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Post Conviction Relief Act

 

Even if a criminal defendant has appealed to the Superior Court or the time to file an appeal has expired, he still has avenues for a sentence reduction, new trial, or even discharge. In Pennsylvania, the Post Conviction Relief Act (or “PCRA”) is that path.

The PCRA allows defendants to challenge the constitutionality of the proceedings against them, the legality of their sentence, or even the effectiveness of their attorney. If they win, the PCRA court can vacate their conviction, force the district attorney to extend a plea bargain, order a new trial, or even discharge them.

The PCRA has strict requirements for relief, however, and an experienced attorney is the best way to increase the chance of success. For example, the PCRA has timing and pleading requirements that, if not met, will all but doom a claim.

At Gearty Law Office, we know PCRAs. We know the rules, statutes, and cases, so that we can give you the edge you need in tough cases. If you have doubts about a criminal conviction, call us. We will review your case and give you our opinion through the eyes of experienced PCRA litigators.

A new law recently went into effect in Pennsylvania that will make more people eligible to have a criminal record expunged.  An expungement is a Court Order that requires the destruction of a criminal record.  In the past, only the following were permitted to be expungement:

  • Most charges following completion of the ARD Program
  • Charges that were dismissed (many people do not realize that when a charge is dismissed or someone is found not guilty, that charge still remains on the criminal record, although it will show that it was dismissed)
  • Summary offenses may be expunged if the defendant remains free of any convictions for a period of five years following the summary conviction
  • Charges may be expunged once a person reaches 70 years of age and has remained crime free for the proceeding ten years
  • A person that has been dead for three or more years would also qualify for an expungement

Under that rule, which is 1922 under the rules of criminal procedure, a person would not qualify for an expungement if he had a Misdemeanor or felony conviction unless the person did ARD, was 70 years old, or dead.  Under the new rule 1922.1, the following may be expunged:

  • Misdemeanor 3 and Misdemeanor 2 offenses so long as the crime is not punishable by more than 2 years of imprisonment.  To qualify for this expungement, the person would have to go ten years following the conviction without any new arrests and would have to have completed any requirements associated with their sentence.
    • The following would not qualify for expungement
      • 4 or more convictions where the potential sentence is one year or more
      • Simple assault that is graded as a Misdemeanor 2.  (the M3 simple assault would qualify for expungement)
      • intimidation of a witness
      • sexual intercourse with an animal
      • impersonation of a public servant
      • retaliation
      • any crime involving sex offender registration and
      • any crime involving the intimidation, retaliation, or obstruction relating to a child abuse investigation

Under 1922.1, although the charge can be expunged under the situations noted above, this would be a somewhat partial expungement.  For example, the expunged charged would no longer be available through any public searches and any state police background check would not show the charge, however, information regarding the conviction would remain on file with the prosecutors office so that if the person go into trouble in the future, the prosecutor could use the prior conviction when considering the prior record score for the current offense.

Also, an expungement under 1922.1 would not restore someone’s gun rights if their conviction resulted in the loss of any such rights.

If none of the above apply, a person can still have their criminal record removed through the Pardon process.  There are several differences between a pardon and an expungement.  First, if you meet one of the expungement criteria listed above, you  have a right to get an expungement.  There is no right to obtain a pardon.  An expungement is handled by filing a petition with the court of common pleas in the county in which the conviction occurred.  A pardon is filed with the state pardon board and ultimately would need the governor’s approval to be granted.

 

If you need assistance in clearing your criminal record, call us today for a free phone consultation.  717-490-6325

PENNSYLVANIA PROTECTION FROM ABUSE PROCEEDINGS

LANCASTER AND CENTRAL PA PFA DEFENSE ATTORNEY/

LANCASTER AND CENTRAL PA PFA PLAINTIFF’S ATTORNEY

            The Attorneys at Gearty Law Offices have experience successfully defending individuals against false PFA’s that were filed against them and our Attorneys have experience successfully protecting victims of domestic violence by obtaining protection from abuse Orders.

Under Pennsylvania Law, a person can obtain a PFA by proving by the preponderance of the evidence that one or more of the following has occurred:  1. Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon; 2. Placing another in reasonable fear of imminent serious bodily injury; 3.  The infliction of false imprisonment; 4.   Physically or sexually abusing minor children;  5.  Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.

A PFA can only be entered when one or the more of the above occurs by a household member, past or present intimate or sexual partner, or parties that share biological parenthood (which the Court’s have interpreted this to include step-siblings in certain situations).

Unfortunately, parties involved in Divorce and/or Child Custody proceedings have begun using PFA proceedings to try to gain an advantage in their custody or divorce proceedings and do so by bringing false allegations of abuse.  The Attorneys at Gearty Law Offices have seen numerous examples of this through the years and have been successful in getting such false PFA’s dismissed.  The law requires that the allegations brought in a PFA complaint be proven by a preponderance of the evidence and the burden of proof is on the Plaintiff.  If the Plaintiff is unable to meet that burden of proof, then the PFA must be dismissed.

In addition to defending against false PFA’s, Gearty Law also represents victims of abuse by representing them through PFA proceedings.  If you or someone you know is a victim of abuse or has had false abuse allegations brought against them, contact Gearty Law today for a free phone consultation at: 717-490-6325.

Gearty Law Offices is a general practice law firm that largely focuses on criminal law, family law, personal injury, civil litigation, and unemployment appeals.  The Lancaster, York, Lebanon, and Central PA criminal defense attorneys at Gearty Law Offices have handled a wide range of criminal matters ranging for charges as minor as a summary disorderly conduct to very serious felony cases.

Although Gearty Law handles most types of criminal defense cases, our Lancaster, York and Central PA Drug Crimes Defense Attorney (Attorney Justin C. Gearty Jr.) places a special emphasis on drug crimes.  Prior to becoming an attorney, Attorney Gearty spent over seven years working in the field of addictions treatment.  In that field, Attorney Gearty spent several years counseling clients addicted to various substances and through those years, Mr. Gearty attended numerous trainings on various issues relating to drugs and addiction.  In addition to his experience working in addictions treatment, Attorney Gearty also possesses a bachelor’s degree in psychology, which also gave him education on various drug related issues.

When someone is charged with a drug crime, not only is it important to have an experienced attorney and one who has trial experience, it is also important to have an attorney that has a very thorough understanding of addiction and drugs.  For example, when someone is charged with possession with intent to distribute a substance, the State in most cases will have an “expert” take the stand and that “expert” will testify that based off of the circumstances in that case, he believes that the person possessed the substance with the intent to distribute it.  This means that the person didn’t actually sell any drug, but the state believes that he intended to sell the drugs based on the facts of the case.

Possession with intent to distribute is a serious felony and if convicted, can result in many years in state prison.  Also, if the weight of the drugs is above a certain limit, then a mandatory minimum sentence would apply upon conviction which means that the judge would have no discretion to sentence the person to any sentence less than the mandatory minimum.  Because of the seriousness of the consequences, these cases must be aggressively litigated by an attorney that isn’t afraid to go to trial and an attorney with a substantial knowledge of drugs and addiction, such as Attorney Gearty.

In many possession with intent to distribute cases, the State’s expert will rely on the following: the amount of the drugs possessed, amount of money that the person has on them, whether there was drug dealing paraphernalia present, and whether the person has any history of addiction.  First, an experienced and knowledgeable drug crimes attorney will attack the credentials of the expert.  To be able to do this, the attorney should have as much knowledge about drugs and addiction as the expert does.  If the expert’s credentials can be sufficiently challenged, it is possible for the court to rule that the person is not an expert and thus cannot provide opinion testimony.  Even if the court still finds that he is an expert, if the drug crimes attorney can attack the expert’s training, experience, and/or knowledge in general, then the jury will potentially see that the expert’s opinion isn’t reliable.  Many times these cases will simply rest on the amount of the drugs possessed.  That factor, however, can be challenged.  Each person is different and every person addicted to drugs responds to those drugs differently.  Every addicted person develops a tolerance over time, however, the extent of that tolerance varies by person.  Furthermore, the purity of the drugs would come into play.  The less potent the drugs are, the more of that drug the addict would possess.  The difference in sentencing for simple possession versus possession with intent to distribute is huge.

If you or someone you know has been charged with a drug crime in PA, contact our PA Drug Crimes Attorney (Attorney Justin C. Gearty Jr.) today for a free consultation.  717-490-6325 or by email at: Justin.Gearty@gmail.com

Lebanon man, woman escape heroin-dealing conviction
By STEVE SNYDER
Lebanon Daily News

Updated: 02/05/2013 08:49:09 PM EST

No one disputed that 24-year-old Gilberto Escobar was wearing a coat containing 26 packets of heroin when he literally ran out of his shoes while trying to elude state parole officers last April 5.
Escobar was also carrying synthetic marijuana, an Alprazolam tablet, two cigar blunts, two cell phones and $1,763 in cash.

The criminal case against him changed radically in May when his girlfriend, Justene Sanchez, testified at his preliminary trial that the coat and the heroin and other drugs found in it were hers. She was subsequently charged. That left a Lebanon County jury to sort out the facts, and – after 3½ hours of deliberations Tuesday – the jury decided the drugs were Escobar’s, convicting him on charges of possession of heroin, possession of drug paraphernalia, possession of Alprazolam and possession of synthetic marijuana.
Escobar, of 362 N. 11th St., Lebanon, was found not guilty of the most serious charge, possession of heroin with intent to deliver.
Sanchez, 20, of 132 Brookside Apartments, Lebanon, was found guilty of criminal conspiracy related to possession of heroin and drug paraphernalia. She was acquitted on charges of possession with intent to deliver heroin, possession of heroin, possession of drug paraphernalia and criminal conspiracy related to possession with intent to deliver heroin.
Judge Bradford Charles scheduled sentencing for both for March 20.

At the time of his arrest, Escobar was on parole. He had been sentenced to 3 to 10 years in state prison in July 2008 for possession with intent to deliver crack cocaine and other drug charges to which he had pleaded guilty in May 2007.
Escobar did not testify in his trial Wednesday, but Sanchez did – against the advice of her attorney, public defender Elizabeth Judd.
“Why would she do that?” Judd said rhetorically in her closing statement to the jury. “The commonwealth showed you the reasons.”
Those reasons included: Escobar’s family bailed her out of Lebanon County prison after she had been charged; Escobar is the father of her child; and a state parole officer told her what the consequences would be for Escobar if he was convicted. “Ultimately, your decision is, who is the drug dealer here?” Judd said. “The evidence tells you Gilberto Escobar is the drug dealer.”

The jury, though, convicted neither defendant on the drug-dealing charge, despite testimony from Det. Sgt. Richard Radwanski of the Lebanon County Drug Task Force, who cited the quantity of heroin found on Escobar, the “large amount” of currency, two cell phones, Escobar’s failure “to list any legitimate source of income” and “no heroin or opiate addiction” for his conclusion that Escobar was a dealer.
Radwanski added that Sanchez also did not have a job or any known drug dependency.
Yet when Sanchez testified, she asserted that she had been a heroin user, a habit she said she was able to hide from Escobar because the two did not live together.
Radwanski said he did not believe Sanchez could kick a heroin habit “cold turkey,” which she said she did.
Sanchez also said Escobar would not have known about the drugs in the tan coat he took when he left his home on April 5 and was confronted by state parole agents, who chased him down on Lehman Street, tackling and Tasing him twice.

Escobar’s Lancaster attorney, Justin Gearty Jr., disputed Judd’s statement about drug dealing.
“The question isn’t ‘Who is the drug dealer?'” Gearty said. “My client doesn’t have to prove anything here. You can’t possess something if you don’t know it’s there. We heard testimony from Justene Sanchez that the drugs were hers.”
Gearty noted that parole officers did not find any drugs or paraphernalia in Escobar’s home when it was searched.
“Her story matched the facts,” Gearty said of Sanchez’s testimony.

Not so, Assistant District Attorney Nichole Eisenhart said.
“Behind every drug dealer there is a naive woman willing to take the fall,” Eisenhart said.
Eisenhart said Escobar would not have run from parole agents just because he didn’t have a job.
“Flight can be considered evidence of consciousness of guilt,” Eisenhart said.
Eisenhart said Sanchez could not have had a $600 to $900 a month heroin habit.
“Where is she getting money for these drugs?” Eisenhart asked. “What is there to indicate that either of these two are drug addicts? She quit cold turkey? … It just doesn’t add up.
“The only thing that adds up is Gilberto Escobar is a drug dealer.”
State sentencing guidelines call for Escobar to receive a minimum term of between 6 and 15 months in state prison. Sanchez’s convictions carry a minimum term of probation to 1 month in county prison.
Judd said Sanchez has no prior criminal record.

Recently Gearty Law was able to obtain a dismissal of sexual assault charges that were lodged against a client of the firm. Cases like this are examples of how good people can end up being involved with the criminal justice system. In this case, a statement was made alleging that the Defendant and a friend sexually assault a woman. There was absolutely no evidence that would have supported that statement. To the contrary, there was plenty of evidence to show this was a consensual act. Nonetheless, charges were filed. Once charges are filed, bail is set, the person needs to retain an attorney, and the person can go through months of worry regarding the potential outcome of the case (a loss could have resulted in decades in prison), not to mention damage done to a person’s reputation due to the charges being filed. Fortunately, in this case, the charges were dismissed before permanent damage was done.
Below is the article written regarding this case.

JUDY D.J. ELLICH

DAILY AMERICAN REPORTER

Daily American

10:40 p.m. EDT, October 22, 2012
SOMERSET COUNTY—
Sexual assault charges against two 28-year-old Windber men were withdrawn at a second preliminary hearing before District Judge Joseph Cannoni Monday.

XXXXXXX, 19th Street, and XXXXXXX, Mine 37, were accused of forcing a woman to have sex with them Nov. 22.

“As a result of the further investigation it became apparent that there would be proof problems to support the crimes charged,” District Attorney Lisa Lazzari-Strasiser said in a telephone interview.

XXXX’s defense attorney, Justin Gearty of Lancaster, called the withdrawal of the charges “a happy resolution.” He said there is no evidence in this case other than a statement by the alleged victim.

“The reason XXXX waived his right to his (first) preliminary hearing and we agreed to a plea of recklessly endangering, a relatively minor offense compared to the more serious sexual assault offenses charged, was because we didn’t have all the evidence yet and we based our decision on the limited information we had,” Justin Gearty said.

Reckless endangerment was not among the original charges against the two men. It is not a sexual offense. Initially, the men were charged by Paint Township police with three counts each of involuntary deviate sexual intercourse and criminal conspiracy, and one count each of indecent assault and indecent exposure.

“All along XXXX was adamant that he didn’t do anything wrong,” Justin Gearty said.

The defense asked Somerset County President Judge John Cascio to remand the cases back to the magisterial court level after discovering evidence supporting the defense’s belief that a prima facie case did not exist. Prima facie is a Latin term meaning “at first view.” The district attorney’s office did not object to the request. Cascio remanded the case Sept. 18.

“We were prepared to proceed for a preliminary hearing today and go before a jury if need be,” he said.

On March 14 the two men waived their right to a preliminary hearing and the case was sent to county court prior to being remanded back to Cannoni’s office.

XXXX’s attorney is public defender Tara Marie Yutzy Collier. Assistant District Attorney Hannah Myers was the prosecutor for both preliminary hearings. Both attorneys were not available for comment Monday.

Both men pleaded guilty to a summary harassment charge that carries a maximum of 90 days in jail and a $300 fine. XXXX was ordered to pay fines and court costs. XXXX requested that he serve 15 days in jail in place of the fine. His request was granted. He was ordered to pay court costs.

Gearty Law’s criminal defense attorneys have experience handling a wide range of criminal defense cases throughout many different counties in PA. We have handled everything from very serious offenses such as rape and aggravated assault to simple matters such as simple possession, summary retail theft, or disorderly conduct. Regardless of the seriousness of the charge, anytime someone is charged with a crime, there is a potential for serious consequences, ie: loss of job, damaged reputation, excessive fines, and potentially loss of freedom. Since there is so much on the line with every criminal defense case, it is critical that a criminal defense attorney be retained right away and no statements should be given prior to speaking with your attorney. Below is some more information on certain criminal offenses. If you are in need of a criminal defense attorney in Lancaster County, Dauphin County, York County, Berks County, or Cumberland County, call us today for a free phone consultation.

SEX OFFENSES

Sex crimes are a particular set of crimes that can carry severe and life long consequences. Often times, the police and prosecutors will file charges just based off of the word of an alleged victim and sometimes will do this even though there is absolutely no scientific or other evidence to support the alleged victims accounts. A single allegation by such a person has the potential to ruin someones life. Convictions for certain sex offenses carry mandatory minimum sentences of years in State prison. In addition to prison time, a conviction or plea to a sex offense will result in Megan’s Law reporting, potentially for the rest of the defendant’s life, depending on the charge. When someone is charged with a sex offense, they should retain a lawyer and law firm that has experience handling sex offense cases. These sort of cases are different from many other criminal matters and take knowledge of both the laws and science involved. Attorney Gearty is an experienced criminal defense attorney that has handled a variety of sex offense charges. In addition to Attorney Gearty’s experiences, the firm utilizes the experience of a registered nurse to assist with evaluating any medical evidence and we utilize the experience and education of other professionals, such as social workers who can help identify whether there are issues with the victim or other witnesses that would be helpful with the case.

Attorney Gearty will review the evidence, will seek speak with our professionals, and will seek out and use other experts to fully evaluate your case. Once your case has been completely and thoroughly evaluated, the various options will be explained to the defendant (ie, plea, trial, pre-trial motions such as suppression motions, etc). Attorney Gearty will always consider all options and will explain each option to the client. Attorney Gearty isn’t afraid to take cases to trial and will do so when the case warrants such.

PA DRUG OFFENSES

Drug offenses are often over prosecuted. We have seen times where a defendant was charged with possession with intent to deliver when there was no evidence to support the position that the defendant actually intended to sale the drugs. The police and prosecutors can, and often do, charge people with possession with intent simply based off of the amount of drugs that are found in their possession. For example, if a person is found to possess 15 bags of heroin, he may be charged with the more serious offense of possession with intent to deliver. However, every drug case is different. There are plenty of addicts that may possess that many bags of heroin or more at any given time and that addict may not intend to do anything with those drugs other than use them. If charged with possession of the heroin instead of possession with intent, the addict would be facing a much lower sentence. Attorney Gearty spent many years working in drug and alcohol treatment prior to becoming an attorney and those experiences help Attorney Gearty bring a unique perspective to drug cases. In cases where the defendant agrees that he did possess the substance, Attorney Gearty will help the client try to get into treatment and will attempt to negotiate a plea that includes treatment instead of jail or will argue the same to the court. We believe that too many addicts are being sentenced to jail instead of given the chance at treatment. We believe that using jail instead of treatment is bad for the defendant as well as bad for the community as a whole as a jail sentence does nothing to solve the problem going forward.
In drug cases, there are many times where the police over step their limits when conducting a search. For each drug case, we take a close look at the circumstances around the search to determine whether there is a suppression issue or not.

Certain drug offenses carry mandatory minimum sentences, such as school zone enhancements and certain mandatory minimums when certain weight requirements are met. These mandatory minimum sentences often require state prison time, even when there has been no prior criminal record.

If you or anyone you know has been arrested for a drug offense, call our drug crimes defense attorney today for a free consultation.

CONCLUSION
Due to the seriousness of facing a criminal charge, it is critical that you hire a criminal defense attorney right after being charged or even once you know you are being investigated. The police have the benefit of using the advice of the attorneys in the district attorneys office from the beginning of the case, so it is important that the defendant have that same level of representation.

Here at Gearty Law, we are prepared to assist each client with their criminal defense case, regardless of the crime. We will represent the defendant at the preliminary hearing, will argue for a reasonable bail, will file a bail modification petition if need be, will explore ARD as an option when appropriate, will file any pre-trial motions, will engage in meaningful plea negotiations, and will take your case to a jury trial if need be. We believe that each case deserves a complete and thorough evaluation before making any decisions that can affect the case and we thoroughly explain those options to each client, so the client can meaningfully participate in their case.

More posts on other areas of criminal law to follow.

By ELIZABETH EVANS The York Dispatch

A Penn Township woman who wielded a machete during an argument with her husband has avoided prison.

Crystal L. Vizcaino, 24, of West Granger Street, pleaded guilty in York County Court Tuesday to simple assault. In exchange for her plea, charges of aggravated assault and reckless endangerment were dropped, according to court records.

Vizcaino was sentenced to two years of probation and ordered to undergo a drug and alcohol evaluation, as well as take anger-management classes, records state.  She and husband Joseph Vizcaino got into an argument that turned physical about 10 p.m. Oct. 16, and he left the home to defuse the situation, Penn Township Police said.

But the argument resumed after he returned, so Joseph Vizcaino locked himself in their bedroom, police said.

Crystal Vizcaino slashed at the bedroom door with an 18-inch machete, eventually pushing the machete completely through the door, police said. Joseph Vizcaino was standing behind the door, but wasn’t hurt, police said.

No intent: Lancaster-based defense attorney Justin Gearty said his client never intended to use the machete against her husband, Joseph Vizcaino

She wasn’t trying to harm him,” Gearty said. “Her cell phone, keys and purse were in the locked room,” and she was trying to get at them, he said.

“The two of them had been drinking for the majority of the day,” the attorney said. “He admitted to her that he was cheating.”

Joseph Vizcaino accompanied his wife to Tuesday’s guilty-plea hearing, according to Gearty.

Reunited: “They are actually back together,” Gearty said. “At her preliminary hearing, he did say he wasn’t interested in the charges going forward.”

Crystal Vizcaino had been facing up to 20 years in prison on the aggravated assault charge that was dropped as part of the plea agreement.

“I think it was a fair outcome,” Gearty said. “She’s not a hardened criminal, and there was no intent to harm him. This is someone who’s never been in trouble in her life. I’m happy the district attorney’s office was willing to work with us.”

Chief deputy prosecutor Jennifer Russell was out of the office Tuesday afternoon and could not be
reached for comment.

— Reach Elizabeth Evans at levans@yorkdispatch.com, 505-5429 or twitter.
com/ydcrimetime.

I. INTRODUCTION

There are no greater values or legally protected rights, than the right to life.  For that reason, the fifth amendment of the U.S. Constitution provides in part that life cannot be taken without due process of law.[1]  Although the States must provide due process of law in all capital cases, there still lacks a level of uniformity.  Some States have the death penalty, while others don’t.  If you commit a certain crime in one State you die, but if you commit the same crime in another State you live.  According to a New York Times article, there have been about 1,100 executions across the country in the past thirty years with 100 of them in Harris County Texas alone.[2]

A New York Times article titled “More Support for an exclusively federal death penalty” discusses the idea that States should not use the death penalty; rather, this article proposes the idea that States should request that the federal authorities take these cases and apply the death penalty.

The federal government already handles the worst drug and white-collar crimes, so it would make sense for them to also handle the worst murders.[3]  As of February of 2007, there were seven prisoners on federal death row that were from States that do not have the death penalty.[4]  Since prisoners from non-death penalty States already are being executed (or at least receiving death sentences) by the federal government, the idea of having a completely federalized system of capital punishment won’t be much different for non-death penalty States since their citizens already are death eligible for certain federal crimes.

Since there lacks uniformity with the current death penalty scheme; this would be a major goal of federalizing it.  In 2007, the Federal Justice Department spokesman said, “we have in place a clearly defined review process to ensure the death penalty is applied in a consistent and fair manner nationwide.”[5]

In order to make the death penalty more fair and uniform for all citizens of this country, this paper will propose the idea of banning capital punishment in the States and make the most serious murders Federal crimes instead of State crimes and allow these crimes to be punishable by death by the federal government.  If the federal government becomes the prosecutor and administrator of all capital punishment cases, then many of the disparities caused by the States may disappear.  This paper will discuss the current problems with the death penalty being left to the States; how the death penalty is already being federalized; how a federalized death penalty system will work; as well as the limitations to this theory, such as constitutional restrictions that would prohibit a completely federalized death penalty system.

II. STATES’ ROLES

Capital punishment is a function that has been left to the States.  This is the reason for the lack of uniformity in the application of the death penalty.  The tenth amendment of the U.S. Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[6] It is that amendment plus the ninth amendment that makes criminal prosecution a primarily State function.[7]

It is within the State’s police powers that they are given the right to legislate in the area of criminal penalties.  They are only restricted by the Constitution, and may not create a penalty that is contrary to the language in the U.S. Constitution.[8] Other than Constitutional restrictions, the States may enforce their criminal laws however they see fit.[9]

The States handle their own criminal matters because the legislature is accountable to the people and because they are in the best position to know what their citizens want and what is best for them.[10]  Elected State officials create criminal laws based on the needs of the State and/or their local district.  A downside to a completely federalized death penalty system is the fact that the federal legislature would create the death penalty laws and the State legislatures would no longer be involved with this process.  This means that the law would be based on the needs and wants of the majority of the country rather than the needs and wants of the individual States.  Just because criminal matters have been traditionally left to the States, this does not mean that the death penalty can’t be federalized to some degree.

The U.S. Constitution creates a system of “dual sovereignty.”  In this system, States give up certain powers to the federal government.[11]  Since the U.S. Constitution creates a dual sovereignty system, the States may turn capital cases over to the federal government for them to prosecute.[12]  This is a decision that each State can make on a case-by-case basis.  In the Henderson case, the defendant was charged with two counts of capital murder as well as weapons charges.  He was tried in a federal court in the southern district of Ohio.  Ohio had given the federal government the okay to prosecute this case.  The defendant filed a motion making the argument that this case should be heard in the State court and that having this case tried in the federal court violates the ninth and tenth amendments.  The court ruled that because of the concept of dual sovereignty and because Ohio turned the case over to the federal government, the ninth and tenth amendments were not violated.[13]

Due to constitutional restrictions and States’ powers to regulate their own criminal matters, a completely federalized system would not be permissible.

Under the current system of government, the federal government can pursue federal crimes under the Federal Death Penalty Act and can prosecute State capital offenses when the State decides to turn the case over to the federal government.  Even though there are limits to the federal governments ability to prosecute capital offenses, it is still necessary to review the problems with the current death penalty scheme, federal regulation of it, and the Federal Death Penalty Act.  Short of a constitutional amendment though, a completely federalized death penalty system will remain being just a theory.

III. PROBLEMS WITH STATES’ DEATH PENALTY

There are several problems with the death penalty being left to the States.  Some of these problems are: race of the defendant, race of the victim, disparities between the States, differences in the methods of execution, and differences in who the death penalty applies to.

A.INEQUALITY BASED ON RACE

In McCleskey v. Kemp, statistical evidence was presented to prove the inequalities in the administration of the death penalty in Georgia.  The studies in the Kemp case revealed the following: 11% of the defendants charged with killing a white person received the death penalty while only 1 % of defendants charged with killing a black person received the death penalty.  This study also found that a black defendant charged with killing a white victim received the death penalty 22% of the time while white defendants charged with killing a black victim only received the death penalty 3% of the time.  The Court in this case decided that these racial disparities did not violate the Constitution.[14]

In a NY Times interview, Justice Powell admits that he would change his decision in the Kemp case.[15]  Justice Powell’s admission that he would change his vote in that case is strong evidence that the Court made the wrong decision and that the issue of race and the death penalty is a major problem.

The Kemp case involved a GA study, however, the problem of race is not isolated to that State.  The same NY Times article discusses the problem of race and the death penalty in Harris County Texas.  This article notes that for every 100 black defendants and 100 white defendants, 17 blacks are sentenced to death while only 12 whites are.[16]

The Kemp Court noted that the problem with race and the death penalty is a problem for the legislature, not the Court.[17]  The Kentucky legislature has adopted racial justice legislation.[18]  This Kentucky statute, however, only applies to pre-trial claims of prosecutorial racism.

In 2003, the PA Supreme Court was presented with evidence of racial bias in the death penalty, but they failed to do anything about it.  Maryland has had issues with racial disparity for a long time, but their legislature has failed to take any action.[19]

Although it may be impossible to completely resolve the issue of race with the death penalty, federalizing the death penalty could be a step in the right direction.  Congress could pass a statute similar to Kentucky’s and this may lessen the unfair application of the death penalty based on race.

B. DISPARITIES BETWEEN STATES

Another problem that points to the need for a federalized death penalty is the vast disparities between the States.  The first issue is that some States have the death penalty while others don’t.  In the States that have the death penalty, there are vast differences in the frequency of the application of the death penalty, differences in methods of execution, and differences in what crimes are punishable by death.

In States that have the death penalty, there are differences by county as to how often they seek the death penalty.[20]  There was one case from Maryland that is particularly alarming.  Forum shopping was used to seek the death penalty against Maryland defendant Kevin Johns.  Mr. Johns killed another inmate on a bus transporting them from one prison to another.  The bus crossed through four counties and authorities could not determine where the crime occurred.  Prosecutors had this case tried in Baltimore County because the death penalty was sought more in that county than in any of the other three counties.[21]  This sort of forum shopping would be eliminated in a federalized death penalty system.  This federalized system also would put everyone in the country in the same position as far as eligibility for the death penalty.  Defendants would no longer die for their crimes because they lived in the wrong State.

C. METHODS OF EXECUTION

Over the years, different States were using various different methods of execution, such as: lethal injection, gas chamber, hanging, electrocution, and firing squad.

This is yet another example of lack of consistency in the application of the death penalty.

Maryland had been using the gas chamber until 1994, which is when they switched to lethal injection.  Defendants convicted prior to March 1994, but not yet executed, were given the choice between the gas chamber and lethal injection.[22]  Florida and Georgia had been using the electric chair (death by electrocution) until their Courts’ found that method unconstitutional.[23]  The State of Washington had been giving defendants the choice between deaths by hanging or lethal injection.[24]

A federalized death penalty system would have one method of execution that would apply to all.  If a more humane method for execution is ever discovered, the federal government could implement that immediately, thereby keeping the method of execution consistent for everyone.  If this were left to the States, it would take time for each State to change its methods,

which would again lead to one State executing one way, while other States executed a different way.

D. WHO DIES?

Who does the death penalty apply to and what crimes are death eligible?  This is another issue that has varied by State.

The case of Kennedy v. Louisiana discusses a military rule that allowed for the execution for those convicted of rape.[25]  North Carolina had a statute that made the death penalty mandatory for any person convicted of first-degree murder.[26]

A federalized death penalty system would unify this problem.  There would be one list of crimes punishable by the death penalty and this would apply to everyone in the country.  This is much more fair than the current process of: if you commit this crime in this death penalty State you die, but if you commit the same crime in another death penalty State you live.

IV. HOW THE DEATH PENALTY IS ALREADY BEING FEDEARLIZED

The United States Supreme Court, through its decisions, regulates how the States use the death penalty.

For the most part, the Supreme Court does not regulate other areas of State criminal law as much as they do with the death penalty.[27]  Through their decisions, the Supreme Court controls nearly all aspects of death penalty cases, both procedurally and substantively.  Since there is so much regulation on the part of the Supreme Court, it would not be difficult to make the death penalty a completely federalized process.  Why doesn’t the federal government fully regulate and take complete control, rather than just providing constitutional guidance?

The Supreme Court uses the eight and fourteenth amendments as their means to regulate the death penalty.  Initially, the Supreme Court did not play much of a role in death penalty cases.  In the 1960’s, the Court slowly started to get more involved in these cases.[28]  The Court has only become more involved since then and has made progress towards a federalized capital punishment system.

In 1963, the case of Rudolph v. Alabama tried to put the spotlight on the death penalty.  This case involved a defendant that was convicted of rape and was sentenced to death.  The question in this case was whether the death penalty could be applied for a convicted rapist under the eight and fourteenth amendments.  The writ of certiorari was denied.[29]  The dissent in this case noted that they would have granted cert.  The dissent looked at practices across the world and found that punishing rape by death may “violate evolving standards of decency.”[30]  This was the first case that signaled the federalization of the death penalty and showed everyone that parts of the death penalty could be constitutionally challenged.[31]

A. THE SUPREME COURT AS THE LAW MAKER

Following the Rudolph case, the Supreme Court began to regulate the death penalty more and more.  Through their decisions, they have regulated nearly every aspect of the death penalty.

In 1968, the Supreme Court decided the case of Witherspoon v. State of Ill.  This case touched on and ended up regulating part of the jury selection process.  In this case, potential jurors were dismissed because they had general objections to the death penalty.  The Court noted, “no defendant can constitutionally be put to death at hands of tribunal so selected.”[32]

The decision in this case has lead to, as many as thousands, of death row inmates across the country seeking relief.[33]

In 1972, the case of Furman v. Georgia was before the Supreme Court.  This case involved the appeals of a Georgia man sentenced to death for murder, another GA man sentenced to death for rape, and a Texas man sentenced to death for rape.  The question before the Court in this case was whether carrying out the death penalty would constitute cruel and unusual punishment in these cases.  The Court held that these death sentences did constitute cruel and unusual punishment under the 8th and 14th amendments.[34]

The decision in Furman banned all of the existing death penalty statutes based on them being considered cruel and unusual punishment.  Justice Brennan, in his concurrence, discussed how the U.S. Supreme Court was in the best position to interpret the meaning and the framers intentions in the eight amendment.[35]

The decision in the Furman case provides some of the strongest justification for having a federalized death penalty.  First, the Court showed that their power of regulation is so great that they could completely ban the death penalty.  Next, Justice Brennan noted that the Supreme Court is in a better position than the States to determine what is cruel and unusual punishment.

If it is the Supreme Court and not the States that are in the best position to determine how capital cases can be handled constitutionally, then it only makes sense to have the death penalty federalized.

The decision in Furman resulted in the States being forced to redraft their death penalty statutes.[36]  The new death penalty statutes were first tested in 1976 in the Gregg v. Georgia case.  The defendant in this case was convicted of armed robbery and murder and was sentenced to death.  The Supreme Court held that, “punishment of death for the crime of murder did not, under all circumstances, violate the 8th and 14th amendments.”[37]  The holding in this case resulted in the States ability to use capital punishment again.

This large-scale regulation of capital punishment by the Supreme Court provides excellent justification for a federalized death penalty system.  The Court has regulated in nearly all areas of capital punishment, from regulating methods of execution to regulating who can die.

Since the Court regulates nearly all aspects, the transition from a State system to a Federal one, would not be difficult.

B. FEDERAL DEATH PENALTY ACT

The Federal Death Penalty Act has created one uniform system of capital punishment that applies to all federal capital cases throughout the States and territories controlled by U.S. law.  If the States changed their death penalty statutes to something similar to the Federal Death Penalty Act (both substantively and procedurally), then many of the disparities would likely disappear.

1. FDPA – Substantively

18 U.S.C.A section 3591 describes when a defendant can be sentenced to death.  A defendant may be sentenced to death for committing crimes that violate section 794 or section 2381 (crimes relating to espionage or treason).[38]  A defendant may also be sentenced to death if the person commits a crime where one of the following four states of mind is present:

“intentionally killed the victim; intentionally inflicted serious bodily injury that resulted in the death of the victim; intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act.”[39]

A defendant may also be sentenced to death for violations of section 408 (c)(1) under the controlled substances act [21 U.S.C. § 848 (c)(1)] as part of a “continuing criminal enterprise.”[40]  A person under the age of 18 may not be sentenced to death under section 3591.

The Federal Death Penalty Act lists specific mitigating and aggravating factors that the jury or court may consider.  The statute lists eight mitigating factors, such as: impaired capacity, duress, no criminal record, etc.[41]

The statute lists various aggravating factors for each of the three types of crimes punishable by death (espionage and treason, homicide, and drug offenses).[42]

2. FDPA – Procedurally

The United States Attorneys Manual outlines the process that is followed to make the decision on whether to seek the death penalty.  The first step is for the local U.S. Attorney to decide whether a capital offense exists.  If the local prosecutor decides that a capital offense does exist, then all of the U.S. Attorneys will submit to the Department of Justice their opinion on whether or not to seek the death penalty.  After all of the opinions are received, then the Attorney General’s Review Committee makes a recommendation on whether to seek the death penalty and submits this to the Attorney General who makes the final decision.[43]  Once it is determined that they will seek the death penalty, notice must be sent to the defendant that states that the government is seeking the death penalty and the notice must describe the aggravating factors.[44]

C. FEDERAL GOVERNMENT ACTIONS TOWARDS A FEDERALIZED SYSTEM

As mentioned above the federal government currently has its own death penalty act.[45]  Defendants that commit federal crimes that fall under this act may be executed, regardless of where they live, even if they live in a non-death penalty State or a territory such as Puerto Rico (which is opposed to the death penalty).

Section nine of the Puerto Rican Federal Relations act states the following: “the statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Puerto Rico as in the United States.”  The Federal Death Penalty Act is silent on the issue of whether it applies to Puerto Rico.  The Constitution of Puerto Rico prohibits the death penalty and the death penalty has not been administered there since 1927.  Furthermore, based on their religious and cultural beliefs, most of their population is opposed to the death penalty.[46]

In June of 2001, the First Circuit Court heard the case of U.S. v. Acosta-Martinez.  This case involved a Puerto Rican defendant charged with a federal capital crime.

This U.S. District Court for the District of Puerto Rico, ruled that the Federal Death Penalty Act was inapplicable in Puerto Rico.  The First Circuit Court of Appeals reversed and held that “the imposition of the death penalty on federal defendants in Puerto Rico does not violate the substantive due process rights of the United States citizens who resided in Puerto Rico.”[47]

This case demonstrates two things.  It shows that the federal government has the power to use capital punishment in any area controlled by the laws of the United States.  This case also shows that the Court is trying to be fair and create a uniform system where if you commit a capital crime under the Federal Death Penalty Act, you get the appropriate punishment regardless of where you live.

Attorney General John Ashcroft was well known for his efforts to federalize the death penalty.  He was known for over-ruling local federal prosecutors and forcing them to seek the death penalty in certain cases.[48]  His plan was to have the Attorney General, instead of local prosecutors, make the decision on whether to seek the death penalty.  The logic behind this was that it makes the process more uniform and would prevent certain areas from having very high death penalty rates while other areas never seek the death penalty or do so infrequently in comparison to other areas.  The federalized death penalty that has been the subject of this paper would take his idea a step further by removing the States ability to determine when to seek the death penalty and thereby placing the decision making for all capital cases with the Attorney General’s office.

V. COUNTER ARGUMENTS

States have traditionally handled their own criminal matters in the manner that they see fit.[49]  A completely federalized death penalty system would stop the States from being involved with their capital cases.  They would no longer have the ability to determine what cases the death penalty should apply to, and would no longer be able to say what crimes are punishable by death.  Most States probably would not like the idea of giving up their power to control the laws governing the death penalty over their citizens.

States that currently do not have the death penalty don’t have it because that is what the people of that State want.  A federalized death penalty scheme will take away the “want” of the people of the State and replace it with federal law.

Some people may fear that this may lead to the federal government eventually taking over other areas that have been primarily under State control.

The issue of racial bias in the States’ application of the death penalty may not be completely solved by this federalized system.  It would be very difficult to fix the issue of problems with prosecutorial discretion and as long as there are such issues, racial discrepancies may still appear.  Also, jurors will continue to bring their bias into the courtroom, which also will continue to cause problems with racial bias.  A federalized system could not fix juror bias/racism.

Although the States will be losing some of their power and race issues may not be completely resolved, everyone would agree that having a fair, uniform, and consistent death penalty law is critical, given that the most important right of all is at stake, the right to life.

VI. CONCLUSION

This paper has outlined the many problems with the States’ various death penalty statutes.  Some States have the death penalty while others don’t.  Race has become an issue in many capital cases.  Methods of execution vary and crimes punishable by death are different by State.  A federalized death penalty system would address all of those issues.  No system is perfect, so some of those issues would likely continue to be a problem to some degree.  This federalized system would create one set rule that applies to everyone in this country.  There would be one standard method of execution and a clearly defined list of capital crimes.  The issue with racial bias may even improve.  The federal government could enact a statue similar to Kentucky’s racial justice legislation, but add to it so that a defendant could bring claims of prosecutorial racism during any stage of the proceedings.

The U.S. Supreme Court already heavily regulates death penalty cases.  The Court has the power to abolish or allow the death penalty and the Supreme Court is in the best position to determine constitutional means in the administration of capital punishment.

This plan should even make opponents of the death penalty happy since this creates a more fair, consistent, and less arbitrary death penalty system.  This also may lead to an overall decrease in the number of executions nationwide since there would no longer be areas such as Harris County Texas having an abnormally high death penalty rate.  Opponents would agree that life is such an important right that it demands the consistency that a federalized system could provide.

Although there are many positives in implementing a completely federalized death penalty system, this is just a theory at this time.  Due to constitutional restrictions, the States must retain power over criminal matters.  If a constitutional amendment is passed, then this federalized system could be used, however, this is highly unlikely.

States could turn their capital cases over to the federal government for prosecution, but it is also highly unlikely that many (if any) States will do this.  If every State would use the Federal Death Penalty Act as an example, then many of the disparities may disappear.  If every State would create a centralized committee (like the federal government) to review all capital cases and make the decision on when to seek the death penalty, then many of the current disparities may disappear.  Creating a centralized committee to decide when to seek the death penalty would decrease the likelihood of forum shopping, like what was seen in Maryland.  The States should also copy the mitigating and aggravating factors from the Federal Death Penalty Act as well as the four states of mind.  Doing so would create a uniform system to determine what cases warrant capital punishment.  The States could also eliminate all methods of execution except for lethal injection.

If these few steps were taken by every State, we would see a more just and uniform capital punishment system throughout the country.

Unless States begin turning their capital cases over to the federal government or begin using the Federal Death Penalty Act as an example for their own death penalty statutes, this country will likely continue to see the disparities outlined in this paper and will continue to lack uniformity in the application of the death penalty.


[1]U.S.C.A. Const. Amend V

[2] Adam Liptak, New Look at Death Sentences and Race, The New York Times, April 29, 2008

[3] More Support For an Exclusively Federal Death Penalty, The New York Times, January 31, 2007, at http://sentencing.typepad.com/sentencinglawandpolicy/2007/01/moresupportfo.html

[4] The Federalization of the Death Penalty, The Wall Street Journal, February 3, 2007, at http://sentencing.typepad.com/sentencinglawandpolicy/2007/02/thefederalizat.html

[5] The Federalization of the Death Penalty, Id.

[6] U.S.C.A. Const. Amend X

[7] U.S. v. Henderson 485 F. Supp. 2d 831, 859 (S.D. OH 2007).

[8] CJS Penalties § 3

[9]Poulson v. Turner 359 F.2d 588, 591 (10th Cir. 1966).

[10] Printz v. US  117 S.Ct. 2365, 2376 (1997).

[11] Id at 2376.

[12] Henderson 485 F. Supp. 2d. at 859.

[13] Id. at 831, 859.

[14] McCleskey v. Kemp, 481 U.S. 279, 280 (1987).

[15] Adam Liptak, supra note 2

[16] Id.

[17] McClesky 481 U.S. at 297

[18] David Baldus, George Woodworth, Catherine M. Grosso, Race and Proportionality Since Mccleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance, 143 Colum. Hum. Rts. L. Rev. 143, 146-47 (2007)

[19] Id. at 144-48.

[20] Andrew Ditchfield, Challenging the Intrastate Disparities in the Application of Capital Punishment Statutes, 95 Geo. L.J. 801, 802 (2007)

[21] Id. at 820

[22] Hunt v. Nuth, 57 F.3d. 1327, 1337 (4th Cir. 1995).

[23] Jones v. Butterworth, 701 So. 2d 76, 78 (Fla. 1997), Dawson v. State, 274 Ga. 327, 327 (2001).

[24] Campbell v. Wood, 18 F.3d 662, 682-83 (9th Cir. 1994).

[25] Kennedy v. Louisiana  129 S. Ct. 1, 2 (2008)

[26] Woodson v. North Carolina, 428 U.S. 280, 280 (1976)

[27] James S. Liebman, Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963-2006, 107 Colum. L. Rev. 1, 1 (2007).

[28] Jeffrey J. Pokorak, Death Stands Condemned: Justice Brennan and the Death Penalty, 27 CAWLR 239, 241-42 (1991).

[29] Rudolph v. Alabama, 84 S.Ct. 155, 155 (1963)

[30] Id.

[31] Jeffrey J. Pokorak, supra note 28 at 242

[32] Witherspoon v. State of Ill, 391 U.S. 510, 510-513 (1968).

[33] Jeffrey J. Pokorak, supra note 28 at 242

[34] Furman v. Georgia, 408 U.S. 238, 239 (1972)

[35]Jeffrey J. Pokorak, supra note 28 at 242

[36] Furman, 408 U.S. at 240-41

[37] Gregg v. Georgia, 428 U.S. 153, 154 (1976)

[38] 18 U.S.C.A. § 3591 (a)(1)

[39] 18 U.S.C.A. §3591 (a)(2)(a-d)

[40] 18 U.S.C.A. § 3591 (b)(1-2)

[41] 18 U.S.C.A. § 3592 (a)(1-8)

[42] 18 U.S.C.A. § 3592 (b-d)

[43] Henderson, 485 F. Supp. 2d at 860-61

[44] 18 U.S.C.A. § 3593 (a)

[45] 18 U.S.C.A § 3591

[46] Elizabeth Vicens, Application of the Federal Death Penalty Act to Puerto Rico: A New Test for the Locally Inapplicable Standard, 80 N.Y.U .L. Rev. 350, 351-54 (2005).

[47] U.S. v. Acosta-Martinez, 252 F.3d. 13, 15-16  (1st Cir. 2001).

[48]David Hechler, Ashcroft’s Legacy on Federal Death Penalty in Doubt, The National Law Journal, December 6, 2004, at http://www.law.com/jsp/article.jsp?id=1101738512859

[49] Printz , 117 S.Ct. at 2376