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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.

Drug and alcohol treatment centers play a vital role in our community and they often save countless lives.  Here in Pennsylvania we are fortunate in both the number of treatment centers and the availability of funding for those without insurance.

Drug and alcohol rehabilitation centers and psychiatric/mental health treatment centers, however, do make errors.  Having spent over seven years working in various capacities in addictions treatment, I have seen firsthand some of the mistakes that are made.  Unfortunately, when negligence/malpractice is committed by such a facility, it may have devastating consequences to the patient and his/her family.

For example, a mother has filed a 32 million dollar wrongful death suit against a treatment provider in Tennessee.  The patient was being transported by the rehab’s staff to a hospital.  The patient died in route.  The suit alleges that the driver did not have proper medical training.

That same treatment center was sued in July of 2010 after a man died at their facility three days after being admitted.  This same facility is also going through an investigation after a man died nine days after being discharged.  It is alleged that the facility gave him the wrong medication.

In Florida, a medical doctor was awarded one million dollars after a mental health facility wrongfully diagnosed him as being an alcoholic.  Following the incorrect diagnosis, he was held against his will for four days in this treatment center.

If you or a family member has been harmed at the hands of an additions treatment center or psychiatric center, call us today for a free, no obligation consultation.

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