United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S MOTION TO DECLARE THE
DEATH PENALTY UNCONSTITUTIONAL AND TO STRIKE THE NOTICE OF
INTENT [ECF NO. 1399]
CARAM STEEH UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant Billy Arnold's
motion to declare the death penalty unconstitutional and to
strike the notice of intent. ECF No. 1399. The government
filed a response brief, ECF No. 1425, and defendant did not
file a reply. Neither party has requested oral argument or an
evidentiary hearing and the court agrees that the motion can
be resolved on the briefs. For the reasons stated below, the
court denies defendant's motion.
January 3, 2018, a federal grand jury returned a sixth
superseding indictment charging 21 defendants with various
crimes, including violating the Racketeering Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C.
§ 1961 et seq. Defendant Arnold is charged with
two counts of murder in aid of racketeering, two counts of
using and carrying a firearm during and in relation to a
crime of violence causing death, RICO conspiracy, numerous
VICAR counts, possession of a firearm during and in relation
to a crime of violence (RICO conspiracy), and felon in
possession of a firearm. ECF No. 812. On January 8, 2018, the
government filed its notice of intent to seek the death
penalty against Arnold. ECF No. 817.
raises three per se challenges to the federal death
penalty based on the Eighth Amendment and the Fifth Amendment
Due Process Clause, including the guarantee of equal
protection under the clause. Defendant asks the court to
strike the notice of intent to seek the death penalty because
(1) the death penalty is imposed in an arbitrary and
capricious manner, and is infected by geographic disparities
and racial discrimination; (2) the death penalty is cruel and
unusual punishment based on evolving standards of decency;
and (3) applying the death penalty has resulted and will
continue to result in the execution of innocent individuals.
Background of Modern Federal Death Penalty
1972, the Supreme Court held that all then-existing death
penalty statutes were unconstitutional in violation of the
Eighth and Fourteenth Amendments because those statutes gave
juries unhindered discretion to impose or withhold the death
penalty. Furman v. Georgia, 408 U.S. 238 (1972).
Each of the justices filed a separate opinion in the 5-4
decision. In his concurring opinion, Justice Douglas
recognized that our nation is committed to equal protection
of the laws, “[y]et we know that the discretion of
judges and juries in imposing the death penalty enables the
penalty to be selectively applied, feeding prejudices against
the accused if he is poor and despised, and lacking political
clout, or if he is a member of a suspect or unpopular
minority, and saving those who by social position may be in a
more protected position.” Id. at 255 (Douglas,
J., concurring). Justice White highlighted the infrequent
utilization of the death penalty, which “is exacted
with great infrequency even for the most atrocious crimes and
that there is no meaningful basis for distinguishing the few
cases in which it is imposed from the many cases in which it
is not.” Id. at 313 (White, J., concurring).
The infrequency with which defendants were targeted for
capital punishment was noted by each of the five justices who
concurred in the majority. See id. at 248 n. 11
(Douglas, J. concurring); id. at 291-95 (Brennan,
J., concurring); id. at 309-10 (Stewart, J.,
concurring); and id. at 354 n. 124 and 362-63
(Marshall, J., concurring).
the decision in Furman, many states reinstated
revised death penalty statutes that addressed and sought to
correct the Supreme Court's concerns. In 1976, the Court
heard challenges from five men who had been prosecuted and
sentenced to death under newly-enacted post-Furman
statutes. In three of the cases the Court concluded that the
states had successfully met the constitutional concerns
raised in Furman. Gregg v. Georgia, 428
U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262
(1976); Proffitt v. Florida, 428 U.S. 242 (1976).
The Court struck down the sentencing schemes in the other two
statutes because they provided for a mandatory death penalty
and did not allow for juror discretion and the consideration
of mitigation information about a defendant's background
and character. Woodson v. North Carolina, 428 U.S.
280 (1976); Roberts v. Louisiana, 428 U.S. 325
1988, Congress enacted a federal death penalty as part of the
Anti-Drug Abuse Amendments (“ADAA”), authorizing
capital punishment for a defendant convicted of a murder
committed while engaging in a continuing criminal enterprise.
21 U.S.C. § 848(e). In 1994, the Federal Death Penalty
Act (“FDPA”) was signed into law, 18 U.S.C.
§ 3591 et seq. The FDPA expanded the
application of the federal death penalty by making 60 crimes
death-eligible. This includes murder of designated government
officials, kidnapping resulting in death of the victim,
murder for hire, fatal drive-by shootings, car-jacking
resulting in death, and certain crimes not necessarily
resulting in death such as the running of a large-scale drug
enterprise. 18 U.S.C. § 3591 (incorporating other
statutes). The prosecution of Billy Arnold is brought
pursuant to the FDPA for the offenses of: (1) murder in aid
of racketeering activity, aiding and abetting, which resulted
in the deaths of two individuals, in violation of 18 U.S.C.
§§ 1959(a)(1) and 2 (Counts 4 and 16); and (2) use
and carry of a firearm during and in relation to a crime of
violence causing death, aiding and abetting, which resulted
in the deaths of the two individuals, in violation of 19
U.S.C. §§ 924(c); 924(j); and 2 (Counts 5 and 17).
FDPA sets forth the mechanics of a federal death penalty
trial. First, the jury must decide whether the defendant had
the requisite intent to commit the death eligible offense. 18
U.S.C. § 3591(a). The jury must unanimously find that
intent was established beyond a reasonable doubt to move to
the penalty phase. At that point, the jury considers the
statutory aggravating factors alleged by the government in
the notice of intent to seek the death penalty. 18 U.S.C.
§ 3592 (b)-(d). The jury must unanimously determine that
the government has proven at least one of the statutory
aggravating factors beyond a reasonable doubt to move to the
next step of the penalty process. § 3593(c). The next
step in determining whether the death penalty is appropriate
is for the jury to consider the statutory aggravating factor
or factors, plus the non-statutory aggravating factors for
which notice has been given, and to weigh them against any
mitigating factors. Non-statutory aggravating factors must be
unanimously found beyond a reasonable doubt, while mitigating
factors need only be established by a preponderance of the
evidence. Furthermore, unanimity is not required when it
comes to mitigating factors; any juror persuaded that a
mitigating factor exists may consider it in reaching a
sentencing decision. § 3593(c), (d). See United
States v. Nguyen, 928 F.Supp. 1525, 1532 (D. Kan. 1996).
government points out that defendant's challenges are not
ripe as a sentence of death has not been imposed in this
case. The government indicates it has no objection to the
court considering the motion at this time and applying its
decision later as law of the case. ECF No. 1425, PageID
18815-18816, n. 1. This is the course the court will take.
Arbitrary and Capricious
Infrequently Sought, ...