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October 24, 2011

Federal prosecutor in Western NY (wisely?) recommending lots of capital prosecutions

This lengthy new piece out of Buffalo, which is headlined "William Hochul puts death penalty to frequent test: U.S. attorney uses federal charge often, unsuccessfully and at a significant cost," provides a fascinating perspective on the local operation of the federal death penalty.  Here are the details:

It's hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York. So far, none of those cases has led to an execution.  But they have cost taxpayers a bundle of money -- more than $661,000 in the past year.

Since taking office in March 2010, Hochul has filed potential death penalty cases against 24 people. That's more than those filed by federal prosecutors in Los Angeles, Chicago, Detroit, Miami or any city in Texas.  In fact, among the 94 federal prosecutors throughout the land, only two others -- both from New York City-area districts far more populous than Western New York -- have filed as many potential death penalty cases with Washington as Hochul in the past two years....

The $661,000 is more than the combined amount spent by the region's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years.  During those 11 years, a total of 12 death penalty-eligible cases were filed.  Hochul has filed twice that many in less than two years.

"The numbers in Buffalo are not part of a national trend.  It does not appear to be something that is coming out of Washington. It's something that Mr. Hochul does far more often than almost any other federal prosecutor," said James P. Harrington, one of a handful of Buffalo defense lawyers who are certified to handle death penalty-eligible cases. "It is a colossal waste" of court time, court resources and money, said Harrington, who also opposes the death penalty on moral grounds.

According to death penalty defense lawyer Kevin M. McNally, Hochul is one of a small number of federal prosecutors who file death penalty-eligible charges in cases involving drug gang members who kill other drug gang members.  He said juries are rarely willing to pronounce the death penalty in "gangster-on-gangster" cases. "I seriously doubt whether any of [the Hochul] defendants will actually face the death penalty at trial," said McNally, of Frankfort, Ky., who heads the Federal Death Penalty Resource Counsel Project.

While some defense lawyers say Hochul is overzealous and is wasting taxpayer money, Hochul, 52, defends his record.  He said he is enforcing federal law and trying to protect law-abiding people in neighborhoods terrorized by gang violence.  Hochul said his office does elect to file murder and racketeering charges in some gang-murder cases, and it's the murder charge in the context of racketeering that makes the cases death penalty-eligible. But ultimately -- after a review process that usually takes months -- the final decision on whether to pursue the death penalty is made by Attorney General Eric Holder in Washington.  And after a death penalty case goes to trial, a jury decides whether the defendant will face execution.

"I often go out and speak to block clubs in the inner city, and people come up to me and tell me they are afraid to go out for a walk in their own neighborhood, or sit in their own backyard," Hochul said.  "We will continue to bring these cases against the most violent offenders and leave the ultimate decisions to the attorney general and juries."

Statistically, gang violence in the region has decreased over the past two years, and Hochul contends that prosecutions undertaken by his office with the FBI and other agencies helped.  Buffalo Police Commissioner Daniel Derenda and Niagara Falls Police Superintendent John R. Chella agree.

"I would absolutely not want to see the [federal] death penalty taken off the books," said Chella.  While such cases rarely lead to executions, they often lead to guilty pleas that put violent criminals in prison for decades, sometimes life, Chella said. "[Hochul] has helped us to take some very, very dangerous people off the streets," Derenda said....

Nationally, the Justice Department has authorized about 500 death penalty prosecutions -- only one in Western New York -- since Congress reinstated federal capital punishment in 1988.  And since 1988, only three men in the nation have been federally executed.  There have been no federal executions in more than eight years....

The last federal execution in America was that of Louis Jones Jr., another decorated Gulf War veteran, who kidnapped, raped and murdered a 19-year-old female soldier in Texas. He was executed in March 2003.  Though hundreds of millions of dollars have been spent on such cases since Jones was put to death, no one has been executed under the federal death penalty since.  At least 66 federal defendants have been sentenced to death since 1988, but their executions have been held off by legal appeals....

Hochul is filing these cases because "I believe he is an overzealous prosecutor," said Terry Granger, a Buffalo defense lawyer whose clients have included convicted murderer and gang-leader Donald "Sly" Green.  "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money," added David Kaczynzki, with New Yorkers for Alternatives to the Death Penalty.

Supporters of the death penalty say it is the kind of tough law enforcement measure that has helped deter violent crime in recent years, and they point to local, state and national crime statistics as proof.  Officials said crime in the state was down 4.4 percent in the first six months of 2011, as compared with 2010. The rates of murder, rape, robbery and assault were all down.... In Buffalo, homicides were down 23 percent, shootings were down 25 percent and violent crime in general was down 18 percent in the first half of this year, Derenda said. Niagara Falls' crime rate is also down....

"We take these decisions very seriously," Hochul said. "We only file capital charges against those defendants who appear to be the worst of the worst."

Once a potential death penalty case is filed, each defendant is assigned two top defense attorneys, who are each paid $178 an hour by the federal courts. The usual rate for a court-appointed federal defense attorney is $125 an hour, and -- aside from death penalty-eligible cases -- defendants rarely get more than one....  Other support personnel for the defense attorneys are also hired, including "mitigation experts," who dig into the defendants' backgrounds seeking information that might convince the Justice Department not to pursue the death penalty.  Mitigation experts get up to $100 an hour, plus travel expenses. In several local cases, mitigation experts traveled to Puerto Rico to interview friends and families of defendants....

"The federal system is good in that it usually guarantees that each defendant will get highly qualified representation," said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington.  "But it adds a whole new layer of costs that taxpayers have to pay."

How expensive can a single federal death penalty case become?  According to the Death Penalty Information Center, the Justice Department's recent unsuccessful effort to execute New York City mobster and killer Vincent "Vinnie Gorgeous" Basciano cost taxpayers between $4 million and $10 million....

[A]ccording to District Court Clerk Michael J. Roemer, death penalty cases were by far the most costly in the region last year.  Over the past year, more than $661,000 was spent by the court system on defense-related expenses for 24 death penalty-eligible defendants in the district, said Lisa G. Ball, chief financial officer for the district.

On average, that's more than $25,800 per case, and half of those cases are still pending. During the same time period, about $2.47 million was spent defending at least 230 other defendants who received legal aid.  That's about $10,700 per case, and many of those cases have been completed....

The last time the Justice Department approved a local death penalty case for trial was the 1993 case of Darryl "Reese" Johnson, an enforcer for the LA Boys gang.  Johnson was accused of multiple killings, assaults and kidnappings.  Hochul handled the case as an assistant U.S. attorney.  Rather than face such a trial, Johnson decided to plead guilty to murder and racketeering.  He was sentenced to eight terms of life imprisonment -- believed to be the longest sentence ever handed down in a Buffalo courtroom -- in 1995. Hochul said that case took one of most violent criminals in Buffalo's history off the streets forever.

With all due respect to David Kaczynzki, I think the federal capital prosecution of Darryl "Reese" Johnson shows why even an agnostic supporter of the death penalty (like me) can claim that these new federal capital prosecutions are an efficient use of taxpayer money.  If and whenever a capital prosecution prompts a murderer to plead guilty, the cost savings from avoiding a full-blown federal trial and appeals are significant and save many times more than gets spent at the outset of a federal capital prosecution.  (Though federal capital trials surely cost millions more than non-capital trials, a full-blown non-capital trial in just one big federal criminal case is likely to cost much more than the $661,000 figure being stressed here.)

In addition, it is important to keep in mind that USA William Hochul's decision to seek a federal capital prosecution in these 24 cases results in the defendants receiving a "Cadillac" defense which should help ensure (1) there is no wrongful prosecution/conviction of an innocent defendant, (2) that prosecutors do not engage in any misconduct, and (3) that all relevant mitigating evidence is discovered as early as possible.  In other words, the extra money being spent on defense costs because of USA Hochul's capital charging decisions likely benefit not only defendants, but also the entire federal criminal justice system, in lots of ways.  Defendants receiving a great defense from the very outset of their prosecution are far less likely to be wrongfully convicted or over-punished, which can and should save significant federal resources in the long-run.

Further, and not to be overlooked here, there are likely great savings to New York taxpayers from having major murders handled in a major way in the federal system.  Beyond the fact that New York no longer has a death penalty — and thus has no ready means for state prosecutors to induce multiple murderers to take a LWOP plea — most major prosecutions at the state level have additional layers of costs because defendants get two post-conviction bites at the apple through state and federal habeas review.  In contrast, a federal defendant only get one bite via federal 2255 review.

I could go on and on explaining what seems sound, not wasteful, about how federal justice is being administered in Buffalo — largely because I have long thought that an exclusively federal death penalty system (which they now have in NY) would be the most just and most efficient way for this country to administer capital punishment.  I understand fully why staunch death penalty abolitionists view these federal capital prosecutions to be unjust and unjustified.  But I hope others might understand fully why anyone who is not a staunch death penalty abolitionists could find virtue and economic justifications in how USA William Hochul is doing his job up in Buffalo.

Some older and more recent related posts:

October 24, 2011 at 11:10 AM | Permalink


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Two questions:

So a prosecutor (Hochul) boldly pursues the death penalty for those who kill urban, presumably minority males, and he is criticized...

(1) Wouldn't his actions signify part of the remedy for the only actual racial discrepancy in death penalty cases, i.e. fewer executions of those who murder minorities?

(2) Shouldn't those who seek racial justice join Hochul in making this "part of a national trend,"?

Posted by: adamakis | Oct 24, 2011 11:27:25 AM

I was going to make the same point that evidently here is someone who is finally not undervaluing the minority murder victim and yet he is still getting lambasted for that choice. Plus, of course, just because capital charges are filed doesn't mean that all these cases will go to trial, so there have been something like 36 capital filings in this district in the last 12 years, how many of those cases have actual gone to trial and how many were resolved by plea agreement prior to trial?

Posted by: Soronel Haetir | Oct 24, 2011 11:40:14 AM


Posted by: Porky | Oct 24, 2011 12:30:34 PM

I'd say Porky has it just right.

Posted by: Ex Duco | Oct 24, 2011 12:38:05 PM

Prosecutors want Innocence Commission to exclude prisoners who pleaded guilty

Nationally, nearly 25 percent of defendants later exonerated by DNA evidence initially pleaded guilty or offered police incriminating statements or a confession, according to the Innocence Project in New York, which has studied such cases.

Posted by: Anon | Oct 24, 2011 2:55:11 PM

The prosecutors in the story you posted were talking about inmates who plead guilty, not those who simply confessed. What percentage plead guilty?

Posted by: MikeinCT | Oct 24, 2011 3:04:52 PM

You have stated correctly, Porky.

But upon what assumptions is your observation based?

Posted by: Socrates | Oct 24, 2011 3:33:13 PM


Posted by: Porky | Oct 24, 2011 5:31:34 PM

Well done, Porky!

You have now seen through to the fundamental essence of death penalty retentionism.


P.S. Watch out for hemlock in the mud...they don't like it around here when people know too much.

Posted by: Socrates | Oct 24, 2011 5:43:41 PM

In light of the last three comments, I'd say the site would do well to bring back the relatively enlightened observations of the spammers.

Posted by: Bill Otis | Oct 24, 2011 6:38:32 PM

MikeinCT, a distinction without a difference. A defendant that incriminates him- herself or confesses will be more likely to plead guilty to avoid the death penalty. The same goes for innocent defendants.

Posted by: Anon | Oct 24, 2011 8:42:02 PM

There is a big difference between a confession made in the privacy of an interrogation (under threat of force or under the influence or with an IQ under 80) and delivered in a public courtroom to a judge with an attorney at your side.

Posted by: MikeinCT | Oct 24, 2011 11:20:39 PM


Again I am disappointed in your cheerleading for use of the DP to coerce guilty pleas. And again I think you have a real blind spot here about how the DP works in places where the "Yugo" defense is more common that the "Cadillac."

In the death belt, it is not unusual for cases with real evidence/identity problems, or substantial questions about culpability (murder vs. manslaughter vs. justifiable/negligent homicide, etc.), to be swept under the rug by a DP-induced guilty plea. And many, if not most, of these pleas are actually rational. Once a local prosecutor proves his ability to take a marginal case and obtain a death sentence once or twice, it takes real stones and a gambler's mentality to go to trial, even if you happen to have a competent attorney and an ironclad defense to the charge.

I understand your perspective, and I agree that this kind of induced plea may be salutary in some limited circumstances, but I think you are ignoring or radically undervaluing the distorting effect it has in many other circumstances.

Posted by: Anon | Oct 25, 2011 11:18:06 AM

Anon --

"Once a local prosecutor proves his ability to take a marginal case and obtain a death sentence once or twice, it takes real stones and a gambler's mentality to go to trial, even if you happen to have a competent attorney and an ironclad defense to the charge."

If you have an "ironclad defense," then by definition the prosecution's case doesn't even rise to the level of "marginal." It's a dog.

I was a prosecutor for 18 years. The idea that defendants with ironclad defenses plead guilty in marginal prosecutions is, to put it generously, far-fetched.

The government has the burden of proof BRD, and has to convince all 12. The idea that an innocent defendant with an ironclad defense can be bullied into taking a false plea in a shaky prosecution is just not so.

There is a fantasy rampant on this board that nobody's guilty, they just say they're guilty because the prosecutor is a Nazi and/or the defense lawyer is a dope or a drunk.

Those of us who showed up in court know better.

Posted by: Bill Otis | Oct 25, 2011 7:55:37 PM

If it is so great, why is this guy such an apparent outlier? Guess there are positives and negatives.

"an exclusively federal death penalty system "

Not possible for state crimes. So, we would only have them for federal crimes -- thus the killing of a postal employee might result in a federal death prosecution while some multiple homicide in a robbery, not. The "justice" of the selective nature of who gets a full press death penalty prosecution is unclear. Also, is it really true that the federal government trumps each state's system?

Finally, the comment that many juries aren't interested in execution of gangster-on-gangster crime suggests "abolitionists" aren't necessary all who are at issue here, unless that means abolition of gangster on gangster crime death penalties. But, if are very wary about the death penalty, opening up many more people to it might be a devil's bargain as a way to give the people Cadillac defenses and to save one level of appeals.

Posted by: Joe | Oct 26, 2011 10:19:36 AM

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