Special Issue: 'Perspectives on the Federal Death Penalty'

Posted: 8 Nov 2002

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law

Adam Thurschwell



The articles, reports and commentary included in this Issue address a specialized but increasingly important area of federal sentencing: the administration of the federal death penalty. Apart from its independent legal, moral and symbolic significance, the issues raised by the return of capital punishment to the federal system resonate far beyond the limited number of federal death penalty cases brought each year. The articles and other materials included in this Issue situate federal capital prosecutions in a number of diverse contexts and from a number of diverse perspectives - from historical, doctrinal, policy-based and statistical approaches to personal accounts of what it is like to participate in the capital charging and trial process as a prosecutor or judge.

The Issue is divided into three sections. The first includes articles by academics and practitioners on specific legal and policy aspects of the federal capital sentencing scheme. In his contribution, Professor Rory Little examines the role of geographical diversity in federal capital charging and sentencing, analyzing the peculiarly strong tensions created within "Our Federalism" by a federal death penalty that can be enforced in states that have abolished capital punishment within their own state criminal justice systems. Professor Adam Thurschwell reconsiders the role of the Due Process Clause in guaranteeing the "heightened reliability" of contemporary capital trial procedures in light of historical evidence demonstrating the special deference paid to capital defendants' interests by the Founding-era judiciary in favorem vitae ("in favor of life"). Federal defender William Forman analyzes the potential implications of the Supreme Court's decision in Apprendi v. New Jersey for prosecutions under the Federal Death Penalty Act, while fellow federal defenders Ken Murray and Jon M. Sands discuss the complexities and paradoxes of applying federal death sentencing in the legal thicket of the statutes governing criminal jurisdiction in Indian Country. Last but not least, Professor William Schabas places the federal death penalty in the context of the applicable treaties and customary norms of international law.

The second section is comprised of selections from some primary materials addressing the concerns of both the Department of Justice and its critics that race has played an illegitimate role in federal capital charging and sentencing. Included here are excerpts from the Department of Justice reports issued under Attorney Generals Reno and Ashcroft, along with highlights of the statistics relied upon by these reports, as well as a critique of the latter report delivered via an open letter to U.S. Senator Russell Feingold by Professor David C. Baldus, a leading expert on the statistical evidence related to the role of race in capital punishment.

Finally, the third section places the federal capital prosecutions in the more personal context of the viewpoints of some of the key participants in the process. The Vera Institute provides an account of a roundtable discussion among a number of former United States Attorneys about their approaches to the capital charging process. And District Judge Michael A. Ponsor has supplied a personal account of what it was like to preside over the highly publicized capital case of United States v. Kristin Gilbert.

Keywords: federal death penalty, capital punishment, death penalty, capital sentencing, federal sentencing

Suggested Citation

Berman, Douglas A. and Thurschwell, Adam, Special Issue: 'Perspectives on the Federal Death Penalty'. Available at SSRN: https://ssrn.com/abstract=312183

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

Adam Thurschwell

Independent ( email )

Washington, DC

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