A Dent In The Armor

Another dent in the armor

When a federal judge earlier this year declared the federal death penalty statute to be unconstitutional, proponents of the criminal justice system's ultimate punishment generally dismissed him as a lone, liberal crank. And why not?

U.S. District Judge Jed S. Rakoff, author of the novel ruling this summer that voided the law in a drug and murder conspiracy case, is from New York, which to the rest of the country is somewhere East of Eden and to the left of Barbra Streisand. And Judge Rakoff's rationale, reasonable though it was and prescient as it may turn out to be, was just unspecific enough to allow his judicial opponents to write it off as too touchy-feely to be important or even precedent-setting.

But now a second federal judge has raised serious, legitimate concerns about the nature of a federal death penalty. And this time capital punishment supporters seem to be taking the challenge a bit more seriously. It's one thing to denigrate a single judge taking an unpopular position. It's another thing altogether to respond to what now appears to be a mini-trend triggered by the conservative Supreme Court itself and its recent death penalty-related decisions. So the Justice Department reacted Tuesday by being both sublime and ridiculous -- and in a manner reminiscent of the old saying about how you can judge the nature of the perceived threat by the visceral reaction to it.

It is de rigueur, of course, that federal prosecutors would vow to promptly appeal the ruling by U.S. District Judge William K Sessions III, an experienced judge who also serves on the prestigious federal sentencing commission. After a lengthy and detailed analysis, Sessions ruled Tuesday -- in a murder-kidnap case out of Vermont -- that recent Supreme Court decisions had made the federal capital crime law incompatible with the Constitution.

Government attorneys cannot simply allow such a potentially wide-reaching ruling to stand unchallenged. So, like Judge Rakoff's New York case before it, the Vermont ruling will now go before the 2nd U.S. Circuit Court of Appeals and from there it is anyone's guess as to how it will come out.

But the surest sign of administration worry over Session's ruling -- and the possible cumulative effect of it and Rakoff's decision -- came in the form of a fairly hysterical statement offered by Justice Department spokesperson Barbara Comstock shortly after the Vermont ruling was released.

Comstock declared, in what has to be one of the most absurd statements uttered this year, that "Congress passed the Federal Death Penalty Act to save lives and the Supreme Court of the United States has repeatedly said the death penalty does not violate the Constitution."

You don't have to be a death penalty opponent to know that Congress passed the Federal Death Penalty Act not to "save lives" but to expedite the taking of them by the government. And the Act doesn't "save lives" by scaring people away from committing murder since, as Comstock surely knows, the great weight of evidence suggests that capital punishment has no deterrent effect whatsoever.

Comstock's statement also fundamentally misconstrued what the Supreme Court has said about the death penalty and the processes by which it may be implemented. Yes, the Supreme Court brought back the death penalty under both federal and state law a generation ago. To that extent it, indeed, has held that the "death penalty does not violate the Constitution." But since 1976, the court has continuously tinkered with death penalty procedures in order to try to ensure, as much as is humanly possible, that the process is fair in its application.

Death penalty proponents believe and argue that this is a fool's errand; that capital punishment never can be meted out justly or fairly or evenly between and among the races and classes of Americans. But the Supreme Court hasn't given up the fight -- just last term it refined those procedures in ways which benefited capital defendants -- and neither, apparently, has Judge Sessions.

So what exactly did Sessions say to elicit such a bombastic response from the feds? Is his ruling proof positive, as Comstock claims? That the federal judiciary is sorely in need of "President Bush's nominees to the federal bench"? Did he thumb his nose at the Supremes? Of course not. Sessions' ruling makes perfect sense in light of what the Supreme Court did earlier this year in a trio of cases involving death penalty procedures.

In light of those recent high court rulings, Sessions wrote, the government must prove sentencing factors in a capital case -- aggravating factors that would lead jurors to vote for death over life -- the way it does the basic elements of the crime itself; that is, by proof beyond a reasonable doubt and after giving the defense an opportunity to cross-examine or otherwise confront the witnesses against him.

Otherwise, Sessions wrote, "the government would approve death eligibility as the federal criminal justice system's sole exception to the practice of requiring that offense elements be proven by admissible evidence comporting with due process and fair trial guarantees. This makes no sense." It's not necessarily Congress's fault, either, the judge wrote.

"When Congress enacted the Federal Death Penalty Act, it could not have anticipated that death-eligibility factors would be regarded as the functional equivalents of elements. ... It is inconceivable to this Court that Congress could have intended instead to provide less protection in a capital proceeding than in a non-capital proceeding to the factual determination of an essential element of an offense."

These are hardly the words of an anti-capital-punishment zealot or even a jurisprudential "liberal." They are the words of a sentencing specialist who is merely working with what the high court has recently given him to work with.

If the administration wants to rail at someone, then, it ought to rail at the Supreme Court's majority which heightened the evidentiary requirements in death penalty cases to a point where they conflicted with what prosecutors wanted to do in the case before Sessions.

And if the administration wants to channel its energy into something more positive than blasting judges like Sessions, it might want to consider asking Congress to change the federal death penalty statute so it once again comports with the way the Supreme Court is interpreting the Constitution these days. Otherwise, I bet, more federal judges like Sessions are going to chime in on this issue and this White House and this Justice Department probably won't like what they have to say.