When asked about mending race relations during the first presidential debate, Hillary Clinton emphasized that she has favored criminal justice reform from “the first day” of her campaign. By that she meant reform of the tough sentencing laws included in a 1994 omnibus crime bill that her husband signed into law and that she enthusiastically supported at the time. That she’s rethought the issue since then might have proved awkward, except that this rethinking has been bipartisan. In a speech at Columbia University, she noted that “senators as disparate on the political spectrum as Cory Booker and Rand Paul and Dick Durbin and Mike Lee are reaching across the aisle to find ways to work together. It is rare to see Democrats and Republicans agree on anything today. But we’re beginning to agree on this: We need to restore balance to our criminal justice system.”
One of the things that became unbalanced in the 1994 crime bill was the ultimate harsh punishment: the death penalty. The bill included 41 statutes establishing the death penalty for 60 different crimes. That there could possibly be so many crimes deemed worthy of capital punishment is astounding, but Congress achieved this number mainly by breaking murder into discrete categories: murder of a member of Congress, murder committed at a federal facility, murder by a federal prisoner, murder related to the smuggling of aliens, etc. And whatever your views on the death penalty, at least some of the statutes passed address crimes that were obviously matters for the federal government, not the states to handle, such as espionage, treason, and presidential assassination.
But that was not uniformly true. Congress could not resist the temptation to appear tough on crimes that had achieved notoriety but would normally be considered matters for local police and prosecutors . The list of such crimes includes murder for hire, murder with a firearm committed during a crime of violence, murder related to the sexual exploitation of children, and murder during a drug-related drive-by shooting. One consequence of this bloated federal death penalty regime has been the exorbitant expense of the capital prosecutions it authorized – eight times the cost of a federal non-capital murder prosecution. Another has been bringing what has been described as the “nuclear option” into attempts to deal with inner city crime. The result has been that those whom the federal government seeks to execute are overwhelmingly minorities – an astounding 72% of federal death penalty prosecutions have involved minority defendants. Given these consequences, one logical starting point for bipartisan criminal justice reform is to jettison the wasteful and discriminatory use of capital punishment to address street crime.
One crime with no obvious federal connection is the occasion for a death penalty trial now underway in Massachusetts, a state that has not had the death penalty since 1984 and has not executed anyone since 1947. As you read the gruesome facts I am about to present, see if you can spot the federal crime committed by the defendant, Gary Sampson.
In 2001, after committing a series of bank robberies in North Carolina, Sampson fled that state and returned to his home state of Massachusetts. There, he called the FBI in an apparent attempt to turn himself in, or to stop himself from what he was about to do, but an operator dropped the call. One day later, Sampson went on a weeklong crime spree. Phillip McCloskey, age 69, and Jonathan Rizzo, age 19, both made the mistake of offering Sampson a ride. Each was repaid by being tied up and stabbed repeatedly. Having fled one state, Sampson now fled another. A few days later, he killed Robert Whitney, age 59, in New Hampshire.
Murder alone was not the basis of the federal charge for which Sampson was originally tried in 2003. There would be a potential federal interest in prosecuting a crime spree that crossed state lines, but even that was not it either. Sampson was charged federally with only the two murders that occurred in Massachusetts. The answer involves a blast from crimes past: carjacking.
In the early 1990s, carjacking was widespread and well publicized. A National Crime Victimization Survey for the years 1993 to 2002 estimated that during that period, 38,000 attempted and completed carjackings occurred annually. Congress responded to this novel and dangerous crime after the 1992 death of Pamela Basu, a 34 year-old Maryland woman who was dragged to death while trying to rescue her young daughter from the men who had stolen her car.. Although it was a death that triggered Congressional action, the statute Congress passed that year did not focus only on carjacking that involved killings. Instead, it sought to address the overall carjacking crime wave by establishing significant federal penalties for carjackings by armed men, including life in prison if a carjacker killed someone. Two years later, when Congress passed the omnibus crime bill, carjacking that led to death ended up among the capital punishment provisions because of an amendment proposed by Connecticut Senator Joseph Lieberman. The only real debate on the measure was whether a death occurring during a carjacking needed to be caused by a firearm.
It was the elimination of the firearm requirement, at least as to capital offenses, that made the stabbings committed by Gary Sampson, after carjacking his victims, eligible for the death penalty. As awful as Sampson’s crimes are, his is not the sort of crime Congress had in mind when it made carjacking a potential capital offense. Congress intended to go after car thieves who killed. Sampson is their mirror image – a killer who lured in his victims by posing as a hitchhiker.
But more importantly, 22 years on from the omnibus crime bill, whatever purpose there was in making carjacking a capital offense has long passed. The instances of carjackings that involved killings seem never to have been as great as was thought. Carjacking victims in the 1993-2002 National Crime Victimization Survey reported being threatened with a weapon three-quarters of the time and being injured in one-third of carjackings, but the number of killings during that time was small. About 15 murders per year involved car theft then, but not all of them occurred during carjackings. By 2002, the rate of carjackings had declined by 40 percent over the previous ten years, and has presumably continued to decline. No one can say for sure, because interest in the topic has declined along with carjackings, and the survey that ended with the year 2002 is the last reliable source of nationwide data on the subject. But it’s clear that the idea that the death penalty would be an important tool in the fight against carjacking has not panned out. Whatever happens in the Sampson trial, what is least likely to occur is that the federal government will ever actually execute him. There are five other men now on federal death row for carjacking. One of them has been there since 1998. None are currently facing an execution date.
So what we have left, as carjacking has receded from our attention, is a rarely-occurring crime for which a random selection of perpetrators will be tried for a capital offense in federal court and, if sentenced to death after millions of dollars are spent trying them, will sit on death row awaiting an execution that never comes. This is hardly an effective use of the federal criminal justice system. If Senator Lieberman had presented this scenario to his colleagues in 1994, it’s doubtful that his amendment would have passed.
Twenty-two years of experience with the capital sentencing provisions of the 1994 crime bill have not provided any better justification for the other federal capital offenses with no obvious connection to truly federal crimes. Drive-by shootings and the sexual exploitation of children, for example, remain serious problems, but not ones the federal death penalty has played any role in addressing, for, as far as I can tell, there is no one on federal death row for having committed these crimes. Some of the 62 people on federal death row are there for killings committed during crimes that have long been considered federal crimes, such as kidnapping and bank robbery, but many of them are there for what seem a random assortment of offenses. One inmate, a former prison guard, killed two campers while wearing a homemade sniper suit. Another killed someone in a National Forest in Michigan. And one inmate ordered the killing of three women after getting into an argument with them in his apartment. All of them will still be there when you read this: the federal government has not executed anyone since 2003, and none of these inmates have an execution date.
What, then, is the point of continuing with this broad-ranging, unproductive federal death scheme? A similar sense of futility about the death penalty led a bipartisan group in the conservative Nebraska legislature to repeal that state’s death penalty in 2015. Nebraska had executed only three people since the 1970s and none in almost 20 years, and yet keeping the death penalty system going was costing the taxpayers $14.6 million per year.
Hillary Clinton, when confronted earlier this year by a former death row inmate who had been exonerated, expressed her continued support for the federal death penalty, but only for limited purposes, such as terrorist killings. If she wins the election, she and Congress should be encouraged to act on the idea that the federal death penalty be so limited.