NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 2: Capital Punishment Handbook: Pre-Trial And Preliminary Stage Issues

        2.1  Prosecutor’s Decision To Seek Death Sentence

Generally, prosecutors have wide discretion deciding when to seek the death penalty. In Campbell v. Kincheloe, 829 F.2d 1453, 1465 (9th Cir. 1987), cert. denied, 488 U.S. 948 (1988), the Ninth Circuit rejected petitioner’s argument that Washington’s death penalty statute vests unbridled discretion in its prosecutors to decide when to seek the death penalty and held the statute constitutional. The death penalty statute requires a prosecutor to have “reason to believe that there are not sufficient mitigating circumstances to merit leniency” before seeking the death penalty. Additionally, the Ninth Circuit has held that where the circumstances surrounding a prosecutor’s decision to seek the death penalty create the appearance of vindictiveness, the burden shifts to the prosecution to present evidence that its decision was based on legitimate grounds. Adamson v. Ricketts, 865 F.2d 1011, 1017 (9th Cir. 1988) (en banc), cert. denied, 497 U.S. 1031 (1990).

In federal death penalty prosecutions, 18 USC 3593(a) requires that the government provide notice to the defendant of its intention to seek the death penalty within “a reasonable time before trial.” This notice must include the statutory and nonstatutory factors the government intends to prove as the basis for the penalty. Formerly, 21 USC 848(h) contained similar provisions, but this subsection was repealed in 2006.

Adamson v. Ricketts, 865 F.2d 1011, 1017 (9th Cir. 1988) (en banc) (following Ninth Circuit precedent that where circumstances surrounding prosecutor’s decision to seek death penalty create appearance of vindictiveness, court will assume prosecutorial vindictiveness and burden shifts to prosecution to rebut with independent reasons or intervening circumstances demonstrating legitimate purpose for prosecutor’s decision), cert. denied, 497 U.S. 1031 (1990).

Campbell v. Kincheloe, 829 F.2d 1453, 1465 (9th Cir. 1987) (holding prosecutorial discretion to seek death sentence sufficiently guided by Washington statute that requires reason to believe there are insufficient mitigating circumstances to merit leniency), cert. denied, 488 U.S. 948 (1988).

18 USC 3593(a) (2000) (describing notice by the government detailing aggravating circumstances that may justify the death penalty).

Toward an Improved Process, 26 Fordham Urb. L.J. 767 (1999) (arguing for the imposition of controls over the exercise of prosecutorial discretion in the decision whether to seek the death penalty).

John A. Horowitz, Prosecutorial Discretion and the Death Penalty: Creating a Committee to Decide Whether to Seek the Death Penalty, 65 Fordham L. Rev. 2571 (1997) (discussing death penalty law and practical impact of prosecutorial discretion to seek death penalty).

F. Thomas Schornhorst, Preliminary Screening of Prosecutorial Access to Death Qualified Juries: A Missing Constitutional Link, 62 Ind. L.J. 295 (1987) (urging screening process requiring prosecutors to show legitimate interest in seeking death penalty before death qualification of jury begins).