ORDER ON DEFENDANT JOSEPH CABRERA SABLAN'S MOTION TO DECLARE THE FEDERAL DEATH PENALTY ACT UNCONSTITUTIONAL
PHILIP M. PRO, District Judge.
Before the Court for consideration is Defendant Joseph Cabrera Sablan's Motion to Declare the Federal Death Penalty Act Unconstitutional (Doc. #703) filed September 9, 2013. The Government filed a Response (Doc. #728) on October 10, 2013. Defendant Sablan filed a Reply (Doc. #748) on November 12, 2013.
The parties are familiar with the facts of the case and the Court will not repeat them here except where necessary. Defendant Sablan is charged with a three-count indictment for the murder of Correctional Officer Jose V. Rivera. In addition to the three counts, the Indictment (Doc. #1) contains eleven Special Findings as to Defendant Leon Guerrero. (Id.) The Special Findings serve to meet the mental state and aggravating factors required by the Federal Death Penalty Act ("FDPA"). The Government filed an amended notice of intent to seek the death penalty (Doc. #589) on May 14, 2013.
Defendant Sablan moves the Court to declare the FDPA unconstitutional under the Fifth and Eighth Amendments and bar application of the death penalty in this case. He argues the FDPA is applied in an arbitrary and capricious manner and that it fails to satisfy the narrowing function required by the Eighth Amendment. He further argues the federal death penalty is unconstitutional because there is no principled basis for distinguishing cases in which the death penalty has been imposed from cases in which the death penalty is not imposed.
The Government responds the FDPA is constitutional and contends the statistics proffered by Defendant Sablan do not stand for the proposition that the death penalty is applied arbitrarily and capriciously, in general and in this case. The Government further contends Defendant Sablan fails to identify the nuances of each case and that the process for determining whether the death penalty should be imposed is discretionary. The Government argues Defendant Sablan failed to show decision makers in this case acted with purposeful discrimination on the basis of race, region, or gender.
Defendant Sablan replies that the FDPA operates in a manner that conflicts with the Constitution and that the "vast difference between the number of cases that are legally death-eligible on their facts" and the cases in which the death penalty is sought, "suggests arbitrariness." (Def.'s Reply (Doc. #748) at 5.) He further argues it is appropriate to consider the Attorney General's process for authorizing prosecutors to seek the death penalty. Defendant Sablan requests an evidentiary hearing.
A. Arbitrary and Capricious Operation
Defendant Sablan moves the Court to declare the federal death penalty unconstitutional or bar its application in this case on the grounds that it operates arbitrarily and capriciously in violation of the Fifth and Eighth Amendments under Furman v. Georgia , 408 U.S. 238 (1972). Defendant Sablan avers the federal death penalty is currently applied as arbitrarily as the statute struck down in Furman and argues the FDPA fails to satisfy the Eighth Amendment's narrowing requirement and that the Government pursues the death penalty infrequently and thus arbitrarily. In support of his arguments, Defendant Sablan submits data from the Department of Justice and the Federal Death Penalty Resource Counsel covering all federal homicide cases between 1995 and 2006. According to the Defendant's data and calculations, the Government reviewed forty-seven percent of those cases to determine whether they were death eligible. Of those cases reviewed, fifteen percent were selected for capital prosecution and the jury returned a death sentence in fourteen percent of cases in which it was sought.
Defendant Sablan also argues the federal death penalty is applied in a racially biased manner and submits the Declarations of Kevin McNally, Director of the Federal Death Penalty Resource Counsel Project ("McNally Declaration") and Dr. Lauren Cohen Bell, Associate Professor of Political Science and Associate Dean at Randolph-Macon College ("Bell Declaration"). The McNally Declaration presents data collected on the federal death penalty since 1988, including the frequency with which the death penalty has been sought and imposed, the race of defendants for whom capital prosecution has been authorized, the frequency of capital prosecution on a regional basis, and the race and gender of victims. According to the McNally Declaration, 465 cases out of 2, 886 defendants eligible for the death penalty, or sixteen percent, were selected for capital prosecution under the FDPA. Of those cases selected, sixty-eight defendants have received death sentences and three defendants have been executed. The McNally Declaration also provides data as to the race and gender of victims, namely that a higher death sentencing rate exists when the victim is a white female, an assertion also supported by the Bell Declaration. Finally, the McNally Declaration provides data on the race of defendants and the number of capital prosecutions in each state, plus the District of Columbia, since 1988.
In Furman, the Supreme Court struck down the death penalty laws at issue in that case as cruel and unusual punishment because of their inequitable and discriminatory application. Id. at 240. "The high service rendered by the cruel and unusual' punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups". Id. at 256 (Douglas, J., concurring). Furman demands the death penalty cannot be imposed under sentencing procedures that create a substantial risk that it would be inflicted in an arbitrary and capricious manner. Gregg v. Georgia , 428 U.S. 153, 188 (1976). A death penalty statute must rationally narrow the class of death-eligible defendants and permit a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of the defendant's crime. Kansas v. Marsh , 548 U.S. 163, 173-74 (2006); see also McCleskey v. Kemp , 481 U.S. 279, 302-04 (1987); Zant v. Stephens , 462 U.S. 862, 877-79 (1983); Gregg , 428 U.S. at 189.
Defendant Sablan's argument on arbitrary and capricious application of the federal death penalty has been rejected previously by several courts. See, e.g., United States v. Sampson , 275 F.Supp.2d 49 (D.Mass. 2003); United States v. O'Driscoll , 203 F.Supp.2d 334 (M.D.Pa.2002); United States v. Hammer , 25 F.Supp.2d 518 (M.D.Pa. 1998). The prosecutor has discretion to prosecute and seek the death penalty. See McClesky, 481 U.S. at 296-97; O'Driscoll , 203 F.Supp.2d at 341. That "discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg , 428 U.S. at 189. However, that the death penalty is infrequently sought or imposed does not, by itself, render the FDPA unconstitutional. Sampson , 275 F.Supp.2d at 88; O'Driscoll , 203 F.Supp.2d 334. Constitutional questions arise only when the risk of arbitrariness becomes "sufficiently substantial." Furman , 408 U.S. at 295. The FDPA performs the requisite narrowing function and requires a jury to consider the individual circumstances of a case through the weighing of aggravating a mitigating factors. The infrequent seeking of the death penalty does not render it unconstitutional.
Finally, Defendant Sablan does not articulate any arguments that the death penalty is being applied to him on the basis of his race, the race and gender of the victim, or the region in which he is being prosecuted, but he nevertheless offers evidence for such a claim. However, the capital prosecution rates provided based on race do not include the rates on Chamorros, Defendant Sablan's ethnic group, or on Pacific Islanders more broadly. Furthermore, the McNally Declaration's findings as to increased likelihood of capital prosecution for white female victims, as supported by the Bell Declaration, do not apply in this case, where the victim was a Hispanic male. Finally, the regional analysis in the McNally Declaration focuses on the states of New York, Vermont, and Connecticut and makes no argument as to capital prosecution in California. Accordingly, Defendant Sablan's arguments as to racial, victim-based, or regional discrimination, if any, fail because he did not demonstrate "the existence of purposeful discrimination" that had a "discriminatory effect" on him. See McCleskey , 481 U.S. 279 at ...