Full opinion text
MEMORANDUM AND ORDER WOLF, District Judge. I. BACKGROUND AND SUMMARY Defendant Gary Lee Sampson is charged with two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119(3). The Attorney General has filed a notice of his intention to seek the death penalty. Sampson has moved to dismiss the death penalty charges against him and also challenges the government’s right to present certain evidence in support of them. Although Sampson raises at least one serious issue, each of his thirteen claims is either without merit or not ripe for resolution. Therefore, his motions to dismiss the death penalty charges and for certain other relief are being denied. The fundamental facts of this case are not in dispute. On July 23, 2001, Sampson, a 41-year old white male who was wanted for committing a series of bank robberies in North Carolina, called the Boston Office of the Federal Bureau of Investigation (the “FBI”) to ask that the FBI arrest him. The call was received by William Anderson, an FBI employee. Although Sampson reportedly waited in Ab-ington, Massachusetts for the FBI to arrive, he was not arrested. Anderson had disconnected Sampson’s call and did not report it to anyone. . On July 24, 2001, Phillip McCloskey, a 69-year old white retiree, picked up Sampson, who was hitchhiking. Sampson subsequently murdered McCloskey and attempted to steal his car. On July 27, 2001, Sampson was hitchhiking again. He was picked up by Jonathan Rizzo, a white college student. Sampson murdered Rizzo and stole his automobile. On July 30, 2001, Sampson encountered Robert Whitney in New Hampshire. Sampson murdered Whitney and took his automobile. On July 31, 2001, William Gregory picked up Sampson who was hitchhiking in Vermont. Sampson pulled a knife and ordered Gregory to drive down a dirt road. Gregory, however, jumped out of his automobile, which Sampson drove away. Gregory reported that his car had been stolen. Shortly thereafter, Sampson called 911 to surrender. Sampson was arrested by the Vermont State Police and quickly confessed his crimes, including the murders of McClos-key, Rizzo, and Whitney. He also said that he had sought to surrender to the FBI before committing those murders. In August 2001, Sampson was charged by the Commonwealth of Massachusetts for the murders of McCloskey and Rizzo. In 1972, the United States Supreme Court declared the nation’s death penalty statutes unconstitutional because, as they were written and operated, they resulted in the arbitrary and capricious imposition of the ultimate sanction. See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). By 1976, Georgia had enacted a new statute, which limited and directed the exercise of a jury’s discretion to decide whether to sentence a defendant to death, that was found to be constitutional. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Today, thirty-eight states have laws providing for the death penalty. However, Massachusetts has since 1972 repeatedly declined to enact legislation that would reinstitute death as a penalty for murder or any other crime. Sampson was willing to plead guilty to the murder charges against him and to accept the maximum sentence permitted under Massachusetts law — life in prison without parole. However, on October 24, 2001, Sampson was also indicted in this federal case, which could result in his execution under the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591, et seq. (the “FDPA”). Following the Furman decision in 1972, there was not a constitutionally valid federal death penalty statute. In 1988, the federal death penalty was instituted for certain drug offenses. See 21 U.S.C. § 848(e). In 1994, the FDPA extended the federal death penalty to more than fifty additional crimes, including carjacking resulting in death, but not to murder, which is not alone a federal offense. While murder is, of course, a horrible crime, it has not historically been a federal crime. Prior to the FDPA, if Sampson had murdered McCloskey and Rizzo in Massachusetts, he would not have been subject to the death penalty. He now faces the possibility of execution because he also stole, or attempted to steal, their automobiles. The Massachusetts charges against Sampson were dismissed in deference to this federal prosecution. Sampson offered to plead guilty and accept a federal sentence of life in prison without the possibility of parole. The Department of Justice did not accept this offer. Rather, on November 19, 2002, the Attorney General filed a notice of intent to seek the death penalty in this case. The court has previously rejected both Sampson’s claim that the Supreme Court’s 2002 decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders the FDPA unconstitutional, and his related claim that he has a right to plead guilty and be sentenced to life in prison without parole. See United States v. Sampson, 245 F.Supp.2d 327 (D.Mass.2003). Sampson subsequently filed a motion to dismiss the death penalty charges against him, alleging that the FDPA violates the Eighth Amendment, which prohibits cruel and unusual punishment, for a series of related reasons. He also attacks some of the factors and evidence on which the government intends to rely in its effort to persuade the jury that Sampson should be executed. See § III, infra. Some, but not all, of Sampson’s claims are now ripe for resolution. See § V, infra. The court has received voluminous briefs from the parties. A hearing on the pending motions was held on June 11 and 16, 2003. For the reasons described in detail in this Memorandum, the court is now deciding Sampson’s primary claims as follows. Only the Supreme Court can reverse its prior decisions that the death penalty is not inherently cruel and unusual punishment. See § VI, infra. Sampson has not proven his claim that the FDPA results in death sentences that are arbitrary and capricious because of alleged regional and racial disparities. See § VIII, infra. Sampson’s claims that the FDPA is unconstitutional because it does not mandate the use of the Federal Rules of Evidence at the sentencing phase of a capital case and does not provide for adequate appellate review are not ripe for resolution. See §§ IX, XI, infra. Sampson is not correct in his contentions that the FDPA does not authorize a sentencing jury to consider unadjudicated criminal conduct and that doing so would constitute an impermissible delegation of legislative power to the executive branch. See §§ XII.C, XII.B, infra. Sampson’s motion to dismiss does present a serious question concerning whether the FDPA is unconstitutional because of the mounting evidence that innocent individuals have been sentenced to death, and undoubtedly executed, more often than previously understood. See § VII, infra. However, the court finds that Sampson has not demonstrated that the FDPA is now unconstitutional for this reason. As the Supreme Court has repeatedly reiterated, whether a penalty constitutes cruel and unusual punishment is not determined by the standards of the eighteenth century when the Eighth Amendment was adopted. Rather, the Eighth Amendment must draw its meaning from “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Atkins v. Virginia, 536 U.S. 304, 311-12, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)). It is, therefore, the duty of the courts to reconsider periodically whether the death penalty offends contemporary standards of decency. See § IV, infra. In doing so, a court must focus on objective indicia of contemporary attitudes to the maximum extent possible. Atkins, 536 U.S. at 311, 122 S.Ct. 2242. Legislation, enacted by elected representatives, is a primary form of such objective evidence. However, the fact that a statute, or many statutes, authorize the death penalty is not the end of the inquiry. As the Supreme Court has written: “Judicial review by definition, often involves a conflict' between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to [the courts] in no different posture.... [T]he Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and [] there are punishments that the Amendment would bar whether legislatively approved or not.” Gregg, 428 U.S. at 174, 96 S.Ct. 2909 (quoting Furman, 408 U.S. at 313-14, 92 S.Ct. 2726 (White, J., concurring)). Jury verdicts are also significant and rehable evidence of contemporary values. Indeed, “one of the most important functions any jury can perform in making ... a selection [between life and death] is to maintain a link between community values and the penal system' — -a link without which the determination of punishment would hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’” Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (quoting Trop, 356 U.S. at 101, 78 S.Ct. 590 (plurality opinion)). In deciding the current meaning of the Eighth Amendment, the Supreme Court has also recently considered polling data, and the practices of England and other Western European countries that share our nation’s traditions. This court has considered all of these objective factors in the instant case, giving the greatest weight to legislation and jury verdicts. Contrary to the government’s contention, and the decision of the Second Circuit in United States v. Quinones, 313 F.3d 49 (2d Cir.2002), reh’g denied, 317 F.3d 86 (2d Cir.2003), the Supreme Court has never decided whether the risk of executing innocent individuals renders the death penalty unconstitutional. See § VII, infra. Although Sampson does not claim to be innocent, he does have standing to assert that the FDPA is unconstitutional for this reason. Whether he has a right not to be executed pursuant to an unconstitutional statute is a question that implicates a debate that is raging among Justices of the Supreme Court and in academia. This question need not be resolved in this case because Sampson has not proven that the FDPA is unconstitutional as a result of the risk of executing innocent individuals. He has, however, persuaded the court that this is a serious question, that future developments could strengthen this argument, and that courts will have a duty to monitor carefully future legislation and jury verdicts concerning the death penalty in deciding what is likely to be the constantly recurring question of whether the risk of executing innocent individuals renders the death penalty generally, or the FDPA particularly, unconstitutional. See § VII, infra. More specifically, in 1993, a majority of the Justices of the Supreme Court stated that the execution of an innocent person would violate the Constitution. See Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). This court agrees. The risk of executing the innocent has long been recognized. However, in the past decade substantial evidence has emerged to demonstrate that innocent individuals are sentenced to death, and undoubtedly executed, much more often than previously understood. In that period, DNA testing has established the actual innocence of at least a dozen inmates who had been sentenced to death. These developments have prompted the reinvestigation of many other capital cases, resulting in the release of more than 100 innocent individuals from the nation’s death rows. In deciding in 2002 that it is no longer constitutional to execute the mentally retarded, the Supreme Court wrote that “we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.” Atkins, 536 U.S. at 320 n. 25, 122 S.Ct. 2242. The government correctly asserts that the Supreme Court was addressing convictions obtained in state courts, rather than under the FDPA. The government contends that similar errors could not occur in federal courts. The government’s confidence that the FDPA will never lead to the execution of innocent individuals is not shared by the only federal judge to have conducted the trial of an FDPA case in Massachusetts. Judge Michael Ponsor presided in the trial of Kristen Gilbert, a nurse convicted of murdering four of her patients and attempting to murder three others. After the jury’s 2001 verdict decided that she should be sentenced to life in prison, Judge Ponsor wrote that “[t]he experience left me with one unavoidablé conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people — not too often, one hopes, but undoubtedly sometimes.” Appendix (“A-”)-90, Michael Ponsor, “Life, Death, and Uncertainty,” Boston Globe, July 8, 2001, at D2. There are compelling reasons to believe that Judge Ponsor’s prediction is prophetic. Federal judges, like state judges, are human and, therefore, fallible. Jurors in federal cases are essentially the same citizens who serve as jurors in state cases. In addition, many federal cases, including this one, result from investigations conducted primarily, if not exclusively, by state and local law enforcement. The instant case illustrates the potential for serious imperfections in a federal capital ease. Since Sampson surrendered, his counsel has proclaimed that he would rely heavily on Sampson’s telephone call to the FBI as a mitigating factor in the effort to persuade a jury not to sentence Sampson to death. Anderson, among others, was promptly questioned by the FBI and later by the Department of Justice Inspector General concerning Sampson’s claim that he had called the FBI. Anderson repeatedly denied receiving the call, including in a sworn interview and affidavit given on October 30, 2001. In December 2001, Anderson acknowledged that he received Sampson’s call after being informed that he had failed a polygraph examination concerning it. If Anderson’s perjury had not been discovered, a jury in this case would have been deprived of evidence that might determine whether Sampson lives or dies. Important errors are, however, not always identified prior to death sentences being imposed, at times because of misconduct by state and federal investigators. It is now clear that in 1967 Joseph Salvati and several other individuals were unfairly convicted because the FBI had withheld information that its informants, rather than the defendants, had murdered Edward Deegan, and had allowed its informants to testify falsely against the innocent men. Several of the defendants, including Peter Limone, were sentenced to death. While those death sentences were reduced to life in prison following the invalidation of the death penalty by Furman, two of the wrongfully convicted men died in prison. Salvati, who was originally sentenced to life in prison, received a commutation and was released in 1997. Limone was released in 2001, after his wrongful conviction had been demonstrated. See United States v. Flemmi, 195 F.Supp.2d 243, 251 (D.Mass.2001). The deliberate misconduct by federal investigators that was so belatedly revealed with regard to the Deegan murder is neither ancient history nor unique to Boston. Daniel Bright was, in 1996, convicted of murder by the state of Louisiana and sentenced to death. Several months ago, a federal judge found that the FBI had evidence that another person had claimed to have committed the murder, but the FBI violated the government’s constitutional duty to disclose that evidence to Bright before his trial, and later lied to the federal judge about its existence. See Bright v. Ashcroft, 259 F.Supp.2d 494 (E.D.La.2003) and 259 F.Supp.2d 502 (E.D.La.2003). The government misconduct concerning Salvati and Bright are not isolated occurrences. A recent study of capital cases from 1973 to 1995 reported that one of the two most common errors prompting the reversal of state convictions in which the defendant was sentenced to death was the improper failure of police or prosecutors to disclose “important evidence that the defendant was innocent or did not deserve to die.” James S. Liebman, et al., A Broken System: Error Rates in Capital Cases, 1973-1995 at ii (2000). As indicated earlier, the performance of state and local police is important to the operation of the FDPA because many cases, including this one, have initially been investigated by them and later brought in federal court, at times in an effort to achieve a death sentence that is not available under state law. Serious errors appear to be common in capital cases. After analyzing more than 4500 appeals of capital cases, the same study found that “the overall rate of prejudicial error in the American capital punishment system was 68%. ” Id. at i (emphasis in original). As the authors later wrote: For cases whose outcomes are known, an astonishing 82% of retried death row inmates turned out not to deserve the death penalty; 7% were not guilty. The process took nine years on average. Put simply, most death verdicts are too flawed to carry out, and most flawed ones are scrapped for good. One in 20 death row inmates is later found not guilty. A-284, James Liebman, et al., “Technical Errors Can Kill,” Nat’l L.J., Sept. 4, 2000, at A16. In view of the foregoing, this court agrees with Judge Ponsor, among others, that the FDPA, like the state death penalty statutes, will inevitably result in the execution of innocent people. Since a majority of the Supreme Court stated in 1993 that the execution of an innocent person would be unconstitutional, the critical question is how many of those who will be executed must be innocent to offend contemporary standards of decency and, therefore, render the FDPA unconstitutional. The government contends that where, as here, a defendant claims that a statute is unconstitutional on its face “the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). However, “[t]o the extent [the Supreme Court has] consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of [the Supreme] Court, including Salerno itself .... ” City of Chicago v. Morales, 527 U.S. 41, 55 n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (plurality opinion). Nor does the quoted dicta from Salerno provide the proper test for deciding Sampson’s Eighth Amendment claim that the risk of executing the innocent renders the FDPA unconstitutional. That standard would require that the statute be upheld unless it would be unconstitutional as applied to everyone. Thus, under the Salerno dicta the FDPA would be constitutional if 99 times out of 100 it resulted in the execution of an innocent individual because there would be one case in which a guilty person would be executed. However, a statute that resulted in the execution of actually innocent individuals in 99% of all cases undoubtedly would be deemed to impose cruel and unusual punishment. The Supreme Court has held that a statute regulating abortion was subject to a facial challenge and unconstitutional if “in a large fraction of the cases in which [it] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” Planned Parenthood v. Casey, 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). In Casey, the statutory requirement that a husband be notified before his wife had an abortion actually impacted about 1% of the women who seek abortions. Id. at 894-95, 112 S.Ct. 2791. Nevertheless, the requirement was declared unconstitutional on its face. Id. at 898, 112 S.Ct. 2791. Similarly, in the instant case the proper question for the purpose of Eighth Amendment analysis is, as indicated earlier, how large a fraction of FDPA prosecutions must result in the execution of innocent individuals for the statute to offend contemporary standards of decency and, therefore, violate the Eighth Amendment. Answering this question implicates fundamental principles concerning the relative roles in our democracy of citizens, the representatives they elect to make laws, the officials responsible for executing them, and the courts. As described earlier, courts are required to discern contemporary standards of decency from objective factors to the maximum possible extent. Those factors demonstrate the following. In 1791, the concept of “cruel and unusual punishment” incorporated in the Eighth Amendment was imported from English law. England and other nations that share our heritage have now abolished capital punishment. Recent opinion polls show that 73% of Americans believe that our nation’s death penalty statutes have resulted in the execution of an innocent person in the past five years. Nevertheless, 74% say they support the death penalty. However, only a slight majority (53%) prefer it to life in prison without parole (44%) for convicted murderers. The decisions of juries in recent FDPA cases indicate that there is a definite disparity between the attitudes of Americans toward the death penalty in general and their willingness to impose it in particular cases. In sixteen of the last seventeen penalty phase verdicts returned by juries in FDPA cases the defendant was not sentenced to death. In fifteen of those sixteen cases the defendant had been convicted of a federal crime involving murder. Therefore, juries have recently been regularly disagreeing with the Attorney General’s contention that the death penalty is justified in the most egregious federal cases involving murder. The difficulty that citizens as jurors have had in imposing the death penalty in federal cases has not, however, been manifested in legislative reform. After determining that seventeen people who had been sentenced to death in Illinois were actually innocent, in January 2003 the Governor of Illinois commuted the sentences of everyone left on that state’s death row to life in prison. However, thirty-eight states and the federal government still have statutes providing for the death penalty. Neither the federal government nor any state has recently repealed a death penalty statute. Perhaps this is because of what the Supreme Court has characterized as “the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime.” Atkins, 536 U.S. at 315, 122 S.Ct. 2242. Perhaps it is because citizens as voters are not wrestling with the risk of executing the innocent, or indeed the implications of executing the guilty, as citizens as jurors must. In any event, the Supreme Court has explained that legislation is “the clearest and most reliable objective evidence of contemporary values.” Id. at 312, 122 S.Ct. 2242. When the Supreme Court decided in 2002 that it is no longer permissible to execute the retarded, it relied largely on the facts that after the Court had found the practice constitutional in 1988: many states enacted legislation exempting the retarded from execution; the direction of change was consistent; even states that continued to have statutes which authorized the execution of the retarded were not doing so; and only five retarded individuals had been executed in the past thirteen years. See Atkins, supra. In Atkins the Supreme Court essentially held that because Virginia diverged from the substantial consensus that had emerged in legislation, decisions of prosecutors, and jury verdicts in many other states, it was arbitrary and capricious and, therefore, cruel and unusual for a retarded person in Virginia to face execution when a similarly situated individual in another jurisdiction would not. If the evolution of events concerning the general imposition of the death penalty parallels the developments described in Atkins concerning the execution of the retarded, the day may come when courts properly can and should declare the ultimate sanction to be unconstitutional in all cases. However, that day has not come yet. There is not now sufficient objective evidence to establish that the death penalty offends contemporary standards of decency to permit a court to end political debate and democratic decisionmaking concerning its propriety. Nevertheless, “the Clause forbidding ‘cruel and unusual’ punishments ... ‘may acquire meaning as public opinion becomes enlightened by a humane justice.’ ” Gregg, 428 U.S. at 171, 96 S.Ct. 2909 (quoting Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). Judges seek to administer humane justice. Judicial decisions are part of a colloquy with citizens and those they elect to make and execute our laws. Those decisions have the potential to influence contemporary standards of decency and, therefore, the current meaning of the Eighth Amendment. While this court does not find that the risk of executing the innocent now renders the FDPA unconstitutional, the record regarding this issue raises profound questions. Those questions are not hypothetical. Rather, as demonstrated by the experiences of Salvati and Bright, among others, those questions are real and recurring. Error is, of course, possible in any criminal case. While our system promises everyone a fair trial, it does not pretend to perform perfectly. However, as the Supreme Court has repeatedly reiterated, “[t]he penalty of death differs from all other forms of criminal punishment not in degree but in kind. It is unique in its total irrevocabality.” Furman, 408 U.S. at 306, 92 S.Ct. 2726 (Stewart, J., concurring); see also Ring, 536 U.S. at 605-06, 122 S.Ct. 2428; Harmelin v. Michigan, 501 U.S. 957, 994, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (Stevens, J.) (plurality opinion). Among other things, an execution eliminates the opportunity to end any injustice, even belatedly. Thus, this court will strive to provide the government and Sampson as fair a trial as possible. In a capital ease, however, our nation ultimately expresses its faith in democracy by relying on jurors, who represent the community, to decide the most just sentence. There has been only one FDPA case in which the federal death penalty has been imposed in a state — Michigan—that does not itself have the death penalty. Sampson’s trial will determine whether this case will be the second. II. THE FEDERAL DEATH PENALTY ACT The pending motions challenge the constitutionality of the FDPA and, if it is lawful, the admissibility of certain evidence under it. The FDPA was enacted in 1994 as an effort to establish a constitutional death penalty for more than fifty federal crimes, including the carjacking charges in this case. In order to invoke the FDPA, the government must give the defendant notice of its intent to seek the death penalty. See 18 U.S.C. § 3593(a). The ultimate decision whether to seek the death penalty is not vested in the various United States Attorneys. Rather, the Attorney General of the United States decides whether to seek the death penalty in every case in which a defendant is charged with a federal crime for which death is a possible punishment. The Department of Justice has described the process as follows: On January 27, 1995, the Department adopted the policy still in effect today — commonly known as the death penalty “protocol” — under which United States Attorneys are required to submit for review all cases in which a defendant is charged with a capital-eligible offense, regardless whether the United States Attorney actually desires to seek the death penalty in that case. The United States Attorneys’ submissions are initially considered by a committee of senior Department attorneys in Washington, D.C. known as the Attorney General’s Review Committee on Capital Cases (Review Committee), which makes an independent recommendation to the Attorney General. U.S. Dep’t of Justice, The Federal Death Penalty System: A Statistical Survey (1988-2000) 5 (2000) (the “DOJ Study ”); see also United States Attorneys’ Manual (“USAM”), Capital Crimes § 9-10.000. If the government decides to seek the death penalty, the FDPA bifurcates the trial into two phases, a guilt phase and a penalty phase. The penalty phase occurs only if the defendant is found guilty of a capital offense. In the context of this case, the government must prove during the guilt phase, beyond a reasonable doubt, that the defendant committed at least one carjacking or attempted carjacking resulting in death within the meaning of 18 U.S.C. § 2119(3). If the government proves either of the two capital charges, a penalty phase of the jury trial will be required. There are two distinct issues before the jury during the penalty phase. The first is whether the defendant is eligible for the death penalty. If so, the second is whether the death penalty is justified. In order to establish eligibility for a death sentence for a homicide, the government must prove, beyond a reasonable doubt, that: the defendant was at least 18 years old at the time of the offense, 18 U.S.C. § 3591(a); he acted with one of the four mental states set forth in 18 U.S.C. § 3591(a)(2); and at least one of the sixteen statutory aggravating factors set forth in 18 U.S.C. § 3592(c) exists. If the government fails to establish eligibility, a death sentence cannot be imposed. If the jury finds that the defendant is eligible for the death penalty, it must decide whether a sentence of death is justified. In reaching this decision, the jury must weigh any aggravating factors against any mitigating factors. In order to recommend that the defendant be sentenced to death, the jury must unanimously conclude that “all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, [ ] the aggravating factor or factors alone are sufficient to justify a sentence of death.” 18 U.S.C. § 3593(e). The jury can also recommend a sentence of life imprisonment or, in some cases, some lesser punishment. A jury’s “recommendation” of a sentence of death or life imprisonment is binding on the court. 18 U.S.C. § 3594. Aggravating factors may include statutory aggravating factors and non-statutory aggravating factors identified by the government in its notice of intent to seek the death penalty. See 18 U.S.C. § 3593; § XII.A, infra. Mitigating factors may include any “relevant circumstance that could cause [a jury] to decline to impose the [death] penalty.” McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Different standards govern the proof of ' aggravating factors and mitigating factors. “The* burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information.” 18 U.S.C. § 3593(c). A jury must unanimously agree that an aggravating factor has been proven in order to consider it in deciding if the death penalty is justified. 18 U.S.C. § 3593(d). However, any juror who finds that the defendant has established a mitigating factor may take it into account in considering whether a death sentence is justified even if no other juror finds that that mitigating factor has been proven. Id. The FDPA refers to “information” rather than “evidence” because the penalty phase of a capital case is not governed by the Federal Rules of Evidence. See 18 U.S.C. § 8593(c). Rather, any relevant information may be presented to the jury unless “its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” Id. In order to guard against discrimination, the jurors are given special instructions prohibiting them from considering “the race, color, religious beliefs, national origin, or sex of the defendant or of any victim,” and admonishing the jury “not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be.” 18 U.S.C. § 3593(f). Each juror is required to certify that he or she has followed these special instructions. Id. The FDPA also includes special provisions for appellate review if the defendant is sentenced to death. See 18 U.S.C. § 3595. III. SAMPSON’S CLAIMS Sampson’s pretrial motions present thirteen claims. First, Sampson raises a series of challenges to the FDPA, some of which would apply to any FDPA prosecution. Specifically, he contends that the FDPA is unconstitutional because: it is inherently cruel and unusual punishment (Point Thirteen); it will inevitably result in the execution of innocent individuals (Point Four); it is arbitrary and capricious because it is so rarely sought or imposed (Point One), there is no principled basis for distinguishing the cases in which it is imposed from those in which it is not (Point Two), and it is sought and imposed on the invidious basis of race and the irrational basis of geography (Point Three); the penalty phase is not governed by the Federal Rules of Evidence (Point Five); it does not require that a grand jury allege the facts that would subject a defendant to the death penalty (Point Six); and it fails to provide for meaningful appellate review (Point Twelve), particularly for proportionality review (Point Eleven). Sampson also makes a series of claims that are specific to this case. He contends that the FDPA either does not authorize the consideration of the non-statutory aggravating factors that have been alleged (Point Seven) or, if it does, the FDPA involves an unconstitutional delegation of legislative power to the executive branch (Point Ten). Sampson also asserts that some of the non-statutory factors alleged in this case are irrelevant, duplicative, or unsupported by the facts (Point Eight). Among other things, he argues that unad-judicated alleged criminal conduct may not be considered by the jury (Point Nine). As described below, Sampson’s claim that the FDPA is unconstitutional must be analyzed under the Eighth Amendment. His statutory claims require interpretation of the FDPA. IV. THE GENERALLY APPLICABLE CONSTITUTIONAL LAW As indicated earlier, Sampson asserts that the FDPA is unlawful because it violates the Eighth Amendment for a variety of reasons. The Eighth Amendment, in pertinent part, prohibits the infliction of “cruel and unusual punishments.” U.S. Const., Am. VIII. “[T]he primary concern of the drafters was to proscribe ‘torture(s)’ and other ‘barbar(ous)’ methods of punishment.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Anthony F. Granucci, “Nor Cruel and Unusual Punishment Inflicted: The Original Meaning,” 57 Cal. L.Rev. 839, 842 (1969)). However, the Supreme “Court has not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner.” Gregg, 428 U.S. at 171, 96 S.Ct. 2909. Because “ ‘[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man .... [t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” Atkins, 536 U.S. at 311-12, 122 S.Ct. 2242 (quoting Trop, 356 U.S. at 100-01, 78 S.Ct. 590 (plurality opinion)). Therefore, a claim that a punishment is cruel and unusual “is judged not by the standards that prevailed ... when the Bill of Rights was adopted [in 1791], but rather by those that currently prevail.” Atkins, 536 U.S. at 311, 122 S.Ct. 2242. As the Supreme Court has often reiterated, “the Clause forbidding ‘cruel and unusual’ punishments ‘is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.’ ” Gregg, 428 U.S. at 171, 96 S.Ct. 2909 (quoting Weems, 217 U.S. at 378, 30 S.Ct. 544); accord Thompson v. Oklahoma, 487 U.S. 815, 821 n. 4, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988); McCleskey, 481 U.S. at 300, 107 S.Ct. 1756; Sellars v. Beto, 409 U.S. 968, 970, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972). Sampson also contends that the FDPA violates his Fifth Amendment right to substantive due process. Government conduct violates a right to substantive due process if it shocks the conscience. See, e.g., Rochin v. California, 342 U.S. 165, 172-74, 72 S.Ct. 205, 96 L.Ed. 183 (1952). A right to substantive due process is also violated by conduct that is offensive to a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Medina v. California, 505 U.S. 437, 445, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). However, the Supreme Court has held that “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of governmental behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’ ” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In the instant case, the Eighth Amendment provides such an “explicit textual source of constitutional protection.” Id. Nevertheless, the Supreme Court has occasionally referred to the substantive due process standard, in addition to the Eighth Amendment standard, in addressing issues concerning the death penalty. See, e.g., Herrera, 506 U.S. at 419, 113 S.Ct. 853 (O’Connor, J. and Kennedy, J., concurring), 435-37 (Blackmun, J., Stevens, J., and Souter, J., dissenting). However, the Supreme Court essentially treats the Eighth Amendment and substantive due process standards as interchangeable. Id. As Justice Marshall wrote in Furman, 408 U.S. at 359 n. 141, 92 S.Ct. 2726, “[t]he concepts of cruel and unusual punishment and substantive due process become so close as to merge ...” (Marshall, J., concurring); see also Quinones, 313 F.3d at 70 n. 18 (2d Cir.2002). At oral argument, Sampson’s counsel could not identify any material difference between the standard for determining a violation of a Fifth Amendment right to substantive due process and the standard for deciding whether a violation of the Eighth Amendment has occurred. See June 11, 2003 Tr. at 29. Nor can the court. Thus, the court is in this Memorandum addressing Sampson’s Eighth Amendment claims, but not separately analyzing his Fifth Amendment substantive due process claims. As described earlier, the court must judge Sampson’s claims that the FDPA violates the right to be free from cruel and unusual punishment by the standards of decency that “currently prevail.” Atkins, 536 U.S. at 311, 122 S.Ct. 2242. Doing so implicates fundamental issues concerning the relative roles in our democracy of citizens, the representatives they elect to make laws, the officials responsible for executing those laws, and the courts. “[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.” Gregg, 428 U.S. at 175-76, 96 S.Ct. 2909 (quoting Furman, 408 U.S. at 383, 92 S.Ct. 2726 (Burger, C.J., dissenting)). However, the fact that a federal statute authorizes the imposition of the death penalty is not the end of the inquiry. “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Therefore: “[jjudicial review by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to [the courts] in no different posture.... [T]he Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and [] there are punishments that the Amendment would bar whether legislatively approved or not.” Gregg, 428 U.S. at 174, 96 S.Ct. 2909 (quoting Furman, 408 U.S. at 313-14, 92 S.Ct. 2726 (White, J., concurring)). Thus, “ ‘the Constitution contemplates that in the end [the court’s] own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” Atkins, 536 U.S. at 312, 122 S.Ct. 2242 (quoting Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)). The Supreme Court’s decision in Atkins illustrates and illuminates these issues. In 1989, the Supreme Court held in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), that executing a mentally retarded individual did not violate the Eighth Amendment. In 2002, the Supreme Court reversed Penry because it found that “[m]uch ha[d] changed since” 1989. Atkins, 536 U.S. at 314, 122 S.Ct. 2242. In reaching this decision, the Supreme Court stated that “evolving standards of decency” must be ascertained from “ ‘objective factors to the maximum possible extent.’ ” Id. at 312, 122 S.Ct. 2242 (quoting Harmelin, 501 U.S. at 1000, 111 S.Ct. 2680 (quoting Rummel v. Estelle, 445 U.S. 263, 274-75, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (quoting Coker, 433 U.S. at 592, 97 S.Ct. 2861))). The “ ‘clearest and most reliable objective evidence of contemporary values is legislation enacted by the country’s legislatures.’ ” Id. (quoting Penry, 492 U.S. at 331, 109 S.Ct. 2934). In reversing Penry, the Court relied, in part, on the “consistency of the direction of [the] change” in the sixteen states that had since 1989 enacted statutes prohibiting the execution of retarded individuals. Id. at 314-16, 109 S.Ct. 2934. The Court also noted that while “[s]ome States, for example New Hampshire and New Jersey, continue to authorize executions ... none ha[d] been carried out in decades” and, therefore, “there [was] little need to pursue legislation barring the execution of the mentally retarded in those States.” Id. at 316, 109 S.Ct. 2934. In addition, both the majority and the dissent in Atkins gave weight to the decisions of citizens acting as jurors. The majority observed that “even among those States that regularly execute offenders and that have no prohibition with regard to the mentally retarded, only five have executed offenders possessing a known IQ less than 70 since” Penry was decided thirteen years before. Id. at 316, 109 S.Ct. 2934. In his dissent, Chief Justice Rehnquist wrote that “[o]ur opinions have ... recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments ‘is a significant and reliable objective index of contemporary values.’ ” 536 U.S. at 323, 122 S.Ct. 2242 (Rehnquist, C.J., dissenting) (quoting Coker, 433 U.S. at 596, 97 S.Ct. 2861 and Gregg, 428 U.S. at 181, 96 S.Ct. 2909). Thus, the Supreme Court has again recently recognized and reaffirmed that “one of the most important functions any jury can perform in making ... a selection [between life and death] is to maintain a link between contemporary community values and the penal system — a link without which the determination of punishment would hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Witherspoon, 391 U.S. at 519 n. 15, 88 S.Ct. 1770 (quoting Trop, 356 U.S. at 101, 78 S.Ct. 590 (plurality opinion)). In finding that contemporary standards of decency deemed executing the retarded to be cruel and unusual, the Supreme Court in Atkins discussed polling data concerning United States citizens and also the fact that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Atkins, 536 U.S. at 316 n. 21, 122 S.Ct. 2242; see also Thompson, 487 U.S. at 830-31 n. 31, 108 S.Ct. 2687 (practices of foreign countries, particularly Western European democracies, are relevant to determining standards of decency). Judicial consideration of attitudes in other countries has been criticized. See Stanford v. Kentucky, 492 U.S. 361, 369 n. 1, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989) (“[P]ractices of other nations .... cannot serve to establish the first Eighth Amendment prerequisite, that the practice is accepted among our people.”); Atkins, 536 U.S. at 347-48, 122 S.Ct. 2242 (Scalia, J., dissenting) (“Equally irrelevant [as polls] are the practices of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.”). However, as the Supreme Court discussed in both Furman, 408 U.S. at 242, 92 S.Ct. 2726 (Douglas, J., concurring) and Gregg, 428 U.S. at 169, 96 S.Ct. 2909, the phrase “cruel and unusual punishments” was taken from the English Bill of Rights of 1689. Thus, in Gregg, the Court understandably referenced the English experience, noting that “[t]he imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England.” Gregg, 428 U.S. at 176, 96 S.Ct. 2909. Similarly, in deciding that laws prohibiting sodomy violate a person’s right to substantive due process, the Supreme Court recently relied on the English experience and decisions of the European Court of Human Rights. See Lawrence v. Texas, — U.S. —, —, —, 123 S.Ct. 2472, 2481, 2483, 156 L.Ed.2d 508 (2003). Therefore, the court is persuaded that it is appropriate to consider in this case polling data and the experience of other nations which share our traditions in determining contemporary standards of decency. While less meaningful than legislation or jury verdicts, they are factors that are relevant to determining whether a sufficient consensus has emerged to render a previously permissible punishment now cruel and unusual. Atkins, 536 U.S. at 316 n. 21, 122 S.Ct. 2242. In any event, while courts must look to objective evidence in deciding the “standards of decency” that have evolved and currently prevail, they may also, by their decisions, properly influence those standards. As described earlier, the Supreme Court has since 1910 regularly reiterated that the Eighth Amendment “may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems, 217 U.S. at 378, 30 S.Ct. 544; Thompson, 487 U.S. at 821 n. 4, 108 S.Ct. 2687; McCleskey, 481 U.S. at 300, 107 S.Ct. 1756; Gregg, 428 U.S. at 171, 96 S.Ct. 2909; Sellars, 409 U.S. at 970, 93 S.Ct. 279. Judges strive to administer humane justice. - Their decisions have the potential to educate citizens, and those who represent them in enacting and implementing statutes providing for punishment. As Judge Charles E. Wyzanski, Jr. wrote in 1959 to Senator Leverett Saltonstall, the District Judge particularly “is a teacher of parties, witnesses, ... and even casual visitors to his court. His conduct of a [case] may fashion and sustain the moral principles of the community.” Walter F. Murphy & C. Herman Pritchett, eds., Courts, Judges & Politics: An Introduction to the Judicial Process 108 (1986). In essence, the late Alexander Bickel aptly described the judicial function with regard to the Eighth Amendment when he wrote: The [Supreme] Court is a leader of opinion, not a mere register of it, but it must lead opinion, not merely impose its own :¡: ¡fc [T]he Court does not work in isolation to divine the answer that is right. It has the means to elicit partial answers and reactions from other institutions, and to try tentative answers itself. When at last the Court decides that “judgment cannot be escaped — the judgment of this Court,” the answer is likely to be a proposition “to which widespread acceptance may fairly be attributed,” because in the course of a continuing colloquy with the political institutions and with society at large, the Court has shaped and reduced the question, and perhaps because it has rendered the answer familiar if not obvious.... [I]n American society the colloquy goes well beyond the [legal] profession and reaches deeply into the places where public opinion is formed. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 239-40 (1962). V. SAMPSON HAS STANDING TO PRESENT HIS CHALLENGES TO THE FDPA, BUT ONLY SOME ARE RIPE TO BE RESOLVED NOW Sampson asks the court to declare now, prior to trial, that the FDPA is unconstitutional on nine grounds. Although supported by voluminous appendices, Sampson characterizes his motion as a “facial challenge” to the statute. Many courts have addressed as facial challenges prior to trial the issues Sampson presents and have usually rejected them. See, e.g., United States v. Llera Plaza, 179 F.Supp.2d 444 (E.D.Pa.2001); United States v. Minerd, 176 F.Supp.2d 424 (W.D.Pa.2001); United States v. Bin Laden, 126 F.Supp.2d 290 (S.D.N.Y.2001) (citing cases); United States v. Cooper, 91 F.Supp.2d 90 (D.D.C.2000); United States v. Frank, 8 F.Supp.2d 253 (S.D.N.Y.1998); United States v. Kaezynski, CR-S-96-259, 1997 WL 716487 (E.D.Cal. Nov. 7, 1997); United States v. Nguyen, 928 F.Supp. 1525 (D.Kan.1996); United States v. McVeigh, 944 F.Supp. 1478 (D.Colo.1996). But see United States v. Fell, 217 F.Supp.2d 469 (D.Vt.2002), appeal docketed, No. 02-1638 (2d Cir.2002); Quinones, 205 F.Supp.2d 256 (S.D.N.Y.2002), rev’d, 313 F.3d 49 (2d Cir.2002), reh’g denied, 317 F.3d 86 (2d Cir.2003). However, the First Circuit has not decided any of the issues Sampson presents. Therefore, except for any issues decided by the Supreme Court, there is no precedent that this court must follow in deciding Sampson’s many challenges to the FDPA. In opposing Sampson’s earlier motion seeking a declaration that the FDPA was unconstitutional on its face after the Supreme Court’s decision in Ring, supra, the government argued that: To sustain such a challenge to a federal statute, the defendant has a supremely high hurdle: A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that ta federal statute] ... might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since [the Supreme Court has] not recognized an “overbreadth” doctrine outside the limited context of the First Amendment. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Gov.’s Opp’n to Mot. to Enter a Guilty Plea to the Second Superseding Indictment at 5-6 (ellipsis and first bracketed text in original). The government argues that Sampson lacks standing to assert many of his claims, none of Sampson’s current claims meets the Salerno standard, and, in any event, at least some of them are not now ripe for resolution. Sampson responds that he “should not be required to stand trial for his life [based] on an unconstitutional statute.” June 11, 2003 Tr. At 48. Sampson also contends that Salerno does not provide the proper test for deciding his challenges to the FDPA. Sampson’s position is essentially premised on the reasoning of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). [T]he principle is a collateral consequence of Marbury’s specific concept of the rule of law. Chief Justice Marshall’s opinion in Marbury frames the ultimate question as follows: “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” Throughout his opinion, Marshall focuses on the question whether the statute is consistent with the Constitution. And he concludes that “a law repugnant to the constitution is void.” Under this view, now canonized in American law, the very-meaning of an enforceable constitution is that an unconstitutional law may not be enforced. Michael C. Dorf, “Facial Challenges to State and Federal Statutes,” 46 Stan. L.Rev. 285, 247 (1994) (footnotes omitted). Nevertheless, the questions remain: who can challenge the constitutionality of a statute; and by what standard is any such challenge to be decided. As described below, the court has the authority to decide Sampson’s Eighth Amendment claims, and prudential considerations make it appropriate to decide some but not all of them now. In addition, as explained more fully in § VII, infra, the court finds that Salerno does not provide the standard for deciding Sampson’s Eighth Amendment claims. Professor Richard Fallon has rightly written that: Both within the Supreme Court and among scholarly commentators, a debate rages over when litigants should be able to challenge statutes as “facially” invalid, rather than merely invalid “as applied.” To a large extent, this debate reflects mistaken assumptions. There is no distinctive category of facial, as opposed to as-applied, litigation. All challenges to statutes arise when a litigant claims that a statute cannot be enforced against her. [D]ebates about the permissibility of facial challenges should be recast as debates about the substantive test that should be applied to enforce particular constitutional provisions. Richard H. Fallon, Jr., “As-Applied and Facial Challenges and Third-Party Standing,” 113 Hary. L.Rev. 1321, 1321 (2000); see also Dorf, supra; Henry Paul Mona-ghan, “Overbreadth,” 1981 Sup.Ct. Rev. 1, 3-14 (1981). The debate Professor Fallon describes is exemplified by the Supreme Court’s decision in Morales, supra. Invalidating an anti-loitering ordinance on its face, Justice Stevens wrote for the plurality that: To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself .... When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. Morales, 527 U.S. at 55 n. 22, 119 S.Ct. 1849 (plurality opinion). In his dissent, Justice Scalia acknowledged that the Court had often declared statutes to be unconstitutional not only as applied to the person before it but in all applications. Id. at 77, 119 S.Ct. 1849 (Scalia, J., dissenting). In his view, “it is highly questionable whether federal courts have any business making such a declaration.” Id. at 74, 119 S.Ct. 1849. However, Justice Scalia explained that his disagreement with the plurality was not about standing, but one of substantive law. As he wrote: Disagreement over the Salerno rule is not a disagreement over the “standing” question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality’s rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says “all” (in addition to his own rights), the plurality says “many.” That is not a question of standing but of substantive law. Id. at 79 n. 3, 119 S.Ct. 1849 (emphasis omitted). The Supreme Court has often declared statutes to be overbroad and, therefore, unconstitutional when a violation of the First Amendment right to freedom of speech is alleged. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); Sec’y of State v. Joseph H. Munson Co., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Even outside the First Amendment context, the Court has not always required that a statute unlawfully affect a litigant before declaring it unconstitutionally over-broad on other grounds. For example, in Casey, 505 U.S. at 895, 112 S.Ct. 2791, the Supreme Court held that a statute regulating abortion was subject to a facial challenge and unconstitutional if “in a large fraction of the cases in which [it] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.” See also Janklow v. Planned Parenthood, 517 U.S. 1174, 1175-78 n. 1, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) (mem. of Stevens, J., respecting the denial of the petition for a writ of certiorari). As discussed in § VII, infra, the dicta in Salerno that a challenger “must establish that no set of circumstance exists under which the Act would be valid” does not provide the proper test for deciding Sampson’s claims that the FDPA violates the Eighth Amendment. In any event, Sampson is the defendant in the instant case. There is, therefore, a genuine case and controversy that provides this court the authority to decide issues that are properly presented. See U.S. Const., Art. Ill; Valley Forge Christian Coll. v. Ams. United for Sep. of Church & State, Inc., 454 U.S. 464, 471-76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); cf. Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir.1978); Harrison v. United States, 359 F.2d 214, 228 n. 15 (D.C.Cir.1965); United States v. Daniels, 48 Fed. Appx. 409, 417-18 (3rd Cir.2002). As Justices Stevens and Scalia agreed in Morales, 527 U.S. at 55 n. 22, 79 n. 3, 119 S.Ct. 1849, Sampson has standing to challenge the FDPA. The key threshold question is whether any or all of his claims are ripe for resolution now. See Reno v. Catholic Soc. Svcs., Inc., 509 U.S. 43, 58 n. 18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993); Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Stem v. United States District Court, 214 F.3d 4, 10 (1st Cir.2000). The Supreme Court has “noted that ripeness doctrine is drawn from both Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Catholic Soc. Svcs., 509 U.S. at 58 n. 18, 113 S.Ct. 2485. Thus, while the Article III requirement of a ease and controversy is satisfied, prudential considerations may indicate that certain claims should not be decided by this court either before trial or at all. As the First Circuit recently wrote: Ripeness is dependent on the circumstances of a particular case. See Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir.1995) (“[T]he various integers that enter into the ripeness equation play out quite differently from case to case .... ”). Two factors are used to evaluate ripeness: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507, 18 L.Ed.2d 681. Ordinarily, both factors must be present. Ernst & Young, 45 F.3d at 535. Doe v. Bush, 323 F.3d 133, 138 (1st Cir.2003); see also Stern, 214 F.3d at 10. Whether withholding judgment will impose hardship is an issue that typica