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Duncan likely headed to Indiana prison

Bill Morlin
Staff writer
August 28, 2008

Joseph Duncan likely will be transferred soon from Boise to the U.S. penitentiary in Terre Haute, Ind. – the prison where condemned federal inmates are executed.

The 45-year-old sex predator and killer could be held there or in some other high-security federal prison until his appeals run out – a process that could take three or four years, or maybe longer.

U.S. Attorney Thomas Moss said Duncan's death sentence will undergo an "automatic appeal" to the 9th U.S. Circuit Court of Appeals, which handles federal appeals on the West Coast.

"There is an automatic appeal when a death sentence is pronounced," Moss told reporters outside the U.S. courthouse in Boise after the unanimous jury verdict was reached.

"How long it takes could vary, but it (usually) takes a long time," Moss said.

However, other legal experts said federal death penalty law doesn't provide for an automatic appeal. An appeal review, they said, would have to be initiated by Duncan, who declined to present any defense at the sentencing hearing.

If Duncan doesn't appeal, it's not clear if an anti-death penalty organization could file an appeal on his behalf.

Any appeal would examine whether material facts or evidence were overlooked or unavailable, jeopardizing Duncan's constitutional right to a fair trial.

If the federal appeals court affirms the death penalty, it would be the end of the road unless the U.S. Supreme Court decided to review the case.

Kootenai County Prosecutor Bill Douglas said his office will stipulate to life sentences on the three murder convictions Duncan has pending in Idaho. Duncan already received three life sentences on state kidnapping charges, but murder sentencing was put on hold until the federal case in Boise was completed.

Had the federal jury not handed down the death penalty, Douglas could have sought it on state charges. Now, there's no point in repeating that process in Kootenai County, he said.

"How many times can you execute somebody?" Douglas said Wednesday, noting that allowing the federal prosecutors to seek the death penalty first saved the county an estimated $4 million.

With the federal death sentence tagged on Duncan, it now appears less likely that authorities in California or Seattle will get a chance to immediately proceed with state murder charges against him for other crimes.

A spokeswoman for Riverside County, Calif., District Attorney Rod Pacheco said that office still wants to bring Duncan there to stand trial for the 1997 murder and kidnapping of 10-year-old Anthony Martinez.

"He needs to face the murder charge here in Riverside County," Ingrid Wyatt said.

But Duncan is now in federal custody. It apparently would take approval by the U.S. attorney general to release Duncan to state authorities.

After sentencing in U.S. District Court, all prisoners are transferred to the "custody and control" of the U.S. Bureau of Prisons, which puts inmates through a "designation process" before assigning them to one of 114 federal prisons.

Death-penalty inmates routinely end up at the U.S. penitentiary in Terre Haute, a maximum-security prison for men. The U.S. Bureau of Prisons also operates a federal correctional facility, a medium-security prison, on its Terre Haute campus.

"We currently have 50 inmates who have death sentences," Felicia Ponce, a spokeswoman for the Bureau of Prisons in Washington, D.C., said Wednesday.

Of the 50, two are women being held in prisons other than Terre Haute, Ponce said.

Currently, there are no scheduled executions while the 50 death-row inmates pursue legal appeals, the Bureau of Prisons official said.

The federal prison at Terre Haute is where Oklahoma City bomber Timothy McVeigh was executed on June 11, 2001, four years after he was sentenced to death for the 1995 bombing that killed 168 people.

McVeigh's execution was delayed by a circuit court appeal. He argued that 3,000 pages of FBI reports were not turned over to his legal team during his trial that ended with a death sentence. When McVeigh's death sentence was upheld by the appeals court, the U.S. Supreme Court – the final stop – refused to take up his case.

McVeigh's execution was the first federal death sentence carried out since March 1963, when Victor Feguer was hanged at the Iowa State Penitentiary after being convicted of kidnapping.

Since McVeigh's execution, two more men have been executed at Terre Haute – Juan Raul Garza, convicted of three murders as part of a "continuing criminal enterprise," and Louis Jones, convicted of kidnapping resulting in a death.

Garza was executed on June 19, 2001, and Jones was put to death on March 18, 2003.

Those last two federal executions were carried out eight years after the men received the federal death penalty, affirmed by a U.S. District Court judge, and their separate federal appeals were exhausted.

Federal death sentences are now carried out by lethal injection.

Since 1927, the U.S. Bureau of Prisons has carried out 37 executions – using hanging, electrocution and the gas chamber before exclusively switching to lethal injection, according to data on the agency's Web site.

In 1972, the U.S. Supreme Court ruled state death penalty laws were unconstitutional, and federal and state executions were halted. A new federal death penalty statute was enacted in 1988 for murder associated with federal drug kingpin cases.

Congress followed that law in 1994 by expanding the federal death penalty to include 60 different offenses, including murder of government officials and sexual abuse crimes resulting in death. About that same time, Ponce said, the Bureau of Prisons designated Terre Haute as the facility where death penalties would be carried out.

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