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17 Table of Contents
Chapter 304: Federal Death Penalty Statute
304.1 Federal Death Penalty Statute: Resources
304.2 Federal Death Penalty: Discriminatory Effect
304.3 Federal Death Penalty: Failure Of Attorney General To Follow Procedural Protocol
304.4 Federal Death Penalty: Lack Of Proportionality Review
304.5 Federal Death Penalty: Sample Jury Instructions
304.6 Federal Death Penalty: Constitutional Challenge
304.7 Federal Death Penalty: Pecuniary Gain Aggravator
Requires Expectation Of Gain As A Result Of The Murder
304.8 Federal Death
Penalty: Clarifying Distinction In Burdens As To Aggravation And Mitigation
304.9 Federal Death Penalty: Unanimity
– Individual Juror Has Power To Prevent Death Sentence
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304.1 Federal Death Penalty Statute: Resources
Resource Guide for Managing Capital
Cases: Federal Death Penalty Trials (Fed. Jud. Ctr. 2001).
Capital Punishment Handbook Chapter 5 [Federal Death Penalty].
RESEARCH NOTES:
John P. Cunningham, Death in Federal Courts: Expectations and Realities of the Federal Death Penalty Act of 1994, 32 U. RICH. L. REV. 939 (1998).
Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 CASE W. RES. L. REV. 1 (1995) [summarizing capital procedure and current status of death penalty cases in U.S.; arguing that public should realize that increasing number of crimes eligible for death penalty is self defeating tactic; differentiating most depraved killers for capital punishment is more effective use of judicial and public resources currently drained by capital caseload].
Jeffrey C. Matura, When Will It Stop? The Use of the Death Penalty for Nonhomicide Crimes, 24 J. LEGIS. 249 (1998).
David J. Novak, Anatomy of the Federal Death Penalty Prosecution: A Primer for Prosecutors, 50 S.C. L. REV. 645 (1999).
Peyton Robinson, Judge Over Jury: Judicial Discretion In The Federal Death Penalty Under the Drug Kingpin Act, 45 U. KAN. L. REV. 1491 (1997).
Charles C. Boettcher, Testing that Federal Death Penalty Act of 1994, 18 USC 3591-98 (1994): United States v. Jones, 132 F3d 232 (5th Cir. 1998), 29 TEX. TECH L. REV. 1043 (1998) [examining federal death penalty law prior to United States v. Jones; analyzing the 5th Circuit’s decision in United States v. Jones].
Sandra D. Jordan, Symposium on the Seventh Circuit as a Criminal Court: Death for Drug Related Killings: Revival of the Federal Death Penalty, 67 CHI.-KENT L. REV. 79 (1991) [discussing and analyzing future impact of providing for death penalty in cases of drug related killings].
George Kannar, Federalizing Death, 44 BUFF. L. REV. 325 (1996) [summarizing legislation and procedural issues surrounding federal death penalty].
Brian Serr, Of Crime and Punishment, Kingpins and Footsoldiers, Life and Death: The Drug War and the Federal Death Penalty Provision–Problems of Interpretation and Constitutionality, 25 ARIZ. ST. L.J. 895 (1993) [arguing § 848(e) is not a substantive capital offense, but just an enhanced penalty provision for drug felonies aggravated by murder].
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304.2 Federal Death Penalty: Discriminatory Effect
PRACTICE NOTE: U.S. v. Bass (6th Cir. 2001) 266 F3d 532, 540 held that the stark discriminatory effect of the federal death penalty protocol, when coupled with official statements of members of the Department of Justice, is a sufficient prima facie showing that race played a role in deciding which defendants to charge with death-eligible offenses and supported the district court’s decision to order discovery on defendant’s selective prosecution claims.
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304.3 Federal Death Penalty: Failure Of Attorney General To Follow Procedural Protocol
PRACTICE NOTE: See U.S. v. Lee (8th Cir. 2001) 274 F3d 485 [no requirement that attorney general personally make the final decision about whether to decertify a death penalty notice].
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304.4 Federal Death Penalty: Lack Of Proportionality Review
PRACTICE NOTE: U.S. v. Cooper (D.C. 2000) 91 FSupp2d 90, 99 held that the Federal Death Penalty Act is not unconstitutional even though it does not provide for proportionality review. While such review is not constitutionally required, the Act does not prevent proportionality review should an appellate court choose to do so. (Ibid.)
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304.5 Federal Death Penalty: Sample Jury Instructions
See Federal Models By Offense: Federal Death Penalty Sample Instructions.
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304.6 Federal Death Penalty: Constitutional Challenge
PRACTICE NOTE: See United States v. Fell (D. Vt. 2002) 217 FSupp2d 469, 490 [the Federal Death Penalty Act’s specification of a relaxed standard for the admissibility of evidence used to prove death eligibility factors violates due process principles recognized by the U.S. Supreme Court in Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] and Ring v. Arizona (2002) 536 US 584 [122 SCt 2428; 153 LEd2d 556].
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304.7 Federal Death Penalty: Pecuniary Gain Aggravator Requires Expectation Of Gain As A Result Of The Murder
PRACTICE NOTE: See United States v. Bernard (5th Cir. 2002) 299 F3d 467, 483; see also United States v. Chanthadara (10th Cir. 2000) 230 F3d 467, 483.
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304.8 Federal Death Penalty: Clarifying Distinction In Burdens As To Aggravation And Mitigation
SAMPLE INSTRUCTION:
The prosecution must prove beyond a reasonable doubt, that is, to the utmost certainty, the existence of each aggravating factor; however, the defense may prove any mitigating factor by a preponderance of the evidence, that is, that it is probably true.
AUTHORITY: Davis v. Mitchell (6th Cir. 2003) 318 F.3d 682.
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304.9 Federal Death Penalty: Unanimity – Individual Juror Has Power To Prevent Death Sentence
SAMPLE INSTRUCTION:
The prosecution must prove beyond a reasonable doubt, that is, to the utmost certainty, the existence of each aggravating factor; however, the defense may prove any mitigating factor by a preponderance of the evidence, that is, that it is probably true.
Not only is the burden of persuasion different for aggravating and mitigating factors, the unanimity requirement that exists for aggravating factors does not exist with respect to mitigating factors. Unless every juror finds the existence of the aggravating factor beyond a reasonable doubt, the aggravating factor must be ignored and cannot be used in weighing the aggravating and mitigating factors even though some jurors may agree that the aggravating factor has been established. However, any one or more jurors may find the existence of a mitigating factor and may then consider that factor in weighing the aggravating and mitigating factors even though other jurors may not agree that the particular mitigating factor has been established. This weighing decision must be made by each juror giving individual consideration to only the aggravating factors unanimously found by all of the jurors and to any mitigating factors found by each juror regardless of the number of other jurors who agree that the mitigating factors have been established.
The jury does not have to first unanimously reject the death penalty before you may consider a life sentence. Instead, the jury need not be unanimous in rejecting death in order to render a verdict for life imprisonment. A sole juror, absent the agreement of the other jurors, has the power to prevent the death penalty if he or she individually finds that mitigating factors are present in the case and does not agree that the aggravating factors outweigh the mitigating factors. However, the resulting non- unanimous jury (as to the death penalty) must nevertheless return a unanimous verdict as to which of the sentences of life imprisonment must be imposed.
AUTHORITY: Davis v. Mitchell (6th Cir. 2003) 318 F.3d 682.