« "States of Women's Incarceration: The Global Context" | Main | "Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention" »

November 19, 2015

Vermont killer makes broadside constitutional attack on federal death penalty prior to capital retrial

As reported in this local AP article, headlined "Fell’s lawyers challenge death penalty law," a notable killer is now making a notable argument to preclude capital punishment's application at his retrial. Here are the details:

A Vermont man facing the federal death penalty for the 2000 killing of a woman abducted from outside a Rutland supermarket is asking a judge to declare the death penalty law unconstitutional, court documents say.  In documents filed in federal court Monday, attorneys for Donald Fell argue the federal death penalty is unreliable, arbitrary and adds “unconscionably long” delays in cases.  “Most places within the United States have abandoned its use under evolving standards of decency,” the attorneys say.

They contend that U.S. Supreme Court justices Stephen Breyer and Ruth Bader Ginsburg earlier this year “issued a clarion call for reconsideration of the constitutionality of the death penalty.”  It also noted that the Connecticut Supreme Court, relying largely on Breyer and Ginsburg’s arguments, found that state’s death penalty unconstitutional. “Mr. Fell asks this Court to (rule)... that the federal death penalty, in and of itself, constitutes a legally prohibited cruel and unusual punishment prohibited by both the Fifth and Eighth Amendments,” his filing said.

Fell, 35, was convicted and sentenced to death in 2005 for the 2000 killing of Terry King, a 53-year-old North Clarendon grandmother who was abducted in Rutland and later killed.  A judge last year ordered a new trial for Fell because of juror misconduct during the original trial.  The trial is scheduled for next fall.

U.S. Attorney Eric Miller said his office would respond to the defense filings at the appropriate time. Vermont has no state death penalty; Fell was sentenced to death under federal law.  In 2002, the judge then hearing the case declared the federal death penalty unconstitutional.  But two years later, an appeals court overturned that ruling, allowing the trial to go forward.

Robert Dunham, executive director of the Death Penalty Information Center, said a decade’s worth of data has accumulated showing the legal problems with the federal death penalty since the ruling allowing Fell’s case to go forward.... “You can expect going forward that there will be constitutional challenges of this type filed in most, if not all, federal capital prosecutions,” Dunham said.

I share the view that defendants will be making this kind of categorical constitutional argument against the death penalty this will be made in most federal capital prosecutions, and I would go even further to assert that it may now be pretty close to obligatory for defense attorneys to make some form of this argument in any and every capital case. In light of the comments by Justices Breyer and Ginsburg in Glossip, and the risk of having an argument considered waived if not brought as soon as possible, I would think most capital defense attorneys would feel duty-bound to at least raise this kind of argument in order at leas to preserve it for future high court consideration.

November 19, 2015 at 09:05 AM | Permalink


Seems pro forma -- sure, make it, and maybe there is even a basic brief with a few blank spaces to fill in specific details -- but current law is that the d.p. is constitutional. Might need to find a narrower claim. Maybe, the federalism argument a few promote since Vermont is a non-death penalty state. I think the argument weak but maybe Kennedy will find it intriguing.

Posted by: Joe | Nov 19, 2015 10:20:22 AM

I'm partial to the federalism argument. I'd probably even make it a pure enumerated powers argument similar to Lopez in the appropriate case (it's unclear here what the basis of federal jurisdiction is, so I'd hesitate to add more).

Posted by: Erik M | Nov 19, 2015 10:44:04 AM

Erik M,

From http://www.wcax.com/story/5039478/the-fell-case-from-the-beginning it looks like jurisdiction hangs on having transported her across state lines (to New York) before killing her.

Posted by: Soronel Haetir | Nov 19, 2015 11:38:54 AM

Yes, there tends to be some sort of reasonable federal hook though the federalism side repeatedly resists it or perhaps finds it not determinative. Doesn't sound like an extreme case and the limited number of federal death penalty cases in non-death penalty cases results in a small sample size.

Posted by: Joe | Nov 19, 2015 12:23:06 PM

The theory of the Supremaqcy is that the current state is the one desired by the lawyer hierarchy. Very feww executioons so as to have no effect on crime, in or out of prison. However, there is also an infinity of made up rules and false procedures to maintain the multi-$billion death penalty appellate business. Little is likely to disturb this finely tuned equilibrium. The Supremacy supports the end of the death penalty as it is, so that thousands of rent seeking lawyers gegt fired froom their government make work jobs.

The DP could then go underground, in prison, in the street, in the home. And actually become more effective than it is today. Living in the crime world is associated with a 50% chance of gettting murdered. The informal DP would finish off the other half.

For sAfety purposes, the DP is now worthless being markedly underdosed. For rent seeking puroses, it is perfect, to generate the most unjustified income for the lawyer profession.

Posted by: Supremacy Claus | Nov 19, 2015 3:12:47 PM

I'd say crossing state lines while committing the act is probably as valid as you could get under the Commerce Clause, so I don't think it's the appropriate case.

I do think there are sensitive issues in states that have banned in, though.

Posted by: Erik M | Nov 19, 2015 3:34:26 PM

The pleadings filed need to be posted on the web so that other lawyers can use them.

Posted by: Liberty1st | Nov 19, 2015 8:24:08 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