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Published December 26 2010

Ask Your Government: Death penalty decision made at highest level of government

Dear readers,

A Grand Forks reader wrote and asked this:

“As you know, North Dakota does not have legalized death penalty. As I understand it, however, if a federal crime has been committed, the death penalty is OPTIONAL. This means that the life or death of an individual is entirely in the hands and whims and political pressure of ONE person: the district attorney.

“North Dakota cannot change the federal law, but what steps can citizens take to – not change the federal law (that death penalty is still an OPTION) – but to change the state law so that district attorneys (who are citizens and residents of the state of North Dakota), when given the option, will be required to abide by the laws of the state of North Dakota and only the state of North Dakota? So that given the option, they will opt to not impose the death penalty.”

Here is what First Assistant U.S. Attorney Lynn C. Jordheim said:

“The federal death penalty is only available for violations of federal law, which are prosecuted in the United States District Court by attorneys of the United States Department of Justice – most often employed by the United States Attorney’s Office for that particular district.

“The United States attorney is appointed by the president of the United States, and his or her nomination to the position must be confirmed by the United States Senate.

“There is a Department of Justice protocol in place, which must be followed in every case in which the death penalty is available as a possible sentence. This protocol provides that the decision whether to seek or not seek the death penalty in each such case is made by the United States attorney general, after a substantial review process.

“This process includes the opportunity for the defendant, with the assistance of attorneys appointed at public expense if requested, to make a submission to the Department of Justice recommending that the attorney general decide NOT to authorize seeking of the death penalty.

“The purpose of this protocol is to ensure that the decision whether to authorize the seeking of the death penalty in a particular case is made at the highest level of government, after careful consideration of all relevant factors, and in a manner that ensures that the decision is made applying a national standard.”

I also asked Aaron Birst, executive director of the North Dakota State’s Attorneys Association, about the matter. He, too, talked about the Justice Department process:

“The imposition of the federal death penalty is not in the hands of one particular U.S. attorney. That is because, no matter what state the U.S. attorney is from, before they can seek the death penalty, they must go through a significant approval process, which reaches to the top of the Department of Justice.

“That approval process reviews numerous factors, including the particular state’s law on the death penalty, before deciding whether the death penalty will be authorized.

“Additionally, trial courts have the duty to make sure the law is correctly followed and then ultimately the decision to implement the death penalty (assuming a conviction) is for the jury to determine.

“A change in state law to control federal prosecution would probably violate the U.S. Constitution’s Supremacy Clause, which means if you disagree with the federal death penalty, you would need to change federal law through the U.S. Congress.”

Do you have a question for a North Dakota state government official or agency? Send us your question, and we’ll do our best to find an answer.

E-mail politics@

wday.com (Subject: Ask your government).

You may also write to Teri Finneman c/o Forum Communications, Press Room, State Capitol, Bismarck, ND 58505.

Please include your name, town and a phone number to reach you for verification.


Finneman is a multimedia reporter for Forum Communications Co.