Federal Judge Criticizes Death Penalty — But Concludes Only Supreme Court Can End It

"Has actual experience borne out the promise for a more reliable system of capital punishment" since 1976? A federal judge in Vermont says no — but says the final decision must come from the US Supreme Court.

WASHINGTON — A federal judge overseeing a death penalty trial in Vermont on Tuesday ruled that only the US Supreme Court can declare the death penalty to be unconstitutional — but nonetheless issued a strong critique of what he found to be an arbitrarily imposed punishment "in which chance and bias play leading roles."

US District Court Judge Geoffrey Crawford issued the 57-page decision in Donald Fell's challenge to the constitutionality of the federal death penalty statute. Fell faces a second federal trial over a 2000 killing, after his first conviction was tossed out due to juror misconduct.

The judge found that there is not a consensus across the country in opposition to the death penalty — a key question in addressing the "proportionality" challenge raised by Fell's lawyers.

Crawford did, however, find that reforms aimed at making the penalty more fairly imposed — the "arbitrariness" argument — over the past 40 years have "largely failed" to address the problems identified by the US Supreme Court in a 1972 decision that had led to a four-year national moratorium on the death penalty.

"Gregg is still the law of the land," Crawford wrote about the 1976 decision ending that moratorium. It is, he continued, the Supreme Court's "prerogative alone to overrule one of its precedents."

Crawford held a hearing this summer — largely tracking the questions about the death penalty raised by Justice Stephen Breyer in a 2015 Supreme Court dissent, in which he called for a full Supreme Court review of the death penalty's constitutionality.

Noting the fact that he is required to follow existing Supreme Court majority decisions — and not dissenting opinions like Breyer's in 2015 — Crawford made clear his aim: "The trial court can respond by conducting an inquiry and setting the table for further review."

That meant, Crawford detailed, holding an extensive hearing regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty.

The judge, in the wake of that hearing, issued detailed factual findings on Tuesday regarding many aspects of the imposition of the death penalty in America.

Among the areas specifically highlighted for criticism in Crawford's opinion in light of the evidence received was the system of "death qualification" in capital cases, under which those opposed to the death penalty are dismissed from serving on those juries.

"The exclusion of many people opposed to the death penalty on religious or moral grounds and the implicit process of persuasion at voir dire that death is the likely outcome create jury populations which stack the deck against defendants," Crawford wrote. "The studies brought to the court's attention supported the position of the defense that jury selection since Gregg is not the solution to inherent jury bias but rather a substantial part of the problem."

Regarding the arbitrariness of the imposition of the death penalty — even just looking at the federal system alone — Crawford concluded based on the evidence presented, "The more carefully one reviews ... the underlying case summaries, the more arbitrary the distinctions between cases become."

After reviewing those and other findings, Crawford posed the question: "Has actual experience borne out the promise for a more reliable system of capital punishment expressed in the Gregg decision? The evidence produced for the court answers the question in the negative."

Nonetheless, Crawford found that, for the most part, his hands were tied.

"Institutional authority to change this body of law is reserved to the Supreme Court," he wrote. "For this reason, the trial court is required to deny the defense motions related to the constitutionality of the death penalty."

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