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December 13, 2016

Federal District Judge says federal death penalty "operates in an arbitrary manner" but still rejects broadside constitutional challenge

United States District Judge Geoffrey Crawford issued a lengthy opinion today in the long-running federal capital case of US v. Fell, No. 5:01-cr-12-01 (D. Vt. Dec. 13, 2016).  A helpful reader sent me the full 57-page opinion, which I have uploaded below and which gets started this way:

In 2015, the U.S. Supreme Court issued its decision in Glossip v. Gross, 135 S. Ct. 2726.  The case concerned challenges under the Eighth Amendment to execution by lethal injection of four defendants sentenced to die by state courts in Oklahoma.

Justice Breyer, joined by Justice Ginsburg, issued a dissent calling "for full briefing on a more basic question: whether the death penalty violates the Constitution."  Id. at 2755.  The dissent identified a series of systemic shortcomings in the administration of the death penalty in the United States, especially as it is applied by the states.  It divided these into four categories: "(1) serious unreliability, (2) arbitrariness in application, (3) unconscionably long delays that undermine the death penalty's penological purpose [and] (4) most places in the United States have abandoned its use." Id. at 2756.

In response, Justice Scalia and Justice Thomas wrote two strongly worded concurring opinions which defended the death penalty as the legitimate exercise of democratic authority.  Both justices pointed to the shocking cruelty of the crimes which led to the death sentences in these and other death penalty cases.  Both questioned the authority of the judiciary to interpose its own philosophical concerns about the death penalty.  And both identified utilitarian purposes such as deterrence which may justify executions.

The dissent and concurring opinions in Glossip offer a particularly vivid account of the long-running dispute over the constitutionality of the death penalty within the Supreme Court.   A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court.  The current state of the law is that the death penalty is a constitutional punishment for murder committed by adults not disqualified for reasons of intellectual disability who have received a trial which meets the standards set by Gregg v. Georgia, 428 U.S. 153 (1976) and Ring v. Arizona, 536 U.S. 584 (2002).  Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.

But a trial court has its own contribution to make to the debate.  The court can hold a hearing and permit witnesses to testify.  In Glossip, Justice Breyer raised a series of questions about whether the death penalty is imposed fairly or in an incurably arbitrary manner.  The questions he raised are troubling.  They are essentially empirical. They require consideration of what has actually happened in the United States since the restoration of the death penalty following the Gregg decision.

Over the course of two weeks last summer this court sought to develop a factual record based on live testimony and supporting exhibits sufficient to answer the question of whether the constitutional requirements for a death penalty statute set out in Gregg have been met in practice.  As the court's findings indicate, the Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), falls short of the standard required in Furman v. Georgia, 408 U.S. 238 (1972), and in Gregg for identifying defendants who meet objective criteria for imposition of the death penalty. Like the state statutes enacted after Furman, the FDPA operates in an arbitrary manner in which chance and bias play leading roles.

The trial court's obligation does not end with a review of the facts.  The court is required to address the legal issues raised by the parties.  That resolution may be no more than an acknowledgment that the law has been settled on a particular question.  Alternatively, the new factual record may require a fresh look at the manner in which existing principles are applied to a factual record which continues to develop.  The court has sought to undertake this new look in a manner consistent with existing authority which comes principally from the Supreme Court.

To get right to the point, the court has sought to follow the method expressed in Atkins v. Virginia, 536 U.S. 304 (2002) in considering the proportionality of the death penalty.  The court has also considered the separate argument that application of the death penalty has become arbitrary.

The disproportionality challenge falls short because of the absence of proof of a national consensus to abolish the death penalty.  As the law stands now, proof of consensus is a prerequisite for finding the death penalty unconstitutional as applied to particular crimes or particular types of defendants.  By assessing public opinion, especially as it is expressed through legislation in the states, the Supreme Court finds a basis for determining evolving standards of decency for the nation as a whole.  If the requirement of consensus applies to the limited challenges brought in cases like Atkins, then it must also apply to the claim of disproportionality which the defense levels against the imposition of the death penalty in all cases.

The court has also considered the problem of arbitrary application of the death penalty to small numbers of defendants whose crimes are indistinguishable from the far greater number who receive life sentences.  The court has followed existing law in declining to rule that "arbitrariness" is an independent constitutional violation.

Download Fell order denying Motion to Strike 12-13-16

December 13, 2016 at 01:45 PM | Permalink


Putting aside the lengthy findings designed to set the case up for cert, a key part of the judgment is what most judges and attorneys do not want to admit about the jury system -- that much of what lawyers and judges say about juries is pure legal fiction divorced from the reality of how people function. There are several key lessons (which many trial attorneys understand even if appellate judges do not).

First, instructions can't change human nature. Telling jurors to act in a way contrary to their basic natures will not work. They will draw conclusions from a defendant not testifying. They will think that there must be something to the charges from the mere fact that a case has been brought. They will draw conclusions from what they have already heard even though there is still more to be presented (which gives the side that goes first a big advantage even though jurors may change their minds as they get more information).

Second, complicated instructions do not matter. Simple instructions -- you must find A, B, and C to find guilt -- can work to a degree. But if you give a complex instruction, it will either be misunderstood or the jury will do what they instinctively feel is right.

Third, jurors with a strong bias are different than jurors with a less strong bias. If you have a favorable jury pool, the ability to eliminate the jurors most likely to favor the other side can increase your chances of a favorable result.

Fourth, jurors want to accomplish something. They are very reluctant to report a deadlock. If one side starts with an overwhelming majority, barring a very strong will by the minority, the majority will probably get its way.

Fifth, people are complex and cases are complex. When you have a large number of things that potentially influence behavior and decisions, it is difficult to identify what matters or why different decisions are made in situations that have significant common features.

Posted by: tmm | Dec 13, 2016 2:54:41 PM

At least some of those things apply to judges too.

In both cases, we try to check certain biases etc. in various ways, incompletely as it might be. But, bottom line, a human criminal justice system is involved.

Posted by: Joe | Dec 13, 2016 3:01:49 PM

What a gigantic waste of time. What should have happened--motion denied, with the ability to file the testimony to preserve right to appeal.

And Dieter? Yeah, let's take "expert" testimony from that disingenuous blowhard.

Posted by: federalist | Dec 13, 2016 5:48:35 PM

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