Recommendations for Federal Policy on the Death Penalty

Amend Habeas Corpus-related provisions of AEDPA

Limits to Habeas Corpus Threaten Justice

The passage of AEDPA and PIRA, and the manner in which the Supreme Court and lower federal courts have interpreted these statutes, has created an unduly high burden for petitioners to obtain federal habeas relief.  The Byzantine rules and procedures that have resulted create uncertainty and confusion for courts, prosecutors, and defense attorneys.  Moreover, the one-year statute of limitations and prohibitions against successive habeas petitions can serve as an absolute bar to federal habeas review for some people.  As a result, federal courts are unable to grant relief despite meritorious substantive claims—including claims of racial bias in jury selection, ineffective assistance of counsel, and prosecutorial misconduct—due to substantial deference to state court proceedings or mere technicalities.

Reform Habeas Corpus to Address Damage Caused by AEDPA


Congress should amend the federal habeas statute,34 to address the damage AEDPA has wrought in federal habeas corpus over the past fifteen years.  Congress should revise restrictions on successive habeas petitions, the statute of limitations, exhaustion requirements, and procedural default standards, as well as eliminate federal court deference to state court interpretations of constitutional and federal law.  These revisions will simplify a habeas regime that is currently failing to provide certainty and clarity for petitioners, states, or courts.

Congress should amend the federal habeas statutes to permit second or successive habeas corpus petitions.  Allowing petitioners, particularly capital defendants, access to federal habeas review in instances where credible evidence of actual innocence has surfaced is a sensible and fair-minded reform designed to remedy miscarriages of justice.  Despite the efforts of a defendant and his or her attorneys to discover all evidence prior to trial, new evidence— such as DNA evidence, confessions by the actual perpetrator, new eyewitnesses, recantation by prior witnesses, and new physical evidence—can emerge after all appeals and initial post-conviction reviews have been exhausted.  A bar to successive petitions for claims of actual innocence 35 does not serve justice and risks the execution of innocent people in service of procedural rules.

Additionally, Congress should eliminate the restriction in 28 U.S.C. § 2254(d) that makes habeas corpus relief available only for those state court convictions that are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “based on an unreasonable determination of the facts.”  If Congress does not pursue full repeal of this provision, it should create a committee with substantive input from members of the criminal defense bar to draft amending language.  Among other possible reforms, this amending language should add decisions of the U.S. Courts of Appeals as part of “clearly established Federal law.”  It should also make § 2254(d) applicable only to decisions from states that qualify to opt-in to the expedited habeas procedures under Chapter 154, to ensure that states truly provide effective post-conviction counsel consistent with the U.S. Constitution.  These reforms are critical in allowing federal courts to consider and properly apply federal law to claims that directly implicate federal and U.S. Constitutional concerns.

To ensure that individuals have a fair opportunity to have their post-conviction claims considered in federal court, Congress should repeal the one-year statute of limitations for post-conviction review of state and federal criminal convictions.  If complete repeal is not pursued, Congress should pass legislation that amends the statute of limitations in 28 U.S.C. §§ 2244(d), 2255(f) to:

Legislation to reform federal habeas should also permit the tolling of the statute of limitations in three circumstances: 1) where a state petition is pending, even if the state petition is ultimately dismissed as time-barred and improperly filed; 2) where failure to file within the statute of limitation was due to attorney error; and 3) in cases of mixed petitions, which contain both exhausted and unexhausted claims. In the case of mixed petitions, the statute should require federal district courts to advise petitioners of the stay-and-abeyance procedure (dismissal of the unexhausted claims, stay of exhausted claims pending exhaustion of dismissed unexhausted claims, and amendment of original petition to include newly exhausted claims), and the risk of violating the statute of limitations if they decline the stay-and-abeyance procedure. This would reverse current law, under the Supreme Court decision in Pliler v. Ford, that district judges are not required to advise petitioners of the risk of declining the stay-and-abeyance procedures.39

Congress should also repeal the Chapter 154 Special Habeas Corpus “Opt-In” Procedures that expedite federal post-conviction proceedings.40  This Opt-In Procedure originated in AEDPA, and was amended in 2005 as part of PIRA. Under AEDPA, federal judges would certify that a state provides counsel to indigent capital defendants for state post-conviction review.  In exchange, the states would enjoy procedural advantages to speed federal habeas corpus review of capital cases.  The 2005 amendment moved the authority to certify the programs to the Attorney General.  No state has yet to adopt a sufficiently adequate program for providing counsel to qualify for certification under the Opt-In Procedures.  Absent full repeal, Congress should consider repealing the provisions from PIRA that moved authority to determine state qualification for Opt-In Procedures from the federal courts to the U.S. Attorney General.41 

Overall, the current federal habeas regime continues to adversely impact individuals who have been denied opportunities to raise their constitutional claims.  For this reason, any amendments to AEDPA and PIRA Congress adopts must be retroactively applicable to ensure individuals, particularly those facing execution, have a fair opportunity for their claims to be heard.


The President should encourage Congress to pass legislation to reform federal habeas corpus law as outlined above and commit to signing those reforms into law.   

Absent congressional action, the Attorney General should adopt regulations pursuant to Chapter 154 that ensure states provide both qualified post-conviction counsel and adequate resources for counsel to fully litigate their client’s state habeas petitions. The goal of Chapter 154 is to provide habeas petitioners full and fair state post-conviction review before expediting and limiting federal habeas review.42  Therefore, any regulations should clearly require that states appoint and compensate competent counsel who have the resources to completely investigate and present all claims before the Attorney General will certify such regimes.  Additionally, any regulations must make clear that future changes to such a regime will require recertification by the Attorney General. 


Federal courts should apply the Supreme Court’s recent decision in Holland v. Florida43 to ensure that individuals whose habeas claims would otherwise be time-barred as the result of attorney error may still seek review under the equitable tolling doctrine.  In Holland,the Supreme Court recognized that extraordinary circumstances may prevent a petitioner from filing a habeas petition within the statute of limitations, and in such cases, out of fairness, the petition should not be barred.44  As federal courts begin to hear cases seeking equitable tolling, they should keep the goal of fairness in mind. 

Addressing Inequities in the Federal Death Penalty

The Federal Death Penalty Disproportionately Affects Defendants of Color

Since the resumption of the federal death penalty in 1988, nearly 73% of all approved capital prosecutions have been against defendants of color.45  Additionally, white federal defendants facing capital prosecution are almost twice as likely as defendants of color to successfully plea bargain for a life sentence.46  Regulations adopted in 1995 that require the Attorney General to review every federal death-eligible case to decide whether to seek capital prosecution have served only to exacerbate problems with the application of the federal death penalty.

Create Safeguards Against Racially Biased Capital Prosecutions


Congress should seek to address the disproportionate application of the federal death penalty to defendants of color.  To establish the extent to which race affects decisions to seek federal capital prosecutions and obtain death sentences, Congress should commission an independent study of the federal death penalty system.  The study should examine racial disparities, prejudicial errors, adequacy of counsel, and other inequities in capital prosecutions, and make recommendations for legislative reform.

Congress should also require the Department of Justice to collect data on all factors relevant to the Department’s decision to seek and impose the death penalty in all capital prosecutions.  A statutory requirement that the Department collect and maintain this data would ensure the consistency and availability of the data from administration to administration.  Such data should include the race, ethnicity, national origin, gender, marital status, parental status, occupation, and criminal record of both the defendant and victim.  It should also include aggravating and mitigating circumstances identified at trial as well as the type of defense counsel, whether federal public defender, community defender, appointed counsel, retained counsel, or pro se representation.  Upon the conclusion of the prosecution, the Department must make that data publicly available.

Congress should amend Title 28 of the United States Code to expressly prohibit the imposition of the death penalty based on race, ethnicity, or national origin.  This amendment should allow a defendant to use evidence that race, ethnicity, or national origin of either the defendant or the victim was a statistically significant factor in the decision to impose the sentence to establish an inference of impermissible bias.  This amendment should also bar the government from rebutting such an inference through mere assertions that it did not intend to discriminate or that the imposed sentence satisfied the statutory criteria for the death penalty, unless it can prove that death sentences were sought in all cases fitting such criteria.

Congress should eliminate the excessive number of peremptory challenges given to federal prosecutors in capital cases.  Currently, under Federal Rule of Criminal Procedure 24(b), in non-capital cases, the government is provided six peremptory challenges and the defense is provided ten. In capital cases, however, each party is allowed 20 peremptory challenges.  This substantial increase in the government’s peremptory challenges creates a perverse incentive to seek death sentences when they are not warranted.  Additionally, more peremptory challenges increase the risk that jurors, while ostensibly being excluded for legitimate reasons, could in fact be excluded based on race, whether consciously or unconsciously.


The President should encourage Congress to pass legislation to address inequities in the federal death penalty, as outlined above, and commit to signing these reforms into law.

Even absent congressional action, the Department of Justice can revise its policies and regulations to ensure greater consistency and fairness in the application of the federal death penalty.  To achieve these goals, the Attorney General should work in an open and transparent manner with the Department’s Capital Case Unit, which reviews and recommends to the Attorney General whether to seek the death penalty, the Death Penalty Working Group, which is currently evaluating internal Department protocols related to pursuing capital prosecutions, and the Access to Justice Initiative, which is charged with improving the availability and quality of indigent defense, including capital defense.

As a first step in the revision of its policies and regulations, the Department should stay all federal executions and place a moratorium on federal capital charges pending an independent study of the death penalty system to examine racial disparities, prejudicial errors, adequacy of legal representation, and other inequities in capital prosecutions.  The Department should develop metrics and methodologies to prospectively and retrospectively examine the process by which the Department initiates and prosecutes federal capital charges.  This includes collecting and regularly reviewing all data concerning factors relevant to the imposition of the death penalty.

To the extent that the Department continues to pursue capital prosecutions, it should adopt policies and regulations that expressly prohibit imposition of the death penalty based on race, ethnicity, or national origin, as evidenced by statistical analysis.  Similar to the legislative proposal above, under this standard, data collected regarding the prosecution of capital cases that reveals race, ethnicity, or national origin as a statistically significant factor in the decision to impose the sentence would create an inference of impermissible bias.  In order to proceed with the capital prosecution, the Department would require a showing that the crime satisfied the statutory criteria for the death penalty and that the Department sought death sentences in all cases fitting such criteria.   

The Department should also decentralize the decision to pursue capital prosecutions by removing the requirements in the U.S. Attorneys' Manual that the Attorney General review all cases eligible for the death penalty.47  Rather, the U.S. Attorneys should be permitted to pursue non-capital charges and enter into plea agreements in death-eligible cases.  Only in cases where a U.S. Attorney wished to pursue a capital prosecution would the Attorney General review and authorize or deny the request to seek the death penalty.  This system would increase the discretion of local U.S. Attorneys, who are better equipped to weigh the factors at play in potential capital cases.  Such a change would also reduce unnecessary cost to the courts, prosecution and defense, given that delays in making a decision to pursue the death penalty caused by mandatory review by the Attorney General increases pretrial costs for additional attorneys, mitigation specialists, and other experts. These additional expenditures are unnecessary if the Attorney General decides not to pursue a capital case.  Removing the requirement that all capital cases be reviewed by the U.S. Attorney General would restore capital-case procedure to the more streamlined system that prevailed prior to 1995, when only affirmative requests to seek the death penalty required approval by the U.S. Attorney General.

Mental Illness and the Federal Death Penalty

The Mentally Ill are Unjustly Executed

It is estimated that up to 10% of death row inmates suffer from serious mental illness.48 While perhaps criminally culpable for their conduct, like juveniles and those with mental retardation, the severely mentally ill can lack the judgment, understanding, and self-control that would warrant the imposition of the death penalty. 

Protect the Mentally Ill from Unjust Execution


Congress should amend 18 U.S.C. § 3596 to exempt people with severe mental illness and/or developmental disabilities from capital sentences.  In the case of defendants with severe mental illness and/or developmental disabilities, like juveniles49 and those with mental retardation,50 the death penalty represents a disproportionate punishment for individuals who are less culpable for their crimes, as compared to those without mental illness.


The Department of Justice should also adopt a policy that exempts people with severe mental illness and/or developmental disabilities from capital prosecutions.  As explained above, the death penalty represents a disproportionate punishment for individuals who are less culpable for their crimes than those without mental illness.

Access to Counsel in Capital Prosecutions

Inadequate Counsel Puts Innocent Lives at Risk

Capital defendants are predominantly poor and rely on an indigent defense system that is overworked, under-resourced, inexperienced, or sometimes non-existent.51  The absence of adequate capital counsel increases the risk that innocent people will be sentenced to death.  A recent report found that federal capital defendants whose representations cost the least, were more than twice as likely than other capital defendants to receive the death penalty.52  The report also found that defendants in low cost cases were less likely to be represented by lawyers with “distinguished prior experience” in capital cases.53  Access to qualified counsel with sufficient resources vastly increases a capital defendant’s chances for a fair trial.

Provide Adequate Counsel in Capital Prosecutions


Congress should increase federal defender independence from the federal judiciary.  Giving the judiciary control over defense functions creates a conflict of interest.  Federal defenders will be able to operate more effectively and efficiently if the judiciary no longer appoints counsel or approves budgets for experts and other resources at any stage of a federal death penalty case, including post-conviction review.54 

Congress should amend current law to vest authority over the appointment and budgets of federal defenders in local federal defender organizations, or the Administrative Office of U.S. Courts, for those districts without federal defender organizations.55    Congress may also transfer the defense function from the federal courts to a new Office of the Defender General.56 

In the alternative, if authority remains in the judiciary, Congress should require federal courts to accept recommendations for counsel made by a federal public defender, a federal defender community organization, the Capital Habeas Unit, or the Administrative Office, absent good cause.  Congress should also allow any lawyer appointed to represent state death-row prisoners in federal court, including without limitation Capital Habeas Unit attorneys, to appear in state court. 

Congress should provide adequate funding for federal defenders, including funds for attorneys’ fees, investigative expenses, and experts witness.  This will give full effect to federal law that provides counsel for capital defendants at all stages of the legal process in federal court through post-conviction proceedings.57 

Under the Capital Case Litigation Initiative, states are currently required to divide the federal grant money they receive for capital training equally between prosecutors and defenders.58   States are also restricted from using the money for anything other than training.59  To increase the quality of representation at the state level, Congress should allow for exceptions to the required equal allocation.  Additionally, Congress should permit states to use grants under this program to hire counsel for capital defendants, whether through existing public defender organizations or appointed counsel.  States would then be permitted to use the grants to address the lack of parity in training and personnel resources that currently exists between prosecution and indigent defense.

Finally, to ensure consistent quality in capital counsel in federal and state cases, Congress should create a grant, administered by the Department of Justice’s Bureau of Justice Assistance, that would help fund a National Capital Bar.  This Bar would identify qualified and experienced attorneys to represent capital defendants in state and federal court.  To qualify for inclusion in the bar, attorneys would need to demonstrate that they meet standards similar to those outlined in the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, including a commitment to providing zealous advocacy and high quality legal representation in the defense of capital cases, and the necessary skills and knowledge of the various complex components of capital litigation.60


The President should encourage Congress to pass legislation to reform capital representation, as outlined above, and commit to signing these reforms into law.

The President, with the assistance of the Attorney General, could also seek to strengthen the Access to Justice Initiative within the Department of Justice, giving the office greater authority to implement reforms that strengthen state and federal capital representation.61

Additionally, if authority over federal defender budgets remains with the judiciary, the Attorney General should make public the costs it expects to incur in each capital prosecution, to provide judges a better sense of the resources available to prosecutors as those judges make decisions about defender budgets.


Absent congressional action, federal judges should give substantial weight to the recommendations of federal defender organizations with regard to the appointment of counsel and setting of budgets in capital prosecutions.