — the recent case against Ronell Wilson, convicted of murdering two police officers.  In the Eastern District of New York (covering Brooklyn, Queens, Staten Island and Nassau and Suffolk Counties), where I am a judge, there were three death penalty trials from 1990 to 2005.  That number was already matched this year, and there are six more cases scheduled for trial.

What have all these death penalty prosecutions cost the taxpayers, who pay for both defense — the Constitution guarantees the right to counsel for those who, as is usually the case, can't afford it — and prosecution?   I recently presided over a trial in which the jury quickly rejected the death penalty.  The vouchers submitted by the defense alone exceeded $500,000.  Assuming the cost of prosecution to be at least equal (efforts to obtain that figure from the Department of Justice were unavailing), $1 million would be a fair estimate for the trial alone.  Had there been a death verdict, an appeal would have added many more dollars.  Thus, we have probably spent more than $17 million on the 17 federal death penalty trials in New York State, with one death verdict to show for it.  And taxpayers will be footing the $9 million bill for the nine death penalty cases in the Eastern District.

All this as the federal judicial system is struggling with unprecedented budget cuts. In the Eastern District, some 25 assistant United States attorney positions remain unfilled, presumably contributing to a marked reduction (38 percent from 2003 to 2005) in criminal filings.  The Probation Department's budget has been cut by $680,000 from the last fiscal year (making it harder to keep tabs on former inmates requiring supervision), and Pre-Trial Services' by almost $100,000 (making it harder to supervise those on bail awaiting trial).  And while the Marshals Service has been called upon to provide additional resources and security to handle the surfeit of death penalty cases, its operating budget, exclusive of salaries, has been cut by about 32 percent, from $549,000 to $375,000....

I find this piece fascinating in part because Judge Block attacks the federal death penalty with arguments that are much more appropriate for an attack on the way states approach the death penalty.  Let me explain:

1.  Prosecutorial discretion:  Because of many layers of internal review, there is every reason to believe that federal prosecutors, far more than state prosecutors, already take a "prudent and realistic approach in the way the government seeks the death penalty."  Indeed, the up-tick in federal capital cases in New York makes sense in light of the state's disrupted system of capital punishment which is not operational because of a state high court ruling.  (Election results suggest that New York state voters do "subscribe to the death penalty," but the state's high court in 2004 canceled that subscription.)  As detailed in stories here and here and here, any attack on imprudent pursuit of the death penalty by prosecutors should start in Arizona, where a country prosecutor has more pending capital cases in a single county that the federal government has pending nationwide.

2.  Costs:  Though budgets are tight all over, the money spent on federal death penalty prosecutions is tiny compared to so many other federal expenditures.  Judge Block's numbers suggest federal taxpayers may have spent roughly $350 million on federal death penalty prosecutions over the last two decades; but federal taxpayers now pay roughly $350 billion every year on interest payments servicing the debt.  In other words, we've spent roughly 0.1% of what we spend servicing the national debt each year on the federal death penalty over the last 20 years.  Relatedly, lots of federal money is spent on federal habeas review of state death sentences (which all have already been repeatedly reviewed by state courts).  Would Judge Block be eager to cut these expenses though further restrictions on capital federal habeas actions.  Again, cost is an important capital consideration, but much more so in state systems with smaller budgets and larger caseload than in the federal system.

I stress these points because, as detailed in posts below, I now think the best modern approach to the death penalty would be to make capital punishment an exclusively federal matter so that we do not have the current bizarre and inconsistent state-by-state adjudication (and then federal habeas review) of which horrible killers should live and which horrible killers should die.

Some recent related posts:

March 15, 2007 at 10:35 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Context-free ruminations on the federal death penalty:


The large number of cases where the prosecution seeks the death penalty and it is not imposed is due in large part to the federal system's bizarre rule that a single juror holding out for a life sentence can prevail over the judgment of the other eleven that a death sentence is warranted. Congress should adopt either less-than-unanimous penalty verdicts (as in Florida) or retrials when the jury hangs (as in California).

Posted by: Kent Scheidegger | Mar 15, 2007 11:00:25 AM

Ken, Why is this rule bizarre? It results in impositions of the death penalty only where all 12 can agree, and prevents multiple bites at the apple by the prosecution. And, convening successive juries on the issue of the death penalty seems inherently unfair.

It is probably the most efficient use of judicial resources. I don’t know if it is the most efficient use of executive resources, because I don’t know for sure whether it is cheaper for the Feds to kill people or keep them alive.

It is not unique. New York’s system comes to mind, likewise I think Florida’s is similar. However, it might be the most common in terms of volume.

I realize that many share your goal of state-sponsored killing of more people when the executive takes a decision to seek the person’s death, but to characterize this procedure as bizarre is a bit of a stretch.

Posted by: S.couts | Mar 15, 2007 11:46:49 AM

The question in the penalty phase is which of the legally available punishments is appropriate for this offense and this offender. One must be chosen. Can you name any other decision in which a choice must be made where one person's opinion is allowed to prevail over the views of all of that person's peers? I cannot think of a single one.

There are, to be sure, some organizations that have unanimity requirements to take an action, such as the permanent members of the U.N. Security Council, but in such cases the alternative is to do nothing. Doing nothing is not an option in sentencing.

Most states require the guilt verdict to be unanimous one way or the other, and retrial there is not considered unfair.

Do you think you are impressing anybody with your repeated snide comments about other people's goals? I very much doubt it.

Posted by: Kent Scheidegger | Mar 15, 2007 1:03:36 PM

"Can you name any other decision in which a choice must be made where one person's opinion is allowed to prevail over the views of all of that person's peers? I cannot think of a single one."

Ummm...the verdict. Geez, come on.

A typical unanimous verdict instruction can be found on page 17 of this document.

Posted by: rothmatisseko | Mar 15, 2007 2:12:52 PM

And the decision to kill someone should be at least as reliable as the verdict.

But I am impressed with you, Kent.

Posted by: rothmatisseko | Mar 15, 2007 2:14:44 PM

"Ummm...the verdict. Geez, come on."

Really? In which state does a jury hung at the guilt phase at 11 guilty and 1 not guilty constitute an acquittal?

Posted by: Kent Scheidegger | Mar 15, 2007 2:35:37 PM

Kent is “reaching” at a different issue, which might just be a matter of semantics. Most states allow for mistrials if a jury announces that they “can’t reach a verdict.” Some, but not all, states allow the jury to declare that they have “reached” a verdict if they are not all in agreement.

“Can you name any other decision in which a choice must be made where one person's opinion is allowed to prevail over the views of all of that person's peers?”
Sure: Decisions by the president not to enforce a law. Maybe the president doesn't count as a peer.

Posted by: S.couts | Mar 15, 2007 2:48:07 PM


Then again you aren't a fan of Apprendi & Blakely either. Both Apprendi & Blakely seemingly require the gov't to unanimously prove beyond a reasonable doubt any factor that would increase a sentence, such as from the presumptive sentence of life to death or in states with jury sentnecing a factor that would be increased above the presumptive. (Indeed, the example of Florida is informative as it is only a question of when -- not if -- the Court again post-Blakely looks at the Florida capital sentencing procedure) Long story short, deadlocks in favor of life are the majority rule / practice -- why shouldn't the feds follow the majority rule?

Posted by: anonymouse | Mar 15, 2007 3:58:52 PM

Kent: Doesn't a decision by an "outlier" county prosecutor --- like the fellow in Arizona treating nearly every intentional homicide as a death case OR perhaps a Texas county prosecutor deciding never to seek death --- a kind situation where "one person's opinion is allowed to prevail over the views of all of that person's peers?"

If the concern is two much power exercised by one person, I think you'd be much more worried about prosecutorial discretion than about jury decision-making.

Posted by: Doug B. | Mar 15, 2007 4:45:36 PM

Though, purely in theory, the decisions by a prosecutor are subject to review of sorts by the judge, prosecutor, and others. But, I guess we all know that "discretion" (at least in the negative -- to not prosecute) is pretty much unreviewable.

Posted by: S.couts | Mar 15, 2007 4:58:21 PM

Kent, you define the answer by your use of the term "hung." As you know, the judge will send it back, maybe two or three times, but after a certain point there's been no unanimous verdict and there's an acquittal.

Posted by: rothmatisseko | Mar 15, 2007 6:52:15 PM

While I think this mind-game (no pejorative implication intended) of trying to come up with an example of "one person's opinion" "prevailing over the views of all of that person's peers" is interesting, I’ll assume that in the realm of criminal law it’s unheard of (although I certainly think the prosecutor suggestion is a good one). Nevertheless, if it’s appropriate anywhere, this is the situation.

The government is trying to kill an individual on behalf of you and me. And if one juror - who has already been “death qualified” - does not think that the govt. should kill this person on his/her behalf, then so be it. We’re talking about a person’s life here. And while more than likely the defendant has taken life himself, if only one death-qualified juror does not think it’s appropriate, then it’s not appropriate.

Posted by: DEJ | Mar 15, 2007 7:37:35 PM

"Kent, you define the answer by your use of the term "hung." As you know, the judge will send it back, maybe two or three times, but after a certain point there's been no unanimous verdict and there's an acquittal."

You might want to look into that a little further before you write it on an exam or anything.

Posted by: Jay | Mar 16, 2007 1:56:01 AM

Oh wait... I got it...


The president can issue a pardon to any federal prisoner despite the:

1) Will of Congress that something be a crime;

2) Decision by a prosecutor that the little **** be be sent to jail or killed. The decsion is reviewed by many at the Dept. of Justice.

3) Decision by the jury that they be sent to jail or killed by the states.

4) Decisions by the judge before, during and after the trial that they be sent to jail or poisoned by the state

5) Decisions by courts of appeals that say that yes, indeed, this person (from a lower class background most likely) should be killed.

And the president, with one stroke of the pen can pardon him. It doesn't matter if he was poor (and should be in jail). It doesn't matter what the jury said. The president can overrule them. The victims' views don't matter. The views of the jury don't matter. There is no appeal.

Posted by: S.couts | Mar 16, 2007 11:02:14 AM

"Of the 39 jurisdictions (including the federal government and the military) that
have a working death penalty, only four (Alabama, Arizona, California and Kentucky) in
addition to Connecticut allow for a retrial when a jury is unable to reach a verdict in a
penalty hearing."

Testimony of Ron Gold, CT Asst. PD.

Posted by: rothmatisseko | Mar 16, 2007 12:37:41 PM

Jay, how is my statement incorrect?

Posted by: rothmatisseko | Mar 16, 2007 1:23:55 PM

Probably one of the more egregious examples of the one overruling the 11 is the case of James Burmeister. Apparently, racial sympathy for a vicious racist murderer led to Burmeister escaping a fate he richly deserved.

Posted by: federalist | Mar 18, 2007 10:22:18 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB