Death Resurrected: the Reimplementation of the Federal Death Penalty

• Jurisdiction: United States,Federal
• Citation: Vol. 23 No. 03
• Publication year: 2000

SEATTLE UNIVERSITY LAW REVIEWVolume 23, No. 4SPRING 2000

Death Resurrected: The Reimplementation of the Federal Death Penalty

Christopher Q. Cutler(fn*)

The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. . . . questions of this sort, or perhaps of any sort, are not settled by reason; they are settled by prejudices and sentiments or by emotion. When they are settled they do not stay settled, for the emotions change as new stimuli are applied to the machine.

Clarence Darrow(fn1)

Introduction

Terre Haute, Indiana is a quiet town nestled on the banks of the Wabash River. In the days of canal transportation, and later when two major national highways nearby intersected, Terre Haute became known as the "Crossroads of America." The home to St. Mary-of-the-Woods Catholic College, the area maintains a Midwestern hometown feel where there might be respite from the hectic work-a-day world. This peace will soon be shaken, when the federal government, in the nearby federal penitentiary, takes the life of Juan Raul Garza. As the media descends upon western Indiana for this spectacle, Terre Haute will once again become the "Crossroads of America."

Since 1963, the United States federal government has not carried out the ultimate punishment of a capital sentence.(fn2) That will change with Garza's execution. Recently, Terre Haute became home to the new federal death chamber and the twenty-one men who sit on the newly-constructed death row.(fn3) Juan Raul Garza, a resident of the new federal death row for drug-related homicides since the early 1990s, has exhausted judicial review of his death sentence(fn4) and likely will be executed within the next few months.

The procedure to be employed in the upcoming federal execution is well-established.(fn5) After spending the forty-eight to seventy-two hours prior to the execution in a holding cell, the condemned is led to the execution room by corrections officers and strapped to a gurney with arms outstretched.(fn6) An I.V. is inserted into the arm, and an anesthetic and potassium chloride enter the blood stream, stopping the heart. And so, the condemned experiences what death-row denizens call "the ultimate high."(fn7)

This procedure, performed hundreds of times in the independent "laboratories of the states,"(fn8) will most likely be performed smoothly. However, while the procedure itself may be performed without a hitch, the emotions, concerns, and debates regarding execution will probably be tumultuous. While the nation is accustomed to the routine state executions and their accompanying vehement protests, the nation at large is unaccustomed to a sanctioned killing by the United States government. The imminent use of the death penalty by the federal government is sure to fuel the debate that has raged with increasing furor, escalating with every execution.

This Comment analyzes the federal death penalty. Part one discusses the history of the federal death penalty, from its roots in the superstitions and religious dogma of colonial America to the Drug Kingpin Act(fn9) and the Federal Death Penalty Act of 1994.(fn10) Part two examines the Drug Kingpin Act, the first federal move into the death penalty arena since the landmark Supreme Court case of Furman v. Georgia. (fn11) Next, the Comment explores Congress' broad expansion of the federal death penalty in its most recent statute, the Federal Death Penalty Act of 1994. Part four examines the practical application of the Drug Kingpin Act in the case of Juan Raul Garza, the man who likely will be the first federal execution of the twenty-first century. Part four also contemplates the constitutionality of the federal death penalty, focusing on the recent Supreme Court case of Jones v. United States, (fn12) the first treatment of the new death penalty law by this nation's highest court. Finally, part five considers the implications, pragmatic and political, of renewed federal executions.

I. A History of Federal Executions in American Capital Jurisprudence

A. The Federal Death Penalty Until 1972

Hail hieroglyphic State machine, Contrived to punish fancy in.(fn13)

To understand current death penalty provisions, it is helpful to examine the history of capital punishment under English common law and subsequent statutory developments in this country. English common law, from which American law originally derived, long employed capital punishment. Reflecting Biblical language, early English law provided:Let the man who slayeth another wilfully perish by death. Let him who slayeth another of necessity or unwillingly, or unwil-fully, as God may have sent him into his hands and for whom he has not lain in wait be worthy of his life and of lawful bot if he seek an asylum.(fn14)

In the 1500s England recognized eight crimes meriting capital punishment: "treason, petty treason (killing of husband by his wife), murder, larceny, robbery, burglary, rape, and arson."(fn15) This list grew over the centuries until "[b]y shortly after 1800, capital offenses numbered more than 200 and not only included crimes against person and property, but even some against the public peace."(fn16) This deluge of death may seem appalling in light of our current death penalty jurisprudence, but, as Blackstone noted, England was fairly civilized when compared with the rest of Europe.(fn17)

Capital punishment has been an inherent component of the American legal experience since the origin of this nation. In 1622 the first colonial execution took place in Virginia for theft.(fn18) In the early seventeenth century, the colonies prescribed execution for a laundry list of crimes including: murder, witchcraft, idolatry, assault in sudden anger, rape, buggery, adultery, sodomy, perjury in a criminal trial, rebellion, manstealing, and statutory rape.(fn19) The colonial crimes that formed the basis for capital punishment collectively evolved from those based on theocratic principles to more secular principles.(fn20)

As constructed by the framers of the Constitution, no explicit mention of the death penalty can be found within the four corners of the original document. But the guarantee of the Fifth Amendment against the improper deprivation of "life" without the due process of law in the Bill of Rights suggests an awareness by early American leaders that the death penalty would be implemented by the federal government.(fn21) Moreover, the Fifth Amendment also implements the use of grand juries in capital prosecutions.(fn22)

Some opposition to the death penalty did exist in the colonies prior to the creation of the nation.(fn23) This, however, amounted to little more than an effort to reform the use of capital punishment, rather than a total abolition.

In 1790, the first Congress attempted to craft a federal criminal code and on April 30, 1790, passed an "Act of the Punishment of Certain Crimes Against the United States."(fn24) The act sanctioned the use of capital punishment for several crimes, mandating that anyone committing treason, willful murder on federal property, forgery, piracy, counterfeiting, and any one of several crimes on the high seas "shall suffer death."(fn25) For the next century, this law remained rather static. In 1829 the House of Representatives called for a presidential accounting of federal executions.(fn26) President Andrew Jackson reported that since 1790 there had been one hundred thirty-eight capital trials, with one hundred eighteen convictions.(fn27) Of these convictions, there had been forty-two executions and sixty-four pardons.(fn28) Surprisingly, six individuals who had been sentenced to death under the federal statute were unaccounted for.(fn29)

The 1800s was a time of social change, and a loud call for the abolition of the death penalty arose in certain circles. While there was some movement earlier in the century to ban the use of capital punishment,(fn30) the work of Edward Livingston, an attorney who became Secretary of State and Minister to France under President Jackson, became the chief proponent of the abolition movement during that time. Livingston provided credibility to the abolition movement, which previously may have been considered a radical cause. Throughout the Northeast, states began to use the death penalty less frequently and in more limited circumstances, until Michigan became the first state to abolish capital punishment in 1846. Soon other states curtailed the use of the death penalty.(fn31) Even those states that continued to employ the death penalty narrowed the crimes that merited capital punishment.(fn32)

The Civil War, however, seemed to derail the abolition attempts and thwarted any momentum to restrict or abolish the death penalty. One historian noted that "[a]fter the Civil War, men's finer sensibilities, which had once been revolted by the execution of a fellow being, seemed hardened and blunted."(fn33) Following the Civil War, some abolitionist successes were achieved,(fn34) but social pressure that had driven change during the first part of the century was generally diminished.

Opposition to the death penalty revived toward the end of the century, and in 1892 the move for abolition finally reached the federal legislature, when a bill was introduced that called for the revocation of capital punishment.(fn35) While...