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September 2, 2019

Talk of draft legislation to expedite death penalty as part of package response to mass shootings

As reported in this new Fox News piece, headlined "White House, DOJ working to expedite death penalty for mass shooters," it appears next week we will see the Trump Administration advance a proposal to expedite executions for mass murderers. Here are the basics:

The White House said Monday it has drafted legislation with the Justice Department that would expedite the death penalty for people found guilty of committing mass shootings, following Saturday's attack in West Texas that left seven dead, according to a pool report.

Vice President Mike Pence's chief of staff, Marc Short, told reporters aboard Air Force Two that the initiative was part of a larger White House gun control package that will be sent to Congress after lawmakers return from their August recess on Sept. 9. Attorney General Bill Barr is involved in active discussions with the vice president's office, Short said, as the plane made its way to Ireland.

The issue could be contentious among Democrats seeking to unseat President Trump in 2020. Former Texas Rep. Beto O'Rourke has sought to revive his struggling candidacy by calling for a mandatory buyback of what he called "assault weapons" -- but he also has insisted, in a recent policy shift, that capital punishment is categorically wrong.

Still, there has been little hesitation from the Trump administration on the issue. In August, Trump said he was “directing the Department of Justice to propose legislation ensuring that those who commit hate crimes and mass murders face the death penalty," adding that he wanted "capital punishment be delivered quickly, decisively, and without years of needless delay.”

Earlier this summer, Barr said the federal government will resume capital punishment and will move forward with plans to execute five inmates on death row for the first time in more than 15 years....

In a letter last month to President Trump, House Speaker Nancy Pelosi, D-Calif., specifically pushed for the House-passed Bipartisan Background Checks Act and the Enhanced Background Checks Act. Some of the House-sponsored legislation would extend the time period for the FBI to conduct background checks on firearm purchases from three days to 10 days and establish new background-check procedures for private gun transfers.

Many Republicans said they hoped to take action to curb gun violence. House Minority Leader Kevin McCarthy, R-Calif., said his party has been interested in “common sense solutions to prevent this from happening in the future while at the same time protecting due process for anyone who is a law-abiding citizen.”...

For his part, Senate Majority Leader Mitch McConnell, R-Ky., has said that so-called "red flag" warning legislation, as well as expanded background checks, would be "front and center" on the Senate floor when Congress comes back in session.

However, red flag laws might be unconstitutional, some conservatives have said, and states and local governments increasingly have sparred over the issue. More than a dozen states have enacted red flag laws. In March, Colorado's attorney general testified that county sheriffs vowing not to enforce the state's anti-gun "red flag" bill should "resign."

Red flag laws generally require friends or family to establish by a "preponderance of the evidence" -- a relatively lax legal standard essentially meaning that something is "more likely than not" -- that a person "poses a significant risk to self or others by having a firearm in his or her custody or control or by possessing, purchasing or receiving a firearm."

Given the strict constitutional regulation of the death penalty and the practical challenges posed by big capital cases, I doubt any proposed legislation would or could significantly fast-track capital prosecutions and executions. Consider, for example, the big federal capital prosecutions emerging form the Boston Marathon bombing and the Charleston Church shooting. It took nearly two years to secure death sentences for Dzhokhar Tsarnaev and Dylann Roof, and even longer for the (still-pending) direct appeals to take place.  Even if some form of legislation could somehow cut the procedural timelines for these cases, it still seems likely that the better part of a decade or more will always transpire between any mass murder and any ultimate federal execution of its perpetrator.

For these reasons, I am hopeful (but not optimistic) that Democratic leaders will not let general opposition to the death penalty get in the way of building a legislative package of common-sense gun control reforms.  Reasonable gun control efforts might possibly have some impact on the still-extraordinary level gun violence in the US, whereas any legislation looking to speed up capital cases for mass murderers likely will have, at most, a slight impact on a very small handful of cases.

September 2, 2019 at 10:45 PM | Permalink


As a capital habeas attorney practicing in Texas and working under profoundly difficult conditions including truncated deadlines geared at swift execution of my clients, I find your dismissal of the devastating impact of AEDPA disturbing. All of my clients receive inadequate representation due to these overzealous cries for swift execution and apathetic responses from the legal community and public at large. A responsible public intellectual should acknowledge rather than dismiss this brutal reality endured by those of us fighting for civil rights in the South.

Posted by: Natalie Corvington | Sep 3, 2019 8:36:48 AM

To keep my comment short, the simple fact is that AEDPA included a fast track procedure for capital cases. No court has yet found that any state (despite many states making efforts) has actually met the requirements for the fast track procedure. The judicial resistance to the old fast track is a pretty good indication of how any new fast track procedure will work in practice.

Posted by: tmm | Sep 3, 2019 11:11:13 AM

Natalie, I hear and respect your concerns about the impact of AEDPA while you word in Texas to hold off a new slate of execution dates. But inadequate representation at capital trials was a problem long before AEPDA (and, in fact, AEDPA had provisions that were expressly intended to encourage states to make more effective representation available). I can fully understand how the 1-year AEDPA deadline to start federal habeas cases creates real challenges especially if/when defense lawyers have done a poor job at the outset. But the remedy is to improve representation at the outset. Notably, Dzhokhar Tsarnaev and Dylann Roof got terrific representation at the outset, and the same will likely be true for all mass murderers, especially if they are tried in the federal system (as I think they should be).

Finally, the Texas department of Corrections (https://www.tdcj.texas.gov/death_row/dr_facts.html) reports that the average time spent on death row even in Texas is nearly 11 years (which likely means a full 12+ years from the time of an aggravated murder to an execution). This may seem "swift" to those trying to prevent executions, but it does not appear that way to many others.

Indeed, as tmm's comment suggests, if AEDPA was truly effective at fast-tracking executions, there would be little need for the Trump Administration to be working on a new bill to fast-track executions for the very worst mass murderers.

Posted by: Doug B | Sep 3, 2019 12:15:34 PM

Samuel Bonner freed 37 years after wrong¬ful cap¬i¬tal pros¬e¬cu-tion in Los Angeles

Posted by: Claudio Giusti | Sep 3, 2019 2:15:24 PM

A mass murderer to me is: one who commits murder with no conscience or regret, with intention to murder many innocent people for no reason and does not deserve to live. Do not pass GO, do not collect $200, Go directly to execution.

Looking back when kidnapping became popular, the death sentence was introduced for kidnapping and kidnapping was not popular anymore.

Posted by: LC in Texas | Sep 3, 2019 3:38:59 PM

I wish we had a way to distinguish cases where there could still be some doubt from cases where there is none. Maybe ask the judge and the jury something along the lines of "is there still the tiniest sliver of doubt you have the right person?" And only fast track the case if there isn't.

In other words, I want a higher level of proof for fast track.

Posted by: William C Jockusch | Sep 3, 2019 11:54:01 PM

Professor Bergman, I cordially invite you to come on down here to Texas to get a taste of capital habeas practice to see what happens when you’re confronting prosecutors continually accusing you of delay tactics, where trial judges regularly receive what we colloquially refer to as “hurry up orders” when the State’s highest criminal court feels a case isn’t moving their way quickly enough. Down here you’ll feel the heat when you’re carrying a caseload double the national recommended guidelines and your colleagues drop out like flies at a summer bbq zapper because there’s just no way to do it well and have any work-life balance under these conditions. Please accept my offer to come try it out - Lord knows we could use your expertise down here - and then tell me it just “seems” like my cases move too quickly.

Posted by: NC | Sep 4, 2019 5:32:09 AM

Two things can both be true. A case can move too quickly for the attorney involved and too slowly for justice for the victim.

I think part of the problem is the absurd number of grounds we have created to challenge a death sentence. In my ideal world, there would be only one reason to challenge it: possible actual innocence. And courts would be more willing to take a look at that issue.

Posted by: William C Jockusch | Sep 4, 2019 5:50:44 AM

Thanks for the invite, NC, and I know from my own capital habeas experiences how overwhelming this work feels for those trying to keep condemned murderers from being executed, and it gets especially overwhelming once an execution date is set. (I had an intellectually disabled client, Terry Washington, executed in 1997.) And in states like Texas and Florida and Ohio, where far too many less aggravated cases resulted in death sentences in the 1990s and 2000s, the march to the death chamber feels especially pressured.

But I referenced Dzhokhar Tsarnaev and Dylann Roof cases in the post, primarily because I see them as examples of mass murder in which there is no sound basis to doubt the defendants' factual guilt and the defendants seemed to receive first-rate representation at their initial trials. I do not think that it is unreasonable for the family of victims or others to question why their appeals process is likely to take decades. I presume it is these types of cases that are the likely target of a new legislative proposal, though I worry about the "AEDPA possibility" that a broader set of cases will be adversely impacted. We just need to see what the proposal coming from the Trump Administration looks like.

But, whatever the particulars, I think my main point remains valid: if changes to the appeals process in the capital prosecution of mass murderers is a needed piece of package legislation to get common-sense gun reforms enacted, I think it this a deal worth making. Though I am not an expert on gun control, lots of informed folks seem to think that common-sense gun reforms will make our society safer. If we think that is true, I hope legislators will make reasonable compromises to get them enacted.

Posted by: Douglas A Berman | Sep 4, 2019 10:21:56 AM

@William - To clarify, in your view, if someone is guilty of the crime they have been sentenced to death for, they should never be able to challenge it for any reason at all? Blatant prosecutorial misconduct? Mental disability? Consider the Joe Arridy, executed in 1939, with zero concept of what was happening to him due to his disability. Consider murderers executed despite a trial riddled with errors, racism, manufactured evidence or junk science, etc, when other murderers get life - despite near-identical crimes - because they happened to have better counsel, more sympathetic jurors, a more liberal judge, or any other number of varying circumstances?

How is that morally sound? Even if you maintain that it is, how is it constitutional?

Tangentially, if you're concerned about actual innocence, you should be concerned about police misconduct, prosecutorial discretion, racism, and lack of funding for public defense, because those factors contribute much more to wrongful convictions.

Posted by: Kristen | Sep 4, 2019 3:34:37 PM


As I see things if someone is intellectually capable enough to perform murder they are intellectually functional enough to deserve execution. While all the other items you list are issues to be concerned about I don't see any of them being a sufficient basis for leniency. I also entirely reject morality (though do accept ethics). As for constitutionality, I believe that the 8th amendment, correctly interpreted, is a bar on certain punishments but says nothing at all about the crimes those punishments can be levied for.

Actually, as I've said numerous times I believe execution is the deserved outcome for any offense more serious than the theft of a couple hundred dollars and would only start to be concerned if it were applied to an offense of comparable severity to theft in the low tens of dollars. I simply place very low value on life, particularly the life of criminal offenders.

Posted by: Soronel Haetir | Sep 4, 2019 10:00:03 PM


I am concerned about those things. For example, prosecutors who break the rules should be punished.

However, I think the defendant deserves a break only to the extent that whatever happened raises a doubt as to their guilt. It infuriates me when courts or prosecutors should be able to see that it does, but either don't or pretend not to. In my ideal world, courts would be far more willing to make that leap.

But then we have issues like "the execution might be painful." Courts appear to care about that one. I wish they wouldn't. Ditto for "similarly situated defendant X got LWOP." and also "The defendant did it but he was addicted to drugs".

Posted by: William C Jockusch | Sep 5, 2019 7:08:44 AM

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