Federal law allows the imposition of the death penalty for dozens of offenses--everything from presidential assassination and putting bombs in the mail to causing death by damaging an offshore oil rig. In the past few years, the U.S. Justice Department has become increasingly aggressive in seeking death sentences for crimes that would normally be handled at the state level--even where the state doesn't believe in executing anyone. There are now 50 inmates serving time on federal death row--up from 18 when the decade began. A small but growing number of them committed their crimes in non-death-penalty states.
After Alfonso Rodriguez became the first person sentenced to die in North Dakota since 1915, even the prosecutor in his case sounded a little bit surprised. "It's just not part of the culture up here really at all," said U.S. Attorney Drew Wrigley. "We live in the safest state in the union."
The federal role is deliberate Bush administration policy. Before 2001, federal prosecutors rarely sought capital punishment in non- death-penalty states, and never actually obtained a death sentence. A provision in the manual for U.S. attorneys back then said the fact that a state did not have a death penalty law was not a reason for the federal government to seek it.
Under President Bush, that provision has been removed. His attorneys general have maintained that the same federal laws apply in abolitionist states such as North Dakota and Minnesota that apply in pro-death-penalty states such as Missouri and Oklahoma. "The decision to seek the death penalty is made based on the unique facts of each case," says Erik Ablin, a Justice spokesman. "We do have a review process in place to ensure that the death penalty is applied in a consistent and fair manner nationwide."
The approach bothers even some death penalty supporters, among them Robert Blecker, a professor at New York Law School. "Federal criminal law is only supposed to apply in those rare instances where there is truly a national crime," Blecker says. "The federal government is moving in with what are, to be generous, tenuous reasons. It's the wrong government prosecuting."
Some U.S. attorneys, although they are Justice Department employees, have resisted pressure from Washington to seek death sentences. Their reluctance was a side issue in the recent scandal surrounding the U.S. attorney purge. More of the complaints, however, have come from state and local officials angered by the new pattern of federal prosecutors seeking the death penalty in jurisdictions that have signaled they don't want it. Anebal Acevedo Vilá, the governor of Puerto Rico, has written to the Justice Department asking that prosecutors cease their attempts to win death sentences on an island that banned capital punishment 75 years ago.
A similar attitude prevails in Massachusetts. "For many of our citizens here in Boston, the death penalty is unacceptable," says Jake Wark, a spokesman for the Suffolk County district attorney. "For us to cooperate with a federal investigation that could potentially lead to the execution of the perpetrators could have a chilling effect on the cooperation of the community."
The federal policy creates an ironic risk right now for states such as New Jersey, Maryland and Montana, where capital punishment is essentially moribund and where legislators have been debating its outright repeal. Abolitionist bills have not been successful this year, but their passage seems likely over the next several years. Repeal of the death penalty in those states might actually add to the number of capital cases if it encourages the federal government to move in. According to rulings of the U.S. Supreme Court, prosecutors have the right to exclude jurors who oppose the death penalty--even in states where opposition to it is in effect part of the statutes.
Seeking the death penalty, of course, is not the same thing as getting it. Notwithstanding the desire in Washington to seek uniformity in applying the law, most federal death sentences are still handed down in states where capital punishment is widely accepted. By far the largest share of federal-crime executions have occurred in Texas, and it was a Texas case that led to the most recent federal execution, on April 16. "The death penalty is a much harder sell in New York or Minneapolis or Boston than in Houston or Dallas or Montgomery, Alabama," says Franklin Zimring, a law professor at Berkeley who has written about the topic.
JUDICIAL END RUN
Not all local officials are opposed to federal intrusion in capital cases. Daniel Donovan, the district attorney on Staten Island in New York City, was preparing his case against Ronell Wilson, who had shot two detectives in the back of the head, when New York's highest court invalidated the state's death penalty law. Donovan still believed that Wilson's crime called for capital punishment. After consulting with the families of the victims, he approached the U.S. attorney for the Eastern District of New York and asked her to take over the case, in hopes that a federal jury would return a sentence of death. "The district attorney made a conscious decision," says a spokesman for Donovan, "to see whether the death penalty as part of the federal prosecution would be appropriate."Allowing the feds to take over made the death penalty possible, and Wilson was indeed sentenced to die by a Brooklyn jury in February. But it had not been a sure thing. No federal jury in New York had handed down a death sentence since 1954. Federal prosecutors had failed in 14 consecutive cases. That kind of track record is one reason why some U.S. attorneys have required prodding from Washington to pursue death sentences. "One thing about U.S. attorneys is that they don't like to lose," says Zimring. "Death cases, particularly in non-death-penalty jurisdictions, are very rarely low-visibility cases. If you're going to ask the kind of case a U.S. attorney would least like to lose, it would be an expensive, long and high-visibility trial."
The death penalty itself has had a tortuous track record in New York. After the U.S. Supreme Court voted to permit death penalties in 1976-- following a four-year moratorium--New York's state legislature wasted little time in trying to get capital punishment back on the books. That was the case in most other states as well. But New York was unique in that two consecutive governors, Hugh Carey and Mario Cuomo, professed moral opposition to the death penalty and refused to sign any bill legalizing it. Between them, Carey and Cuomo vetoed such legislation every year from 1978 to 1994.
When George Pataki became New York's governor in 1995--after defeating Cuomo in a campaign that featured the death penalty as a central issue--he proudly signed a death penalty bill into law. Still, it made little difference. No one was executed under it, and four of the seven death sentences handed down were thrown out on appeal. The state court of appeals struck down the law entirely in 2004, because of problems with jury instructions, but by then the legislature had lost the appetite it once had shown for capital punishment. In 2005, the legislature put out a study documenting that the state had spent $170 million in prosecuting capital cases and had, in essence, gotten nothing for its money. Opinion in the legislature--and public opinion in New York, as measured by polls--had turned against the death penalty in favor of life sentences for the most serious crimes.
CONFRONTING DARTH VADER
The tumult in New York State actually provided the seed from which the federal death penalty grew. Congress had shown no interest in reviving capital punishment after the Supreme Court allowed it in 1976, leaving the matter to the states. All but a dozen states went on to pass death penalty statutes. But by the late 1980s, Alfonse D'Amato, one of New York's U.S. senators, had grown impatient with his own state. In 1988, in order to circumvent Cuomo, D'Amato sponsored the first modern federal death penalty law.Seeking to address the problem of drug trafficking that was so prevalent at the time in New York, D'Amato persuaded his congressional colleagues to make drug-related killings a capital offense. "It is about time we say to the Darth Vaders of the drug world that you will face the ultimate sanction," he said. Congress has since expanded the federal death penalty to cover more than five dozen crimes.
Most states, however, have been going in the opposite direction. After Illinois Governor George Ryan instituted a moratorium and then commuted the sentences of everyone on death row during his last days in office in 2003, speculation grew that the death penalty was on its way out nationally. Since then, the prospects for widespread abolition have grown even more favorable.
There are several reasons for this. First and foremost are the practical concerns that have been raised about lethal injection, which is the preferred method of execution in every death penalty state except Nebraska. Botched injections have led to long and excruciating deaths that courts have said violate the constitutional protection against cruel and unusual punishment. Over the past year, the death penalty has been put on hold in 11 states, either by courts or by the governor, because of such concerns.
The problems with lethal injection virtually guarantee that any competent defense attorney will add the issue to his or her list of grounds for appeal. That list is long already, with studies indicating racial disparities in the application of capital punishment and DNA tests exonerating inmates in several high-profile cases. The death penalty appeal process now typically drags on for 10 years after sentencing. It can easily run twice that long.
Given the challenge of convincing juries in the first place, and the drawn-out torment of awaiting closure in the death chamber, many prosecutors have grown more willing to accept sentences of life imprisonment. "The proponents of capital punishment are more and more on the defensive," says Austin Sarat, an Amherst College political scientist who has written several books on the subject. "It's become possible to say, 'I'm in favor of the death penalty in the abstract, but I'm against executing the innocent.'"
And, as in New York State, the cases that do move forward, sometimes slowly and ineffectively, cost a lot of money. Concerns about the difficulty of conviction and the expense of appeals have done as much to halt executions as doubts about the morality of the procedure. "It's really hard to imagine the actual cost," says Montana state Senator Dan Harrington. His death penalty repeal bill passed the state Senate in February but was tabled by a House committee. A similar bill failed in a Nebraska committee by a single vote.
In Maryland, Governor Martin O'Malley made elimination of the death penalty a key priority upon taking office this year. O'Malley testified before separate state House and Senate committees on the same day, calling capital punishment "inherently unjust." Citing figures that showed murder had declined by 56 percent in states without the death penalty since 1990, compared to just 38 percent in states that used it, O'Malley turned the usual deterrence argument on its head. "It would appear that the death penalty is not a deterrent, but very possibly an accelerant, to murder," O'Malley said. The bill failed on a tied Senate committee vote, but sponsors vow to raise the issue again.
Whatever may ultimately happen to these pending abolition bills, the number of capital cases nationwide is plummeting. There were 114 new death sentences handed down in 2006, only about one-third as many as the 317 in the record-setting year of 1996. The total number of executions last year--53--represented a 47 percent drop from the peak year of 1999. Public support also has fallen, although not as much. Polls show that two-thirds of the public still favor the death penalty, but that is down from a high of 80 percent in 1994.
As a result, the issue has lost much of its political salience. In the 1980s and '90s, concerns about violent crime made support for the death penalty nearly universal among politicians wishing to avoid the fates dealt out to skeptics such as Cuomo, who were defeated in part because of their opposition to it. Today, there are 10 governors openly opposed to the death penalty. Wisconsin's Jim Doyle won reelection last year despite his opposition--and despite the fact that voters in his state approved a resolution calling for the return of the death penalty after 155 years in the state without it. Democrats Tim Kaine of Virginia and Deval Patrick of Massachusetts triumphed over gubernatorial opponents who criticized their opposition to capital punishment.
The governor who may be in the most difficult position is Kaine, who is deeply opposed to capital punishment but has promised to uphold the law. Over the past 30 years, Virginia has held more executions than any other state except Texas, including four since Kaine took office in January 2006. This year, the legislature passed five bills expanding the list of death-eligible crimes. Kaine vetoed all five, saying capital punishment requires no expansion. Three of the vetoes were overridden; two were sustained.
Virginia was one of several states that have looked toward broadening the scope of the death penalty while other states contemplate eliminating it. Missouri Governor Matt Blunt has proposed making cop killers automatically subject to the death penalty (although the practice is on hold in his state due to lethal injection problems). Last year, Oklahoma and South Carolina expanded the death penalty to cover those who sexually molest but do not kill children. Texas is likely to follow suit. The Georgia House voted in March to allow judges to impose death even in cases where two out of 12 jurors vote against it. That same month, Utah Governor Jon Huntsman signed into law two bills to expand the death penalty in cases involving children.
ABOLITION OR BACKLASH?
All this conflicting activity points to a problem that troubles death penalty experts on both sides of the issue: the dramatic state-to- state disparity in death sentences and their clearly uneven application. In 2006, all but eight of the 53 executions nationwide took place in just six states--Texas, Ohio, Virginia, Oklahoma, North Carolina and Florida. Texas alone has held three out of every eight executions in the country over the past three decades.Disparities can be found not only among states but within them. "We found a tremendous difference between jurisdictions, even ones side by side," says Parris Glendening, who imposed a moratorium on executions during his last year as governor of Maryland in 2002. "It became clear to me that the death penalty had become almost a lottery of jurisdiction."
The disturbing "lottery" image is precisely what allows the Justice Department to claim that, in imposing its own uniform approach to federal capital crimes, it is moving toward consistency in at least one portion of the system. It also allows scholars such as Robert Blecker to argue that death penalty opponents are hypocritical when they complain that state-to-state inconsistencies are unjust, while at the same time denouncing the federal government for seeking consistency.
Some prosecutors make the claim that the federal death penalty statute, and the possibility that it might be invoked even in a non- death-penalty state, offer them an important bargaining tool. They are more likely to reach a plea deal resulting in a life sentence if the offender knows he's trading away death. In North Dakota, Minnesota and the 10 other non-death-penalty states, there is no such bargaining chip--unless the federal government sweeps in and creates one.
That was the situation with Alfonso Rodriguez. Before his victim's body was found in Minnesota, allowing federal law to be invoked, Rodriguez refused to tell prosecutors where the victim was located. The prospect of a death sentence was not something he and his lawyers needed to weigh. "You're aware that the death penalty is out there in other states," says Robert Hoy, his defense attorney, "but we didn't worry about it because we've never had it here."
Then the body was found, the feds asked for death, and Rodriguez was sentenced to die. Was it improper federal intrusion on state values and prerogatives--or an effective tactic for seeing ultimate justice done? That is a question that raises other crucial issues, about both capital punishment and states' rights, that are going to take years to sort out.
