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DOJ Study No Basis to Bar Death Penalty By Mark Hamblett Southern District Judge Leonard Sand weighed in on the administration of the federal death penalty Monday when he refused to allow two accused terrorists to use an internal Department of Justice study as the basis for a motion to dismiss their death penalty notices. Defendants Khalfan Khamis Mohamed and Mohamed Rashed Daoud Al-'Owhali, who will go on trial in January for their roles in the bombings of two U.S. embassies in Africa in 1998, claimed that the application of the federal death penalty is influenced by geography and the defendants' race. To support that claim, they cited concerns over racial and geographic disparity in the application of capital punishment raised by "1988-2000 Survey of the Federal Death Penalty System," released by the Department of Justice in September. But Judge Sand, in United States v. Bin Laden, 98 Cr. 1023, said a closer look that statistics cited in the survey provides no basis to dismiss death penalty notices against Messrs. Mohamed and Al-'Owhali. Judge Sand first said that "to some degree, the racial statistics presented in the DOJ study are indeed troubling." He said that at each step of the federal capital-approval process ‹ the procedures that must be followed before a prosecuting attorney actual seeks the death penalty ‹ "more blacks (always) and Hispanics (sometimes) are selected to face the death penalty than whites." For example, he said that between January 1995 and July 2000, of the recommendations to seek the death penalty by the nation's 94 U.S. Attorneys, 26 percent involved white defendants, 44 percent involved black defendants and 21 percent involved Hispanics. But Judge Sand went on to note that these statistics and others "fail to account for the fact that, at each level of decision-making, the pool of federal defendants eligible for capital approval may be filled with different numbers of a given racial group." "Perhaps the reason why, between January 1995 and July 2000, the Attorney General authorized seeking the death penalty against more blacks than whites can be explained by the fact that more blacks were capital-eligible to begin with," he said. And in a footnote, Judge Sand said that "this of course raises a further question: are minorities being charged by U.S. Attorneys with capital-eligible offenses at greater rates than whites who commit similarly culpable conduct?" However, where the Justice Department survey compares relative rates of capital approval within each racial group and at each decision-making step, Judge Sand said that "the resulting statistics are far less startling." For instance, he said, between January 1995 and July 2000, the 94 U.S. Attorneys as a whole recommended seeking the death penalty against 36 percent of the white defendants charged with capital-eligible defenses, compared with 25 percent of black defendants and 20 percent of Hispanic defendants. That statistic and others, he said, show that "black and Hispanic defendants who are capital eligible are actually being approved for the federal death penalty at lesser rates than their white counterparts." While the survey also suggests that geography has an impact on the likelihood that a defendant will receive the death penalty, he said, "none of the figures relating to geographic distribution Š controls for the level of criminal activity underlying defendants' indictments, or for contextual differences among the various federal districts." Failure to Prove He said the survey noted that 21 of the 94 U.S. Attorneys never charged a defendant with a capital eligible offense during that five-year period. And in the Southern District of New York, U.S. Attorney Mary Jo White sought the death penalty against only 12 percent of the district's capital eligible defendants, compared with much higher rates in other districts. Turning to the defendants in this case, Judge Sand concluded they had "fallen far short" of showing "prima facie proof of discriminatory effect." He said the defendants, in order to support a claim of violation of equal protection, were required to establish that at least one of the decision-makers on their case, either Ms. White, Attorney General Janet Reno, or Ms. Reno's Review Committee on Capital Cases, had systematically declined to capitally prosecute non-African-Arabic defendants in similar cases. But there are no cases similar to the bombings of the embassies in Kenya and Tanzania that killed 214 people and injured hundreds more except, he said, for the Oklahoma City bombing, and the perpetrators of that crime, Timothy McVeigh and Terry Nichols, "went to trial facing the death penalty." Attorneys for Messrs. Mohamed and Al-'Owhali had also asked that the Justice Department study be allowed to serve as the foundation for their alternative request for discovery on the government's "capital charging practices in [their own] and other capital cases." But because the two men had produced "absolutely no evidence" that they had "been treated differently from persons of other races who are comparably situated," and his review of the study does not support such a claim, Judge Sand denied the request. Assistant U.S. Attorneys Paul W. Butler, Patrick Fitzgerald, Kenneth M. Karas, Michael J. Garcia and Andrew C. McCarthy represented the government. Frederick H. Cohn, Laura Gasiorowski and David Preston Baugh represented Mr. Al-'Owhali. David A. Ruhnke, Jeremy Schneider and David Stern represented Mr. Mohamed. THE FEDERAL DEATH PENALTY SYSTEM: United States Department of Justice INTRODUCTION This Survey provides information regarding the federal death penalty system since the enactment of the first modern capital punishment statute in 1988. The Survey explains the Department of Justice's internal decision-making process for deciding whether to seek the death penalty in individual cases, and presents statistical information focusing on the racial/ethnic and geographic distribution of defendants and their victims at particular stages of that decision-making process. The Supreme Court issued a ruling in 1972 that had the effect of invalidating capital punishment throughout the United States B both in the federal criminal justice system and in all of the states that then provided for the death penalty. While many state legislatures revised their procedures relatively quickly to withstand constitutional scrutiny, the federal government did not do so until November 18, 1988, when the President signed the Anti-Drug Abuse Act of 1988. A part of this law, known as the Drug Kingpin Act (DKA), made the death penalty available as a possible punishment for certain drug-related offenses. The availability of capital punishment in federal criminal cases expanded significantly further on September 13, 1994, when the President signed into law the Violent Crime Control and Law Enforcement Act. A part of this law, known as the Federal Death Penalty Act (FDPA), provided that over 40 federal offenses could be punished as capital crimes. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which went into effect on April 24, 1996, added another four federal offenses to the list of capital crimes.[1]
As the law governing the federal death penalty has changed, the Department of Justice has modified its internal decision-making processes in capital cases. With the enactment of the DKA in 1988, the Department instituted a policy that required United States Attorneys in the 94 federal districts across the country[2] to submit to the Attorney General for review and approval any case in which the United States Attorney affirmatively wished to seek the death penalty. Under this policy, the decision not to seek the death penalty was left to the United States Attorneys' discretion. From 1988 until the end of 1994, United States Attorneys sought approval from Attorneys General to seek the death penalty 52 times and received it 47 times. On January 27, 1995, the Department adopted the policy still in effect today B commonly known as the death penalty "protocol" B under which United States Attorneys are required to submit for review all cases in which a defendant is charged with a capital-eligible offense, regardless whether the United States Attorney actually desires to seek the death penalty in that case. The United States Attorneys' submissions are initially considered by a committee of senior Department attorneys in Washington, D.C. known as the Attorney General's Review Committee on Capital Cases (Review Committee), which makes an independent recommendation to the Attorney General. From January 27, 1995 to July 20, 2000 B the close of the reporting period for this Survey B United States Attorneys submitted a total of 682 cases for review and the Attorney General ultimately authorized seeking the death penalty for 159 of those defendants. While a case progresses through the Department's review process, it simultaneously continues in the United States Attorney's Office and in the court system. Some cases submitted by United States Attorney for review are subsequently withdrawn due to events outside the review process. For example, the defendant and the United States Attorney may enter into a plea agreement that disposes of the case and results in the imposition of a prison term. In other cases, a judicial decision may result in the dismissal of either the entire case or the specific charges that are punishable by death. As a result, the total number of cases considered by the Review Committee is smaller than the total number submitted by the United States Attorneys, and the total number of defendants considered by the Attorney General is smaller still. Furthermore, not all defendants who proceed to trial receive the death penalty. As discussed below, since 1988, federal juries returned death verdicts against fewer than half of the defendants they found guilty of capital crimes. As of the date of this Survey, five defendants who were authorized for the death penalty during the "pre-protocol" period (1988-1994) were subject to a pending sentence of death; fourteen defendants authorized during the "post-protocol" period (1995-2000) were also subject to a pending sentence of death. Current Department policy provides that bias based on characteristics such as an individual's race/ethnicity must play no role in a United States Attorney's decision to recommend the death penalty. Also, in some districts, the United States Attorney (as opposed to the particular prosecutors handling a case) is likewise not informed of the defendant's race/ethnicity. Moreover, the United States Attorney's Office may not provide information about the race/ethnicity of the defendant to Review Committee members, to attorneys from the Criminal Division's Capital Case Unit (CCU) who assist the Review Committee, or to the Attorney General. As explained below, the only individuals in Washington, D.C. who are ordinarily privy to race/ethnicity information are paralegal assistants in the CCU who collect these statistics under separate cover from the United States Attorneys.[3] This information forms the pool from which most of the federal data on race/ethnicity reported below are drawn. This Survey presents a series of statistics regarding the federal death penalty process that are broken down by time period (pre-protocol and post-protocol),[4] by participants in the decision-making process (the United States Attorneys, the Review Committee, and the Attorney General), and by the racial/ethnic groups of defendants and victims.[5] Part I presents highlights of a statistical overview of the Department's decision-making process. Parts II to V each presents highlights of data regarding particular stages of the process. In particular, Part II presents highlights regarding recommendations made by United States Attorneys; Part III presents highlights regarding recommendations made by the Review Committee; Part IV presents highlights regarding decisions made by Attorneys General; and Part V presents highlights regarding post-authorization activity (e.g., plea agreements, jury trials) in all cases in which Attorneys General made decisions to seek the death penalty, with additional case-specific information about the 19 defendants now under a federal death sentence. Finally, Part VI presents highlights of data regarding the degree of consensus among United States Attorneys, the Review Committee, and the Attorney General. The statistical information presented in the narrative of the Survey is based on the data contained in the tables set forth at pages T-1 to T-355. For the reader's convenience, those tables have been grouped together at the end of the Survey rather than interspersed within it. There are a number of important notes accompanying those tables that explain the methods and terms used in compiling the data, as well as the way in which anomalous cases have been treated in presenting overall characterizations of the statistics. Those notes are set out at the beginning of the tables (pages T-xi to T-xvii). In evaluating the data presented in this Survey, the reader should bear in mind that the vast majority of homicides in the Untied States, like most violent crimes, are investigated exclusively by local police officers working hand-in-hand with local prosecutors, who file charges against defendants in state courts, either as a capital case or non-capital case.[6] When a homicide is prosecuted federally B either as a capital or non-capital case B it is often because of the availability of certain federal laws or because of a federal initiative to address a particular crime problem. Criminal organizations often operate in multiple jurisdictions, making it difficult for any single local prosecutor to investigate or prosecute a case. Additionally, many states lack the equivalent of the federal witness protection program and the ability to conduct complex long-term investigations using resource intensive investigative techniques such as court-ordered wiretaps and undercover operations. Apart from these differences in laws and resources, which often affect whether a particular homicide is prosecuted in state or federal court B either as a capital or non-capital case B state and federal law enforcement officials often work cooperatively to maximize their overall ability to prevent and prosecute violent criminal activity in their respective communities. Such cooperation is a central feature of current federal law enforcement policy. In some areas, these cooperative efforts lead to agreements that certain kinds of offenses, particularly violent crimes, will be handled by federal authorities. In Puerto Rico, for example, the United States Attorney has agreed with his local counterpart that the federal government will prosecute carjackings involving death, which has led to a large number of homicides being handled by that particular United States Attorney's Office. In some cities, a large number of cases involving multiple murders by drug and other criminal organizations are investigated by joint federal and local task forces and prosecuted federally due to some of the factors cited above, such as the geographic reach of the organization and the availability of a witness protection program. In other areas, by contrast, these cooperative efforts lead to a federal emphasis on crimes other than homicides. These decisions are not, however, static ones. A given homicide that appears to be of purely local interest may, upon further investigation months or years after the offense, prove to be related to organized multi-jurisdictional criminal activity that is being investigated by federal law enforcement officials, who may seek to transfer the case from state prosecutors to federal prosecutors. For these and other reasons, the factors that determine whether a particular homicide will enter the state or federal criminal justice systems are complex and difficult to quantify. Overall, however, the federal government continues to play a relatively small role in administering the death penalty in this country. From 1930 to 1999, state governments executed over 4,400 defendants.[7] During the same time period, the federal government executed 33 defendants and has not carried out any executions since 1963.[8] Furthermore, the Department of Justice's Bureau of Justice Statistics (BJS) reports that by the end of 1998 (the most recent year for which this statistic is available), there were 3,433 defendants with pending death sentences in the States, compared to 19 defendants with currently pending death sentences in the federal system. Thus, despite the expansion of the availability of the federal death penalty since 1988, federal defendants account for approximately one-half of one percent of all the defendants on death row in the United States. PART I: STATISTICAL OVERVIEW Table Set I (pages T-1 to T-7) provides statistical summaries of the decision-making process at the Department of Justice by its primary participants B the United States Attorneys, the Review Committee, and the Attorney General B and how the decisions of those participants affect members of four different racial/ethnic groups. Highlights of these summary tables are presented below. A. Racial/Ethnic Distribution of Defendants Submitted by the United States Attorneys ! From 1988 to 1994, a total of 52 defendants were submitted by the United States Attorneys under the Department's former decision-making procedures.
! From 1995 to 2000, a total of 682 defendants were reviewed under the Department's current death penalty decision-making procedures.
B. Rates at Which Each Participant Recommended/authorized the Death Penalty with Respect to Each Racial/ethnic Group Because cases continue to be litigated while the death-penalty decision-making process is proceeding at the Department of Justice, not all of the defendants who are the subject of a recommendation by a United States Attorney are considered by the Review Committee and the Attorney General. The following highlights B which serve to allow a comparison of the rate at which each participant in the decision-making process recommends or authorizes seeking the death penalty B take that attrition into account by showing, for each racial/ethnic group, the rate at which each participant recommended or authorized seeking the death penalty as a percentage of the total number of defendants considered by that participant. Thus, the percentages below reflect the number of defendants in a particular racial/ethnic group for which each participant in the death penalty process recommended/authorized the death penalty, divided by the total number of defendants of that racial/ethnic group that were considered by that participant. ! From 1988 to 1994, the Attorney General agreed with the United States Attorneys in most cases. (The Review Committee was not yet in existence).
! From 1995 to 2000, when United States Attorneys submitted defendants with recommendations both for and against seeking the death penalty, each participant in the decision-making process (including the Review Committee) recommended/authorized the death penalty against slightly less than one third of the defendants that each participant considered.
Death Penalty With Respect to Each Racial/Ethnic Group The percentages below reflect the number of defendants in each racial/ethnic group that the Attorney General authorized the death penalty, divided by the total number of defendants in that particular racial/ethnic group that initially entered the Department's review process. ! From 1988 to 1994, the Department of Justice sought the death penalty against 90 percent of the defendants submitted for review by United States Attorneys with recommendations exclusively in favor of seeking the death penalty.
! From 1995 to 2000, the Department of Justice sought the death penalty against 23 percent of the defendants charged with crimes punishable by death and submitted for review by United States Attorneys with recommendations for or against seeking the death penalty.
PART II: THE UNITED STATES ATTORNEYS A. Background As discussed above, with the enactment of the DKA in 1988, the United States Attorneys were required to submit to the Attorney General for review and approval only those cases in which the United States Attorney affirmatively wished to seek the death penalty. With the enactment of the new death penalty protocol on January 27, 1995, United States Attorneys were required to submit to the Attorney General for review "all Federal cases in which a defendant is charged with an offense subject to the death penalty, regardless of whether the United States Attorney intends to request authorization to seek the death penalty." For the reasons set forth below, this protocol does not require United States Attorneys to submit to the Attorney General all potentially capital-eligible defendants in the federal system. First, United States Attorneys are not required to submit to the Attorney General for review cases in which the United States Attorney initially considered the case for federal prosecution, but ultimately decided to defer prosecution to state authorities. For example, a federal agent might arrest a defendant for committing a street robbery in which a homicide occurred, but the prosecution might be turned over to the local district attorney because of the lack of a substantial federal interest.[9] Second, United States Attorneys retain the discretion not to charge defendants facing federal prosecution for a homicide with a capital-eligible offenses if they do not believe such a charge could be sustained. For example, a United States Attorney might decide at the outset of a particular case (e.g., a vehicular homicide on federal land) that he or she simply could not prove to a jury beyond a reasonable doubt that the defendant had the requisite level of intent to be charged with a capital-eligible offense. Third, at any time, either before or after indictment, United States Attorneys have the discretion to conclude a plea agreement with a defendant, which has the effect of foreclosing the death penalty. For example, either before or after indicting several defendants for capital-eligible offenses, a United States Attorney may decide to enter into a cooperation agreement with one of the defendants, under which that defendant agrees to plead guilty to certain crimes and testify against his co-defendants in exchange for consideration B including the dismissal of certain charges and a promise to inform the sentencing judge about the cooperation B that has the effect of rendering the defendant ineligible for the death penalty. Likewise, United States Attorneys have the discretion to enter plea agreements with a defendant before or after he has been charged with capital-eligible offenses that do not require the defendants' cooperation. Such decisions may be made for a variety of reasons, including eliminating the risk of an acquittal in a difficult case, the unavailability of one or more key witnesses, or an unfavorable evidentiary ruling by the court that significantly weakens the case. If any such plea agreement is reached before a case has been submitted for review, the United States Attorney need not submit it thereafter [10] There has been no centralized data collection process in place regarding these three categories of potential capital-eligible cases. As a result, the data regarding submissions by United States Attorneys that are reported in this Survey do not include information regarding the entire pool of potential capital-eligible defendants in the federal system since 1988. There are, nonetheless, a significant number of cases that United States Attorneys have submitted to the Attorney General for review under the current protocol, namely, all cases in which a United States Attorney charges a capital-eligible offense and does not enter into a plea with the defendant before making a submission to the Attorney General. In submitting these cases, the United States Attorney must recommend to the Attorney General whether he or she believes that the death penalty should be authorized in that case. Prior to doing so, however, the United States Attorney or his or her designee will meet with the defendant's attorneys and allow them to make written and oral presentation as to why the death penalty should not be sought in the case.[11] In addition, many United States Attorneys employ additional decision-making procedures within their own offices; several have standing committees of senior prosecutors to review all potential capital cases, and others appoint such internal review committees on an ad hoc basis.[12] Once a United States Attorney decides whether to seek authorization from the Attorney General to pursue the death penalty, he or she is required to submit detailed information about the case to the Criminal Division's CCU. In particular, the United States Attorney must submit a comprehensive discussion of the theory of liability; the facts and evidence relating to the issue of guilt or innocence; the facts and evidence relating to any aggravating factors (including victim impact) or mitigating factors; the defendant's background and criminal history; the basis for federal prosecution; and any other relevant information. The United States Attorney is also required to submit any material received from defense counsel in opposition to the death penalty, and other significant documents such as confessions, key witness statements, and autopsy and crime scene reports. B. Statistical Highlights The United States Attorneys submitted 52 cases for review during the pre-protocol period and 682 cases during the post-protocol period. Detailed information about these submissions are set forth in Table Set II (pages T-8 to T-126). This section provides highlights of the statistical data regarding these submissions and is divided into three parts. First, drawing on the statistics in Table Set II.A (pages T-9 to T-21), the cases are analyzed in terms of the defendants who were charged by the United States Attorneys and submitted for review. Second, using statistics from Table Set II.B (pages T-22 to T-56), the cases are analyzed in terms of the types of offenses charged. Third, the cases are examined with an emphasis on the race/ethnicity of the victims of the crimes charged against defendants, using the statistical compilations from Table Set II.C (pages T-57 to T-126). 1. Defendants a. Recommendations in favor of seeking the death penalty ! From 1995 to 2000, United States Attorneys recommended seeking the death penalty for 183 defendants, out of a total of 682 submitted for review by the Attorney General (27 percent).
! The 183 recommendations to seek the death penalty were made by the United States Attorneys in 49 of the Nation's 94 districts. ! 10 of these 49 districts submitted only recommendations in favor of seeking the death penalty. These 10 districts accounted for 31 of the 183 recommendations against the death penalty in the post-protocol period (17 percent). b. Recommendations against seeking the death penalty ! From 1995 to 2000, United States Attorneys recommended against seeking the death penalty with respect to 494 defendants, out of 682 submitted for review by the Attorney General (72 percent).
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