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Death penalty and democracy

10/14/02 12:00AM By Cheryl Hanna
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(Host) Commentator Cheryl Hanna reflects on the death penalty, Vermont and the federal government.

(Hanna) A few weeks ago, when U.S. District Court Judge William Sessions ruled that the federal death penalty statute was unconstitutional, Vermont was once again in the national spotlight with some commentators suggesting that our state is a painful thorn in the side of the Bush administration.

Sessions' ruling calls into question the way in which John Ashcroft's Justice Department is seeking the death penalty against defendants like Donald Fell, the man accused of kidnapping and killing Teresca King of North Clarendon.

Another federal Judge in New York recently ruled that the death penalty itself was unconstitutional given how many people on death row have been found innocent, largely due to DNA evidence. In contrast, Sessions' ruling is far more limited. It's not the death penalty per se, that's unconstitutional. Rather, he held that the law doesn't provide the defendant with enough procedural safeguards to ensure a fair trial.

Here's the problem: In Donald Fell's case, the government intended to use statements by his accomplice, Robert Lee, to support why Fell should be death penalty eligible. But Lee committed suicide in prison, and his testimony would not be admissible at trial. You can't base death penalty eligibility on evidence that you can't present to a jury, and ultimately the death penalty can only be determined by a jury.

Session's opinion is right in line with the Supreme Court, which has said in a series of cases that defendants are entitled to certain safeguards when the government is seeking the death penalty. In fact, the high court will hear four more cases this term alone on how the death penalty is administered.

Sessions' is a carefully crafted decision, supported by precedent. In that respect, he's hardly undermining Ashcroft's authority. But Sessions' decision does check, at least temporarily, what some consider to be an abuse of power by Ashcroft.

You see, earlier this year, Peter Hall, the U.S. Attorney for Vermont, struck a deal with Fell's attorneys. He would get life without parole, in part because he cooperated with investigators in locating his victim's body, and showed great remorse. Also, Vermont, along with 12 other states, doesn't have a state death penalty statute, so seeking life without parole is more consistent with our community values. But Ashcroft intervened, and rejected the plea. In fact, Ashcroft has intervened in a number of cases in states without the death penalty, leading many to criticize the way in which this administration is second-guessing the judgment of local authorities.

Hall's office will likely appeal Sessions' ruling, despite being willing to accept life without parole for Fell, in part because Ashcroft is committed to expanding the use of the death penalty in federal cases at a time when many states are limiting it, or eliminating it altogether. And Ashcroft has the final say in these matters.

Sessions noted that capital punishment is under siege. He's right, and his opinion certainly chips away at it further. The attorney general, however, remains largely out of sync with the majority of Americans on this issue, which is a good reminder of why the court plays such an important check on the power of the president, and his appointees.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton, Vermont.
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