No.

16CR00778-GAG

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA

Plaintiff
v.
JUAN R. PEDRO VIDAL
Defendant

BRIEF OF AMICUS CURIAE

HON. JENNIFFER A. GONZALEZ COLON,
RESIDENT COMMISSIONER, PUERTO RICO

Veronica Ferraiuoli Hornedo

USDC-PR 213814
OFFICE OF THE RESIDENT COMMISSIONER
1529 Longworth House Office Building
Washington, DC 20515
 P.O. Box 9023958
San Juan, PR 00902-3958
 202-225-2615 787.723-6333
 Veronica.Ferraiuoli@mail.house.gov

Counsel for Amicus Curiae

 INTRODUCTION

On December 14, 2016, JUAN R. PEDRO VIDAL was indicted in

connection with a carjacking and kidnapping case, where one of the two

victims was killed. He was charged with five (5) counts of violating federal

criminal law, three of which are eligible for capital punishment: carjacking

under 18 U.S.C. § 2119 (3) and (2); kidnapping under 18 U.S.C. § 1201 (a)(1)

and (2); and the use of a firearm during or related to a crime of violence

causing murder under 18 U.S.C. § 924 (j).

On June 28, 2018, the United States filed a notice of intent to seek the

death penalty, pursuant to the FEDERAL DEATH PENALTY ACT (“FDPA”),

18 U.S.C. §§ 3591-3599 (Dkt. 484).

On October 9, 2018, PEDRO VIDAL filed a motion titled Defendant’s

Motion to Strike the Death Penalty Notice Pursuant to Local Rule 144A; and

for Evidentiary Hearing, (Dkt. 527). He alleged that it is unconscionable to

subject United States citizens living in Puerto Rico to the death penalty

without them having voting representation in Congress or being able to vote

for the President.

1
 On November 9, 2018, this Honorable Court entered an order which, in

pertinent part, states as follows:

[…PEDRO VIDAL] argues that subjecting him to a sentence of

death violates our Nation’s raison d’être dating back to the
Declaration of Independence, to wit, the sacrosanct principle of
consent of the governed.

It is an unconscionable reality that the federal death

penalty statute applies to United States citizens born and residing
in the United States territory of Puerto Rico. These citizens,
[PEDRO VIDAL] included, never participated in the election of the
President, Senators and Representatives, who engage in our
Constitution’s law-making process. Also, such elected federal
officials are responsible for the appointment and confirmation of
the Attorney General, the very same official charged with
determining who will be subject to the death penalty. Yet Puerto
Rican United States citizens are subject to the applicability and
execution of the federal death penalty law.

Now, the issue is whether the antidemocratic predicament

[PEDRO VIDAL] faces — which can ultimately lead to his
execution — constitutionally bars him from being subject to the
death penalty.

(Dkt. 568).

On that same date, this Honorable Court entered an order inviting the

Commonwealth of Puerto Rico and the Resident Commissioner to file amicus

curiae briefs, addressing the specific issue of whether the Court can strike the

death penalty sought by Defendant on the ground that he is deprived as a

United States citizen of the democratic principle of the consent of the

governed. (Dkt. 569).

2
 In compliance with the Court’s request, the Resident Commissioner

hereby files this amicus curiae brief.

ARGUMENT

People live or die, dependent on

the whim of one man or of 12. 1

A. The EIGHTH AMENDMENT prohibits the arbitrary or

disproportionate application of the death penalty.

The EIGHTH AMENDMENT to the UNITED STATES CONSTITUTION

prohibits the infliction of “cruel and unusual punishment” upon criminals.2

Both the FIFTH and the FOURTEENTH AMENDMENTS to the U.S. CONSTITUTION

provide that no person shall be deprived of “life, liberty or property, without

due process of law.”3 In developing procedural and substantive limits of

capital sentencing, the Supreme Court has traditionally relied on the language

of these three Amendments.

1
Furman v. Georgia, 408 U.S. 238, 253 (1972) (per curiam) (Douglas, J., concurring).
2
U.S. CONST. amend. VIII.
3
U.S. CONST. amend. V, XIV. The FIFTH AMENDMENT limits the federal government
and the Fourteenth Amendment limits the states.

3
 Well over a century ago, the Supreme Court began defining limits on

the scope of criminal punishments allowed under the EIGHTH AMENDMENT.

While noting the “[d]ifficulty [that] would attend the effort to define with

exactness the extent of the constitutional provision which provides that cruel

and unusual punishments shall not be inflicted,” the Court found “it [ ] safe to

affirm that punishments of torture,” such as drawing and quartering,

disemboweling alive, beheading, public dissection, and burning alive, are

“forbidden by . . . [the] Constitution.”4 It also upheld the use of a firing squad5

and electrocution,6 generally holding that the EIGHTH AMENDMENT prohibits

punishments which “involve the unnecessary and wanton infliction of pain.”7

However, it is clear from the congressional consideration of the CRUEL AND

UNUSUAL PUNISHMENTS CLAUSE that the delegates to the Convention were

4
See Wilkerson v. Utah, 99 U.S. 130, 135–36 (1879). See also 3 J. Elliot, THE DEBATES
IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE CONSTITUTION 452
(2d ed. 1881).
5
Id. at 137–38.
6
See In re Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they
involve torture or a lingering death; but the punishment of death is not cruel, within the
meaning of that word as used in the Constitution. It implies there something inhuman
and barbarous, something more than the mere extinguishment of life.”); see also
Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).
7
See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).

4
not only concerned about tortures and barbarous punishments8 but also with

arbitrary and disproportionate punishments.9

1. Arbitrariness in the application of the death penalty.

In Furman v. Georgia, 10 the Supreme Court, in a one paragraph

per curiam opinion, held that the death penalty, as then administered under

statutes vesting unguided sentencing discretion in juries and trial judges, was

unconstitutionally cruel and unusual punishment in violation of the EIGHTH

and FOURTEENTH AMENDMENTS.11 The concurring opinions that followed

explained that the death penalty was being imposed so discriminatorily,12 so

wantonly and freakishly,13 and so infrequently,14 that any given death sentence

was unconstitutionally cruel and unusual. Justice White concluded that “the

death penalty is exacted with great infrequency even for the most atrocious

crimes and that there is no meaningful basis for distinguishing the few cases

in which [the death penalty] is imposed from the many cases in which it is

8
E.g., J. Elliot, supra, at 447–52.
9
See Granucci, Nor Cruel and Unusual Punishments Inflicted”: The Original Meaning,
57 CALIF. L. REV. 839 (1969). Disproportionality, in any event, was used by the
Supreme Court in Weems v. United States, 217 U.S. 349 (1910).
10
408 U.S. 238 (1972).
11
Id. at 239-40.
12
Id. at 240 (Douglas, J., concurring).
13
Id. at 306 (Stewart, J., concurring).
14
Id. at 310 (White, J., concurring).

5
not.”15 Indeed, the death sentences examined by the Supreme Court in Furman

were

… cruel and unusual in the same way that being

struck by lightning is cruel and unusual. For, of all
the people convicted of [capital crimes], many just
as reprehensible as these, the petitioners [in Furman
were] among a capriciously selected random
handful upon whom the sentence of death ha[d] in
fact been imposed.16

Thus, Furman established that the EIGHTH and FOURTEENTH AMENDMENTS

cannot tolerate the infliction of a sentence of death under legal systems that

permit this penalty to be arbitrarily and capriciously imposed.17

As it has evolved since Furman, the EIGHTH AMENDMENT

arbitrariness standard generally prohibits the infliction of a death sentence

discriminatorily on the basis of illegitimate and suspect factors, such as the

race or socioeconomic status of the defendant and the victim, and its

inconsistent or random imposition.18 The second source of arbitrariness—

15
Id. at 313 (concurring).
16
Id. at 309-10 (Stewart, J., concurring).
17
See id. at 310; Spaziano v. Florida, 468 U.S. 447, 460 (1984) (Furman established that
“[i]f a State has determined that death should be an available penalty for certain crimes,
then it must administer that penalty in a way that can rationally distinguish between
those individuals for whom death is an appropriate sanction and those for whom it is
not.”); Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (Furman established that “if a
State wishes to authorize capital punishment it has a constitutional responsibility to . .
. apply its law in a manner that avoids the arbitrary and capricious infliction of the death
penalty.”).
18
See Eddings v. Oklahoma, 455 U.S. 104, 111 (1982) (Beginning with Furman, the
Court has emphasized its pursuit of the “goals of measured, consistent application and
6
inconsistent and unprincipled outcomes— constituted a major factual

foundation of the Furman holding.19 The Furman Court invalidated existing

death penalty laws because, as the laws were structured and administered at

the time, they failed to generate acceptably consistent outcomes.20 Each of the

concurring opinions in Furman relied upon various forms of statistical

evidence that purported to demonstrate patterns of inconsistent or otherwise

arbitrary sentencing.21 Evidence of such inconsistent results, of sentencing

decisions that could not be explained on the basis of individual culpability,

indicated that the system operated arbitrarily and therefore violated the

EIGHTH AMENDMENT.

The Supreme Court has affirmed this conception of the EIGHTH

AMENDMENT in its decisions following Furman. Thus, the Court has insisted

that “capital punishment be imposed fairly, and with reasonable consistency,

fairness to the accused.”); David C. Baldus et al., “Arbitrariness and Discrimination in

the Administration of the Death Penalty: A Legal and Empirical Analysis of the
Nebraska Experience (1973-1999)”, 81 NEB. L. REV. 486, 496 (2002).
19
See Baldus et al., supra, at 496 n.5.
20
See Furman, 408 U.S. at 295 (Brennan, J., concurring) (noting that the existing
procedures were not constructed to guard against the totally arbitrary selection of
offenders for the punishment of death); Blystone v. Pennsylvania, 494 U.S. 299, 303
(1990) (noting that the constitutional defect identified in Furman was that “unguided
juries were imposing the death penalty in an inconsistent and random manner on
defendants”).
21
Furman, 408 U.S. at 249-52 (Douglas, J., concurring); id. at 291-95 (Brennan, J.,
concurring); id. at 309-10 (Stewart, J., concurring); id. at 313 (White, J., concurring);
id. at 364-66 (Marshall, J., concurring).

7
or not at all.”22 To satisfy the concerns of Furman, the Supreme Court has

thereafter required that the sentencing body's discretion be “directed and

limited” and exercised in an “informed manner” to avoid “wholly arbitrary

and capricious action.”23 Furman was read as holding that “to minimize the

risk that the death penalty [will] be imposed on a capriciously selected group

of offenders, the decision to impose it ha[s] to be guided by standards so that

the sentencing authority [will] focus on the particularized circumstances of

the crime and the defendant.”24

Since 1976, the Court has issued a welter of decisions attempting

to apply and reconcile the sometimes conflicting principles it had announced:

that sentencing discretion must be confined through application of specific

guidelines that narrow and define the category of death-eligible defendants

and thereby prevent arbitrary imposition of the death penalty, but that jury

discretion must also be preserved in order to weigh the mitigating

circumstances of individual defendants who fall within the death-eligible

class.

22
Eddings, 455 U.S. at 112.
23
Gregg v. Georgia, 428 U.S. 153, 189 (1976).
24
Id. at 199.

8
 It is now well settled that “the penalty of death is different in kind

from any other punishment imposed under our system of justice.”25 “From the

point of view of the defendant, it is different both in its severity and its finality.

From the point of view of society, the action of the sovereign in taking the life

of one of its citizens also differs dramatically from any other legitimate state

action.”26 The qualitative difference of death from all other punishments

requires a correspondingly greater need for reliability, consistency, and

fairness in capital sentencing decisions.27 It is of vital importance to the

defendant and to the community that any decision to impose the death

sentence be, and appear to be, based on reason rather than caprice or

emotion.28 Accordingly, the courts must “carefully scrutinize” sentencing

decisions

to minimize the risk that the penalty will be imposed in

error or in an arbitrary and capricious manner. There must
be a valid penological reason for choosing from among the
many criminal defendants the few who are sentenced to
death.29

25
Id. at 188.
26
Gardner v. Florida, 430 U.S. 349, 357 (1977).
27
See, e.g., Ford v. Wainwright, 477 U.S. 399, 411 (1986); Spaziano, 468 U.S. at 460
n.7; California v. Ramos, 463 U.S. 992, 998-99 (1983); Zant v. Stephens, 462 U.S. 862,
884-85 (1983); Woodson v. North Carolina, 428 U.S. 280, 305 (1976).
28
Gardner, 430 U.S. at 357.
29
Spaziano, 468 U.S. at 460 n.7.

9
 2. Disproportionality in the application of the death penalty.

“[T]he EIGHTH AMENDMENT’S protection against excessive or

cruel and unusual punishments flows from the basic ‘precept of justice that

punishment for [a] crime should be graduated and proportioned to [the]

offense.’ ”30 Proportionality in sentencing is an independent element under

the EIGHTH AMENDMENT in assessing a death sentence.

In evaluating whether a death sentence is arbitrary, the Supreme

Court has directed courts to evaluate a defendant's culpability both

individually and in terms of the sentences of codefendants and accomplices in

the same case.31 Pursuant to this principle, in Enmund, the Supreme Court

found a violation of the EIGHTH AMENDMENT when defendants with “plainly

different” culpability received the same capital sentence, as the Constitution

requires proportionality comparison with others participating in the same

crime:

Enmund did not kill or intend to kill and thus his

culpability is plainly different from that of the robbers
who killed; yet the State treated them alike and attributed
to Enmund the culpability of those who killed the
Kerseys. This was impermissible under the Eighth
Amendment.32

30
Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008) (citations omitted)
31
See Enmund v. Florida, 458 U.S. 782, 788, 798 (1982).
32
Id. at 798

10
 The reverse situation— where defendants with plainly similar

culpability received different sentences, or where the defendant with arguably

the lesser culpability received the harsher death penalty sentence— is

similarly repulsive. Numerous state courts have applied the Enmund principal

to require reasonable symmetry between culpability and the sentencing of

codefendants.33 The FEDERAL DEATH PENALTY ACT recognizes that a

comparison of the sentences received by equally culpable codefendants

improves the likelihood that the death penalty will not be imposed in an

arbitrary or capricious manner.34

B. The dual nature of the single sovereign impermissibly interferes

with the EIGHTH AMENDMENT’S prohibition of arbitrary or
disproportionate application of the death penalty.

“[I]t is settled that capital punishment is constitutional” and that the

prohibitions of the EIGHTH AMENDMENT cannot be used to “effectively outlaw

the death penalty altogether.”35 It is also settled that “[t]he death penalty is

33
See, e.g., People v. Kliner, 185 Ill. 2d 81, 705 N.E.2d 850, 897 (Ill. 1998) (“[S]imilarly
situated codefendants should not be given arbitrarily or unreasonably disparate
sentences.”); Larzelere v. State, 676 So. 2d 394, 406 (Fla. 1996) (“When a codefendant
. . . is equally as culpable or more culpable than the defendant, disparate treatment of
the codefendant may render the defendant's punishment disproportionate.”); Hall v.
State, 241 Ga. 252, 244 S.E.2d 833, 839 (Ga. 1978) (“We find that . . . the death
sentence, imposed on Hall for the same crime in which the co-defendant triggerman
received a life sentence, is disproportionate.”).
34
See 18 U.S.C. § 3592(a)(4) (listing as a mitigating factor the lack of death sentences
for equally or more culpable codefendants).
35
Glossip v. Gross, ––– U.S. –––, 135 S. Ct. 2726, 2732-33, 192 L.Ed.2d 761 (2015).

11
intended to apply to Puerto Rico federal criminal defendants just as it applies

to such defendants in the various states.” United States v. Acosta-Martinez,

252 F.3d 13, 20 (1st Cir. 2001).

In contrast, the death penalty has been prohibited as criminal

punishment within the jurisdiction of Puerto Rico’s local government since

1929.36 This prohibition was incorporated into Article II, Section 7 of the

Constitution of the Commonwealth of Puerto Rico, which reads as follows:

The right to life, liberty and the enjoyment of property is

recognized as a fundamental right of man. The death penalty
shall not exist. No person shall be deprived of his liberty or
property without due process of law. No person in Puerto Rico
shall be denied the equal protection of the laws. No laws
impairing the obligation of contracts shall be enacted. A
minimum amount of property and possessions shall be exempt
from attachment as provided by law.37

The constitutional prohibition of the death penalty arises from “the firm

conviction that the death penalty, far from constituting the deterrent that some

claim it is, provides gratification of sadistic feelings without diminishing in

the least, as universal experience shows, the number or frequency of capital

crimes. […] By eliminating it by constitutional edict, the Puerto Rican

36
P.R. Act no. 42 of April 26, 1929.
37
P.R. CONST. Art. II, § 7.4 (emphasis added).

12
people’s moral position about the inviolate value of human life of is

conveyed”.38

The Supreme Court held in Puerto Rico v. Sanchez Valle,39 that for the

purposes of the DOUBLE JEOPARDY CLAUSE, the Commonwealth and United

States governments constitute a single sovereign, in as much as the former’s

power to prosecute derives from the latter’s. Thus, the Commonwealth’s

prosecution, conviction, and sentence of an individual bars his subsequent

prosecution by federal authorities for the same conduct under equivalent

criminal law.

In light of this, the peculiar situation arises in Puerto Rico with regards

to capital offenses over which both the federal and Commonwealth justice

systems have concurrent jurisdiction; in these cases, the same sovereign acting

in relation to the same criminal conduct will be barred from imposing the

death penalty in one jurisdiction, while remaining free to do so in the other.

Because one criminal system does not lose jurisdiction to prosecute the crime

merely because the other system has exercised it, an accused’s possibility of

being subject to the death penalty in Puerto Rico for a capital offense over

38
Diario de Sesiones de la Convención Constituyente de Puerto Rico, Tomo 4, p. 2566.
39
––– U.S. –––, 136 S.Ct. 1863, 1869–1877, 195 L.Ed.2d 179 (2016).

13
which both criminal systems share jurisdiction will be based entirely upon

which criminal system first places him “in jeopardy of life and limb.”

Prosecutorial discretion is a central component of both the federal and

Commonwealth criminal justice systems.40 Prosecutors decide which cases to

pursue and plea bargains to accept, which cases to take to trial, and how those

trials are to be conducted. Despite this, prosecutors’ decisions are generally

not subject to judicial review,41 with only a few legal constraints on

prosecutorial discretion. The limits that exist stem from other areas of law—

equal protection and due process—and these constraints rarely lead to

successful prosecutorial misconduct claims.42

This almost unlimited and unreviewable discretion necessarily creates

a fertile ground for abuse, where the decision to prosecute a defendant in the

local jurisdiction can be made to shield a favored defendant from the death

penalty in the same manner in which it can be exercised in the federal system

to subject a disfavored defendant to the possibility of the ultimate penalty.

40
See 1 Wayne R. Lafave, et al., CRIMINAL PROCEDURE §1.9(c) (3d ed. 2007) (“There is
universal agreement in the modern commentary as to the central role of discretionary
authority in the administration of the criminal justice process.”).
41
See id. §13.2(g).
42
See Anne Bowen Poulin, “Prosecutorial Discretion and Selective Prosecution:
Enforcing Protection after United States v. Armstrong”, 34 AM. CRIM. L. REV. 1071,
1076 (1997) (analyzing the Supreme Court’s case law on selective prosecution and
concluding that “the protection from selective prosecution has been a disfavored
right”).

14
Every local prosecution of what amounts to a capital crime can be called into

question for the more beneficial outlook for the accused, when compared to

the possible outcome of a federal jurisdiction. “Why was this person

prosecuted in local, rather federal court? What makes that person worthy —

rather than another— of the automatic leniency that comes from taking the

death penalty off the table?” This structural deficiency— which arises only as

a result of Puerto Rico’s territorial status— attempts against the EIGHTH

AMENDMENT’S prohibition of the arbitrary and disproportionate application of

the death penalty.

CONCLUSION

The “split personality” of the single sovereign power—where one

jurisdiction is prohibited from enforcing the death penalty while it is allowed

it is allowed in the other— creates as impermissible risk of arbitrariness and

disproportionality which is prohibited by the EIGHTH AMENDMENT to the

U.S. CONSTITUTION.

Accordingly, the Resident Commissioner urges this Honorable Court

to stay the application of the death penalty in Puerto Rico until the structural

deficiencies within the different criminal systems are resolved.

15
 Respectfully submitted.

In San Juan, Puerto Rico, this 14th day of March, 2019.

Counsel for Amicus Curiae

/s/ Veronica Ferraiuoli Hornedo

Veronica Ferraiuoli Hornedo
USDC-PR 213814
 Veronica.Ferraiuoli@mail.house.gov

OFFICE OF THE RESIDENT COMMISSIONER

1529 Longworth House Office Building
Washington, DC 20515
 P.O. Box 9023958
San Juan, PR 00902-3958
 202-225-2615 787.723-6333

CERTIFICATE OF SERVICE

IT IS HEREBY CERTIFIED that on this date, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system, which

will send notification of such filing to all attorneys of record.

/s/ Veronica Ferraiuoli Hornedo

Veronica Ferraiuoli Hornedo

16