Federal Judge Criticizes Death Penalty — But Concludes Only Supreme Court Can End It

The death chamber at the Southern Ohio Correctional Facility, Aug. 29, 2001.

Mike Simons / Getty

WASHINGTON — A federal judge overseeing a death penalty trial in Vermont on Tuesday ruled that only the US Supreme Court can declare the death penalty to be unconstitutional — but nonetheless issued a strong critique of what he found to be an arbitrarily imposed punishment "in which chance and bias play leading roles."

US District Court Judge Geoffrey Crawford issued the 57-page decision in Donald Fell's challenge to the constitutionality of the federal death penalty statute. Fell faces a second federal trial over a 2000 killing, after his first conviction was tossed out due to juror misconduct.

Crawford held a hearing this summer — largely tracking the questions about the death penalty raised in Justice Stephen Breyer's Supreme Court 2015 dissent, which called for full Supreme Court review of the death penalty's constitutionality.

Noting the fact that he is required to follow existing Supreme Court majority decisions — and not dissenting opinions like Breyer's in 2015 — Crawford made clear his aim: "The trial court can respond by conducting an inquiry and setting the table for further review."

That meant, Crawford detailed, an extensive hearing — with factual findings laid out on Tuesday — regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty.

After reviewing those findings, Crawford posed the question: "Has actual experience borne out the promise for a more reliable system of capital punishment expressed in the Gregg decision?" — a reference to the Supreme Court decision that allowed the reimposition of the death penalty in 1976 after a four-year national moratorium.

"The evidence produced for the court answers the question in the negative," he concluded.

Nonetheless, Crawford found that, for the most part, his hands were tied.

"Institutional authority to change this body of law is reserved to the Supreme Court," he wrote. "For this reason, the trial court is required to deny the defense motions related to the constitutionality of the death penalty."

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