By James Barta, J.D. Candidate

In United States v. Sierra-Rodriguez, six foreign nationals face charges including conspiracy to travel in interstate commerce to commit murder.[1] That charge renders them eligible for the death penalty.[2] Earlier this year, four of the defendants moved to enjoin the government from seeking the death penalty.[3] Although the district court recently dismissed the motion as moot,[4] the proceeding raises several intriguing and unusual questions.

The defendants filed the motion due to difficulties in assembling a mitigation package. Before the government seeks the death penalty, defendants charged with death-eligible crimes may prepare a mitigation package for government review.[5] Often included in the materials are interviews with defendant’s family and friends.  After submission to the local U.S. Attorney, the package is forwarded to the Department of Justice’s Capital Case Unit for a decision.[6]

The four defendants filing the motion, all Mexican natives, claimed that they could not conduct a complete mitigation investigation, because witnesses reside in Mexican states that are virtual “war zones.”[7]Consequently, no mitigation expert was willing to travel to those areas, and potential witnesses might withhold testimony to avoid reprisals.[8] The defendants argued that a constitutionally adequate mitigation report should include “all reasonably available mitigating evidence.”[9] Although recognizing that the U.S. Attorneys’ Manual creates no substantive rights to a full mitigation report, the defendants relied on two cases from Puerto Rico that described the decision to seek the death penalty as a “critical stage” in the criminal case.[10] Hence, defendants claimed that failure to conduct a full investigation, as ABA guidelines recommend, could impair their Sixth Amendment right to adequate representation.[11] Additionally, the defendants argued a complete report was needed to comport with the Eighth Amendment’s individualized sentencing requirement in the capital context.[12] Thus, they requested the court to enjoin the government from seeking the death penalty, or alternatively, to stay the proceedings until a full mitigation report could be conducted.[13]

The government opposed the motion. It first objected that the motion was not ripe, because the Attorney General had not yet authorized the death penalty and because there might be alternative means to gather the needed information.[14] Witnesses could meet with investigators at a border town, for instance. Additionally, the government contended that an attorney’s duty to discover all reasonably available mitigating evidence does not confer a right to a perfect investigation.[15] Counsel need not comply exactly with ABA guidelines to provide adequate representation.[16] Hence, the government contended that the defendants’ situation no more deprived them of their constitutional rights than when a witness’s death prevents a defendant from obtaining the benefit of their testimony.[17]

Despite the heightened caution courts employ in capital cases, granting either of defendants’ requests is problematic given the precise question presented. The defendants attempted to compile mitigation evidence for the government’s use in making a preliminary determination. Even if the Attorney General authorizes the death penalty, the defendants must still be convicted and sentenced in separate proceedings. Accordingly, their constitutional are not strongly implicated. The Sixth and Eighth Amendments guarantee certain rights, but the defendants do not cite any case applying them to the government’s internal decision regarding whether to seek the death penalty. Rather, courts have almost uniformly held the United States Attorneys’ Manual does not create judicially enforceable rights—even for death-eligible defendants.[18]

The separation of powers thus militates against issuing an injunction absent an enforceable right. Charging decisions, as a part of enforcement, are inherently an executive branch function.[19] Deciding whether to seek the death penalty is no different, being an exercise in prosecutorial discretion.

While the courts have an independent obligation to protect criminal defendants’ rights, prospective remedies are troublesome. Consider if the Mexican security situation were to improve after the injunction issues but prior to sentencing. If so, then the mitigation experts could assemble a report, and there would be no constitutional impairment to seeking the death penalty. The government, however, could not seek a higher penalty in the middle of litigation. Conversely, proceeding without an injunction would preserve the death penalty option should the situation continue. If access to mitigation evidence were impaired, intervention could occur at sentencing to preserve the defendants’ constitutional rights. Judicial efficiency might counsel earlier involvement to avoid the additional procedures associated with capital prosecutions, but the criminal system’s structural integrity requires courts to function primarily as a reactive institution.

Alternatively, the court might stay proceedings—but not without cost. Without a foreseeable end to Mexico’s security nightmare, the defendants’ pre-trial detention could be indefinite. Indefinitely confining individuals not yet convicted sets disturbing precedent, even if such prolonged detention does not violate constitutional guarantees. A stay could also coerce the government into seeking a lesser sentence. Concerns about deterioration of evidence or loss of witnesses might compel the government to bring lesser charges rather than risk losing its case.

While one might object that all procedural protections are necessary in the capital context, three points are worth considering. First, the mitigation report may not affect the government’s decision to seek the death penalty. It is only potentially relevant. Second, the security situation may favor the defendants. Promising indications of mitigating circumstances combined with the inability to pursue those leads may dissuade the government from seeking the death penalty, because all ambiguity is construed in the defendants’ favor.[20]Third, the defendants retain a multitude of procedural protections. They can again present mitigating evidence at sentencing. At this juncture, the court could properly intervene to protect the defendants’ constitutional rights. No decision maker will have perfect information; however, part of the jurist’s skill might be deciding when too much is left unknown to impose the death penalty given the Eighth Amendment requirement for individualized sentencing.

The court in Sierra-Rodriquez did not reach the motion’s merits. But in like circumstances, a defendant’s best hope for early resolution may lie in the political process. Where the courts have limited power, social and political pressure may persuade the Attorney General to refrain from seeking the death penalty against individuals unable to access potential mitigating evidence.