ACLU Letter to the House Judiciary Committee Regarding H.R. 5040, the Death Penalty Reform Act of 2006

March 29, 2006
Chair, Crime, Terrorism and Homeland Security Subcommittee
House Judiciary Committee
Washington, D.C. 20515

The Honorable Bobby Scott
Ranking Member, Crime, Terrorism and Homeland Security Subcommittee
House Judiciary Committee
Washington, D.C. 20515

H.R. 5040, the Death Penalty Reform Act of 2006 is Constitutionally Flawed.
Dear Representatives Coble and Scott:


On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write to express our concerns about H.R. 5040, the Death Penalty Reform Act of 2006 (DPRA) that will be considered during a hearing in the House Judiciary Crime, Terrorism and Homeland Security Subcommittee on Thursday, March 30. The Death Penalty Reform Act would violate the Eighth Amendment by allowing for the execution of mentally retarded persons and contradict Supreme Court law by making virtually every federal crime that results in death and involves a firearm eligible for the death penalty. We urge you to oppose this legislation because it violates several fundamental constitutional principles.

The Death Penalty Reform Act Does Nothing to Address the Continuing Racial, Economic and Geographic Disparities in the Federal Death Penalty System.

The federal death penalty is racially and economically discriminatory. A 2000 Department of Justice survey documents racial, ethnic and geographic disparity in the charging of federal capital cases. Indeed, the review found that in 73 percent of the cases in which a federal prosecutor sought the death penalty, the defendant was a member of a minority group. The explanation for these extremely troubling disparities is unclear, but the possibility of discrimination and bias cannot be ruled out. The Federal Death Penalty Reform Act does nothing to attempt to reform these profound systemic flaws. On the contrary, this bill's expansion of the federal death penalty by making every murder involving a firearm eligible for capital punishment will afford federal decision-makers greater discretion to seek the penalty of death, therefore creating an intolerable risk of increased racial bias.

Currently, 123 innocent people have been released from death row since 1973 according to the Death Penalty Information Center. The increasing numbers of innocent people released from death row illustrate the fallibility of this system. In 2004, a University of Michigan study identified 199 murder exonerations since 1989, 73 of them in capital cases. The same study found that death row inmates represent a quarter of 1 percent of the prison population but 22 percent of the exonerated. These statistics underscore the importance of preserving the procedural safeguards in the federal death penalty system, such as ensuring sentencing juries consist of 12 jurors, a practice this legislation would undermine.

H.R. 5040 Violates the Eighth Amendment by Subjecting Mentally Retarded People to the Death Penalty.

The Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.E.d.2d 335 (2002) held that states could not execute people who are mentally retarded. The Supreme Court did rely on a generally agreed upon clinical definition of mental retardation in Atkins, but never required a defendant to meet all of the characteristics attributed to mental retardation.[1] Although H.R. 5040 relies on language used by the Supreme Court in Atkins to define mental retardation, it would create a requirement that all the standards outlined in the Atkins case be satisfied in order to establish a defendant is mentally retarded.[2] Prior to the Atkins decision and even today federal statute prohibits the execution of mentally retarded people. Ultimately, the Supreme Court in Atkins left the states with the responsibility of determining a legal definition of mental retardation for purposes of capital punishment. Most state statutes' definitions of mental retardation are consistent with accepted clinical definitions, which do not require defendants to meet all the attributes of mental retardation.[3] However, the DPRA would require a person to meet all of the characteristics associated with mental retardation, which directly conflicts with the Supreme Court's conclusion in Atkins. The definition included in the DPRA is without any basis in medical science and contrary to the generally accepted clinical definition of mental retardation established by physicians and other mental-health experts. This legislation's definition of mental retardation in the context of the federal death penalty is inconsistent with the Atkins case and would violate the Eighth Amendment by exposing mentally retarded people to the possibility of being executed.

In addition, the legislation would allow juries to determine whether a person is mentally retarded after the evidentiary phase of a death penalty prosecution. The majority of state legislatures that have considered the question of when to make a finding of mental retardation in death penalty cases have adopted an approach resolving the issue pre-trial. In addition, state courts that have confronted the issue have also acknowledged the wisdom of adjudicating the issue pre-trial. If these findings are not made prior to trial, juries will be prejudiced by evidence presented to establish guilt during the trial. If a determination of mental retardation is not made prior to trial by a judge, it will be very difficult for jurors to separate themselves from the trial evidence and make an objective determination about a defendant's mental state. Also, this process will squander precious resources by requiring the federal government to prosecute a complex capital punishment case only to determine that the defendant was mentally retarded and therefore not eligible for the death penalty in the first place. As a federal district court in the Eastern District of Louisiana recently explained:

The Court has also previously found that overriding practical considerations dictate that the Atkins issue be resolved up front. If prior to trial a defendant is found to be mentally retarded and therefore ineligible for the death penalty, significant resources are saved in terms of trial preparation, motion practice, voir dire, trial time, mitigation research, etc. To defer the Atkins/mental retardation issue until after such a resource-intensive trial would be wasteful in a situation like the instant case, in which the defendant, from the moment he first raised the Atkins issue, appeared able to make a colorable Atkins claim. USA v. Nelson, EDLA 2006 Case 2:02-cr-00304-CJB-ALC Document 337 Filed 02/22/2006 Page 5 of 31.

This Bill Violates Supreme Court Case Law Reserving the Death Penalty for the "Worst of the Worst" Crimes.

The language in this bill is so broad that it would create death-eligible offenses in nearly any federal crime that results in death involving a firearm. This runs counter to Supreme Court jurisprudence that requires the death penalty be reserved for only the "worst of the worst" offenders. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct 2909, 49 L.Ed.2d 859 (1976).[4] This legislation's expansion of the federal death penalty to basically all gun crimes, without considering any aggravating factors associated with the crime, completely abandons the constitutional requirement that the legislature must "narrow" the scope of offenses eligible for the death penalty to ensure against arbitrariness in application.

The Death Penalty Reform Act Would Violate the Fifth Amendment Right Against Self-Incrimination.

The legislation would require defendants give personal notice of mitigating factors before a death penalty trial and prior to a guilty verdict. This violates a defendant's Fifth Amendment right against self-incrimination by requiring a person to state reasons why he or she should not be subject to the death penalty, despite his or her plea of not guilty to the crime. If a person has pled not guilty to a crime, it totally undermines his or her case if at the same time the defendant is essentially forced to admit guilt and make arguments for leniency. For example, a person may want to establish that they were a minor participant in a crime as a mitigating factor in a capital case. By giving notice to the prosecution that they will be using minor participant as a mitigating factor is in fact an admission of guilt and undercuts the person's not guilty plea. No state death penalty statute requires this kind of broad pre-trial notice of mitigating factors and there is no evidence that federal prosecutors litigating capital cases have had any difficulty working with the notice requirements under current law.

Currently juries impaneled during the sentencing phase of a federal death penalty case can only proceed with fewer than 12 jurors if both parties and the court agree. This bill would allow any number of jurors during the sentencing phase of a capital case as long as the court finds "good cause." A jury's decision to sentence a person to the death penalty is just as important as the initial decision of guilt or innocence. A unanimous jury of no fewer than 12 jurors of a defendant's peers should not make a decision of this magnitude.

Although we cannot support this legislation in its current form, we look forward to working with you to achieve true reform to the federal death penalty system.

Caroline Fredrickson
Director

Jesselyn McCurdy
Legislative Counsel


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[1] "As discussed above, clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communications, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." Atkins at 318.

[2] The Death Penalty Reform Act, Section 4 "For purpose of this section, a defendant is mentally retarded if, since some point in time prior to age 18, he or she has continuously had an intelligence quotient of 70 or lower and, as a result of that significantly subaverage mental functioning, has since that point in time continuously had a diminished capacity to understand and process information, abstract from mistakes and learn from experience, engage in logical reasoning, control impulses, and understand others' reactions."

[3] Atkins at 317 fn 22.

[4] The Court stated "[i]ndeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression . . . that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.
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