United States v. Schlesinger
| Docket Number | CR-18-02719-001-TUC-RCC (BGM) |
| Decision Date | 29 November 2021 |
| Parties | United States of America, Plaintiff, v. Ryan Phillip Schlesinger, Defendant. |
| Court | U.S. District Court — District of Arizona |
Before the Court is Defendant Ryan Schlesinger's Motion to Strike the Death Penalty. (Doc. 260.) Schlesinger argues that the death penalty, as it is administered under the Federal Death Penalty Act (“FDPA”), is unconstitutional. (Doc. 260.) The Government filed a response in opposition (Doc. 322), to which Schlesinger filed a reply (Doc. 344). The motion is denied for the reasons set forth herein.
On November 30, 2018, a complaint was filed against Schlesinger charging him with the premeditated killing of Deputy United States Marshal C.W. in violation of 18 U.S.C. §§ 1111 and 1114. (Doc. 1.) C.W. was shot and killed while serving Schlesinger with a felony arrest warrant on November 29, 2018. (Id.)
The Government filed a superseding indictment on September 30 2020, charging Schlesinger with two death-penalty eligible counts: first-degree murder of a federal officer in violation of 18 U.S.C. §§ 1111(a) and 1114 (Count One) and the use of a firearm during and in relation to a crime of violence causing the Marshal's death in violation of 18 U.S.C. §§ 924(c)(1)(A) and (j) (Count Nine). (Doc. 192 at 1-5.)
The grand jury alleged additional special findings in conformity with the FDPA, charging Schlesinger with among other things the “substantial planning and premeditation” statutory aggravator under 18 U.S.C. § 3592(c)(9). Id.
On October 2, 2020, the Government filed an amended Notice of Intent (“Notice”), alleging that a sentence of death was justified in the event of a conviction on either Count One or Count Nine. (Doc. 194 at 1.) The Notice alleged two non-statutory aggravators, future dangerousness and victim impact. (Id. at 3-4.)
The matter is set for a jury trial on January 17, 2023.
Schlesinger filed the pending motion on May 4, 2021. (Doc. 260.) He raises a number of challenges to the death penalty in general and to its administration under the FDPA. He argues that the death penalty violates the Eighth Amendment by creating a risk that an innocent person will be executed. He contends citing alleged racial, gender, and geographic disparities, as well as federal prosecutors' discretion in seeking a capital sentence, that the death penalty is applied in an arbitrary and capricious manner. He argues that long delays in execution eliminate the deterrent or retributive value of capital punishment and that the many years a death row inmates spends in isolation constitute an impermissible secondary punishment. Finally, he argues that evolving standards of decency, as reflected in decreasing public support for capital punishment, render the death penalty unconstitutional.
II. FDPA
The FDPA, 18 U.S.C. §§ 3591-3598, which was signed into law in 1994, “defines the circumstances under which a defendant who commits certain federal crimes may be eligible for the death penalty.” United States v. Mills, 393 F.Supp.3d 650, 658 (E.D. Mich. 2019). The FDPA sets forth the qualifying offenses in § 3591(a)(1)-(b)(2). The Government must provide the defendant with notice of its intent to seek the death penalty and the basis for seeking the death penalty. 18 U.S.C. § 3593(a).
The FDPA also 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. Id. The jury must unanimously find that intent was established beyond a reasonable doubt to move to the penalty phase. If the jury makes that finding, it then considers the statutory aggravating factors alleged by the government in the notice of intent to seek the death penalty. Id. § 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. Id. § 3593(c). If the jury makes that finding, the case moves to the selection phase of the sentencing hearing. Id. § 3593(e). There, the jury considers the statutory aggravating factors, plus any non-statutory aggravating factors for which notice has been given, and weighs them against any mitigating factors. Id. Non-statutory aggravating factors must be found unanimously beyond a reasonable doubt, while mitigating factors need only be established by a preponderance of the evidence. Id. § 3593(c)-(d). The jury must determine whether “all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death.” Id. § 3593(e). The jury's sentencing recommendation must be unanimous. Id.
III. DISCUSSION
Several legal standards guide the Court in addressing the merits of Schlesinger's arguments. First, “it is settled that capital punishment is constitutional.”[1] Glossip v. Gross, 576 U.S. 863, 869 (2015). Next, the Court presumes that the FDPA is constitutional, see United States v. Sampson, 486 F.3d 13, 20 (1st Cir. 2007); see also Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion) (). Schlesinger bears the heavy burden of proving that the FDPA is unconstitutional. Sampson, 486 F.3d at 20 (citing Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001)); see also INS v. Chadha, 462 U.S. 919, 944 (1983) (). “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully.” Mills, 393 F.Supp.3d at 658 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
That said, many of Schlesinger's challenges to the FDPA are in fact challenges to the death penalty itself, which Schlesinger argues, violates the Fifth and Eighth Amendments. (Doc. 260 at 7-11.) As discussed below, courts at every level have considered and rejected such claims.
In support of his arguments Schlesinger relies largely on the “roadmap” set out by Justice Breyer in his dissenting opinion in Glossip, 576 U.S. at 908-46 (Breyer, J. and Ginsburg, J., dissenting); a district judge's factual finding, reached after an evidentiary hearing, that the death penalty under the FDPA is imposed arbitrarily, United States v. Fell, 224 F.Supp.3d 327, 358 (D. Vt. 2016); and a ruling by the Connecticut Supreme Court which held that the death penalty was cruel and unusual punishment under the state constitution, State v. Santiago, 318 Conn. 1, 122 A.3d 1 (Conn. 2015).[2] (Doc. 260 at 3-5.) Schlesinger also cites numerous studies and statistics to support his arguments that the death penalty is imposed in an arbitrary and biased manner.
The opinions and data on which Schlesinger relies do not constitute authority which would permit this Court to grant the relief he seeks. Indeed in Fell the district court denied the defendant's motions to dismiss the death penalty and to find the FDPA unconstitutional. 224 F.Supp.3d at 358-59. The court cited Gregg, 428 U.S. at 206-07, where the Supreme Court held that the death penalty is not per se unconstitutional, and McCleskey v. Kemp, 481 U.S. 279, 319 (1987), which rejected various challenges to the death penalty, including arguments using social science data to demonstrate racial bias. Fell, 224 F.Supp.3d at 358- 59. Accordingly, despite its conclusions about the arbitrariness of the death penalty, the court in Fell acknowledged that “Gregg is still the law of the land.” Id. at 358. The court explained that “[i]nstitutional authority to change this body of law is reserved to the Supreme Court.” Id. at 359.
As the court did in Fell, this Court recognizes that it is the “prerogative” of the Supreme Court “alone to overrule one of its precedents.” Id. (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); see United State v. Aquart, 912 F.3d 1, 49 (2d Cir. 2018) (). With that reality in mind the Court considers Schlesinger's arguments.
Schlesinger argues that the death penalty cannot be reliably applied and therefore constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Doc. 260 at 19.) As just stated, in evaluating Schlesinger's individual challenges to the death penalty and the FDPA, the Court is bound by the reality that the United States Supreme Court has not found that the death penalty violates the Constitution.
The Eighth Amendment does not create an unacceptable risk of executing the innocent. Courts have uniformly rejected this argument as grounds for finding the death penalty unconstitutional. “The terrible possibility that innocent people may be executed under a capital sentencing scheme is not new, and it has been contemplated by both Congress and the Supreme Court.” United States v. Ofomata, No. CR 17-201, 2019 WL 527696, at *5-6 (E.D. La. Feb. 11, 2019). In United States v. Quinones, 313 F.3d 49 (2d Cir. 2002), the Second Circuit observed that:
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