The Federal Death Penalty Scheme is not a Model for State Reform of Capital Punishment Laws

The Federal Death Penalty Scheme is not a Model for State Reform of Capital Punishment Laws

67 Am. U. L. Rev. 1647 (2018).

* Partner, Akin Gump Strauss Hauer & Feld LLP; Adjunct Professor of Law, Georgetown University Law Center. In the past twenty years, Mr. MacDougall, a former U.S. Department of Justice prosecutor, has provided pro bono trial representation to numerous indigent defendants facing the death penalty in South Carolina and Missouri.
** Member, Cozen O’Connor. Ms. Williams has participated in the trial-level representation of two indigent defendants charged with murder and subject to death notices by the state of South Carolina. Ms. Williams is also a graduate of the American University Washington College of Law and former Editor-in-Chief of the American University Law Review. The views and comments in this Article are those of the co-authors and do not necessarily reflect the views of their respective law firms.

By every reasonable measure, the death penalty is in decline in the United States as a judicially imposed punishment for the most serious homicides. Many reasons—legal, social, and economic—have been cited as the cause of the regular and consistent drop in death sentences and executions over the past two decades. The death penalty is also largely a creature of state prosecutors and courts, with less than three percent of capital sentences imposed in the federal system. While the statistical trends suggest that death sentences will soon be eliminated as a functional feature of the U.S. criminal justice system, committed advocates of capital punishment suggest that the federal statutory review scheme, if adopted by the states, might save the death penalty from fading into a legal anachronism. In truth, the federal statutory scheme is possessed of the same inequities, biases, and cost considerations as the existing state systems for capital punishment. Adoption of the federal statutory scheme by states seeking to preserve the death penalty will not cure the fundamental flaws that have led to the present and inevitable decline of capital punishment as a practical sentencing alternative.