Written by attorney Justin C. Gearty Jr.

State's disparities with the application of the death penalty

FEDERALIZING THE DEATH PENALTY By: Justin Gearty, Esquire Phone: 717-490-6325 Email: [email protected] Website: Http://

INTRODUCTION There are no greater values or legally protected rights, than the right to life. For that reason, the fifth amendment of the U.S. Constitution provides in part that life cannot be taken without due process of law. Although the States must provide due process of law in all capital cases, there still lacks a level of uniformity. Some States have the death penalty, while others don't. If you commit a certain crime in one State you die, but if you commit the same crime in another State you live. According to a New York Times article, there have been about 1,100 executions across the country in the past thirty years with 100 of them in Harris County Texas alone. A New York Times article titled "More Support for an exclusively federal death penalty" discusses the idea that States should not use the death penalty; rather, this article proposes the idea that States should request that the federal authorities take these cases and apply the death penalty. The federal government already handles the worst drug and white-collar crimes, so it would make sense for them to also handle the worst murders. As of February of 2007, there were seven prisoners on federal death row that were from States that do not have the death penalty. Since prisoners from non-death penalty States already are being executed (or at least receiving death sentences) by the federal government, the idea of having a completely federalized system of capital punishment won't be much different for non-death penalty States since their citizens already are death eligible for certain federal crimes. Since there lacks uniformity with the current death penalty scheme; this would be a major goal of federalizing it. In 2007, the Federal Justice Department spokesman said, "we have in place a clearly defined review process to ensure the death penalty is applied in a consistent and fair manner nationwide." In order to make the death penalty more fair and uniform for all citizens of this country, this paper will propose the idea of banning capital punishment in the States and make the most serious murders Federal crimes instead of State crimes and allow these crimes to be punishable by death by the federal government. If the federal government becomes the prosecutor and administrator of all capital punishment cases, then many of the disparities caused by the States may disappear. This paper will discuss the current problems with the death penalty being left to the States; how the death penalty is already being federalized; how a federalized death penalty system will work; as well as the limitations to this theory, such as constitutional restrictions that would prohibit a completely federalized death penalty system. A.INEQUALITY BASED ON RACE In McCleskey v. Kemp, statistical evidence was presented to prove the inequalities in the administration of the death penalty in Georgia. The studies in the Kemp case revealed the following: 11% of the defendants charged with killing a white person received the death penalty while only 1 % of defendants charged with killing a black person received the death penalty. This study also found that a black defendant charged with killing a white victim received the death penalty 22% of the time while white defendants charged with killing a black victim only received the death penalty 3% of the time. The Court in this case decided that these racial disparities did not violate the Constitution. In a NY Times interview, Justice Powell admits that he would change his decision in the Kemp case. Justice Powell's admission that he would change his vote in that case is strong evidence that the Court made the wrong decision and that the issue of race and the death penalty is a major problem. The Kemp case involved a GA study, however, the problem of race is not isolated to that State. The same NY Times article discusses the problem of race and the death penalty in Harris County Texas. This article notes that for every 100 black defendants and 100 white defendants, 17 blacks are sentenced to death while only 12 whites are. The Kemp Court noted that the problem with race and the death penalty is a problem for the legislature, not the Court. The Kentucky legislature has adopted racial justice legislation. This Kentucky statute, however, only applies to pre-trial claims of prosecutorial racism. In 2003, the PA Supreme Court was presented with evidence of racial bias in the death penalty, but they failed to do anything about it. Maryland has had issues with racial disparity for a long time, but their legislature has failed to take any action. Although it may be impossible to completely resolve the issue of race with the death penalty, federalizing the death penalty could be a step in the right direction. Congress could pass a statute similar to Kentucky's and this may lessen the unfair application of the death penalty based on race. B. DISPARITIES BETWEEN STATES Another problem that points to the need for a federalized death penalty is the vast disparities between the States. The first issue is that some States have the death penalty while others don't. In the States that have the death penalty, there are vast differences in the frequency of the application of the death penalty, differences in methods of execution, and differences in what crimes are punishable by death. In States that have the death penalty, there are differences by county as to how often they seek the death penalty. There was one case from Maryland that is particularly alarming. Forum shopping was used to seek the death penalty against Maryland defendant Kevin Johns. Mr. Johns killed another inmate on a bus transporting them from one prison to another. The bus crossed through four counties and authorities could not determine where the crime occurred. Prosecutors had this case tried in Baltimore County because the death penalty was sought more in that county than in any of the other three counties. This sort of forum shopping would be eliminated in a federalized death penalty system. This federalized system also would put everyone in the country in the same position as far as eligibility for the death penalty. Defendants would no longer die for their crimes because they lived in the wrong State. C. METHODS OF EXECUTION Over the years, different States were using various different methods of execution, such as: lethal injection, gas chamber, hanging, electrocution, and firing squad. This is yet another example of lack of consistency in the application of the death penalty. Maryland had been using the gas chamber until 1994, which is when they switched to lethal injection. Defendants convicted prior to March 1994, but not yet executed, were given the choice between the gas chamber and lethal injection. Florida and Georgia had been using the electric chair (death by electrocution) until their Courts' found that method unconstitutional. The State of Washington had been giving defendants the choice between deaths by hanging or lethal injection. A federalized death penalty system would have one method of execution that would apply to all. If a more humane method for execution is ever discovered, the federal government could implement that immediately, thereby keeping the method of execution consistent for everyone. If this were left to the States, it would take time for each State to change its methods, which would again lead to one State executing one way, while other States executed a different way. D. WHO DIES? Who does the death penalty apply to and what crimes are death eligible? This is another issue that has varied by State. The case of Kennedy v. Louisiana discusses a military rule that allowed for the execution for those convicted of rape. North Carolina had a statute that made the death penalty mandatory for any person convicted of first-degree murder. A federalized death penalty system would unify this problem. There would be one list of crimes punishable by the death penalty and this would apply to everyone in the country. This is much more fair than the current process of: if you commit this crime in this death penalty State you die, but if you commit the same crime in another death penalty State you live.

Additional resources provided by the author

U.S. v. Acosta-Martinez, 252 F.3d. 13, 15-16 (1st Cir. 2001). David Hechler, Ashcroft’s Legacy on Federal Death Penalty in Doubt, The National Law Journal, December 6, 2004, at 18 U.S.C.A § 3591 Elizabeth Vicens, Application of the Federal Death Penalty Act to Puerto Rico: A New Test for the Locally Inapplicable Standard, 80 N.Y.U .L. Rev. 350, 351-54 (2005). Furman, 408 U.S. at 240-41 Jeffrey J. Pokorak, supra note 28 at 242 Furman v. Georgia, 408 U.S. 238, 239 (1972) Jeffrey J. Pokorak, supra note 28 at 242 Gregg v. Georgia, 428 U.S. 153, 154 (1976)

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