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Second Circuit Review: The Constitutionality of the Federal Death Penalty Act
March 24, 2004 Full PDF
The March 24 New York Law Journal "Second Circuit Review" features an article written by Martin Flumenbaum and Brad Karp titled, "The Constitutionality of the Federal Death Penalty Act." The column discusses a recent decision by the U.S. Court of Appeals for the Second Circuit in which the court upheld the constitutionality of the Federal Death Penalty Act (FDPA). In United States v. Fell the Second Circuit, in a unanimous opinion, held that because the Federal Rules of Evidence are not constitutionally required it is permissible, as mandated by the FDPA, for the government to introduce evidence of so-called "aggravating circumstances" during the penalty phase of a capital trial that would be otherwise inadmissible under the Federal Rules of Evidence. Marty and Brad raise a number of issues left unresolved by the Second Circuit's decision. Perhaps most glaring is the court's failure to address Ring v. Arizona and its implications for sentencing under the FDPA. As the district court recognized, Ring firmly establishes that penalty phase fact finding is, to some degree at least, subject to the strictures of the Fifth and Sixth amendments. To what degree, remains an open question that the Second Circuit chose not to discuss in Fell, but will surely have to revisit in the future. The editor notes that Andrew Tauber assisted in the preparation of the article.