[A]fter two weeks of hearings on the constitutionality of the death penalty, all eyes are on District Court Judge Geoffrey Crawford who will issue a decision that could have far-reaching implications.
In his opening remarks, Crawford said the hearings in the Donald Fell case presented an opportunity to “create a rich factual record for higher courts with broader authority to rule on the big questions.”
For the U.S. Supreme Court there are few bigger questions than the constitutionality of the death penalty. According to Robert Dunham, Executive Director of the Death Penalty Information Center, the Supreme Court has had the opportunity to review decisions that uphold the constitutionality of the death penalty, but has elected not to do so.
However, he said, the Supreme Court has never been presented with a lower court ruling declaring the death penalty unconstitutional.
“It is the kind of decision you typically would expect the Supreme Court to review because if they didn’t the status of death penalty cases across the federal system would be in doubt,” he said.
Former director of the center, Richard Dieter, testified in the Fell hearings but Dunham said that the organization does not take a position on the death penalty, nor does it take a side in this lawsuit.
Even if Crawford rules the federal death penalty unconstitutional, the case would almost certainly be appealed and there’s no certainty that it would reach the nation’s highest court.
Over the past two weeks, the defense called 11 witnesses to testify on everything from the growing number of exonerations in death row cases to the uneven application of capital punishment and the role that race, gender, and geography can play in sentencing.
The government wrapped up its testimony one day early after deciding to cancel its last two witnesses, Matthew Harding, an associate professor of economics at the University of California Irvine, and Hashem Dezhbakhsh, a professor of economics at Emory University. Government witnesses testified on the deterrence effect of the death penalty, public perceptions of capital punishment, and housing conditions on death row. A witness for the defense, Lauren Bell, who was unable to attend the hearings, will testify during a separate motion in August.
The hearings stem from the murder of North Clarendon resident Terry King in November 2000. Fell and Robert Lee were accused of kidnapping King in the parking lot of a Rutland Price Chopper and driving her to New York before killing her. Lee later died in prison of autoerotic asphyxiation gone awry.
Fell was convicted in 2005 and sentenced to death the following year but the verdict was overturned due to juror misconduct. His retrial is scheduled to begin early next year.
It is not the first time a federal judge has held hearings on the constitutionality of the death penalty. In July 2002, Jed Rakoff, a district court Judge in Manhattan, declared the death penalty unconstitutional based on the growing number of exonerations of death row inmates due to DNA evidence and other factors. Since 1973, according to Dunham, 156 death row inmates have been exonerated.
Two months later federal Judge William Sessions of Burlington also ruled the death penalty unconstitutional in a pre-trial hearing on the Fell case on the grounds that it denies due process protections and fair trial guarantees.
“We now know, in a way almost unthinkable even a decade ago,” Rakoff wrote in his decision, “that our system of criminal justice, for all its protections, is sufficiently fallible.”
Both rulings were overturned by appellate courts.
Since Rakoff and Sessions issued their rulings, seven states have banned capital punishment; a total of 19 states now outlaw the practice. (Vermont banned the death penalty in 1965.) The Supreme Court has also ruled that the death penalty cannot be applied in cases involving minors, the mentally disabled, and those convicted of a crime other than murder. During that same time, the number of death sentences and executions has also declined.
“At this point, it’s becoming more and more unusual for a country like ours to sanction state murder, which is what it is,” said Allen Gilbert, Executive Director of the Vermont Chapter of the ACLU. “I think it’s inevitable that at some point the U.S. will abolish the death penalty.”
Many observers point to a 2015 dissent from Justices Breyer and Ginsburg in a case challenging lethal injection in Oklahoma, Glossip v. Gross, as opening the door for a review of the death penalty’s constitutionality. Citing the growing number of exonerations since the introduction of DNA evidence in the early 1990s and growing evidence that the death penalty is unevenly applied, Breyer wrote, “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.’”
The hearings before Judge Crawford are the first to take place since Justice Breyer’s dissent, which Dunham characterized as a “call to defense lawyers to raise the issue so that the court may have the opportunity to review it.”
The particulars of the Fell case rarely came into play during the two weeks of hearings in Rutland District Court. The Fell case was however used to illustrate the arbitrariness of death sentencing. Fell’s is one of only two cases in modern history in which local prosecutors had reached a plea deal in exchange for a life sentence that was then overturned by the attorney general. The defense argued that this is one of the features of the federal death penalty that has contributed to its overall administration in an arbitrary and capricious manner.
The Fell case is also an example of how long death penalty cases can drag on in the courts. The crime Fell is charged with committing took place nearly 16 years ago.
