Last week, during the latest budget debate, four Republican senators – Cotton, Cruz, Cornyn, and Toomey – introduced Senate Bill 2389 to "require the impaneling of a new jury if a jury fails to recommend by unanimous vote a sentence for conviction of a crime punishable by death."  Current federal law requires that a jury verdict of death in a capital trial be unanimous.  If 12 jurors cannot agree on a sentence, the defendant is automatically sentenced to life without the possibility of parole. Called "Eric's Law" in Senate press releases, S.B. 2389 is intended to give federal prosecutors who fail to persuade a jury to unanimously impose a death sentence the legal equivalent of a "do-over."

The bill is named for Eric Williams – a corrections officer savagely murdered by an inmate at the federal prison in Canaan, Pa., in 2013.  Officer Williams' killer (already sentenced to life on state charges) was tried and convicted of capital murder. When the jury could not agree, he was sentenced by the court to life without parole – sometimes called "pine box life" in courthouses, because that's how the inmate will leave prison.  Officer Williams' murderer is serving his sentence in a 7- by 12-foot concrete cell at the federal "Supermax" facility outside Florence, Colo., where he is confined 23 hours a day – and where he will die one day.

Appreciating the folly of S.B. 2389 requires an understanding of how juries are selected for capital trials.  To be seated, each juror must be "death qualified." That means that several hundred individuals complete an exhaustive questionnaire and are then examined in court by the prosecution and defense.  To be "death qualified," the court must find that the individual juror would give fair consideration to a death sentence or life without parole.  That process rarely takes less than two weeks and often much longer.  In 2015, the federal capital trial of Dzhokhar Tsarnaev (one of the Boston Marathon bombers) jury selection took nearly two months and involved an initial pool of 1,373 registered voters – to select 18 death-qualified jurors and alternates before the trial could begin.

In a news release last week, Sen. Pat Toomey said that because the jury in the trial of Officer Williams' killer could not reach a unanimous verdict of death, resulting in a sentence of life without parole, the "murderer essentially received no punishment for his crime."  S.B. 2389, Toomey continued, would ensure that "no other families have to see violent criminals avoid justice."

If enacted into law, the Senate bill will face serious constitutional hurdles while raising stark questions of fundamental fairness and due process.  But those who believe Eric's Law will lead to more frequent executions for federal capital convictions will be disappointed.  Giving prosecutors a second chance to persuade 12 jurors to impose a death sentence will only make a broken federal death-penalty system substantially more expensive.

The statistics tell the real story.  The current federal death-penalty statute was signed into law in 1988.  As of the first quarter of 2017, the Department of Justice has sought death in 233 jury trials, according to statistics published by the Death Penalty Information Center.  These trials resulted in a total of 76 defendants being sentenced to death.  But the most notable number that should be considered by the Senate sponsors of S.B. 2389 is three.  That number is the total federal executions in the last 30 years and includes Oklahoma City bomber Timothy McVeigh, who effectively volunteered for execution by dropping his appeals.  The last federal execution took place in March 2003.

Legal scholars offer no clear reason, despite the expenditure of hundreds of millions of dollars over 30 years, why federal death sentences are almost never executed.  But the cost of a federal capital prosecution is extraordinary.  A 2010 report to the Judicial Conference of the United States concluded that the average cost of the trial defense alone in a federal death case is $620,932, or about eight times the $76,665 expended in federal murder cases in which death is not sought.  The judge in McVeigh's case calculated the trial cost to be more than $13.8 million – in 1995 dollars.  Just the expense of security for the 2015 Tsarnaev trial in Boston generated more than $750,000 in police overtime.  By comparison, the annual cost of incarceration of a federal inmate is less than $32,000 per year.

The Senate sponsors of Eric's Law suggest that passage of their bill will help ensure that those who commit the most horrific homicides charged in the federal system will have their death sentence executed.  But giving prosecutors the opportunity to double-down for death – when they cannot persuade a jury on their first try – will only add to the cost of a system that can never really work.  The truth, as the federal budget deficit is pushed ever higher, is that S.B. 2389 will do what its sponsors would vigorously oppose in any other context – just expand another failed government program.

Mark MacDougall and Abigail Kohlman are partner and associate, respectively, in the Washington office of Akin Gump Strauss Hauer & Feld LLP.   MacDougall, a former federal prosecutor, and Kohlman have served as trial counsel to a series of indigent defendants facing the death penalty in South Carolina and Missouri.