Indiana Law Review


Reforming Federal Death Penalty Procedures:
Four Modest Proposals to Improve the
Administration of the Ultimate Penalty

Robert Steinbuch*

On March 30, 2006, I testified before the United States House of
Representatives, Committee on the Judiciary, Subcommittee on Crime,

Terrorism, and Homeland Security regarding proposals to revise certain federal
procedures for death penalty cases. ^ In my testimony, I discussed four reforms
that will improve capital punishment determinations. This Article is a

significantly expanded analysis of the recommendations from my congressional
testimony.

The Article tracks the process by which death-penalty cases are litigated and
offers improvements at each of the key stages during such trials. The Article
begins with a discussion of the historical resilience of the death penalty. Next,

it discusses jury selection in capital cases and calls for legislative action to

correct certain judicial misinterpretation of the "death-qualifying" procedure

mandated by statute.

Then, the Article examines the process by which the jury (now death
qualified) considers the factors that determine whether a convicted defendant is

eligible for the death penalty—i.e., the process of analyzing and deliberating the
"aggravating factors." In this section, the Article offers three improvements to

this process: first, the Article identifies an anomaly in the federal aggravators

that relates to the use of a firearm in a previous felony. Thereafter, it proposes

a modification to this statutory aggravator intended to accomplish the existing

statutory objective of making the previous use of a firearm a fact that increases

the probability that a criminal who later commits a death-eligible homicide will
be subject to the ultimate penalty. Second, in the "Aggravating Factor" section,

the Article offers a new aggravating factor to address the murder of a witness,
juror, or other participant in the judicial and law-enforcement system. Herein,

it offers specific legislative language so as to ensure that the application of this

new aggravating factor is coherent and predictable. Third, the Article offers a
modification to another statutory aggravator, this time the pecuniary-gain

aggravator. The proposed change here is designed to address an ambiguity in the
application of this aggravator that exists not as a function of judicial departure

from statutory language, as we saw with aforementioned firearm aggravator, but.

* Assistant Professor of Law, University of Arkansas at Little Rock, William H. Bowen
School of Law. M.A., University of Pennsylvania; J.D. and John M. Olin Law and Economics
Fellow, Columbia Law School; former Attorney for the United States Department of Justice. The
author wishes to thank Congressman James Sensenbrenner, Congressman Howard Coble, Brett

Tolman, Bruce Artim, Alex Dahl, Jonathan Rosen, Pinchus Ciment, and Lazer Muller. The author

also wishes to especially thank Phil Kiko, Michael Volkov, Reed O'Connor, and Jamie Evans for

helping to make this Article a reality. The views expressed in this Article are solely of the author.

No portion of this Article may be reproduced without the express permission of the author.
L Death Penalty Reform Act of 2006: Hearing on H.R. 5040 Before the Subcomm. on

Crime, Terrorism, and Homeland Security of the H Comm. on the Judiciary, 109th Congress 21
(2006) (statement by Robert Steinbuch, Professor of Law, University of Arkansas at Little Rock).



98 INDIANA LAW REVIEW [Vol. 40:97

rather, as a function of the legislative process itself.

The final substantive section of the Article brings us to the end stage of the
capital trial and discusses an alternative approach to dealing with hung
sentencing juries. The Article concludes with some final remarks.^

Introduction

The death penalty will always be a controversial topic. Proponents of capital
punishment have long claimed that it deters crime,^ and two noted scholars

recently have suggested that capital punishment may deter as many as eighteen

2. Some may argue that, in writing an article such as this, one should explicitly stake out a

position on the death penalty. I disagree. The death penalty is complicated in theory and

application. Scholars, particularly those invested in the economic analysis of the law, should

comment on the efficiency and efficacy of legal procedures without compulsion to explicate theory

regarding the underlying system.

3. See 141 CONG. Rec. 7658, 7662 (June 5, 1995) (statement of Sen. Feinstein) (stating

"There has been a lot of discussion as to whether the death penalty is or is not a deterrent. But I

remember well in the 1960's when I was sentencing a woman convicted of robbery in the first

degree and I remember looking at her commitment sheet and I saw that she carried a weapon that

was unloaded into a grocery store robbery. I asked her the question: 'Why was your gun

unloaded?' She said to me: 'Sol would not panic, kill somebody, and get the death penalty.' That

was firsthand testimony directly to me that the death penalty in place in California in the sixties was

in fact a deterrent. But the deterrent impact of the death penalty is weakened when it cannot be

imposed swiftly after a verdict has been reached in a fair trial. As the Senate Judiciary Committee

heard at its hearing on habeas reform last March, the extraordinary delay in carrying out capital

sentences is in effect a form ofterrorism against the survivors of murder victims, traumatizing them

year after year by preventing justice from being carried out."); FRANK G. Carrington, Neither

Cruel Nor Unusual 82-100 (1978); Paul G. Cassell, In Defense of the Death Penalty, in
Debating the Death Penalty: Should America Have Capital Punishment?: The Experts

ON Both Sides Make Their Best Case 183, 191 (Hugo A. Bedon & Paul Cassell eds., 2004)
(quoting Alan Dershowitz: "Of course, the death penalty deters some crimes. . . . That's why you

have to pay more for a hitman in a death penalty state, than a non-death penalty state."); Michael

A. Cokley, Whatever Happened to That Old Saying "Thou Shall Not Kill?": A Plea For the

Abolition of the Death Penalty, 2 LOY. J. PUB. iNT. L. 67, 71 (2001); Christina DeJong & Eve
Schwitzer Merrill, Getting "Tough On Crime": Juvenile Waiver and the Criminal Court, 27 OHIO

N.U. L. Rev. 175, 176 n.9 (2001); James M. Galliher & John F. Galliher, A "Commonsense"
Theory ofDeterrence and the "Ideology" ofScience: The New York State Death Penalty Debate,

92 J. Crim. L. & Criminology 307, 318, 319 (2002) (citing New York State Assemblyman
Oromack for the proposition that released convicted murderers often murder again; according to

Assemblyman Robach, the "number [of recidivist murderers] is at least 200 a year across [New

York], if not higher"); Bruce S. Ledewitz & Scott Staples, Reflections on the Talmudic and
American Death Penalty, 6 U. FLA. J.L. & PUB. POL'Y 33, 39-41 (1993) (rabbis relied on capital
punishment as a deterrent); David Glebe, Editor's Note, 21 Del. Law. 4 (Winter 2004); Sam

Roberts, Switch by a FormerSupporterShows Evolution ofDeath Law, N.Y. TIMES, Feb. 28, 2005,

atBl.



2007] FOUR MODEST PROPOSALS 99

murders for every one person executed."^

Opponents, on the other hand, often point to an evolving standard ofdecency

that they believe to be inconsistent with capital punishment.^ In addition to this

philosophical objection, opponents of the death penalty articulate pragmatic

concerns about the equitable distribution of the sanction and its potential for

killing the innocent.^

4. Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? Acts,
Omissions, and Life-Life Tradeoffs, 58 STAN. L. REV. 703, 705 (2005). Sunstein and Vermeule

recognize that this deterrent varies by region—with the effect either not being demonstrated, or an
opposite effect being shown, in some states. Id. at 745. Moreover, others certainly disagree with

the empirical conclusions of Sunstein and Vermeule. See, e.g., John Donohue & Justin Wolfers,
Uses and Abuses ofEmpirical Evidence in the Death Penalty Debate, 58 STAN. L. Rev. 791, 794

(2005) (indicating "profound uncertainty" as to whether available data suggests a deterrent effect

caused by the death penalty); Jeffrey Fagan et al.. Capital Punishment and Capital Murder: Market

Share and the Deterrent Effects ofthe Death Penalty, 84 Tex. L. Rev. 1803, 1 806 (2006) (same).

5. See Roper v. Simmons, 543 U.S. 55 1, 561 (2005) (referring to the evolving standards of

decency and also referencing the laws of other nations); Ford v. Wainwright, 477 U.S. 399, 406

(1986) (stating the Eighth Amendment's prohibitions recognize the "evolving standards ofdecency

that mark the progress of a maturing society" (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958));

Weems v. United States, 217 U.S. 349, 350 (1910) (stating the Eighth Amendment "is progressive

and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787 but may

acquire a wider meaning as public opinion becomes enlightened by humane justice"); Corcoran v.

State, 774 N.E.2d 495, 502 (Ind. 2002) (Rucker, J., dissenting) (referencing the evolving

standards); State v. Scott, 748 N.E.2d 1 1, 19 (Ohio 2001) (Pfeifer, J., dissenting) ("This court has

a chance to take a step toward being a more civilized and humane society. This court could declare

that in the interests of protecting human dignity. Section 9, Article I of the Ohio Constitution

prohibits the execution of a convict with a severe mental illness. I believe that the 'evolving

standards ofdecency that mark the progress of Ohio call for such ajudicial declaration."); ROBERT

LiFTON & Gregg Mitchell, Who Owns Death?: Capital Punishment, the American
Conscience, and the End ofExecutions 219 (2002) (claiming that two-thirds of death penalty

opponents are against the death penalty based on moral grounds); Geoffrey Sawyer, Comment, The

Death Penalty Is Dead Wrong: Jus Cogens Norms and the Evolving Standard ofDecency, 22 Penn.

St. Int'lL. Rev. 459, 459-81 (2004).

6. See Kansas v. Marsh, 126 S. Ct. 2516, 2544 (2006) (Souter, J., dissenting); Rory K.

Little, The Federal Death Penalty: History and Some Thoughts About the Department ofJustice 's

Role, 26 FordhamUrb. L.J. 347 (1999); Almanac of Policy Issues, Death Penalty (June 1, 2001),

http://www.policyalmanac.org/crime/death_penalty.shtml; Steve Schifferes, Death Penalty

Opponents Struggle On, BBC NEWS, Jan. 16, 2003, http://news.bbc.co.Uk/l/hi/world/americas/
2663147.stm; see also Furman v. Georgia, 408 U.S. 238, 313 (1972); Trop v. Dulles, 356 U.S. 86,

101 (1958); James S. Lehman et al., A Broken System Part II: Why There Is So Much
Error in CapitalCases, andWhatCan Be Done About It 397-99 (2002); Hugo Adam Bedau
& Michael L. Radelet, Miscarriages ofJustice in Potentially Capital Cases, 40 STAN. L. REV. 21,
36 (1987) (citing results from their own study that, from 1900 through 1985, at least 139 innocent

persons were sentenced to death and at least twenty-three innocent persons were executed);

Margery Malkin Koosed, Averting Mistaken Executions by Adopting the Model Penal Code 's



100 INDIANA LAW REVIEW [Vol. 40:97

This debate is predominantly a function of modem political discourse.
Historically, capital punishment has been, at best, routine.^ For example, the

Bible lists a host of offenses that were punishable by death, including murder,

assaulting a parent, human trafficking, and bestiality.^ Colonial America also

Exclusion ofDeath in the Presence of Lingering Doubt, 21 N. ILL. U. L. REV. 41 (2001); but cf

Furman, 408 U.S. at 247 ("Any penalty, a fine, imprisonment or the death penalty could be unfairiy

or unjustly applied. The vice in this case is not in the penalty but in the process by which it is

inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent

parties, regardless ofwhat the penalty w." (quoting Hearings on H.R. 8414, Before H.R. Subcomm.

No. i, 92d Cong. 116-117 (1972)) (statement ofErnest van den Haag) (emphasis in original)); Otto

Pollak, The Errors ofJustice, in CAPITALPUNISHMENT 207 (1967) ("To recognize the fallibility of

human judgment and still to act, but act wisely in the light to such fallibility, is one of the great

challenges of mankind. For this reason the fact of irrevocability has always been among the

arguments for the abolition of the death penalty."); James S. Liebman & Lawrence C. Marshall,
Less is Better: Justice Stevens and the Narrowed Death Penalty, 74 FORDHAM L. REV. 1607, 165

1

(2006) (acknowledging that increased recognition that capital punishment was taking the lives of

innocent people in some instances was a major catalyst for the slip in public support for the death

penalty beginning in the mid-1990s); Welsh S. White, Essay, Defendants Who Elect Execution, 48

U. Pitt. L. Rev. 853, 876 (1987) (arguing that because the deterrent effect of capital punishment

is unclear, the issue is a matter of who should bear the risk). If the death penalty is not more

effective at deterrence and a murderer is executed, one murderer loses his life for no good reason.

Id. If, on the other hand, it is more effective at deterring crime and the murderer is not executed,

the innocent victims of one who may have been deterred will lose their lives. Id. "I'd rather

execute a man convicted of having murdered others," concludes van den Haag, "than . . . put the

lives of innocents at risk." Id. (citing ERNEST VAN DEN Haag & John P. Conrad, the Death
Penalty—ADebate 69 (1983)); Audiotape: Ray Suarez, Death Penalty: Talk ofthe Nation, on
Nat'l Pub. Radio (Feb. 11, 1997) (transcr. # 97021 101-21 1 available in LEXIS, News library,

NPRnews file) ("[The death penalty] is inherently an arbitrary and unfair process," says Judge

Reinhart (U.S. Court of Appeals for the Ninth Circuit). "[I]t depends on a number of factors,

largely, how much money do you have, what kind of lawyer do you have? If you have Johnnie

Cochran, you're not likely to be executed. If you have a lawyer in Alabama who has never handled

a criminal case before and is paid a maximum of $1,000 to try to investigate the case, try the entire

case, your chances of winning, guilty or innocent, are not very good.").

7. Furman, 408 U.S. at 305 (Brennan, J., concurring) (stating "[w]hen this country was

founded, memories ofthe Stuart horrors were fresh and severe corporal punishments were common.

Death was not then a unique punishment. The practice of punishing criminals by death, moreover,

was widespread and by and large acceptable to society. Indeed, without developed prison systems,

there was frequently no workable alternative. Since that time successive restrictions, imposed

against the background of a continuing moral controversy, have drastically curtailed the use of this

punishment. Today death is a uniquely and unusually severe punishment.").

8. Exodus 2 1 : 1 2- 1 7, 22: 1 9. Of course, history equally has demonstrated the existence of

opposition to the death penalty. See, e.g., Matthew 5:38-39; John 8:7. This, however, does not

belie the fact that throughout all of history, the death penalty existed somewhere. Interestingly, the

United States saw a brief period in which the death penalty was prohibited. Donohue & Wolfers,
supra note 4, at 792.



2007] FOUR MODEST PROPOSALS 101

adopted the death penalty for myriad crimes, including treason, murder,

manslaughter, rape, robbery, burglary, arson, counterfeiting, and theft.^ Today,

although the scope of capital crimes is smaller, a recent movement in federal law
has resulted in the increase of the number ofcrimes subject to the death penaltyJ

^

Indeed, while the ultimate penalty is not as ubiquitous in this country as it once

had been,*' the United States is, nonetheless, a world leader in the imposition of

9. Stuart Banner, The Death Penalty: An American History 5 (2002).
10. See 8 U.S.C. § 1 342 (2000) (murder related to the smuggling of aliens); 1 8 U.S.C. §§ 32-

34 (2000) (destruction of aircraft, motor vehicles, or related facilities resulting in death); id. § 36

(murder committed during a drug-related drive-by shooting); id. § 37 (murder committed at an

airport serving international civil aviation); id. § 1 15(b)(3) (retaliatory murder of a member of the

immediate family of law enforcement officials); id. §§ 241, 242, 245, 247 (civil rights offenses

resulting in death); id. § 35 1 (murder of a member of Congress, an important executive official, or

a Supreme Court Justice); id. §§ 844(d), (f)(3), (i) (death resulting from offenses involving

transportation ofexplosives, destruction ofgovernment property, or destruction ofproperty related

to foreign or interstate commerce); id. § 930 (murder committed by the use of a firearm during a

crime of violence or a drug trafficking crime); id. § 924(c)(5)(B)(i) (murder committed in a federal

government facility); id. § 1091 (genocide); id. § 1111 (first degree murder); id. § 1114 (murder

of a federal judge or law enforcement official); id. § 1 1 16 (murder of a foreign official); id. § 1118

(murder by a federal prisoner); id. § 1 1 19 (murder of a U.S. national in a foreign country); id. §

1 120 (murder by an escaped federal prisoner already sentenced to life imprisonment); id. § 1121

(murder ofa state or local law enforcement official or other person aiding in a federal investigation,

murderofa state correctional officer); iW. § 1201 (murder during a kidnapping); tW. § 1203 (murder

during a hostage-taking); id. § 1503 (murder of a court officer or juror); id. § 1512 (murder with

the intent ofpreventing testimony by a witness, victim, or informant); /^. § 1 5 1 3 (retaliatory murder

of a witness, victim or informant); id. § 1716 (mailing of injurious articles with intent to kill or

resulting in death); id. § 1751 (assassination or kidnapping resulting in the death of the President

or Vice President); id. § 1958 (murder for hire); id. § 1959 (murder involved in a racketeering

offense); id. § 1 992 (willful wrecking ofa train resulting in death); /t/. § 2 1 1 3 (bank-robbery-related

murder or kidnapping); id. § 21 19 (murder related to a carjacking); id. § 2245 (murder related to

rape or child molestation); id. § 225 1 (murder related to sexual exploitation ofchildren); id. § 2280

(murder committed during an offense against maritime navigation); id. § 2281 (murder committed

during an offense against a maritime fixed platform); id. § 2332 (terrorist murder of a U.S. national

in another country); id. § 2332a (murder by the use of a weapon of mass destruction); id. § 2340

(murder involving torture); id. § 848(e) (murder related to a continuing criminal enterprise or

related murder of a federal, state, or local law enforcement officer); 49 U.S.C. §§ 46502 (2005)

(death resulting from aircraft hijacking); 18 U.S.C. § 794 (2000) (espionage); id. § 2381 (treason);

id. § 3591(b)(2) (trafficking in large quantities of drugs); id. § 3591(b)(2) (attempting, authorizing

or advising the killing of any officer, juror, or witness in cases involving a continuing criminal

enterprise, regardless of whether such killing actually occurs).

1 1

.

Joanna M. Shepherd, Deterrence Versus Brutalization: Capital Punishment's Differing

Impacts Among States, 104 MiCH. L. REV. 203, 207 (2005) (citing an average of 130 executions

per year in the 1940s and seventy-five per year during the 1950s, compared to an average of forty-

eight per year in the 1990s).



1 02 INDIANA LAW REVIEW [Vol. 40:97

capital punishment.'^ Additionally, most Americans support the death penalty/^

and the Supreme Court has established significant precedent holding that capital
punishment is constitutional.'"^ As such, the death penalty will long continue to
be a part of our legal landscape.

While the punishment of death is well ensconced in our society, the
procedures by which it is implemented are always evolving.'^ Currently, caselaw

interpreting the federal statute that governs the qualification of death-penalty

12. See Kansas v. Marsh, 126 S. Ct. 25 16, 2532 (2006) (Scalia, J., concurring) ("There exists

in some parts of the world sanctimonious criticism of America's death penalty, as somehow

unworthy of a civilized society. (I say sanctimonious, because most ofthe countries to which these

finger-waggers belong had the death penalty themselves until recently—and indeed, many of them
would still have it if the democratic will prevailed.) ... It is commonly recognized that '[m]any

European countries . . . abolished the death penalty in spite of public opinion rather than because

of it.' Abolishing the death penalty has been made a condition ofjoining the Council of Europe,

which is in turn a condition ofobtaining the economic benefits ofjoining the European Union. The

European Union advocates against the death-penalty even in America; there is a separate death-

penalty page on the website of the Delegation of the European Commission to the United States.

The views of the European Union have been relied upon by Justices ofthis Court (including all four

dissenters today) in narrowing the power of the American people to impose capital punishment."

(citations omitted)); Slight Fall in Capital Punishment, THE GUARDIAN (U.K.), Apr. 7, 2004,

http://www.guardian.co.uk/ intemational/story/0,3604, 1 1 87 1 37,00.html (stating that United States

ranked third worldwide in the number of executions during 2003, behind China and Iran). Note,

however, that Justice Scalia has cautioned as to the conclusions that can be drawn from the United

States' primacy in imposing capital punishment. Marsh, 126 S. Ct. at 2532 (Scalia, J., concurring);

Carol S. Steiker & Jordan M. Steiker, A Tale ofTwo Nations: Implementation ofthe Death Penalty
in "Executing " Versus "Symbolic " States in the United States, 84 TEX. L. REV. 1 869, 1 870 (2006)

(discussing the increase of death-row inmates in the United States over the last forty years, while

the geography of death-penalty countries internationally has decreased).

13. See Marsh, 126 S. Ct. at 25 16 (Scalia, J., concurring); David W. Moore, Public Divided

Between Death Penalty and Life Imprisonment without Parole, GALLUP NEWS SERVICE, June 2,
2004, http://www.deathpenaltyinfo.org/article.php?scid=23&did=1029; Death Penalty Information

Center, Facts About the Death Penalty, http://www.deathpenaltyinfo.org/FactSheet.pdf (Sept. 27,

2006).

14. Gregg v. Georgia, 428 U.S. 153, 179-86 (1976) (holding that the death penalty was not

per se cruel and unusual punishment as forbidden by the Eighth and Fourteenth Amendments; the

Court was heavily persuaded by its conclusion of the death penalty's deterrence effect); see also

Jurek V. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976), superseded by

Statute, Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244, as recognized

in Moore v. Campbell, 344 F.3d 1313 (1 1th Cir. 2003).

15. See Wiggins v. Smith, 539 U.S. 510, 533 (2003) (holding that presentation ofreasonably

available mitigating evidence is required for effective assistance of council under the Sixth

Amendment); Ring v. Arizona, 536 U.S. 584 (2002) (stafing that jury, and not the judge, must find

the requisite aggravating factors to impose the death penalty); Lockhart v. McCree, 476 U.S. 162,

176(1 986) (holding that prospective juror may be excused "for cause" if the juror' s position on the

death penalty would impair his or her judgment at the sentencing phase of the trial).



2007] FOUR MODEST PROPOSALS 103

juries needs legislative clarification, and certain statutory "aggravating factors"

used to determine the appropriateness of the death penalty in individual cases are

in need of reform. Specifically, Congress should: (1) legislatively "reverse"

recent caselaw that suggests courts may qualify death-penalty juries after guilt
is found; (2) correct the current statutory anomaly that provides for the disparate

application of the aggravating factor for a prior conviction of the use of a firearm

in the commission of a crime; (3) adopt an aggravating factor for the interference

with the administration of justice; and (4) legislatively address caselaw that

interprets too narrowly the pecuniary-gain aggravating factor.

Additionally, we should further consider the method by which we deal with
hung sentencing juries in capital cases after guilt has already been determined.
Texas has adopted an approach in non-capital cases for hung sentencing juries
that mimics that which is already done for hung juries during the guilt phase in

both federal and state criminal trials—namely, a retrial. Perhaps we should
consider the adoption of a similar approach for hung sentencing juries in federal
death-penalty cases.

This Article discusses each of these issues in seriatim and also offers

concluding remarks. The Article is not designed to be an evaluation of the
appropriateness of the death penalty. Many have already undertaken that chore
and continue to do so. Rather, this Article presents a focused analysis of specific

mechanisms used throughout federal death-penalty litigation in order to suggest

improvements thereto.

I. Jury Qualification

Under federal law, juries in federal death penalty cases are called on to
determine guilt or innocence, and if the accused is convicted, the jury must then

decide whether to impose capital punishment. ^^ Given this dual role unique to

capital cases, juries in death penalty cases are typically "death qualified."^^ This

morbid description refers to the pre-trial determination that the jurors would be

willing to impose the death penalty should the law so dictate. In essence, this

process is a voir dire by the court to determine whether the jurors will be willing

to follow the court's instructions regarding the apphcation of the death penalty.
^^

As such, the "qualified" jury is able to sit in both the guilt phase and, if
necessary, the sentencing phase of the trial.

16. 18 U.S.C§ 3593(b) (2000).

17. Banner, supra note 9, at 253-54.

18. A valid inquiry into this approach is to question why similar voir dires are not explicitly
done in other criminal (or civil, for that matter) cases. For example, we do not explicitly

"incarceration-qualify" jurors sitting on non-death penalty felony cases. This apparent anomaly,

however, is not as perplexing as it might initially appear. First, jurors in criminal cases are likely

familiar with the potential that their verdicts could result in incarceration. More importantly,

though, in non-capital cases, jurors in the federal system do not sentence defendants in any cases

other than death penalty cases. Thus, the unique role of the jury in death penalty cases calls for this

additional procedure.



104 INDIANA LAW REVIEW [Vol. 40:97

In United States v. Green, ^'^ however, the Massachusetts District Court

opined that courts could defer death-qualification until after they take a verdict

on the issue of guilt or innocence. The court stated that if there were insufficient
jurors to constitute a death-qualified jury, then the court would empanel a new
jury under 18 U.S.C. § 3593(b)(2)(C)—which allows for a new jury for
sentencing if the original jury was discharged for "good cause."^^ This
interpretation of § 3593 is contrary to the intent of the statute and misapplies the

"good cause" provision.^' Because the district court did not actually pursue this

course of action, the First Circuit on appeal refused to issue an opinion regarding

this proposal. Thus, the Massachusetts District Court's interpretation of how to
empanel juries in death-penalty cases remains an open question of law in at least

the First Circuit. Given the importance of death qualifying juries, Congress

should resolve this question in the negative.

Under 18 U.S.C. § 3593(b), the sentencing hearing should be conducted by
the jury that determined the defendant's guilt, unless one of four specific

exceptions exists that justifies empaneling a new jury.^^ The Massachusetts
District Court relied upon one of the four exceptions that relates to situations

where the guilt-phase jury has been discharged for "good cause."^^ The intent
behind the "good cause" provision centers on addressing situations where an

event or circumstance, which occurs after the defendant's guilt has been

determined, renders the guilt-phase jury unable to serve during the penalty

phase.^"^ When combined with the structure of the statute, this supports a
conclusion that Congress intended § 3593(b) to be the default rule. That is

Congress intended for the jury that determined the defendant's guilt to also

determine the sentence, barring some unavoidable circumstance making it
impracticable or unfair.^^ Thus, the trial jury should be treated as the sentencing

jury, and, as such, the trial jury must be qualified at the outset of the proceedings

to be able to fulfill its obligations in the sentencing phase. In addition to

19. 324 F. Supp. 2(1 311, 331 (D. Mass. 2004), rev'd on other grounds, 407 F.3d 434, 444

(1st Cir. 2005).

20. Id.

21. 5^^ 18 U.S.C. § 3593(b).

22. See id. ; United States v. Williams, 400 F.3d 277, 28 1 (5th Cir. 2005) (holding that district

court's order for the case to proceed to trial without a death-qualified jury and assertion that case

management problems were sufficient good cause under § 3593(b) violated the plain language of

the Federal Death Penalty Act, § 3593, because the Act mandates that the same jury be empanelled

for both the guilt phase and sentencing phase of the trial).

23. 18 U.S.C. § 3593(b)(2)(C).

24. See Jones v. United States, 527 U.S. 373, 418 (Ginsburg, J., dissenting) (opining that

"[djischarge for 'good cause' under § 3593(b)(2)(C) ... is most reasonably read to cover guilt-

phase . . . juror disqualification due to, e.g., exposure to prejudicial extrinsic information or

illness"); see also Williams, 400 F3d at 281 (holding that the "good cause" pertained to releasing

the jury after the conclusion of the guilt phase of the trial, but did not allow the option to bifurcate

the jury before the trial as used in § 3593(b)(2)(C)); Green, 407 F.3d at 441.

25. See Green, 407 F.3d at 441-42.



2007] FOUR MODEST PROPOSALS 105

constituting a strained reading of § 3593, the contrary approach suggested by the

trial court in Green is illogical and wastes time and resources.^^ Requiring two

juries to hear the matter requires a doubling of efforts from empanelling through

decision-making. This is an inefficient expenditure of limitedjudicial resources.

Ofcourse, non-statutory arguments exist for bifurcating thejury qualification
for the guilt from jury qualification for sentencing. Namely, death-qualified

juries have been shown to have a higher conviction rate than non-death-qualified
juries. ^^ Proponents of the alternative approach to not death qualify juries (as

suggested by the Massachusetts District Court) propose that the higher conviction

rate suggests that the death-qualified juries are erroneously convicting the

innocent.^^ For this argument to be valid, however, we would need to know
whether the death-qualified juries convict innocent defendants. An equally
plausible explanation for non-death-qualifiedjuries convicting fewer defendants

is that juries comprised of individuals who might not be willing to follow a
court's instruction to sentence a defendant to death if certain criteria are met,

might also be more likely to similarly ignore the court's instructions during the
guilt phase and, therefore, exonerate the guilty.^^ This is not to say that the

proponents of the alternative approach could not be correct. They could. They
have not established such, however. Absent such a conclusion, courts do not
have a basis to overturn the statutory procedure demonstrably established by
Congress.

Indeed, pre-qualifying juries is consistent with established Supreme Court
precedent. In Witherspoon v. Illinois,^^ the Court set forth the important

boundaries for juries in death-penalty cases. Therein, the Court held that the

Sixth Amendment protects a defendant from a predetermined "hanging jury."^^

Equally, the Court in Witherspoon held that prospective jurors are excludable if

they would vote against the death penalty irrespective of guilt and culpability or

26. Lockhart v. McCree, 476 U.S. 162, 180-81 (1986) (having one jury determine guilt and

punishment "is as it should be, for the two questions are necessarily interwoven" (quoting Rector

V. State, 659 S.W.2d 168, 173 (Ark. 1983)).

27. Id. at 170-73 (discussing studies that death-qualified juries are more prone to convict);

Liebman & Marshall, supra note 6, at 1607 & n.3 (noting Justice Stevens's opposition to the death-
qualification procedure "that excludes those with qualms about the death penalty" because it

"creates an atmosphere in which jurors are likely to assume that their primary task is to determine

the penalty for a presumptively guilty defendant.") (quoting Gina Holland, Justice Stevens Criticizes

Death Penalty, ASSOCIATED PRESS, Aug. 7, 2005, available at http://www.cvadp.org/news/SPI-

20050808.htm); Erik Lillquist, Absolute Certainty and the Death Penalty, 42 AM. Crim. L. Rev.

45, 88 (2005) (same).

28. Death Penalty Reform Act of 2006: Hearing on H.R. 5040 Before the Subcomm. on

Crime, Terrorism, and Homeland Security ofthe H. Comm. on the Judiciary, 109th Cong. 62-63

(Mar. 30, 2006) (statement of the author), http://commdocs.house.gov/committees/judiciary/

hju26769.000/hju26769_0f.htm.

29. Id.', see also Lockhart, Al6 US 2iX5Z5-2>%.
30. 391 U.S. 510(1968).

31. /£/. at523.



106 INDIANA LAW REVIEW [Vol. 40:97

if their personal views on the death penalty prevented them from making an
unbiased decision regarding guilt.^^ Thus, prospective jurors in death-penalty

cases, said the Court, should fit within the margins and be appropriately open to

fairly evaluating the facts and sentencing the defendant pursuant to the

controlling law if found guilty.^^ Witherspoon remains good law and was
reaffirmed in Adams v. Texas?^ In Wainwright v. Witt,^^ and Lockhart v.
McCree,^^ then Chief Justice Rehnquist further refined the previous caselaw on

qualifying juries for death-penalty trials. Furthermore, in Morgan v. Illinois,^^
the Supreme Court provided the same protection on the opposite end of the
spectrum by reaffirming the notion that jurors who would automatically vote for
the death penalty irrespective of the facts are equally as objectionable.^^ These

cases clearly demonstrate the appropriateness and constitutional validity of

qualifying juries prior to trial.

Given this established caselaw, the question is begged as to why the Green
court suggested such a strained reading of the statute to permit the avoidance of

pre-qualifying capital-case juries. The obvious interpretation stems from the
aforementioned belief that such pre-qualified juries have a greater tendency to

convict defendants thanjuries not subjected to this screening.^^ A court adopting
such a view, and hoping to avoid having to impose the death penalty

notwithstanding controlling sentencing law,"^^ might choose to espouse this

32. Mat 535-38.
33. Id. Sit 523 n2l.

34. 448 U.S. 38, 40 (1980).

35

.

469 U.S . 4 1 2, 4 1 2-26 ( 1 985) (holding that ajuror could not be challenged for cause based

on his views about capital punishment unless his views would have prevented or substantially

impaired his performance as a juror in accordance with jury instructions and the oath).

36. 476U.S. 162, 174-77 (1986) (holding that the Sixth Amendment right to an impartial jury

requires that the jury represent a random cross-section from the community). This right does not

prohibit the exclusion of jurors who refuse to impose the death penalty. The fair cross-section

requirement is that distinctive groups categorized by such characteristics as race or ethnicity be

fairly represented. Groups categorized by attitudes that prevent them from applying the rule of law

may be excluded. Id.

37. 504 U.S. 719(1992).

38. Id. at 729.

39. Lockhart, 476 U.S. at 170-73; Lillquist, supra note 27, at 88.

40. Cf. United States v. Williams, 397 F.3d 274, 286 (5th Cir.) (holding that district court

"Judge Gilmore's jury instruction appear[s] simultaneously to be preventing the Government from

enforcing the death penalty against Williams, while prohibiting any ordinary appellate review of

the court's determination. This combination of legislating from the bench and acting as a quasi-

defense attorney vis-a-vis the jury is unprecedented and ultra vires."), cert, denied, 544 U.S. 911

(2005). The court in Williams issued a second opinion, granting the Government's second writ of

mandamus and ordering the trial court to empanel a death-qualified jury and try the case. In that

case, the Fifth Circuit suggested that "[i]f the District Court "finds itself unable to comply with this

order consistent with the court's docket management plans, we are confident that the court will

entertain a motion to reassign the cases in order to move this one expeditiously to trial." Id. at 283.



2007] FOUR MODEST PROPOSALS 107

reading of 18 U.S.C. § 3593(b) in an attempt to avoid the conviction in the first

place.'* ^ Justice Scalia recognized the use of this technique when he criticized the
dissent in the most recent death-penalty case before the U.S. Supreme Court:
"The dissent essentially argues that capital punishment is such an undesirable

institution—it results in the condemnation of such a large number of
innocents—that any legal rule which eliminates its pronouncement, including the
one favored by the dissenters in the present case, should be embraced.'"^^ This,

of course, is an illegitimate means to overturn an otherwise legal death-penalty
procedure.

"^^

The district court, nonetheless, tried the case to a mistrial. United States v. Williams, 449 F.3d 635,

639 (5th Cir. 2006). Upon the government's appeal of the district court's actions during trial, the

Fifth Circuit finally reassigned the case after "[h]eeding the plea of the district court regarding her

crowded docket and in view of the extraordinary history of this case." Id. at 649. After this not-so-

subtle action by the Fifth Circuit Court ofAppeals, the district court issued an order reassigning the

case and stating:

The Court of Appeals has suggested that this case should be reassigned because this

Court is too busy to handle this case. That statement is untrue. When in the course of

a trial proceeding, the fairness of the judicial officer is questioned by the Court of

Appeals, it is tantamount to a "rear-guard attack." When this occurs, the image of the

entire judiciary suffers, and the image of fairness is impaired. Therefore, in the interests

ofjustice, I stand recused from this case.

United States v. Williams, No. 03-0221-1 1 (S.D. Tex. May 11, 2006).
41. Cf. Carol S. Steiker & Jordan M. Steiker, Should Abolitionists Support Legislative

"Reform" of the Death Penalty?, 63 OfflO St. L.J. 417, 421 (2002) (suggesting that improving

death penalty administration is inconsistent with opposing the death penalty).

42. Kansas v. Marsh, 126 S. Ct. 2516, 2531 (2006) (Scalia, J., concurring).

43. This is not to say that such strategic behavior is solely the province of anti-death penalty

advocates. Prosecutors have been accused of using the prequalification procedure to gain an

advantage in obtaining a conviction even when the ultimate sentencing goal turned out not to be

the death penalty. For example, recall Andrea Yates who killed all five of her children by

systematically drowning each ofthem in the family bathtub. Newspaper Tell HowMotherAllegedly
Killed Kids, CNN.COM, June 23, 2001, http://archives.cnn.com/2001/LAW/06/22/yates.

arraignment/. The prosecutor in that Texas case initially sought the death penalty, some have

suggested, "to pepper the jury with law-and-order, tough-on-crime types." Andrew Cohen, Death

May Not Be Prosecutor's Aim, CBS NEWS, Mar. 15, 2002, http://www.cbsnews.com/stories/

2002/03/14/opinion/courtwatch/main503787.shtml.

Now that they've gotten Yates convicted of two capital murder charges, however, the
prosecutors have turned into pussycats. Instead of continuing their aggressive pursuit

of "justice" and "deterrence," they signaled jurors through a morning of virtual

inactivity during the punishment phase of the trial that life instead of death wouldn't be

the worst decision these jurors have ever made in their lives.

Id. If prosecutors seek the death penalty during the guilt-phase of a trial solely to "stack" the jury

with individuals more likely to convict, and then abandon the pursuit of capital punishment upon

conviction, de jure or de facto, this too is an abuse of procedure.



108 C^JDIANA LAW REVIEW [Vol. 40:97

II. Aggravating Factors

The U.S. Supreme Court has repeatedly held that death penalties must be
carefully defined to narrow a sentencer's discretion to impose the sanction."^ In

the federal system, this prerequisite is manifested in the requirement that the jury

find "aggravating circumstances.""^^ The death penalty may not be imposed
merely upon conviction for certain crimes,"^^ but rather, may only be imposed
after rationally narrowing the potential recipients based upon an individualized

assessment of each defendant and his or her actions and circumstances."^^ That

is, the defendant must have committed some wrong above the underlying crime
(espionage, treason, homicide, killing during the commission of certain drug

offenses, and killing in furtherance of a continuing criminal drug enterprise, in

the federal system) that justifies the imposition of capital punishment."^^ Any
aggravating factor may be offset with "mitigating factors.'"*^ The Supreme Court

44. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 304 (1987); Gregg v. Georgia, 428 U.S.

153, 198 (1976) (finding that "the discretion to be exercised is controlled by clear and objective

standards so as to produce non-discriminatory application." (quoting Coley v. State, 204 S.E.2d

612, 615 (Ga. 1974)); Furman v. Georgia, 408 U.S. 238 (1972) (holding state statutes granting

juries unfettered discretion to impose or the death penalty violate the cruel and unusual punishment

clauses of the Eighth and Fourteenth Amendments).

45. See 1 8 U.S.C. § 3592 (2000) (listing aggravating factors currently to be considered at the

federal level in determining whether the death penalty is justified); cf. 18 U.S.C. § 3593(d) (2000)

(requiring that the jury unanimously find at least one aggravating circumstance before returning a

death sentence); McCleskey, 481 U.S. at 304-05; United States v. Johnson, 403 F. Supp. 2d 721,

843 (N.D. Iowa 2005); Starling v. State, 882 A.2d 747, 756 (Del. 2005), cert, denied, 126 S. Ct.

1453 (2006); State v. Martinez, 115 P.3d 618, 625 (Ariz.), cert, denied, 126 S. Ct. 762 (2005).

46. Walton v. Arizona, 497 U.S. 639, 652 (1990), overruled on other grounds. Ring v.

Arizona, 536 U.S. 584 (2002).

47. See Graham v. Collins, 506 U.S. 461 , 484-89 (1993) (Thomas, J., concurring); see also

Roper V. Simmons, 543 U.S. 551, 568 (2005) ("Capital punishment must be 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'" (quoting Atkins v. Virginia, 536 U.S.

304,319(2002)).

48. Kansas v. Marsh, 126 S. Ct. 2516, 2541 (Souter, J., dissenting); see Graham, 506 U.S.

at 484-89 (Thomas, J. concurring); see also Roper, 543 U.S. at 568.

49. Roper, 543 U.S. at 55 1 ; Blystone v. Pennsylvania, 494 U. S. 299, 307 ( 1 990); Marsh, 1 26

S. Ct. at 2523-25. While

the Constitution requires that a sentencing jury have discretion, it does not mandate that

discretion be unfettered; the States are free to determine the manner in which ajury may

consider mitigating evidence. So long as the sentencer is not precluded from

considering relevant mitigating evidence, a capital sentencing statute cannot be said to

impermissibly, much less automatically, impose death. . . . Together, our decisions in

Furman v. Georgia and Gregg v. Georgia (joint opinion of Stewart, Powell, and

Stevens, JJ.), establish that a state capital sentencing system must: (1) rationally narrow

the class of death-eligible defendants; and (2) permit a jury to render a reasoned,



2007] FOUR MODEST PROPOSALS 109

recently held that the "Kansas' death penalty statute, consistent with the

Constitution, [permits the] imposition of the death penalty when the State has
proved beyond a reasonable doubt that mitigators do not outweigh aggravators,

including where the aggravating circumstances and mitigating circumstances are

in equipoise."^" Under current federal law, the statutory aggravators vary by

crime.^'

individualized sentencing determination based on a death-eligible defendant's record,

personal characteristics, and the circumstances of his crime. So long as a state system

satisfies these requirements, our precedents establish that a State enjoys a range of

discretion in imposing the death penalty, including the manner in which aggravating and

mitigating circumstances are to be weighed.

Id. (citations omitted).

50. Mflr^/i, 126 S.Ct. at 2519.

51. 18 U.S.C. § 3592 (2000). For espionage and treason, the following factors are statutory

aggravators: (1) the defendant has previously been convicted of another offense involving

espionage or treason for which a sentence of either life imprisonment or death was authorized by

law; (2) in the commission of the offense, the defendant knowingly created a grave risk of

substantial danger to the national security; and (3) in the commission of the offense, the defendant

knowingly created a grave risk of death to another person. Id. § 3592(b).

For homicide, the following factors are statutory aggravators: (1) the death, or fatal injury,

occurred during the commission or attempted commission of, or during the immediate flight from

the commission of, an offense of: (a) the destruction of an aircraft or aircraft facilities, (b) the

destruction of motor vehicles or motor vehicle facilities, (c) violence at international airports, (d)

violence against Members of Congress, Cabinet officers, or Supreme Court Justices, (e) violence

by prisoners in custody of institution or officer, (f) gathering or delivering defense information to

aid foreign government, (g) "transportation of explosives [via] interstate commerce," (h)

"destruction of [g]overnment property [through] explosives," (i) killing by "prisoners serving life

term," (j) "kidnapping," (k) "destruction of property [that affects] interstate commerce by

explosives," (1) "killing or attempted killing of diplomats," (m) taking of hostages, (n) crashing

trains, (o) maritime and "maritime platform violence," (p) "international terrorist acts against U.S.

nationals," (q) "use of weapons of mass destruction," (r) "treason," or (s) "aircraft piracy;" (2)

"previous conviction of violent felony involving firearm . . . [fjor any offense, other than an offense

for which a sentence of death is sought on the basis of [18 U.S.C. § 924(c)]"; (3) the defendant has

a "previous conviction ... for which a sentence of death or life imprisonment was authorized"; (4)

"the defendant has previously been convicted of [two] or more [fjederal or [s]tate offenses,

punishable by . . . more than [one] year [in prison], committed on different occasions, involving the

infliction of, or attempted infliction of, serious bodily injury or death upon another person"; (5) "the

defendant, in the commission of the offense, or in escaping apprehension for the violation of the

offense, knowingly created a grave risk of death to [people other than the actual] victim of the

offense"; (6) "[t]he defendant committed the offense in an [particularly] heinous, cruel, or depraved

manner in that it involved torture or serious physical abuse to the victim"; (7) "[t]he defendant

procured the commission of the offense by payment, or promise of payment, of [some form] of

pecuniary value"; (8) "[t]he defendant committed the offense as consideration for the receipt, or in

the expectation of the receipt, of [some form] of pecuniary value"; (9) "[t]he defendant committed

the offense after substantial planning and premeditation to [kill someone] or commit an act of



1 10 INDIANA LAW REVIEW [Vol. 40:97

The aggravating factors demonstrate that the elements that determine
whether an individual is subject to the death penalty are haphazard at best.

terrorism"; (10) "[t]he defendant has previously been convicted of [two] or more [s]tate or [f]ederal

offenses punishable by . . . more than one year [in prison,] committed on different occasions,

involving the distribution of [drugs]"; (11) "[t]he victim was particularly vulnerable due to old age,

youth, or [medical condition]"; (12) "[t]he defendant had previously been convicted of [certain

parts] of the Comprehensive Drug Abuse Prevention and Control Act of 1970 or had previously

been convicted of engaging in a continuing criminal enterprise"; (13) the defendant was involved

in a "[c]ontinuing criminal enterprise involving drug sales to minors"; (14) the defendant committed

the offense against "[h]igh public officials"; (15) "[t]he defendant had previously been convicted

of a crime of sexual assault or crime of child molestation"; and (16) "[t]he defendant intentionally

killed or attempted to kill more than one person in a single criminal [incident]." Id. § 3592(c); see

also discussion infra Part II.A.

For killing during drug offenses, the following factors are statutory aggravators: ( 1 ) a previous

conviction for "another [fjederal or [s]tate offense resulting in the death of a person, for which a

sentence of life imprisonment or death was authorized by statute"; (2) a previous conviction for

"two or more [federal or [s]tate offenses, each punishable by more than one year [in prison],

committed on different occasions, involving the importation, manufacture, or distribution of [drugs]

... or the infliction of, or attempted infliction of, serious bodily injury or death upon another

person"; (3) a previous conviction for "another [fjederal or [s]tate offense involving the

manufacture, distribution, importation, or possession of [drugs] for which a sentence offive or more

years [in prison] was authorized by statute"; (4) "[i]n committing the offense, or in furtherance of

a continuing criminal enterprise of which the offense was a part, the defendant used a firearm or

knowingly [aided] another to use a firearm to threaten, intimidate, assault, or injure a person"; (5)

"[t]he offense, or a continuing criminal enterprise ofwhich the offense was a part, involved" selling

drugs to minors under twenty-one; (6) "[t]he offense, or a continuing criminal enterprise of which

the offense was a part, involved [selling drugs] near schools"; (7) "[t]he offense, or a continuing

criminal enterprise of which the offense was a part, involved . . . using minors in trafficking"; and

(8) "[t]he offense involved the importation, manufacture, or distribution of [drugs], mixed with a

potentially lethal adulterant, and the defendant was aware of the presence of the adulterant." 18

U.S.C. § 3592(d).

[Note that p]rior to the [Patriot] Act [Reauthorization], federal law provided two sets

of death penalty procedures for capital drug cases, the procedures applicable in federal

capital cases generally, 1 8 U.S.C. 359 1-3598, and the procedures specifically applicable

in federal capital drug cases, 21 U.S.C. 848. The two procedures are virtually identical

according to United States v. Matthews, 246 F. Supp. 2d 137, 141 (N.D.N.Y. 2002).

Section 22 1 of the Act eliminates the specific drug case procedures so that only the

general procedures apply in such cases. According to the conference report

accompanying H.R. 3 199, this "eliminates duplicative death procedures under title 21

of the United States code, and consolidates procedures governing all Federal death

penalty prosecutions in existing title 18 of the United States Code, thereby eliminating

confusing requirements that trial courts provide two separate sets ofjury instructions."

Brian T. Yeh & Charles Doyle, Cong. Research Serv., USA PATRIOT Improvement and
Reauthorization Act OF2005: A LegalAnalysis 32 (2006), http://www.fas.org/sgp/crs/intel/
RL33332.pdf



2007] FOUR MODEST PROPOSALS 1 1

1

Consequently, what should constitute an aggravating factor remains the subject

ofmuch debate and controversy.^^ Below, I suggest modest modifications to two
of the many existing aggravators, as well as the addition of one more statutory
factor to the varied list.

A. Pecuniary-Gain Aggravator

Currently, § 3592(c)(8) provides that the pecuniary-gain aggravator exists

when "[t]he defendant committed the offense as consideration for the receipt, or
in the expectation of receipt, of anything of pecuniary value."^^ Some courts
have interpreted this in a manner that precludes the Federal government from
applying this factor in cases where the murder is committed after the pecuniary

value has been received.^"^

For example, in United States v. Bernard,^^ defendant gang members drove
around in search of potential carjacking victims, planning to, among other things,
acquire the victims' Personal Identification Number ("PEV") for Automatic Teller
Machine ("ATM") transactions. The gang members eventually arrived at a local
convenience store where they met two youth ministers from Iowa. After

52. State v. Breton, 562 A.2d 1060, 1063 n.6 (Conn. 1989) ("Claims of vagueness directed

at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth

Amendment and characteristically assert that the challenged provision fails adequately to inform

juries what they must find to impose the death penalty and as a result leaves them and appellate

courts with the kind of open-ended discretion . . . [that was] held invalid in Furman v. Georgia'''

(quoting Maynard v. Cartwright, 486 U.S. 356, 361-62 (1988))); Richard A. Rosen, Note, The

"Especially Heinous " Aggravating Circumstance in Capital Cases—The Standardless Standard,
64 N.C. L. Rev. 941, 943-44 (1986) (opining that aggravating circumstances known as "especially

heinous' aggravating circumstances, have generated more controversy than any other aggravating

circumstance." (footnotes omitted)); see Death Penalty ReformAct of2006: Hearing on H.R. 5040

Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the

Judiciary, 109th Cong. 5-60 (2006) (statements of Margaret P. Griffey, Robert Steinbuch, Kent

Scheidegger, and David Bruck), available at http://judiciary.house.gov/Hearings.aspx?ID=135.

53. 18 U.S.C.§ 3592(c)(8) (2000).

54. See United States v. Bernard, 299 F.3d 467 (5th Cir. 2002); United States v. Cuff, 38 F.

Supp. 2d 282, 288 (S.D.N.Y. 1999) ("[Section 3592(c)(8)] appear[s] to be directed at a murder .

. . in which pecuniary gain can be expected to follow as a direct result of the crime. A murder from
which pecuniary gain does not directly result would not appear to be within the reach of the

statute."); cf Woratzeck v. Stewart, 97 F.3d 329, 334-35 (9th Cir. 1996) (construing Arizona

pecuniary-gain aggravator as requiring proof "that the killing was done with the expectation of

pecuniary gain" and stating further that "[e]ven if it is true that under many circumstances a person

who kills in the course of a robbery is motivated to do so for pecuniary reasons, that is not

necessarily so" and that "[a] defendant is free to argue that the killing was motivated by reasons

unrelated to pecuniary gain"); United States v. Webster, 162 F.3d 308, 325 (5th Cir. 1998)

("[Section 3592(c)(9)] requires a finding that 'the defendant committed the offense after substantial

planning and premeditation to cause the death of a person,'. . . obviously directing the

premeditation to causing death and not to mere commission of the offense when the two diverge.").

55. 299 F.3d 467 (5th Cir. 2002).



1 12 INDIANA LAW REVIEW [Vol. 40:97

successfully soliciting a ride from the youth ministers, the gang members forced
the couple at gunpoint to drive to an isolated location, where they robbed them,

acquired the couple's ATM PIN, and then forced them into the trunk of the car.
The gang members then attempted to withdraw money from the ATM, drove the
couple to an isolated spot, shot them in the head, and burned the car.

The court held that evidence in the case was insufficient to support the
pecuniary-gain aggravator because "the application of the 'pecuniary gain'

aggravating factor is limited to situations where 'pecuniary' gain is expected to

follow as a direct result of the [murder]."^^ The court reasoned that the
motivation for the robbery was pecuniary gain while the motivation for the
murder, in contrast, was to prevent the robbery from being reported.^^ While the
proposed aggravating factor for the interference with the administration ofjustice

discussed below would apply to these facts, the existing aggravating factor for
pecuniary gain, nonetheless, need not be subjected to the excessively narrow

interpretation found in Bernard. If the murder involved a financial motive, either

direct or derivative, this should be sufficient to constitute a pecuniary-gain

aggravator. The interpretation in Bernard, unfortunately, draws completely the
opposite conclusion.

In contrast to Bernard, other courts have taken a broader view of the

pecuniary-gain aggravator. For example, in United States v. Barnette,^^ the

defendant sought to commit a carjacking in order to secure transportation for the
purposes of killing his estranged ex-girlfriend. The defendant hid in the bushes
at a road intersection, waited for a car to stop, walked up to the window with a
sawed-off shot gun, forced the driver from the vehicle, shot and killed the driver

on the side of the road, and left with the vehicle.^^ The Fourth Circuit held that
the pecuniary-gain aggravator was applicable because the "gain" of the
transportation had a financial value.^^

Unlike the departure from clear statutory language seen in the Green court

in Part I of this Article, here the disparate rulings are a function of ambiguity in

the statute itself. Given the authoritative split, however. Congress should act to

provide one consistent approach for the application of this statutory

aggravator—allowing for equal treatment of all criminal defendants.
Accordingly, we must evaluate which approach is better—that of the Bernard
court or that of the Bamette court. In comparing the criminal conduct in

Barnette with that in Bernard, the greater moral culpability rests with the

defendant in Bernard. In Bernard, the attack is equally upon society and the

victim. In Barnette, however, society is impacted secondarily to the victim. As
such, the pecuniary-gain aggravator would serve a greater social end if it

uniformly covered behavior such as that which occurred in Bernard. Congress,

therefore, should legislatively reverse the Bernard decision to ensure that the

56. Id. at 483 (quoting United States v. Chanthadara, 230 F.3d 1237, 1263 (10th Cir. 2000)).

57. /^. at 483.

58. 390 F.3d 775 (4th Cir. 2004), rev'd on other grounds, 126 S. Ct. 92 (2005).

59. /^. at 781.

60. /rf. at785.



2007] FOUR MODEST PROPOSALS 1 1

3

pecuniary-gain aggravator covers murders in which the financial motive is

derivative in addition to those that are direct.

B. Aggravating Factorfor Interfering with the Sound Administration of
Justice Through Wrongdoing

In order for our justice system to work effectively and with legitimacy,
deliberate wrongdoing to procure the unavailability of a witness or other

participant in the judicial and law-enforcement system cannot be tolerated.^'

Such behavior, as the United States Court of Appeals for the Second Circuit has

said, "strikes at the heart of the system ofjustice itself."^^ The murder of a law
enforcement informant or witness in a federal or state prosecution because of

his/her status as such is not only abhorrent on its own, but sends the message to

criminals that sufficient wrongdoing could actually allow them to escape
punishment.^^ Similarly, the murder of ajury member or ajury member's family
creates a vast chilling effect on the willingness ofhonest citizens to perform their

civic duty in the most important cases before our courts.^"^ As such, tampering
with, or retaliating against, a witness, victim, or an informant, resulting in death

should be the archetypal statutory aggravating factor.^^

The potential beneficial outcome in the eyes of criminals of avoiding
criminal liability by killing witnesses and other relevant actors in the legal system

creates a positive incentive for criminals to pursue this risky and socially

61

.

Cf. Fed. R. Evid. 804(b)(6) (defendant forfeits the right to object to hearsay statements

when the declarant is made unavailable because the defendant has prevented him from testifying.);

H.R. 4472, § 714, 109th Cong. (2006) (as introduced in House on Dec. 8, 2005) (inclusion of

intimidation and retaliation against witness in state prosecution as basis for federal prosecution).

62. United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982).

63. Alvarado v. Superior Court, 5 P.3d 203, 222 n. 15 (Cal. 2000) (noting that due to witness

intimidation, prosecutors in Los Angeles County have been unable to secure testimony from

witnesses in over 1000 gang-related murders); JoshuaDressler, UnderstandingCriminalLaw
14-15 (2001) (noting that would-be criminals weigh risk versus "reward" before engaging in

criminal behavior); Maura Dolan, When Naming Witnesses Means They'll be Killed, L.A. TIMES,

July 23, 2000, at Al (reporting that prosecutors contend they often have trouble convicting

murderers because witnesses are too scared to testify); Ted Rohrlich & Fredric N. Tulsky, Efforts
to Protect Witnesses Fall Short in LA. County, L.A. TIMES, Dec. 23, 1996, at Al.

64. See Nancy J. King, Nameless Justice: The Casefor the Routine Use ofAnonymous Juries

in Criminal Trials, 49 Vand. L. Rev. 123, 126-27 (1996) (noting many are anxious about

participating in a trial for fear of retribution by defendant; in one survey, eighty-four percent of

those questioned believed that jurors in any criminal case should be granted anonymity as a means

of protection).

65. Federal prosecutors use the "future dangerousness" consideration allowed in Jurek v.

Texas, 428 U.S. 262, 272-273 (1976), to allow the jury or judge to consider like behavior, but this

may only be used if at least one statutory aggravating factor is present. Also, this evaluation does

not act as a complete proxy for the consideration of the interference with the sound administration

ofjustice through wrongdoing and leaves unconsidered certain behavior that should be examined

during the aggravating factor portion of the penalty phase of a federal death-penalty case.



114 DsfDIANA LAW REVIEW [Vol. 40:97

devastating behavior.^^ In order to create a balancing disincentive for such

behavior, the costs of such behavior to criminals must be significant.^^ Because

of the flagrant nature of these offenses and the heightened interest of the

government in deterring such action,^^ adding such behavior to the category of

the statutory aggravating factors is appropriate. Indeed, the very same rationale
led to the recent change in the Federal Rules of Evidence to permit the admission

of hearsay statements because the witness was made unavailable as a result of
this type of criminal wrongdoing,^^ and the Supreme Court has held that such a
rule passes constitutional muster.^^ Criminals must properly internalize the

66. Jennifer Walwyn, Comment, Targeting Gang Crime: An Analysis of California Penal

Code Section 12022.53 and Vicarious Liabilityfor Gang Members, 50 UCLAL. REV. 685, 688

(2002) (citing Letter from Donne Brownsey, Representative, California Public Defenders

Association, to California State Assembly Member Tom J. Bordonaro, Jr.); Lynn McLain,
Commentary: UB Viewpoint—DefuseAttempts to Stop Snitchin \ DAILYRECORD (Baltimore, Md.),
Jan. 7, 2005, at Commentary 1 (stating that exclusion of out-of-court statements as hearsay creates

a huge incentive to make witnesses disappear); Ken Bakke, Sometimes Just OK Is Good Enough,
Plain Dealer (Cleveland, Ohio), Sept. 2, 1993, at 7B (opining that a robber has an incentive to

kill the witness when the punishment for robbery and murder are the same); cf Corey Raybum,

BetterDead Than Raped?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 ST. JOHN'S

L. Rev. 1119, 1160 (2004) ("Sexual abuse cases are already among the most difficult for

prosecutors to try. The 'child victims are usually the key witnesses . . . [and] their testimony is

likely to be indispensable to the conviction of the person who committed the crime.' Given that the

rapist of a child does not incur an extra penalty when he or she is already eligible for execution, the

incentive to kill the sole witness to the crime is a low risk, high reward scenario. This equation is

fundamentally depraved, but it is the notion that underlies deterrence. That is, a would-be criminal

assesses consequences and risk versus 'reward' before engaging in criminal behavior. Thus,

whatever deterrent effect the death penalty would have for would-be rapists, it would be more than

offset by the number of murdered children that would result from the incentive to kill the only

witness.").

67. The McLaughlin Group (NBC television broadcast June 29-30, 2002) ("[T]he death

penalty will deter a criminal from committing another murder to silence a witness.").

68. Death Penalty Reform Act of 2006: Hearing on H.R. 5040 Before the Subcomm. on

Crime, Terrorism, and Homeland Security ofthe H. Comm. on the Judiciary, 109th Cong. (2006)

(statement of Robert Steinbuch), available at http://judiciary.house.gov/Hearings.aspx?ID=135.

69. Fed. R. Evid. 804(b)(6); see also United States v. Houlihan, 92 F.3d 1271 (1st Cir.

1996). The federal death-penalty statute itself explicitly authorizes capital punishment for this

behavior ifdone during the commission ofa drug crime, 1 8 U.S.C. § 3591 (b)(2) (2000), and federal

law contains separate death-penalty offenses for killing of a witness, informant or victim (after the

fact) to interfere with a judicial proceeding. 18 U.S.C. § 1512 (2000). Yet, paradoxically, if this

behavior is done in conjunction with any death-eligible crimes (including this one), this behavior

will not satisfy any statutory aggravator. Prohibited behavior simultaneously can form the basis of

both substantive crimes and aggravating factors. Compare 18 U.S.C. §§351, 1 1 14, 1 1 16 (2000),

with 18 U.S.C. § 3592(b)-(d) (2000). Given that far less egregious behavior serves as statutory

aggravators, 18 U.S.C. § 3592(b)-(d) (2005), this anomaly needs to be corrected.

70. Crawford v. Washington, 541 U.S. 36, 62 (2004).



2007] FOUR MODEST PROPOSALS 1 15

notion that interfering with the judicial system through violence will result in

greater punishment, not less.

With this said, adding a new aggravating factor must be done with great care
to ensure that the new factor does not introduce the very sort of inconsistency
and haphazardness that the above-proposal regarding the previous-pecuniary-gain

aggravator seeks to eliminate. As such, the aggravator must be clearly
delineated, so as to not be open to abuse and misinterpretation. One possible
formulation of this aggravating factor could be as follows: killing a victim,

witness, or law enforcement official during or after the commission ofthe crime

for the express purpose ofeliminating that individual as a witness to that crime;

the killing ofany of these individuals alone may not serve as the evidence that
the murder wasfor the purpose ofinterfering with the administration ofjustice.

C. Previous-Firearm-Conviction Aggravator

Current law embodies a congressionally-created statutory anomaly by barring

the government from proving the aggravating factor of"previously [having] been

convicted of a [fjederal or [s]tate offense punishable by a term of imprisonment

of more than 1 year, involving the use or attempted or threatened use of a firearm

as defined in section 921 against another person" where the death sentence is

sought based on the commission of a violent or drug trafficking crime while

carrying or possessing a firearm that causes death.^^ However, if a defendant

commits an offense otherwise punishable by death, for example murder while

working in furtherance of a continuing criminal enterprise, under 21 U.S.C. §
848(e) the previous-firearm-conviction aggravator is available.^^

Thus, under current law, if a defendant previously committed a violent crime

using a firearm and served a two-year term in state prison and after release

commits an offense punishable by death under §§ 924(c) or (j), he will not be

subject to the firearm aggravator. However, if a defendant previously committed

a violent crime using a firearm and served a two-year term in state prison and

after release commits an offense punishable by death under 21 U.S.C. § 848(e),

the firearm aggravator is applicable. If both defendants have satisfied the capital

eligibility factors of age and intent, there is no rational basis for allowing the

previous state firearm conviction under § 3592(c)(2) to be used to prove a

statutory aggravating factor in one case but not the other. Both defendants have

committed a capital-eligible crime and both have similar previous criminal

convictions. Such an approach is inconsistent and cuts against a policy of

deterring the use of firearms in conjunction with all violent criminal behavior.

Congress should correct this irregularity.

71. 18 U.S.C. § 3592(c)(2) (2000); id. § 924(c),(j); see, e.g.. United States v. Nguyen, 928

F. Supp. 1525, 1532-33 (D. Kan. 1996).

72. See United States v. Flores, 63 F.3d 1342, 1351-52 (5th Cir. 1995); United States v.

Pitera 795 F. Supp. 546 (E.D.N.Y. 1992) (trying an alleged racketeer with murder while engaged

in continuing criminal enterprise to be tried under death sentence provision 21 U.S.C. §

848(e)(1)(A) (2006)); United States v. Garza 77 F.3d 481 (5th Cir. 1995).



1 1

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INDIANA LAW REVIEW [Vol. 40:97

m. Hung Sentencing Juries

In addition to the four modest proposals made herein, one final issue
regarding the federal death penalty needs discussion: hung sentencing juries.

That is, what should be done when a jury that has convicted the defendant of the
capital crime cannot agree on whether to default sentence her to death or life in

prison? Under current law, the defendant receives a default sentence of life in
prison without the possibility of parole—or some lesser sentence if authorized
by the underlying criminal statute under which the defendant was convicted.^^
This was most recently observed in the case against Zacarias Moussaoui, the so-

called twentieth hijacker from the terrorist acts of September 1 1, 2001, wherein

one juror vote against the imposition of the death penalty stood in contrast to the

preference for the imposition of the death penalty by the remaining eleven

jurors.^"^ As a consequence, Moussaoui received a sentence of life imprisonment
without the possibility of parole.

One alternative, recently adopted by Texas for non-capital cases, is to treat
hung sentencing juries in the same fashion as we treat hung juries in the guilt-
phase of trial. If a federal or state jury is hung during the guilt phase of trial, then

the jury is dismissed and double jeopardy does not attach.^^ Thus, the defendant

is open to retrial should the prosecutor so decide. Texas's adoption of the same

approach for sentencing juries in non-capital cases results in a guilty defendant

who has a split in the sentencingjury undergoing a new sentencing evaluation by
a new sentencing jury.^^ The result of the application of such an approach to the
federal death penalty system would be that guilty defendants who otherwise
would have received a default sentence of life in prison (or other non-capital

sentence) under the existing system would now face the possibility of continued
exposure to the death sentence.^^ Over the long run, we must recognize that such

73. 18 U.S.C. § 3593(d)-(e) (2000); United States v. Peoples, 360 F.3d 892, 895 (8th Cir.

2004) ("[a] hung jury in the penalty phase of a capital trial results in a default sentence").

74. Wikipedia, Zacarias Moussaoui, http://en.wikipedia.org/wiki/Zacarias_Moussaoui (last

visited Jan. 6, 2007).

75. See Peoples, 360 F.3d at 895 ("hung jury usually results in an automatic retrial").

76. Tex. Code Crim. P. art. 37.071, § (3)(c) (2006). Unlike in the federal system, Texas

allows juries to both adjudicate guilt and sentence convicted defendants in non-death-penalty

cases—the latter at the option of the defendant prior to trial. Prior to 1981, if the sentencing jury
hung after finding guilt, the whole case, both guilt and sentencing, had to be retried. Padget v.

Texas, 717 S.W.2d 55, 58 (Tex. Crim. App. 1986).

77. The Supreme Court has already held that double jeopardy does not attach on capital

punishment when a sentencing jury is hung in a capital case. See Sattazahn v. Pennsylvania, 537

U.S. 101, 106 (2003) (citing Bullington v. Missouri, 451 U.S. 430, 439 (1981)) (holding the

Double Jeopardy Clause does not bar a capital offense defendant, who initially received a life

sentence without parole due to a hung sentencing jury, from receiving the death sentence at retrial).

Death sentence at retrial does not violate the Double Jeopardy Clause when a life sentence without

parole was initially imposed statutorily because a statutory sentence does not amount to an

acquittal. Id. The Double Jeopardy Clause offers protection for an acquittal only when the



2007] FOUR MODEST PROPOSALS 1 17

a change would likely increase the frequency of the imposition of the death
penalty, all else being equal.

The current rule of applying a non-death-penalty sentence when a sentencing
jury is hung on the issue of death as the default, however, is philosophically
appealing and its continued application may be warranted. The present approach
offers an element of protection if some members of the jury have some continued
questions regarding guilt, yet nonetheless convict the accused. Thus, this

procedure may serve to capture residual doubt left over from the guilt phase.
Moreover, if we have ensured that the jury is death qualified—as proposed
above, we should be fairly confident that the jurors who have voted against
capital punishment did so not due to a political and/or philosophical objection to

the penalty, but, rather, as a consequence of a genuine belief in its inapplicability

under the given facts.^^ Thus, the existing procedures may offer a modicum of
safety to balance against the element of uncertainty that exists in the judicial

process.

Moreover, Jewish biblical law observes an interesting rule for the imposition

of capital punishment different than both the existing rule or the modified Texas

approach. In sentencing during a capital case under Jewish biblical law, a

majority ofjurors must vote for death for the penalty to be imposed.^^ However,

if all jurors vote for death, then the penalty cannot be imposed.^^ The rationale
is that if there is no question by any jurors as to the application of capital
punishment, then perhaps passions have overridden reason in the determination

of sentence.^* Furthermore, under Jewish biblical law, the death-penalty jury is

comprised oftwenty-threejurors.^^ Thus, unanimity becomes statistically a rarer
event. Of course, with all this said, this Article does not suggest that the
American system would or should change to permit anything less than an

proceeding "[is] the hallmarks of [a] trial on guilt or innocence." Id. Of course, there are those

who disagree with the Supreme Court's decision. See Stamenia Tzouganatos, Case Comment,

Constitutional Law/Criminal Procedure—DoubleJeopardyDoesNotBarDeath at Retrial ifInitial
Sentence Is Not an Acquittal—Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), 38 SUFFOLK U. L.
Rev. 245 (2004).

78. Of course, the death-qualification procedure does not guarantee that jurors are not

opposed to the death penalty but have chosen to misrepresent their beliefs during the voir dire

process, but it undoubtedly reduces the likelihood of this outcome.

79. PiNHAS Kehati, Sanhedrin 47 (Aumer Tomaschoff ed., Edward Levin trans., 1994).

80. Id. (indicating that a unanimous verdict results in acquittal).

81. Id. One Jewish scholar suggests that in biblical times an outcome of a unanimous verdict

for death was akin to an electoral candidate receiving nearly 100 percent of the vote, i.e., that such

an outcome calls into doubt the legitimacy of the process. ADIN Steinsaltz, Talmud—
SteinsALTZEdition 185 (1996); see also Infoshop.org, Consensus Process^ http://www.infoshop.

org/wiki/index.php/Consensus_process ("Many groups consider unanimous decisions a sign of

agreement, solidarity, and unity. However, there is evidence that unanimous decisions may be a

sign of coercion, fear, undue persuasive power or eloquence, inability to comprehend alternatives,

or plain impatience with the process of debate.").

82. Kehati, supra note 79, at 46.



118 INDIANA LAW REVIEW [Vol. 40:97

unanimous vote for death before the sanction could be imposed.^^ But, it is

nonetheless interesting to see the contrast.

This modified Texas approach that retries sentences when faced with a hung
sentencing jury, should be evaluated. Unlike the other proposals in this Article,

however, this one is by no means modest. Therefore, I leave that for another day
and another Article.

Conclusion

The death penalty will remain a controversial and divisive topic. The
proposals discussed above will allow courts to apply the sanction more
efficiently. Under these proposals courts would empanel juries capable of
carrying out their duty of imposing the death penalty if the law so dictates. As
such, there will be no bifurcation of juries and repetition of function by

duplicative bodies. Moreover, judicial attempts to usurp legislative adoption of

capital punishment would be reduced. Second, judges andjuries should evaluate

as an aggravating factor the commission of murder in any part of a crime that

provides a pecuniary gain. Differentiations regarding the timing of murders

resulting in gain should not affect the application of this aggravating factor.

Third, courts would consider egregious behavior designed to interfere with the

administration ofjustice, such as killing witnesses, as the aggravating factor that

it should be. No criminal should be able to murder his way out of a conviction
and attempts at such should be viewed as the attacks on our whole judicial

system that they are. As such, the consideration of this outrageous behavior
should contribute to the judge or jury's determination of the ultimate sentence.

Finally, prior convictions for the violent use of firearms should be applied

uniformly in determining whether to impose the death penalty. The firearms
aggravator is generally considered one of the less controversial factors. So, its

disparate application is even more confusing. This anomaly is in need of

legislative correction.

Additionally, legislatures should take a second look at how hung juries are
resolved during the sentencing phase of a capital case in which guilt has already

been determined. Texas offers an interesting model that if applied to capital

cases in the federal system may have resulted in a different outcome in the
infamous case of Zacarias Moussaoui.

Of course, for those opposed to the ultimate sanction, an improvement in its
application may not be viewed as a benefit at all. However, for other Americans
the death penalty is acceptable. The development of procedures to ensure that
it is carried out in a fair and dispassionate fashion is a logical extension of this

philosophy.

83. A minority interpretation of biblical text actually suggests that the opposite conclusion,
i.e., that the acquittal referenced in the text refers to acquitting the court of any further obligation,

resulting in the defendant receiving the sentence of death. Id. This interpretation, while discussed

in the Talmud, is not the accepted one by Jewish scholars. Id.