CHAPTER 5 THE DEATH PENALTY AT THE FEDERAL LEVEL, IN THE MILITARY, AND GLOBALLY Copyright © 2011, Elsevier Inc. All rights Reserved

36 Separate Death Penalty Systems in the United States Each of 34 states has a death penalty system The federal government has a death penalty system The U.S. military has a death penalty system No two systems are exactly alike Copyright © 2011, Elsevier Inc. All rights Reserved

Death Penalty Cases and the Supreme Court Court of Last Resort Hears death penalty cases appealed from U.S. circuit courts of appeals and from the high court of a state 4 of 9 justices must vote to hear a case (the rule of four) Copyright © 2011, Elsevier Inc. All rights Reserved

Death Penalty Cases and the Supreme Court (cont.) It takes 5 justices to stay, or stop, an execution. When required number of votes has been achieved, Court issues a writ of certiorari to lower court whose decision is being appealed, ordering it to send the records forward for review. Copyright © 2011, Elsevier Inc. All rights Reserved

Death Penalty Cases and the Supreme Court (cont.) Supreme Court will only issue writ of certiorari if defendant has exhausted all other avenues of appeal and the case involves a substantial federal question (either the constitutionality of a state or federal death penalty statute is challenged or constitutional rights have been violated) Copyright © 2011, Elsevier Inc. All rights Reserved

Actions That Can Be Taken by the Supreme Court 1. Affirm the verdict or decision of the lower court and let it stand; 2. Modify the verdict or decision of the lower court, without totally reversing it; 3. Reverse the verdict or decision of the lower court, requiring no further court action; or 4. Reverse the verdict or decision of the lower court and remand the case to the court of original jurisdiction, for either retrial or resentencing. Copyright © 2011, Elsevier Inc. All rights Reserved

Filing a Writ of Habeas Corpus Is a court order directing a law officer to produce a prisoner in court to determine if the prisoner is being legally detained or imprisoned In some cases, can be filed by death row inmate whose appeal has been denied Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Capital Punishment Procedures (shared with some states) Require a minimum of two attorneys be appointed to represent federal capital defendants (at least one of the attorneys must have experience in capital defense work) Require the government to inform the defendant of its intention to seek death within a reasonable time before trial or before the court accepts a defendant’s guilty plea Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Capital Punishment Procedures (shared with some states) Require the government, before trial or plea, to list the aggravating circumstances that it proposes to prove to justify a death sentence Require the weighing of statutorily enumerated aggravating and mitigating circumstances (no method or standard for weighing is prescribed) Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Capital Punishment Procedures (shared with some states) Give the government the burden of establishing aggravating circumstances beyond a reasonable doubt Require unanimity on the part of jurors in the finding of an aggravating circumstance Require that a sentence other than death be imposed if no aggravating circumstance is found to exist Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Capital Punishment Procedures (shared with some states) Require only a single juror to find a mitigating circumstance before it can be weighed Allow victim impact evidence Give the right to appeal both the conviction and the death sentence Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Capital Punishment Procedures (shared with some states) Exempt from the federal death penalty persons less than 18 years of age at the time of the offense, mentally retarded and insane persons, and pregnant women (but only while they are pregnant) Copyright © 2011, Elsevier Inc. All rights Reserved

Unique Federal Capital Punishment Procedures Require authorization from the U.S. Attorney General before federal prosecutors can file capital charges Require the court to consider the Federal Public Defender’s recommendation about which attorneys are qualified for appointment in capital cases Copyright © 2011, Elsevier Inc. All rights Reserved

Unique Federal Capital Punishment Procedures (cont.) Require federal judges in capital sentencing proceedings to instruct the jury that in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim Copyright © 2011, Elsevier Inc. All rights Reserved

Unique Federal Capital Punishment Procedures (cont.) Require a jury that recommends death to furnish the court with a certificate signed by each juror swearing that discrimination played no part in the decision and that the same sentencing recommendation would have been made regardless of the race, color, religious beliefs, national origin, or sex of the defendant or any victim Copyright © 2011, Elsevier Inc. All rights Reserved

Unique Federal Capital Punishment Procedures (cont.) List three different sets of aggravating circumstances: those for espionage and treason; those for homicide; and those for non-homicide drug offenses Restrict the federal government’s ability to impose the death penalty on Native Americans Copyright © 2011, Elsevier Inc. All rights Reserved

Unique Federal Capital Punishment Procedures (cont.): Native Americans Capital prosecution of persons subject to the criminal jurisdiction of an Indian tribal government where federal jurisdiction is based solely on Indian country and where the offense occurred within the boundaries of Indian country is prevented, unless the governing body of the Indian tribe waives its sovereign immunity Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Executions First federal execution: Thomas Bird was hanged for murder in Maine on June 25, 1790 Until recently, federal prisoners were usually executed in the state where the crime occurred because the federal government did not have its own site for executions In states without a death penalty, a federal judge could choose another state to conduct the execution Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Executions (cont.) In 1995 the federal Bureau of Prisons converted an old cellblock at the U.S. Penitentiary in Terre Haute, Indiana into the first national death-row facility in American history The death-row facility did not become operational until July 13, 1999, the date it received the first group of death row inmates. (The government delayed opening the facility until then because it decided that it took at least 20 inmates to be cost effective.) Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Executions (cont.) Three people executed at the Terre Haute facility were Timothy McVeigh on June 11, 2001, Juan Raul Garza on June 19, 2001, and Louis Jones on March 18, 2003 Since Bird's execution in 1790 the U.S. government has executed 339 men and four women Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Executions (cont.) McVeigh, Garza and Jones were executed by lethal injection, the only method now used by the U.S. government The 341 other federal executions were by hanging (81 percent), electrocution (17 percent), and lethal gas (2 percent) Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Executions (cont.) Executions of McVeigh, Garza and Jones were the first federal executions in nearly 40 years Last federal execution before them occurred on March 15, 1963, when Victor H. Feguer was hanged at Iowa State Penitentiary for kidnapping and murdering an Iowa physician Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Executions (cont.) As of June 16, 2011, 58 people were under a federal death sentence: 56 were male, 2 female 26 (45%) were black 23 (40%) were white 8 (14%) were Latino 1 (2%) was Native American Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Legislation Antiterrorism and Effective Death Penalty Act of 1996 Passed to speed up process and reduce costs Made federal appellate courts “gatekeepers” for 2nd & 3rd habeas corpus petitions Copyright © 2011, Elsevier Inc. All rights Reserved

Federal Legislation Innocence Protection Act of 2004 Exonerating Innocent through DNA Testing Improving Quality of Representation in State Capital Cases Compensation of the Wrongfully Convicted Copyright © 2011, Elsevier Inc. All rights Reserved

Military Executions Official records of military executions 1st kept during Civil War - 267 executions World War I – 35 World War II – 147 After World War II– 12 Last execution - Private John Bennett was hanged April 13, 1961 Death Row at U.S. Disciplinary Barracks SHU – Ft. Leavenworth, KS - 7 males (as of 2/22/10) Lethal Injection – only authorized method Copyright © 2011, Elsevier Inc. All rights Reserved

Military Death Penalty Military Capital Offenses 10 Offenses that could be committed at any time 5 Offenses committed during time of war 6 Offenses that are “grave breaches” of law of war President can commute a death sentence and no service member can be executed unless the President personally confirms the death penalty Copyright © 2011, Elsevier Inc. All rights Reserved

Death Penalty in Global Context 58 countries retain the death penalty In 2010, 257 known executions in 23 countries UN Commission on Human Rights repeatedly condemned the death penalty in United States UN General Assembly adopted worldwide death penalty moratorium – 2010 As of 2/28/10 -131 foreign citizens were imprisoned on U. S. death rows Copyright © 2011, Elsevier Inc. All rights Reserved