Outside the Beltway

DEATH PENALTY

James Joyner · Saturday, June 14, 2003 · 1 comment

NYT reports that federal prosecuters have failed to get the death penalty in 15 of the last 16 capital cases they have tried. While some (featured prominently in the piece) suggest this is evidence that there is growing unease with the death penalty, others (featured lower in the piece) believe it is either “a statistical artifact” from a low number of cases, a function of higher quality defense counsel in federal cases, very stringent application of the rules by federal judges, or the fact that a single juror is sufficient to derail imposition in federal cases.

June 15, 2003
Juries Reject Death Penalty in Nearly All Federal Trials
By ADAM LIPTAK

ederal prosecutors failed to persuade juries to impose the death penalty in 15 of the last 16 trials in which they sought it, says the Federal Death Penalty Resource Counsel Project, which assists lawyers defending federal capital cases.

Legal experts say the trend might have a number of explanations, like overreaching by prosecutors and some jurors’ growing unease with the death penalty.

The rate at which juries rejected the death penalty in the federal trials, over about the last year, is sharply higher than in earlier years in the federal system and in current state prosecutions, Justice Department records and lawyers around the country say.

Kevin McNally, a lawyer with the project which collected the information, said the statistics were particularly surprising given the advantages federal prosecutors have in capital cases.

“The most aggravated cases are handpicked by seasoned career federal prosecutors with the most resources,” Mr. McNally said, “and they only get one out of 16? If they were a corporation, there would be an investigation.”

Monica Goodling, a Justice Department spokeswoman, did not take issue with the statistics and said they arose from a new prosecutorial philosophy under which more capital cases are taken to trial.

“Prior to 2001, federal prosecutors used to plead many of these cases to life,” Ms. Goodling said. “But people who commit the same sort of heinous crimes are now treated equally no matter what state they committed the crime in.”

She added that, viewed in absolute rather than percentage terms, “the number of death penalties obtained has remained consistent over time.”

The current Justice Department has obtained about two death penalties a year, slightly fewer than earlier administrations.

The cases in which prosecutors failed to convince juries to impose the death penalty, all of which resulted in convictions, were in Florida, Louisiana, Mississippi, Missouri, New York, Pennsylvania, Tennessee, Texas, Virginia and the District of Columbia. The case in which they succeeded was in Arizona.

With the exception of the District of Columbia, said Jamie Orenstein, a former Justice Department official who advised Attorney General Janet Reno on death penalty issues, “these are all in jurisdictions that not only allow the death penalty but have historically been among the most receptive to imposing it.” Many of the cases involved gruesome crimes, including mass murder and the killings of small children. On Friday, a jury in Binghamton, N.Y., sentenced two defendants to life without parole for torturing and killing a rival drug dealer.

Though Attorney General John Ashcroft has been aggressive in insisting on seeking the death penalty even over the recommendations of local prosecutors, just two of the 15 cases involved such overrides, Mr. McNally said. In one of them, Ms. Reno had authorized the death penalty prosecution.

David Baldus, a law professor at the University of Iowa and an expert in the death penalty, cautioned that a year’s worth of federal trials was not a particularly large sample.

“It might just be a statistical artifact,” Professor Baldus said. “It might be an anomaly.”

In the two and a half years of the Bush administration, the defense counsel project says, 34 federal capital trials were concluded, resulting in 5 death sentences — about 15 percent of the cases. The comparable numbers from 1988 through 2000, Justice Department statistics show, were 26 death penalties in 57 capital trials, or 46 percent.

Definitive data about the juries’ decisions in state capital trials is harder to come by, but legal experts said rates varied from about 25 percent in the Northeast to 85 percent in Texas.

“It is just the opposite of the federal experience,” Professor Baldus said, referring to the recent statistics.

Franklin E. Zimring, a law professor at the University of California at Berkeley, said recent results showed that federal defense lawyers were better financed and more competent than their state counterparts, particularly at presenting mitigating evidence in the penalty phase of the trial.

“It’s almost a controlled experiment on the difference that quality of counsel makes,” Professor Zimring said.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports the death penalty, attributed some of the trend to the way judges have interpreted the federal death penalty law.

A single juror can deadlock the sentencing phase in federal death penalty trials, resulting in a life sentence. In those circumstances some states allow selection of a new jury to decide the penalty.

Alan Vinegrad, a former United States attorney in Brooklyn, said the recent statistics represented something larger.

“It reflects that the tide is turning in this country with regard to attitudes about the death penalty,” Mr. Vinegrad said. “There has been so much publicity about wrongfully convicted defendants on death row that people sitting on juries are reluctant to impose the ultimate sanction.”

Mr. Orenstein, the former Justice Department official, said federal prosecutors should be more cautious.

“It’s a dangerous game the Department of Justice is playing here,” he said, adding that the failed capital prosecutions were a poor use of resources and damaged prosecutors’ credibility.

“We’ve got to assume,” he said, “that if some juries are balking at death in overcharged cases, others are balking at conviction.”