“Politics and Prosecution: A Historical Perspective on Shifting Federal Standards for Pursuing the Death Penalty in Non-Death Penalty States,” an article by Litigation partner Eric A. Tirschwell and Litigation associate Theodore Hertzberg, appeared in the October 2009 issue of the University of Pennsylvania Journal of Constitutional Law, one of the nation’s top-ranked law journals. The article explores how, under the direction of former Attorneys General John Ashcroft, Alberto Gonzales, and Michael Mukasey, the Department of Justice undertook capital prosecutions in non-death penalty states with increasing frequency by centralizing in Washington the decision-making process in capital cases. The article also recounts the evolution of the federal death penalty from 1790 (when the nation’s first capital statutes were enacted) through 1994 (when Congress expanded the federal death penalty significantly). In its last two sections, the article describes how communities in non-death penalty states have reacted to the federal government’s pursuit of capital sentences in their respective jurisdictions and explores the potential impact of Eric Holder’s appointment as Attorney General on the administration of the federal death penalty in non-death penalty states.
The federal government’s ability to ask for capital sentences in non-death penalty states has renewed relevance in light of Attorney General Holder’s recent decision to prosecute Khalid Sheikh Mohammed and other alleged 9/11 conspirators in New York, which does not allow judges to impose the death penalty in state court. As Mr. Holder explained at a November 13 press conference, “Federal rules allow us to seek the death penalty for capital offenses, and while we will review the evidence and circumstances following established protocols, I fully expect to direct prosecutors to seek the death penalty against each of the 9/11 conspirators.” To date, federal judges in New York have sentenced only one individual to death since the federal death penalty was reinstated in 1988.