The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role
Fordham Urban Law Journal, Vol. 26, Winter 1998
Posted: 26 Feb 1999
Little scholarly attention has been devoted to the federal death penalty, and the time is ripe for focus on the topic. Federal criminal statutes carrying possible death penalties have been on the books since the First Congress in 1790. In 1988 a single federal death penalty crime was authorized (for Continuing Criminal Enterprises ["CCE"]), and in 1994 Congress extended a potential death penalty to over 40 existing or new federal crimes. As of January 1, 1999, one hundred and thirty-five defendants had been authorized for federal capital prosecutions, and twenty people were under a federal sentence of death.
This 161-page article surveys the history of the federal death penalty and describes the two current federal death penalty statutes and the structures they create; and it provides a detailed description of the U.S. Department of Justice's administration of the federal death penalty. Of greatest interest to administrative lawyers is the latter, in particular its analysis of the operation of the Department's Capital Cases Review Committee, established by Attorney General Reno in 1995. The author served on this Committee during 1996-97, and much of the descriptive and statistical material has not previously been published. He addresses its success in promoting "consistency and fairness," the continuing problem of regional disuniformity, the persistence of racial disparity in the administration of capital punishment despite self-conscious efforts to remove all race identifiers from the review process, and the intractable problem of manipulable written criteria. So long as eligibility for death turns on written statutory factors, he argues, the facts of murder cases can be manipulated by talented writing attorneys to produce a death sentence recommendation, or not, in virtually any murder case.
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