Last week, a Massachusetts federal trial court opened the door to a direct constitutional challenge to the death penalty. “The court remains concerned,” Judge Mark L. Wolf wrote, “about the potential rate of error in federal capital cases generally and the risk of the execution of the innocent particularly.” The court therefore invited defense counsel to submit a “future, focused presentation” on whether the rate of error renders the death penalty unconstitutional.
This invitation to challenge the death penalty came in United States v. Sampson, the long-running federal death penalty prosecution of Gary Lee Sampson. Sampson was indicted in 2001 after three separate incidents in which he murdered three individuals and stole or attempted to steal their cars. He was charged federally for carjacking resulting in the deaths of two of the individuals, those killed in Massachusetts. He pled guilty in 2003 and was subsequently sentenced to death by a federal jury. That sentence was vacated in 2011 due to juror misconduct, and Sampson is now awaiting a new penalty-phase trial to determine his sentence. Last year, Sampson filed twenty-six motions raising constitutional issues, and on October 28, 2015, the trial court issued an 89-page decision denying all of Sampson’s motions.
While the court denied most of Sampson’s motions outright, it made a very specific exception for Sampson’s “motion to preclude death as a possible punishment in light of the overwhelming evidence that the system for imposing death sentences is infected by an unacceptable rate of error.” The rate of error motion was denied without prejudice, meaning that Sampson may refile it at some future point. The court denied the motion in its current state because, as filed, it failed to “identif[y] disputed material facts with the specificity required to justify an evidentiary hearing” and relied on “arguments and evidence . . . scattered throughout numerous filings, comprising hundreds, if not thousands, of pages.” The trial court suggested, however, that this could be remedied in a future presentation.
Inviting further briefing on the error rate in death penalty cases, the trial court expanded on a suggestion made this summer by Supreme Court Justice Breyer. In Glossip v. Gross, a case decided in June 2015, the Supreme Court upheld the constitutionality of Oklahoma’s method of administering the death penalty, but Justice Breyer, in a dissent joined by Justice Ginsburg, invited “full briefing on . . . whether the death penalty violates the Constitution.” Judge Wolf respectfully suggested “that factfinding in a district court, in an appropriate case, should precede any such ‘briefing.’” Indeed, in his recent Sampson decision, Judge Wolf repeatedly articulated a robust role for trial courts in reviewing Eighth Amendment challenges. Review of such challenges requires looking to “evolving standards of decency” and “[t]he question of whether standards of decency have materially changed since the Supreme Court decided an issue is a factual question. Factfinding is, in the first instance at least, typically done based on evidence presented in the district courts, where the adversary process operates to test that evidence and material disputes are decided by a trial judge or jury.”
Judge Wolf now appears ready to engage in such factfinding concerning the rate of error. He quoted in Sampson from his own earlier observation (from a Sampson decision issued in 2003) that the death penalty “will inevitably result in the execution of innocent people.” Those 2003 remarks echo those of another Massachusetts federal trial court judge, Judge Michael Ponsor, who observed in 2001 after presiding over a death penalty trial: “The experience left me with one unavoidable conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people – not too often, one hopes, but undoubtedly sometimes. Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time. Any honest proponent of capital punishment must face this fact.” Or, as Justice Blackmun stated in 1994, when he famously proclaimed that “from this day forward, I no longer shall tinker with the machinery of death,” while we hope that the defense lawyer, prosecutor, and judge in a capital case “will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy.” Whether human fallibility renders the death penalty unconstitutional should now be the basis for a serious constitutional challenge.