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WASHINGTON � There is no question that the Bush administration has been more aggressive than prior administrations in pursuing federal death sentences. And there is no question that the federal death row has been growing because of that effort even as state death rows decline. But there are questions as to whether its success rate is all that impressive, why there have been so few executions, and why requests for lethal-injection stays are going unopposed. “It’s stunning to me that when we obsess in ridiculous ways about the death penalty in general, no one is talking about the federal death penalty being in a de facto moratorium stage for the last 18 months,” said sentencing scholar Douglas Berman of Ohio State University Michael E. Moritz College of Law. “The system has ground to a halt, ironically under the watch of a president and attorney general who, in part, made their names by being bloodthirsty in Texas.” Berman is not advocating more executions, but he noted about the administration’s effort: “Who cares if we’re sentencing more people to death if we’re not executing them?” When there is an avowed commitment in both policy and resources to putting people on death row and so few executions, it is a “valid question,” said Richard Dieter, executive director of the Death Penalty Information Center. “There has been a decrease in both executions in states and an actual decrease in death sentences in states,” he noted. “There were about 300 per year in the 1990s and now it’s down to 120 or less in the past two years � close to a 60% drop. But the federal system hasn’t dropped at all; the number on death row has gone up.” There have been three federal executions since 1963. Although all three occurred during the current administration, the death sentences were issued during the Clinton years. Juan Raul Garza, Timothy McVeigh and Louis Jones were convicted and sentenced to death in 1993, 1995 and 1997, respectively. The last execution � Jones � took place more than four years ago. It is not unusual for a state death case to take a decade or even longer to move from a sentence being imposed through state and federal post-conviction proceedings to execution. But the federal system should be faster because there is only “one pass” through the system � direct appeal and federal habeas, said Kent Scheidegger of the Criminal Justice Legal Foundation. There is also generally more skilled representation at trial and on appeal, more experienced reviewing courts, and fewer reversals than in state cases, he and others agreed. “You would expect them to go faster and yet they don’t,” Scheidegger said, adding, “I don’t know the reasons other than it doesn’t have the same priority as in a state attorney general’s office because the [U.S. Department of Justice] is doing other things. I got the general impression that since 9/11 anything that isn’t terrorism gets bumped down.” Lethal litigation Although the Justice Department declined to comment, it appears the main reason the system has ground to a halt is that just like many state executions, the federal system is now a part of the lethal-injection controversy. The Bush administration did set three execution dates for May 2006, but those executions were stayed in February 2006 pending the outcome of a U.S. Supreme Court case on whether challenges to lethal injection could be brought under Section 1983 of the Civil Rights Act of 1964. The three federal inmates scheduled for the 2006 executions also had filed a federal lawsuit challenging the constitutionality of lethal injection � the method used to execute the last three federal death row inmates. A judge also stayed that lawsuit pending the Supreme Court decision, which was issued a year ago. Another federal death row inmate � Bruce Webster � was scheduled for execution this May, but a judge stayed it in February. Webster has joined the lethal-injection lawsuit. The Justice Department did not oppose the stays � a dramatic contrast to the states whose many attorneys general have been fighting those stays even as lethal-injection challenges proceed, according to Dieter and others. “I’m not sure I understand that myself,” said Dieter. “The initial stay for the lethal-injection suit was granted while the Supreme Court was considering whether challenges through [42 U.S.C.] Section 1983 were acceptable. That made sense. If those weren’t allowed, everything would have to go through habeas.” But not to oppose continuing the stay after the high court decision does seem “unusual,” he said, adding, “Some courts are allowing these state executions to go forward despite lethal-injection challenges.” Perhaps, he and others suggested, the government is reviewing its lethal-injection protocol. “I’m sure they’re using similar protocol to what’s being done in other states,” said Dieter. “On the whole, the Justice Department has been aggressive about seeking the death penalty, at least securing trials and death sentences, including in states that don’t have a death penalty. All of that would presume they would be actively pursing the executions themselves.” State attorneys general, he added, always take the “resistance approach” to execution stays. “You back the state process almost automatically and then see what courts do.” Berman said that if the department opposed the stays and sought an appeal if it lost, the lethal-injection issue would move forward. “Do they think their protocol is unconstitutional?” he asked. “I doubt it. Perhaps the cynical but accurate explanation is that as soon as this becomes a federal fight, the Supreme Court will take the issue up on the merits. I don’t think the Justice Department wants that. It may be happy to let states kill people this way and let the federal system gurgle along until the debate plays out.” The Justice Department declined to comment on the stays because of the ongoing litigation over its lethal-injection protocol. “We certainly believe that the protocols for executing federal prisoners are constitutional, that they comport with the Eighth Amendment, and that they result in quick and humane executions,” said department senior counsel Erik Ablin. Paul Enzinna of Baker Botts, counsel to the federal inmates challenging the government’s lethal-injection process, said the case is moving into discovery, and “there is every indication the department will defend their lethal-injection protocol. They are not holding back.” The suit raises the usual “cruel and unusual punishment” challenge to the lethal-injection process, but it also makes a claim under the Administrative Procedure Act, according to Enzinna. “When Congress enacted the death penalty statute in 1988, it kind of abdicated its duty,” he said. “It didn’t say how to execute; it just enacted the statute and [the Justice Department] enacted regulations. “One of our claims is Justice said execution is by lethal injection, and then it did its own rule-making on how exactly to do it. Our position is: That is the final agency action and they were obligated to do notice-and-comment rule-making and have doctors come in and explain how the drugs work. It was not done in a scientific way and, if they want to do it, they have to do it the right way.” Costly success? While executions appear to be in a de facto moratorium, as Berman suggested, the Justice Department has been continuing its pursuit of death sentences, but some question whether its actual success justifies the cost. In a recent op-ed article, U.S. District Judge Frederic Block of Brooklyn, N.Y., noted that 12 federal death penalty prosecutions were authorized in New York in the 1990s and 30 more since then. Of the total 42, he said, 17 have gone to trial and have resulted in one death sentence, at an estimated cost of $17 million. Since the federal government got back into the death penalty business in 1988, attorneys general have authorized 420 prosecutions, according to statistics kept by the Federal Death Penalty Resource Counsel Project: 180 during the 1990s, an average of 18 per year, and 240 since 2000, an average of 40 per year, mostly attributable to the Bush administration. Of the 420 authorized prosecutions, 162 actually reached trial and sentencing. Juries imposed 105 life sentences and 57 death sentences. Since 2001, the beginning of the Bush administration, there have been 32 federal defendants sentenced to death, according to Ablin. Ablin said that the Justice Department does not keep data on authorized death penalty prosecutions. Those 32 represent 56% of the death sentences imposed since 1988. Without data on the number of cases taken to trial by the Bush administration, it is difficult to compute their success rate, but lawyers, academics and others who follow the federal death penalty say the administration succeeds in about one-third of those cases, which is a slightly lower success rate than in the states, according to Dieter. “The rate of success has gone way down,” said David I. Bruck, federal death penalty resource counsel at Washington and Lee University School of Law. “There were 20 cases where [Attorney General John] Ashcroft sought the death penalty over U.S. attorneys’ objections and he got three. There has been an enormous expenditure on this effort.” Even though the administration’s track record is low, Dieter said, “If you do enough of these cases and you have no executions, a third is still adding to the row and that’s how it slowly got up to 50 inmates today. With the lethal-injection stays, the numbers will keep growing.” Although the number of federal death row inmates is small compared to the number in states like California and Texas, it is now larger than the number in half the states, including death states such as Arkansas, Kentucky and Missouri, said Ruth Friedman, a senior habeas consultant in the Federal Defender Program. “That wasn’t the situation before the Bush administration,” she said. “It’s one thing for the administration to say this is a priority, but we need to know how decisions are made to pursue certain cases, especially when they overrule U.S. attorneys. What are the criteria?” While the federal system is, in Berman’s words, in “something like suspended animation,” the department soon will be assisting states with another piece of the death penalty process. The reauthorized USA Patriot Act last year took away authority from federal appellate courts and gave the attorney general responsibility for certifying states as qualified to take advantage of fast-track federal habeas procedures in death cases by determining that states have complied with providing qualified counsel. Proposed regulations implementing that authority soon will be published for public comment, according to the Justice Department’s Ablin.

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