Remembering The Federal Death Penalty, Saving 49 Lives

It might be easy to forget the Federal Death Penalty. We might not want to think about it. It wasn't an issue in the past election. For eight years the Bush DoJ used its muscle to expand federal use of capital punishment by overruling local United States Attorneys' decisions not to seek death. Those political decisions to seek death are still very much in effect: the US government continues in court to seek the death penalty in all of those cases.

As the new Attorney General arrives in Washington, it's vitally important that the new DoJ immediately remember to re-evaluate all of the federal cases in which the death penalty is presently being sought. And it's important that if these cases do not meet their professed higher standards for imposition of the death penalty (this is an oxymoron, standards that allow state killing cannot be high), authorization to seek the death penalty be withdrawn. This may save 49 lives and prevent state killings from being carried out in our names.

Remember John Ashcroft? He who left the AG's office at the end of 2004? He who wanted to "federalize the death penalty?" Ashcroft's plan was that the Attorney General in Washington and not the local United States Attorneys, who would prosecute the crime and were located where the crime was alleged to have been committed, should decide which cases were appropriate for the federal death penalty. It wasn't right, the argument went, that in some places the death penalty was eschewed. So the feds would seek to have it imposed in federal courts in places like Michigan, Vermont, New York, places where the states had no death penalty. Then, the argument went, the death penalty would be more uniform. It wouldn't be an event occurring solely in the Southern Death Belt. That was supposed to be a good idea.

Ashcroft was succeeded by Alberto Gonzalez. He who wrote grotesquely inadequate memos to W about Texas death penalty commutation requests. He of the poor memory. He of the politicization of DoJ. He who explained so very little. Gonzalez, of course, continued to make decisions about which cases the feds would pursue the death penalty, and in which they wouldn't. And so did his successor, Michael Mukasey.

In response to questions from Senator Feingold, in June, 2007, DoJ laid out the entire history and all the numbers since 2001 here (pdf). In sum, there's a procedure for deciding what cases are death eligible. The procedure is basically a series of recommendations from lower to higher prosecution officials, but ultimately, the AG decides what should occur. That decision cannot be reviewed. How he makes the decision is never revealed. It's essentially a secret. And the criteria by which this decision is ultimately made have not been explicitly stated. If you're a judge or a defense lawyer or a prosecutor, you can ask that this incredibly important decision be reconsidered. And sometimes it is. But in general, the buck stops with the AG, who then acts like the Sphinx.

According to the Death Penalty Information Center, there are now 51 prisoners on federal death row in Terra Haute, Indiana. According to CapDefNet 23 federal death penalty cases are now on or awaiting trial, 5 are awaiting re-trial or re-sentencing after appeal, and 21 cases are now on appeal or seeking post conviction relief. In other words, 49 people have pending federal death penalty cases in which the Bush DoJ's decision to seek the death penalty, the decision made by Ashcroft, Gonzalez or Mukasey, makes the defendant eligible for execution.

These cases should all be immediately re-evaluated by Eric Holder and the Obama DoJ to determine whether they remain death penalty eligible. 49 lives stand in the balance.

There's no reason to believe that the criteria the DoJ initially applied in deciding to seek the death penalty in these cases, particularly the obviously political one of "federalizing" the death penalty, would meet the criteria Holder and/or Obama might require in these cases.

It is not clear what the present criteria for death eligibility might be or how they would be applied. Holder, for example, has said that he personally opposes the death penalty but has pursued it as a prosecutor and he told Congress it should "feel very assured that ... those statutes that have death penalty provisions will be fully enforced by me." And "Obama wrote in his recent memoir that he thinks the death penalty "does little to deter crime." But he supports capital punishment in cases "so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment." I have no idea how these subjective measures might be calibrated and applied to the pending cases.

I am personally opposed to state killing in all cases. If it were up to me, I would withdraw death penalty eligibility in all of the pending cases, and I would instruct prosecutors never to seek the death penalty. I know the present administration doesn't agree with me about this. Fine. There is nevertheless the possibility of saving 49 lives. This does not mean releasing people who should be imprisoned. It means choosing a penalty, if they are convicted, that includes life without parole but not death.

This is not a small difference. It's a step toward ending the barbarity of state killing. It's a step toward joining virtually all of the rest of the world by ending state killing. Please join me in urging the administration to review all of the pending death eligibile cases and to withdraw the request for the death penalty in each of them.