If Loughner is convicted, death penalty would be difficult to carry out. Prosecutors are expected to pursue the death penalty in the Tucson shootings. But precedent suggests it would be unlikely that Jared Lee Loughner, if found guilty, would ever be executed. On the day Jared Lee Loughner was indicted for the shootings in Tucson, the top federal prosecutor in Arizona signaled that the government most likely would request the ultimate punishment.
But the federal death penalty process is filled with obstacles, and Loughner’s execution would be far from assured if he is convicted. Most defendants initially targeted for death are more likely to spend their lives in prison. Of 182 federal death penalty prosecutions approved by Washington since 1988, 60 defendants are on death row, and only three — including Oklahoma City bomber Timothy McVeigh — were executed, according to Kevin McNally, director of the Federal Death Penalty Resource Counsel Project, which tracks capital cases. None of the 60 are even close to a date with the executioner. Other defendants with profiles as high or higher than Loughner — the Unabomber, the Olympics bomber, even Zacarias Moussaoui, the so-called 20th hijacker in the Sept. 11 attacks — were all spared death and given life in prison. In some cases prosecutors drop the death penalty to assure a conviction. In others, juries sympathetic to some aspect of a defendant’s life or wary of creating a martyr decide on life without parole.
A similar picture holds true for capital punishment by the state of Arizona, where law enforcement officials in Tucson are assembling their own criminal case against the 22-year-old Loughner. Only 24 Arizona prisoners have been executed in the last 35 years. And this doesn’t include Viva Leroy Nash, who died of natural causes last year at the age of 94 after 27 years on death row.
Before federal prosecutors can seek the death penalty, they must get around a series of roadblocks. Dennis K. Burke, the U.S. attorney in Arizona, is preparing a prosecution memorandum for the Justice Department’s Capital Case Unit. He also must file a narrative of facts in the case, background on Loughner and his victims, and “views of [each] victim’s family on seeking the death penalty,” Burke said. He is precluded from seeking death just to strengthen his bargaining position on a plea deal. Rather, he must convince Washington that the crime itself merits Loughner’s death if he is convicted.
The unit studies the material and invites defense lawyers to participate as well. McNally said they almost always do, if for no other reason than it offers a sneak peek of the government’s case against their client. The 12-member unit sends its findings to the Capital Case Review Committee at the Justice Department. The committee is composed of a mix of career lawyers and political appointees, and they make a recommendation to the attorney general. Justice Department officials declined to name the members of either panel.
Atty. Gen. Eric H. Holder Jr. will make the final decision on whether to push for the death penalty. In a case of this magnitude, sources said, he most surely will grant the go-ahead. Although the Justice Department under President George W. Bush sought far more death sentences than in President Clinton’s time, in the last two years, “Holder has been seeking a healthy number of death cases too,” McNally said. The Justice Department last week declined to release the number of times it had sought the death penalty under Holder.
And there are other obstacles for getting a convicted Loughner into the death chamber. There are jurisdictional issues, such as whether he knew that John M. Roll was a federal judge when Loughner is believed to have fatally shot him or whether the judge was at the Jan. 8 congressional event “in the performance of his official duties.” A huge backlog in federal cases in Arizona has just led officials to declare a judicial emergency and allow lengthy trial delays. And Loughner’s mental fitness could sway a jury to give him a prison term rather than death.
McVeigh was the best known of the three who have been put to death since 1988. He was executed in 2001, just four yrs after he was convicted — but only because he abruptly dropped his legal appeals. Until then, it had been nearly four decades since the federal government executed a prisoner — Victor Feguer, who in 1963 was hanged in Iowa for kidnapping and killing a doctor. The last man executed by the federal government was Louis Jones Jr., a highly decorated Army Ranger. He was put to death in March 2003 in Indiana for the kidnapping, rape and murder of a female Army private in Texas.