Latest News

Attorney General William P. Barr Directs the Federal Bureau of Prisons to Adopt an Addendum to the Federal Execution Protocol and Schedule the Executions of Five Death-Row Inmates. Click here for full DOJ announcement.

In this memo the AG encourages prosecutors to use drug-related, capital-eligible statutes to charge defendants. Click here for full memo.

February 6, 2018 - ABA Resolution 111 Passed

The American Bar Association has just passed a resolution urging each jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or execution of any individual who was 21 years old or younger at the time of the offense. The Resolution, co-sponsored by the ABA Death Penalty Due Process Review Project and the Section of Civil Rights and Social Justice, is attached here along with its accompanying report.

In December 2017, the Department of Justice added the following language to the DOJ Protocol, 9-10.130 Capital Review Committee:

Amicus brief by Mental Health America and National Alliance for the Mentally Ill, filed in California Supreme Court, argues that severe mental illness should be a bar to the death penalty.  The case is California vs. Steskal, and the brief can be found here. The defendant suffered from delusional disorder.

This ABA "white paper" on "Severe Mental Illness and the Death Penalty" aims to provide readers with the rationale behind exempting those from severe mental illness from the death penalty, "as well as provide policy makers, legal professionals, and the public with all the information needed to comprehend this issue and work towards reform in state legislatures."  The Paper concludes that "[t]he death penalty is the ultimate punishment that should be reserved for the most blameworthy individuals who commit the worst crimes - and it does not serve any effective or appropriate purpose when it is applied to individuals with severe mental illness. The Supreme Court has already recognized that there are two other categories of individuals who have similar functional impairments to people with severe mental illness that are inherently "less culpable" to the point that it is unconstitutional to apply the death penalty in their cases. In light of this constitutional landscape, the growing consensus against this practice, and the fact that none of the current legal mechanisms afford adequate protection against the death penalty to those diagnosed with serious mental disorders or disabilities, it is time for the laws in U.S. capital jurisdictions to change."

Click here for full paper.

The court feeling constrained to deny the defense motions attacking the constitutionality of the death penalty, expressed substantial concerns: "The court returns to the question it asked at the beginning of the opinion. Has actual experience borne out the promise for a more reliable system of capital punishment expressed in the Gregg decision? The evidence produced for the court answers the question in the negative. These findings and the fuller record of the hearing conducted before the court substantiate the questions and the criticism expressed in the Glossip dissent. The trial court stops short, however, of altering the holding in Gregg that "[t]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance." Gregg is still the law of the land. As the Supreme Court wrote about its own authority in State Oil Co. v. Khan, 522 U.S. 3, 20 (1997), "it is this Court's prerogative alone to overrule one of its precedents."

The time has surely arrived to recognize that the reforms introduced by Gregg and subsequent decisions have largely failed to remedy the problems identified in Furman. Institutional authority to change this body of law is reserved to the Supreme Court. For this reason, the trial court is required to deny the defense motions related to the constitutionality of the death penalty.'" 

Click here for full opinion.

Judge Alex Kozinski of the Ninth Circuit highlights findings from a report by the President's Council of Advisors on Science and Technology.  The Council concluded there are two important gaps

  1. the need for clarity about the scientific standards for the validity and reliability of forensic methods and
  2. the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable. 

The Council offers recommendations on actions that could be taken by a variety of interested entities, including the Department of Justice and the FBI. Click here for report.

This Opinion piece“A Wake up Call on the junk science infesting our courtrooms” – sounds an alarm similar to Judge Kozinski’s.  It is written by Harry T. Edwards is a senior judge on the U.S. Court of Appeals for the D.C. Circuit. Jennifer L. Mnookin is dean of the UCLA School of Law. They serve as co-chairs of the Senior Advisors to the PCAST Working Group.

In U.S. v. Con-Ui, a BOP homicide case (corrections officer killed) pending trial in the MDPA, the government withdrew the non-statutory aggravating factor of future dangerousness but advised the court it still planned to introduce evidence of the defendant's evidence of alleged acts of violence committed by the defendant both in and out of prison.  The defendant asserted that he will attempt to prove a lack of future danger and intends to introduce expert testimony to bolster his lack of future danger argument to the jury.  The defendant argued for nationwide BOP data "critical to providing an individualized evaluation of Mr. Con-Ui's behavior in comparison" to various categories of inmates in the federal BOP.  Without ruling on the admissibility of any potential testimony or evidence, the trial court determined that certain of the requested discovery - including substantial nationwide BOP data - may be material to the defense, and ordered it produced.  The district court opinion can be found at 2016 WL 4140520 (M.D. Pa. Aug. 4, 2016), or here.

U.S. District Judge Geoffrey Crawford (D. Vermont) will take testimony on Donald Fell's challenge to the Federal Death Penalty - Motions to Dismiss the Death Penalty as Punishment because it is Unconstitutional, to Dismiss the Superseding Indictment and/or Strike the Amended Notice of Intent as Violative of the Principles of Limited National Powers and State Sovereignty, to Dismiss based on Ring, to Dismiss because of the Unconstitutionality of Selecting a Fair Jury in a State where most citizens oppose the death penalty, and to Declare the FDPA unconstitutional for failure to require comparative proportionality review. The hearing which began July 1 is ongoing at the federal courthouse in Rutland, Vermont. Click here for a news article about the hearing.