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The death penalty is dead in Vermont, at least in the courtroom of Judge William Sessions. Sessions is the chief judge of the U.S. District Court for the District of Vermont and, not insignificantly, a vice chairman of the U.S. Sentencing Commission. Following recent Supreme Court precedent, he held on Sept. 24 in United States v. Fellthat the death penalty violates the Fifth Amendment’s due process guarantee and the Sixth Amendment’s notice and confrontation provisions. Striking down the federal death penalty is obviously significant. But the decision is even more momentous than that. First, Judge Sessions struck down the law not on the more common “cruel and unusual” Eighth Amendment basis, but on less-ideological procedural grounds. And if that weren’t significant enough, the decision has implications beyond federal capital cases. Fellmay signal that the federal sentencing guidelines that set the penalties in all federal criminal cases might need to be retrofitted with new procedural safeguards. The facts of the crime in Fellare horrific. Sometime after midnight on Nov. 27, 2000, while high on cocaine, Donald Fell and Robert Lee fatally stabbed Fell’s mother, Debra Fell, and her companion, Charles Conway. In an effort to flee the crime scene, Fell and Lee abducted Teresca King in her car around 4 a.m. as she was arriving for work at a local supermarket in Vermont. Fell and Lee then drove King’s car into New York state, where, according to police reports, they beat King to death with a rock as she knelt praying along a desolate roadside. Three days later, they were arrested for traffic violations in Clarksville, Ark. The federal government decided to prosecute Fell and Lee on federal capital kidnapping and murder charges (Vermont state law does not provide for the death penalty.) Lee subsequently committed suicide while in custody, leaving Fell as the only defendant. The jury recommended that Fell receive the death penalty, basing its decision on three statutory aggravating factors: (1) that King’s murder occurred during the course of a kidnapping; (2) that King’s murder was “especially heinous, cruel, or depraved”; and (3) that Fell committed multiple murders during the course of the crime spree. What concerned Judge Sessions was the procedure that the government used to prove these aggravating factors. The prosecutors bore the significant burden of convincing each member of the jury beyond a reasonable doubt that at least one of the statutory aggravating factors existed. But Sessions still was troubled by the fact that in meeting this burden the government could introduce evidence not admissible at trial. Specifically, the government wished to introduce a confession of Fell’s deceased co-defendant to the jury, which even the government conceded would not be admissible at trial. And the judge had a reputable basis for his concern — a string of recent Supreme Court decisions regarding due process at sentencing. Starting with Apprendi v. New Jerseyin 2000, the court held that if a factor increases the statutory maximum penalty for a crime, then the Sixth Amendment’s “notice” provision kicks in. And it requires that the factor be treated as an element of a crime relevant to guilt rather than as a mere “sentencing factor” that goes to the severity of the sentence. The distinction is critical. An element of a crime must be proved beyond a reasonable doubt to a jury, whereas a sentencing factor need only be proved by a less exacting preponderance of the evidence to a judge. The differences also speak to what type of evidence prosecutors can use. Elements of offenses may only be proved with admissible evidence, but sentencing factors may be proved with evidence that would otherwise be inadmissible at trial. The court followed up on Apprendithis past spring in Ring v. Arizona, holding that aggravating factors that lead to a death sentence must be treated as an element of an offense, to determined by the jury rather than by the judge. Judge Sessions saw the significance of these cases in Fell. The problem with the Federal Death Penalty Act, in his view, is that it merely pretends to treat aggravating factors as elements of an offense (as required by Apprendiand Ring). It does assign to the jury, rather than to the judge, the duty to recommend the death penalty. Nevertheless, the law expressly allows the jury to make that determination on the basis of evidence that would be inadmissible at trial. As a result, Sessions reasoned that the law does not really treat such factors as elements, and the FDPA therefore is unconstitutional. To hold otherwise, he wrote, “would approve death eligibility as the federal criminal justice system’s sole exception to the practice of requiring that offense elements be proven by admissible evidence comporting with due process and fair trial guarantees.” Perhaps even more significant, Judge Sessions hinted that this same logic extends beyond capital sentencing cases. “That the text of the [Sixth] Amendment refers to ‘all criminal prosecutions’ would suggest that the rights enumerated there are not confined to trial. The Sixth Amendment rights to notice and counsel are required at all critical stages of a criminal proceeding, including sentencing,” he wrote. That language, if taken seriously, has serious implications for all federal sentencing. Currently, the procedural safeguards of the Federal Rules of Evidence do not apply at sentencing. The rationale for this can be traced back to the Supreme Court’s 1949 opinion in Williams v. New York, in which the court held that the possession of the fullest amount of information regarding the defendant’s life and character, including information irrelevant to guilt, was critical to tailoring an appropriate sentence. But this opinion was issued in an era dominated by indeterminate sentences, where such information was not given any specific weight, and where the actual sentence served was more a product of parole board hearings than of judicial discretion. We now live in a world where such information — known as “relevant conduct” — is given specific weight at sentencing; where, for example, the amount of drugs possessed, money defrauded, and prior crimes committed (among a plethora of other factors) are plugged into a sophisticated sentencing calculus that assigns “offense levels” and “criminal history points” to determine the ultimate sentence. Such determinations often can add years to a sentence, yet be based wholly on inadmissible evidence, which need only be proved to a judge by a preponderance of the evidence. Given that parole has been abolished in the federal criminal system, the factors that judges consider now determine the sentence. But our federal sentencing procedure remains stuck in the bygone era of indeterminate sentencing. Given that judicial fact-finding now has a far more determinative effect at sentencing than it used to, it would seem that there should also be more stringent procedural protections for the defendants. As U.S. District Judge Jed Rakoff, of the Southern District of New York, wrote earlier this year in United States v. Quinones(an opinion also holding the federal death penalty unconstitutional, but on Eighth Amendment grounds), “[I]t is settled law that the Fifth Amendment’s broad guarantee of ‘due process’ must be interpreted in light of evolving standards of fairness and ordered liberty.” Judge Sessions’ opinion in Fellsuggests that, in some instances outside the capital sentencing context, due process may also require an increase in evidentiary standards. He wrote, “[T]he Supreme Court’s line of cases that distinguish between elements and sentencing factors, culminating in Ring, has implications beyond the “tightly delineated” claim decided there. Essentially, the ongoing judicial debate is an acknowledgment that the line between guilt and punishment has become blurred.” In the words of the American College of Trial Lawyers, “courts have been greatly influenced by pre-Guidelines law on evidentiary issues, which freely permitted judges to consider all sorts of information and ‘evidence’ at sentencing.” Because such informality has continued in the guidelines era, “[t]he resulting state of affairs has prompted one circuit judge to remark that ‘[w]hen it comes to proof of facts undergirding guideline sentences, the principle courts so often apply is that “Anything Goes.”‘” Judge Sessions’ opinion in Fellsuggests that at least one current sentencing commissioner is working to put a stop to that. As this article neared completion, federal and state prosecutors began jockeying to be the first to try and execute the alleged snipers who recently terrorized the D.C. area. Interestingly, Judge Sessions’ arguments on the unconstitutionality of the federal death penalty apply equally to Maryland’s and Virginia’s statutes, both of which allow the use of inadmissible evidence to prove aggravating factors. Perhaps, therefore, the Fellopinion will move the prosecutors to consider the Constitution and ask, “Where can we find justice and a fair trial?” –instead of simply, “Where can we kill the quickest?” Mark H. Allenbaugh is an associate at Montedonico, Belcuore & Tazzara in Washington, D.C., and teaches philosophy at George Washington University. He previously served as a staff attorney for the U.S. Sentencing Commission, and is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2d ed., Foundation Press, 2002). The views expressed here are his alone. He can be reached at [email protected].

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