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THE POWER OF EXAMPLE: WHITHER THE BIDEN DEATH PENALTY PROMISE?
Between the post-Furman v. Georgia
reintroduction of the federal death penalty in
1988 and April 2021, the number of potential
federal capital defendants – that is, individuals
accused of crimes that potentially carried the
federal death penalty – reviewed by the US
Department of Justice was 4,274. Of these cases,
539 defendants were authorized for capital
prosecution – 13% of defendants against whom
the death penalty could have been sought by
the US Government. These cases have resulted
in death sentences against 82 individuals.
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Sixteen people have been executed by the federal
government, 13 of them in the six months
between July 2020 and January 2021.
As at state level, the federal death penalty is a
story of “extraordinary attrition”
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– of thousands
of murders, some of which are “death-eligible”,
fewer that are pursued for capital prosecution,
only some of which reach trial, of which not
all end in a death sentence and fewer still in
execution. The government would have society
believe that this narrowing and sorting ensures
that the death penalty is, as constitutional law
requires, “limited to those offenders who commit
a narrow category of the most serious crimes
and whose extreme culpability makes them the
most deserving of execution.”
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The evidence is
compelling that the death penalty fails to meet
this constitutional requirement.
According to US Supreme Court Justice Stephen
Breyer in 2015, “whether one looks at research
indicating that irrelevant or improper factors – such
as race, gender, local geography, and resources –
do signicantly determine who receives the death
penalty, or whether one looks at research indicating
that proper factors – such as “egregiousness” – do
not determine who receives the death penalty, the
legal conclusion must be the same: The research
strongly suggests that the death penalty is imposed
arbitrarily.”
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Eleven of the 16 federal executions (69%) carried
out since Furman v. Georgia were of individuals
tried and convicted in the South, the region where
82% of the people executed at state level since
1972 had been sentenced to death. Six of the 16
(37.5%) were tried in a single state, Texas. Texas
accounts for 38% of all state executions in the
USA.
As of May 2022, there were 42 people on federal
death row: 18 were white, 17 were Black, six
were Hispanic and one was Asian.
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Of the 42
individuals, 29 (70%) were tried in federal court in
the South, Texas alone accounting for seven of the
42 (17%). Seventeen of the 42 (40%) were tried in
federal court in three states – Texas (seven), Virginia
(six) and Missouri (four).
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These three states
account for just over half of all state executions in
the USA since 1972 (779 of 1,547).
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330
Pressley, Durbin, Colleagues Announce Plans to Reintroduce Bill to End Federal Death Penalty, 11 January 2021, pressley.house.gov/media/press-releases/pressley-durbin-colleagues-announce-
plans-reintroduce-bill-end-federal-death
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Federal Death Penalty Resource Counsel Project, Declaration of Kevin McNally regarding the geographic location of federal cases, the frequency of authorizations, death sentences and executions and
the race and gender of defendants and victims, 26 April 2021.
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Hugo Adam Bedau, “The United States of America” in (Eds. P. Hodgkinson and A. Rutherford), Capital Punishment: Global Issues and Prospects, Waterside Press, 1996, Chapter 3.
333
Roper v. Simmons, US Supreme Court, 1 March 2005.
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Glossip v. Gross, 29 June 2015, Justice Breyer dissenting.
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Not counted here are the federal death sentences of two other men, handed down in Oklahoma in 2005 and North Dakota on 2006, but overturned on appeal in January and September 2021
respectively due to inadequate legal representation at their sentencing phases: US District Court for the District of North Dakota, USA v. Rodriguez, Order appointing Federal Community Defender for the
Eastern District of Pennsylvania for penalty phase of re-trial, 5 May 2022, and US District Court for the Eastern District of Oklahoma USA v. Barrett, Response in opposition to motion to alter or amend
judgment, 10 January 2022.
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Source: Federal Capital Habeas Project. Another person sentenced to death in federal court in Missouri died in September 2021. Robert Bolden, a Black man, was sentenced to death for the murder
of a white bank security guard in 2002. Robert Bolden, a Canadian national, was an insulin-dependent diabetic whose medical condition deteriorated during nearly a decade on federal death row
in Indiana. He was transferred in 2016 to the US Medical Center for Federal Prisoners (MCFP) in Missouri after a medical emergency in which he had kidney failure. His lawyers then challenged the
"exceedingly harsh and restrictive, if not draconian, conditions" they said he was held In in MCFP, and "constitutionally inadequate medical care". In the US District Court for the Western District of
Missouri, Bolden v. Kane, Plaintiff's revised complaint for injunctive and declaratory relief and compensatory damages, 15 February 2018.
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Virginia abolished the death penalty in March 2021.