18 U.S.C. § 3621 (court to commit sentenced prisoners to the custody of the Bureau of Prisons).
Amici contend that Congress's oversight is more than an embarrassment, it is a constitutional defect because (1) the prospect of an indefinite term of imprisonment, terminable only by some future execution provision, itself constitutes cruel and unusual punishment, and (2) the subsequent enactment of any implementing legislation will violate the ex post facto clause. Although this court is perplexed, both by Congress's failure to provide a means of execution, and by the executive's pursuit of a punishment before a means of carrying it out is specified, it must reject amici 's contentions because they either lack merit or are premature.
A. Cruel and Unusual Punishment
Amici 's claim that the uncertainty inherent in Congress's failure to enact implementing legislation is itself constitutionally cruel and unusual relies on In re Medley, 134 U.S. 160, 33 L. Ed. 835, 10 S. Ct. 384 (1890). In that case, the Supreme Court observed that "when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty . . . as to the precise time when his execution will take place." Id. at 172. At issue in Medley was legislation passed after a capital defendant was sentenced permitting the warden to withhold from him the exact date of his execution. The new statute was declared unconstitutional, but not because it was cruel and unusual. Rather, the new level of uncertainty constituted an increased punishment that violated the ex post facto clause. Id.
Assuming that Medley is pertinent to amici 's eighth amendment claim, the challenge is simply premature. Mr. Pitera has been charged with a capital crime. He has not been convicted or sentenced of one. Even if such were to be the outcome of this case, defendant would have the right to appeal. Conceivably, before such events run their course, Congress may pass implementing legislation. Under such circumstances, Mr. Pitera would not be subject to the kind of uncertainty forecast by amici.
More troubling to the court is the possibility that Congress will not address the issue in the near future, such that a capital defendant, even after having pursued all appeals, could be incarcerated for several years before implementing legislation is enacted. Double jeopardy, however, proscribes multiple punishments for the same crime. See Whalen v. United States, 445 U.S. 684, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980). This potential concern is not ripe for consideration before the capital trial is concluded. Whether it ever needs to be addressed will depend both on the outcome of the trial and on Congress.
B. Ex Post Facto
Amici argue that any subsequent implementing legislation will violate the ex post facto clause. They contend that, at present, the maximum sentence that can be imposed on Mr. Pitera is life imprisonment. Any change in this situation will constitute an impermissible increase in punishment. See Collins v. Youngblood, supra. The court disagrees. The maximum possible sentence that can presently be imposed upon the defendant is death. Indeed, § 848(1) requires a court to impose such a sentence if the jury recommends it. Thus, in United States v. Chandler, supra, that is the sentence that was imposed.
The fact that such a sentence cannot presently be implemented does not mean that subsequently enacted procedures will violate the ex post facto clause. Congress, in enacting § 848(e)(1)(A), has already served plain notice on those who would commit intentional murders in connection with significant drug dealing that they face a possible sentence of death. Thus, Mr. Pitera had fair warning of the consequences of his conduct at the time he allegedly committed the Leone/Stern homicides. See Collins v. Youngblood, U.S. at , 110 S. Ct. at 2724.
In Dobbert v. Florida, 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977), the Supreme Court held that such fair warning was sufficient to defeat an ex post facto challenge. The defendant in that case was sentenced to death pursuant to a new statutory scheme enacted after Furman v. Georgia, supra, to cure defects in the capital statute in effect at the time he committed the crime. The Supreme Court held that the original statute adequately served "fair warning" upon defendant of the state's intent to punish murder with a sentence of death. Dobbert v. Florida, 432 U.S. at 297. Thus, statutory changes that do not increase "the quantum of punishment attached to the crime," but that simply specify the methods by which an imposed sentence is effected, do not implicate the ex post facto clause. See id. at 294 (statutory change was procedural and therefore not violative of ex post facto).
Amici suggest that subsequent implementing legislation may provide for means of execution that are themselves cruel and unusual. Should any implementing legislation be subject to an eighth amendment challenge, a defendant will be heard. This court cannot, however, engage in a speculative consideration of the issue.
For the reasons stated in this memorandum and order, the court finds (1) that the death penalty does not constitute cruel and unusual punishment in all cases, (2) that the capital statute here at issue does not risk arbitrary and capricious imposition of the death penalty, (3) that defendant was not arbitrarily and vindictively singled out for prosecution, and (4) that the present inability to implement a death sentence does not preclude capital prosecution. The motion challenging constitutionality is, therefore, denied.
Dated: Brooklyn, New York
May 26, 1992
UNITED STATES DISTRICT JUDGE