Because Death Is Different: Legal and Moral Arguments for Broadening Defendants' Rights to Discovery in Federal Capital Cases

Article excerpt

Capital punishment has existed in America since this nation was founded,2 yet there are few other legal issues that inspire such passionate debate among scholars3 and among the administrators of justice.4 Arguments on both sides of the line rest in religion,5 ethics,6 legal principles,7 and sheer emotion.8 But reasonable persons on both sides of the line would have to agree that if we are to have a death penalty, it must be justly administered. Death is the most extreme form of punishment; the utmost care is required in its imposition.9 There are few who would knowingly support a system that imposed death without granting the defendant due process,10 that discriminated by race or class of the defendant or victim, or regularly resulted in the execution of the innocent.

Indeed, the law demands protection against such evils if the death penalty is to be imposed. In Furman v. Georgia,11 the Supreme Court, in a 5-4 decision, struck down Georgia's death penalty12 on the grounds that, while the death penalty was not in and of itself unconstitutional,13 its arbitrary application under the Georgia statute rendered it cruel and unusual.14 The Furman decision was the longest in the Court's history, at 50,000 words, 243 Despite its length, however, Furman offered little guidance as to the constitutional application of a death penalty; the justices wrote nine different opinions, and they continued to interpret and reinterpret the holdings of Furman in later cases.16 The Supreme Court has not addressed many of the constitutional implications of the relatively new federal death penalty,17 including the fair administration of pre-trial proceedings. However, three recent decisions by federal district courts in Rhode Island and Connecticut have limited the discovery rights of defendants in capital cases.18 These decisions warrant examination, mindful that defendants, even innocent ones, are often only separated from a death sentence by the niceties of procedure.19

This Note argues for broadening the defendant's right to discovery in the early stages of a potential federal capital case. Part I sets forth the procedure a U.S. Attorney must follow in order to obtain permission to file a notice of intent to seek the death penalty and explains the defendant's right to participate in that process. Part I also reviews recent district court holdings limiting defendants' rights to discovery in these early stages of a potential death penalty case. Part II explores the need for special care in the administration of death penalty cases because of the finality of death and the limitations of the appeal process. Part III examines the risk of racial bias in the imposition of the death penalty and concludes that principles of equality and law demand a heightened protection of the defendant's right to discovery of "pattern of discrimination" materials. Finally, Part IV submits that constitutional guarantees of the rights of due process and effective counsel mandate that potential defendants be granted broader discovery rights.


A. Seeking the Federal Death Penalty: The Department of Justice


The Department of Justice has set forth procedures to be followed by the United States Attorney's Office and the Attorney General's Office in every federal case in which the death penalty can be sought.20 A U.S. Attorney may not seek the death penalty absent the Attorney General's prior written authorization.21 Whenever a defendant is charged with an offense subject to the death penalty, the U.S. Attorney must submit to the Assistant Attorney General for the Criminal Division a "Death Penalty Evaluation form" and a prosecution memorandum, which will include any aggravating and mitigating factors related to the crime and the defendant, as well as the defendant's background and criminal history.22 A committee appointed by the Attorney General reviews the case and makes a recommendation to the Attorney General, who ultimately may direct the U. …