[Senate Hearing 107-396]
[From the U.S. Government Publishing Office]
S. Hrg. 107-396
RACIAL AND GEOGRAPHIC DISPARITIES IN THE FEDERAL DEATH PENALTY SYSTEM
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JUNE 13, 2001
__________
Serial No. J-107-26
__________
Printed for the use of the Committee on the Judiciary
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WASHINGTON : 2002
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
------
Subcommittee on the Constitution
RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
RICHARD J. DURBIN, Illinois JON KYL, Arizona
MITCH McCONNELL, Kentucky
Robert Schiff, Majority Chief Counsel
Garry Malphrus, Minority Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 76
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 8
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 6
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 104
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 4
WITNESSES
Bond, Julian, Chairman, NAACP National Board of Directors,
National Association for the Advancement of Colored People, and
Member, Citizens for a Moratorium on Federal Executions,
Washington, D.C................................................ 31
Bruck, David I., Federal Death Penalty Resource Counsel,
Columbia, South Carolina....................................... 61
Fotis, James J., Executive Director, Law Enforcement Alliance of
America, Falls Church, Virginia................................ 57
Gross, Samuel R., Visiting Professor, Columbia University Law
School, New York, New York..................................... 50
McBride, Andrew G., former Assistant United States Attorney for
the Eastern District of Virginia and Partner, Wiley, Rein and
Fielding, Washington, D.C...................................... 46
Thompson, Hon. Larry, Deputy Attorney General, Department of
Justice, Washington, D.C....................................... 10
QUESTIONS AND ANSWERS
Responses of David Bruck to questions submitted by Senators
Leahy, Feingold, Sessions and Thurmond......................... 77
Responses of Andrew G. McBride to questions submitted by Senators
Thurmond and Sessions.......................................... 79
Responses of Samuel R. Gross to questions submitted by Senators
Sessions, Thurmond and Feingold................................ 80
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Washington, DC................... 82
Associated Press, news article, June 14, 2001.................... 82
Atlanta Journal-Constitution:
editorial, June 8, 2001...................................... 83
Thomas Sowell, editorial, June 15, 2001...................... 84
Baldus, David C., Joseph B. Tye Distinguished Professor of Law,
College of Law, University of Iowa............................. 85
Boston Globe, Jeff Jacoby, editorial, June 18, 2001.............. 88
Boston Herald, Don Feder, article, June 20, 2001................. 89
Dallas Morning News, Michelle Mittelstadt, article, June 14, 2001 90
Drug Enforcement Administration, Donnie R. Marshall,
Administrator, Washington, DC:
letter....................................................... 91
memorandum................................................... 92
Federal Bureau of Investigation, Ruben Garcia, Jr., Assistant
Director, Criminal Investigative Division, Washington, DC,
letter......................................................... 93
Federal Law Enforcement Officers Association, Richard J. Gallo,
National President, Lewisberry, PA:
letter, June 12, 2001........................................ 94
letter, June 13, 2001........................................ 95
Fraternal Order of Police, Gilbert G. Gallegos, National
President, Albuquerque, NM, letter, June 13, 2001.............. 96
Hubbard, Joseph D., District Attorney, Calhoun County Courthouse,
Anniston, AL, statement........................................ 96
Jackson, Lucy, Birmingham, AL, letter, June 11, 2001............. 97
Law Enforcement Alliance of America, Kenneth V.F. Blanchard,
Director, Falls Church, VA, letter, June 13, 2001.............. 98
National Association for the Advancement of Colored People,
Julian Bond, Chairman, NAACP National Board of Directors,
Baltimore, MD, letter, July 16, 2001........................... 98
National Troopers Coalition, Johnny L. Hughes, Director of
Government Relations, Albany, NY, letter, June 19, 2001........ 99
Newsday, Tom Brune, Washington Bureau, article, June 13, 2001.... 99
Offem, Monday and Elizabeth, members of Victims of Crime and
Leniency, Montgomery, AL, letter, June 11, 2001................ 103
Rankins, Nell, Montgomery, AL, letter............................ 103
Reuters, Sue Pleming, article, June 13, 2001..................... 103
Strauss, Hon. Paul, a U.S. Senator from the District of Columbia
(Shadow), Washington, DC, statement............................ 108
Victims of Crime and Leniency, Miriam Shehane, Executive
Director, Montgomery, AL, letter, June 11, 2001................ 109
Washington, Mr. and Mrs. F.N., Columbia, SC, letter, June 13,
2001........................................................... 110
Watley, Viola, Montgomery, AL, letter, June 11, 2001............. 110
RACIAL AND GEOGRAPHIC DISPARITIES IN THE FEDERAL DEATH PENALTY SYSTEM
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WEDNESDAY, JUNE 13, 2001
U.S. Senate,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:30 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold, Chairman of the Subcommittee, presiding.
Present: Senators Feingold, Leahy, Durbin, Thurmond, Hatch,
and Sessions.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Chairman Feingold. The hearing will come to order, and good
morning. Welcome to this hearing of the Senate Judiciary
Committee's Subcommittee on the Constitution.
I want to thank everybody for their patience. We had a
couple of votes already, and there could be more, but if we
will have to, we will try to have just the shortest of breaks
in the hearing if that happens.
The subject of the hearing is racial and geographic
disparities in the Federal death penalty system. This is not
the hearing that I would have preferred to call as my first
hearing as Chairman of the subcommittee. But as often happens,
external circumstances and events made it imperative that we
schedule this hearing quickly today.
I sincerely thank all the witnesses for making themselves
available to testify today on short notice and for their
efforts to prepare written testimony. I also thank my
colleagues for understanding the urgency of the hearing and
cooperating with us. I hope that they agree that we have been
fair in accommodating their requests for witnesses and in
sharing information on our plans as soon as was possible.
I am pleased to see Senator Hatch arrive, who, in the 6
years that he was Chairman of the committee, could not have
been easier to work with and could not have been more fair in
terms of the procedure, and I thank him for all of that.
Senator Hatch. Thank you. I appreciate that.
Chairman Feingold. Last fall, the Department of Justice
released a preliminary report showing racial and regional
disparities in the Federal Government's administration of the
death penalty. The numbers are stark. After the execution of
Timothy McVeigh on Monday, there are now 19 individuals on
Federal death row; 17 of them are racial or ethnic minorities.
That is an extraordinary number.
There were a number of similarly disturbing findings in the
initial report by the Justice Department. Attorney General
Reno, Deputy Attorney General Holder, and President Clinton all
said they were troubled by the results of the report.
Because the cases studied by the initial study included
only those cases submitted to Main Justice for authorization to
seek the death penalty, Attorney General Reno immediately
ordered the collection of additional data from U.S. Attorneys'
offices. She also directed that the National Institute of
Justice conduct an in-depth examination of the issues raised in
the preliminary study in cooperation with outside experts.
Let me take a moment to read exactly what Attorney General
Reno said in September. She said, ``There are important
limitations on the scope of our survey. The survey only
captures data currently available beginning when a U.S.
Attorney submits a capital-eligible case to the review
Committee and to me for further review. This survey, therefore,
does not address a number of important issues that arise before
the U.S. Attorney submits a case: Why did the defendant commit
the murder? Why did the defendant get arrested and prosecuted
by Federal authorities rather than by State authorities? Why
did the U.S. Attorney submit the case for review rather than
enter a plea bargain? ...More information is needed to better
understand the many factors that affect how homicide cases make
their way into the Federal system, and once in the Federal
system, why they follow different paths. An even broader
analysis must therefore be undertaken to determine if bias
does, in fact, play any role in the Federal death penalty
system.''
She continued: ``I have asked the National Institute of
Justice to solicit research proposals from outside experts to
study the reasons why, under existing standards, homicide cases
are directed to the State or Federal systems, and charged
either as capital cases or non-capital cases, as well as the
factors accounting for the present geographic pattern of
submissions by the U.S. Attorneys' offices. The Department will
also welcome related research proposals that outside experts
may suggest.''
In December, citing this ongoing review by the Justice
Department, President Clinton took the step of delaying the
execution of Juan Raul Garza until June 19 of this year, next
Tuesday. President Clinton ordered the Justice Department to
report to the President by April of this year on the results of
its further review.
Now, there is some debate over precisely what President
Clinton expected could be done by April, but he seemed to
contemplate that the next President, whoever that might be,
should have time to review additional, more conclusive
information before deciding whether to proceed with Mr. Garza's
execution on June 19.
Significantly, in answer to my questions at his
confirmation hearing, Attorney General Ashcroft said that he
would continue the studies ordered by former Attorney General
Reno. He said, ``[T]he studies that are underway, I am grateful
for them. When the material from those studies comes, I will
examine them carefully and eagerly to see if there are ways for
us to improve the administration of justice.'' He was asked if
the studies would be terminated and he answered, ``I have no
intention of terminating those studies.''
Last week, the Attorney General revealed that the Justice
Department did not proceed with a study by the NIJ, as directed
by former Attorney General Reno, and as he pledged it would in
his confirmation hearing. Indeed, it appears that really
nothing has been done on the NIJ study since a January 10
meeting with outside experts convened by Attorney General Reno.
The Department of Justice did release its own supplemental
study based on additional information collected in response to
Attorney General Reno's request. The Department concludes in
the report that there is ``no evidence of bias against racial
or ethnic minorities.'' It even suggests that white defendants
are treated more harshly than minority defendants.
The Attorney General did announce in testimony to the House
Judiciary Committee last week that he was directing the NIJ to
undertake a study of how death penalty cases are brought into
the Federal system. His staff indicated in a meeting with my
staff last Friday that, in fact, the study ordered by the
Attorney General is the same in many respects as that ordered
by Attorney General Reno.
I have asked the Attorney General to put in writing the
purpose and parameters of the study so there will be no further
misunderstanding. We have not yet received that in writing, but
I am pleased that Mr. Thompson's prepared testimony this
morning confirms that. It says, in part, in Mr. Thompson's
testimony, ``The primary purpose of this study is the same as
that which was contemplated by the Clinton administration but
which did not progress beyond the planning process.''
I look forward to discussing the Department's plans with
the Deputy Attorney General this morning. Notwithstanding the
decision finally to allow the NIJ study to proceed, after a
nearly 5-month delay, it appears that based on the Department's
own internal analysis, the Attorney General will allow the
execution of Juan Garza to proceed next Tuesday. Presumably, he
will schedule the execution of other minority defendants when
their appeals are exhausted.
So we have three issues to explore with our witnesses
today. First, what happened to the NIJ study that was ordered
by and begun under the previous administration? The Deputy
Attorney General, I am sure, is prepared to address that
question, as will two of our witnesses who participated in the
initial meeting to plan that study convened on January 10.
Second, we will examine the Department's recent
supplemental study and discuss whether it sufficiently answers
questions about racial and geographic disparities to make it
unnecessary to further delay the execution of Juan Garza and
other minority defendants. I believe all of our witnesses will
have comments on that question.
Finally, we will discuss the overall issue of racial and
geographic bias in the administration of the Federal death
penalty based on the evidence now available to us.
As we consider these questions, we must realize that this
is not an academic discussion. The Federal Government is
scheduled to execute an Hispanic man from Texas in under a
week's time. I am not satisfied that we adequately understand
the reasons for the racial and geographic disparities in the
number of people now on death row to be able to go forward with
further executions.
We cannot in good conscience put people to death until we
are confident in the fairness of the system that leads to those
decisions. I do not yet have that confidence, and many in the
country share my concerns. I believe that the execution of Juan
Garza should again be postponed, and indeed there should be a
moratorium on all Federal executions until a thorough and
independent study by NIJ is completed and considered.
By the way, in fairness, I mentioned the fact that Mr.
Garza is from Texas not because that is the President's home
State, as was suggested in one news story this week. Obviously,
President Bush had nothing to do with the cases of the inmates
now on Federal death row.
It is because 6 of the 17 people awaiting execution on
Federal death row are from that State. Another four are from
Missouri. The concentration of death row inmates from
particular regions of the country is troubling, and I don't
think this issue has yet been adequately addressed by the
Justice Department.
I do oppose the death penalty, but this is not about
opposition to the death penalty. This is about equal and bias-
free justice in America. I am certain that not one of my
colleagues on the Committee or in the Senate, not a single one,
no matter how strong a proponent of the death penalty, would
defend racial discrimination in the administration of that
ultimate punishment. The most fundamental guarantee of our
Constitution is equal justice under law, equal protection of
the laws. We must ensure that those protections are observed,
particularly in the administration of the death penalty.
With that, I will now turn to our distinguished ranking
member, Senator Thurmond, for his remarks. I understand that
the Chairman of the committee, as well as the ranking member,
would like to make statements as well.
Senator Thurmond?
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Thurmond. Thank you, Mr. Chairman.
Last week, the Attorney General issued a report finding no
racial bias in the Federal death penalty. This is consistent
with what Attorney General Reno found in her report last fall,
when she refused to issue a moratorium on capital punishment.
There is absolutely no basis for ending the Federal death
penalty. By ordering the death penalty in appropriate cases,
the Attorney General is simply enforcing the laws he has the
duty to uphold. The Federal criminals who are currently on
death row are unquestionably guilty. It is clear that the death
penalty was warranted against Mr. McVeigh, a man who ruthlessly
killed 168 innocent men, women and children in Oklahoma City.
It is equally clear that we should follow through next week
with the death penalty against Mr. Garza, a vicious drug
kingpin who brutally murdered three people and was involved in
other drug-related deaths.
The men and women who prosecute the most dangerous, violent
criminals in Federal court are dedicated public servants. I do
not agree with those who question their motives and integrity.
This hearing today is really about an endless political effort
to discredit the death penalty by any possible means.
I welcome the Deputy Attorney General and appreciate his
willingness to testify.
Thank you, Mr. Chairman.
[The prepared statement of Senator Thurmond follows:]
Statement of Hon. Strom Thurmond, a U.S. Senator from the State of
South Carolina
Mr. Chairman:
Last week, the Attorney General issued a report finding no racial
bias in the federal death penalty. This is consistent with what
Attorney General Reno found in her report last fall when she refused to
issue a moratorium on capital punishment.
Defendants in the federal death penalty system must be and are
treated fairly regardless of race. This is true both in the
Department's capital review process and in the capital trial process.
The men and women who prosecute the most dangerous violent
criminals in federal court are dedicated public servants. I do not
agree with those who question their motives and integrity.
There are certain cases where it is only fair, it is only right,
that the government seek the ultimate punishment. The death penalty can
provide justice not only for society, but also for the family members
of victims who have been murdered. Moreover, some studies, including an
Emory University study from earlier this year, show that the death
penalty may have a deterrent effect and actually save lives.
In the past few years, there has been a renewed attack on the death
penalty from long-standing opponents in liberal activist groups, the
criminal defense bar, academia, and the national media. Studies trying
to find systemic flaws in the application of the death penalty, such as
the well-publicized Columbia University study last year, have turned
out to be misleading.
There is no proof that any innocent person has been put to death
under the modern capital punishment system. We must make certain that
this does not occur. Therefore, it is important for states to continue
to expand the availability of DNA testing for certain defendants who
were convicted before the mid-1990s when DNA evidence became a routine
part of criminal investigations. In this regard, I was an original
cosponsor of the Coverdell legislation that we passed last year to
provide more federal funding for state and local crime labs that are on
the front lines in using DNA and other scientific evidence to combat
the most violent crime. Promoting absolute certainty of guilt makes the
case for the death penalty stronger, not weaker.
There is no death penalty crisis, and there is absolutely no basis
for ending the federal death penalty.
Starting in 1988, the Congress renewed the death penalty for
certain drug-related and later other heinous crimes. By ordering the
death penalty in appropriate cases, the Attorney General is simply
enforcing the laws he has a duty to uphold. Monday was the first time
it was carried out in 38 years.
The federal criminals who are currently on death row are
unquestionably guilty. It is clear that the death penalty was warranted
against Mr. McVeigh, a man who ruthlessly killed 168 innocent men,
women and children in Oklahoma City. It is equally clear that we should
follow through next week with the death penalty against Mr. Garza, a
vicious drug kingpin who brutally murdered three people and was
involved in other drugrelated deaths. In fact, when President Clinton
first delayed Mr. Garza's execution last fall to give Mr. Garza more
time to apply for clemency, the federal judge in the case called his
decision ``totally irresponsible.''
This hearing in the Constitution Subcommittee is really not about
the Eight Amendment, the Fourteen Amendment, or other Constitutional
provisions. Those are legal questions for the courts that have been
answered in the negative. This hearing today is really about an endless
political effort to discredit the death penalty by any possible means.
I welcome the Deputy Attorney General and appreciate his
willingness to testify. Thank you.
Chairman Feingold. I thank the Senator for his comments,
and also look forward to working with him in the future on the
subcommittee.
Now, I would like to turn to the Chairman of the committee,
whom I am grateful to for allowing this hearing and for his
leadership.
Senator Leahy?
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Thank you, Mr. Chairman, and I appreciate
you being here. You have obviously moved on a very important
issue. I think that the hearing itself is one of the most
important ones that we will see conducted in this committee. I
am glad you were able to take the time to do this now.
As I have told Senator Hatch, as soon as reorganization is
completed, we will then begin to hold a series of confirmation
hearings on Federal judges and other nominees, something that
we will be unable to do until we know just who is going to be
on the committee.
But today's heairng is the type we can hold now, and I
think it is timely. Last September the Justice Department
released a report on the administration of the Federal death
penalty. The report revealed very dramatic racial and
geographic disparities in the Federal death penalty system.
There were 682 cases submitted to the Justice Department
over the previous 5 years for approval to seek the death
penalty. Eighty percent involved defendants who were black,
Hispanic, or another racial minority. Five jurisdictions, out
of 94 total, accounted for about 40 percent of the submissions.
Now, these raw figures do not prove whether implementation
of the Federal death penalty is or is not racially biased, but
they do raise very serious questions whether discrimination
exists at early stages of the prosecutorial process.
We all know that in many ways the prosecutor has the most
influence in the justice system. He or she can determine not
only whether to go forward with a prosecution, but can decide
at what level he will prosecute and even at what level he will
seek penalties.
These figures also fueled concerns that our National laws
are not being applied with nationwide uniformity. In some
jurisdictions, the United States Attorney seeks the death
penalty frequently; in others, hardly ever.
Those of us who closely follow and care about our criminal
justice system were deeply troubled by the September report.
The American people should have absolute confidence in the
fairness of the criminal justice system. It has to be unbiased,
especially when it seeks to impose the ultimate sanction of
death.
I think Attorney General Ashcroft did the right thing a
month ago when he delayed the execution of Timothy McVeigh
because the FBI failed to follow a direct order to turn over
all its material to McVeigh's counsel. I talked with Attorney
General Ashcroft at that time. I know that he had no doubt
about Mr. McVeigh's guilt, nor did I for that matter. But he
felt that for the interests of the criminal justice system in
all cases, he should take that extra step, and I commend him
for that. It increases confidence in the system.
I believe Attorney General Reno did the right thing last
September on the day she released the report by initiating a
broader analysis of the Federal death penalty system, to be
conducted by outside experts. President Clinton also did the
right thing by postponing the scheduled execution of Juan Raul
Garza until the new, independent analysis was completed.
When Attorney General Ashcroft came before this committee,
a number of us, and especially Senator Feingold, questioned him
closely about whether he would continue the analytical process
that his predecessor initiated. I found his answers reassuring.
He expressed concern about the findings in the September report
and he agreed on the need for further study. More specifically,
he promised to continue and to support all efforts initiated by
Attorney General Reno to undertake a thorough review and
analysis of the Federal death penalty system. He made this
promise to Senator Feingold and the full Committee.
So we are here today to check in on that promise. Last
week, the Department of Justice issued an internal report that
purports to complete the survey and assessment of the Federal
death penalty begun by Attorney General Reno. I have read that
report carefully and I regret to say that it falls far short of
what this Committee was promised. More importantly, I believe
it is far short of what the American people deserve, whether
they are for the death penalty or opposed to the death penalty.
We should have a thorough, objective, empirical analysis.
Instead, we are given a superficial and one-sided set of legal
arguments. Instead of answers, are given a lot more questions,
and that bothers me. I don't know if there is bias or prejudice
in the application of the Federal death penalty. But as an
American, I would like to know. There may be innocent
explanations for the disparities identified in the September
report. The latest report makes little effort to determine the
reasons for the racial disparities, however, and dismisses the
geographic disparities as though they did not exist.
Since the report issued last week, the Attorney General has
indicated that he may yet follow through on his earlier
commitment to this Committee by initiating a comprehensive
study of fairness in the administration of the Federal death
penalty. I hope that he does; I hope no more time is
squandered.
That is why I want to thank Senator Feingold for holding
this hearing today. I commend him for his principled
involvement in this debate. This is an issue that should
concern all Senators, whether they are for or against the death
penalty.
I have certainly heard from a lot of my constituents, both
those who strongly support the death penalty and those who
oppose the death penalty, that they want to see the empirical
results of these studies. I pass on their appreciation to you,
Senator Feingold.
Chairman Feingold. I thank the Committee chairman, and I
certainly want to acknowledge his ground-breaking leadership on
trying to make the death penalty, both at the Federal and State
level, at least more fair. That leadership has been a critical
part of this issue coming forward.
I would now like to turn to the Ranking Member of the
Committee who, again, I want to reiterate, during the 6 years
that I had a chance to serve in the minority on this committee,
has made it a great pleasure to be a member of this committee.
Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I appreciate
you allowing me to make some opening remarks and for convening
this important hearing. This is an important hearing.
We welcome you, General Thompson, and all the other
witnesses here today. We appreciate having all of you here on
both sides of this issue.
The death penalty, of course, is on the minds of everybody
since the Timothy McVeigh execution this week for the murder of
168 innocent people in the worst incident of domestic terrorism
in our Nation's history. As we all know, the death penalty is
the ultimate punishment society can impose, and it is
appropriate that we scrutinize its use in our Federal criminal
justice system.
While we may disagree about whether capital punishment
should be permitted in our country, we all agree that it must
be meted out fairly. In my view, the studies released by former
Attorney General Reno and Attorney General Ashcroft show that
there is no invidious racial discrimination in the application
of the Federal death penalty.
Indeed, if anything, these studies show that the Federal
Government has sought the death penalty for proportionately
fewer minorities than whites. Put another way, if you were
being prosecuted by the Federal Government for conduct that
could be charged as a capital offense, your chances of facing
the death penalty at trial are greater if you were white than
if you were black or Hispanic.
In light of this evidence, as the editors of the Atlanta
Constitution concluded, ``No objective and fair-minded person
can seriously argue that the Federal system used to determine
which Federal cases merit death penalty prosecution is
biased.''
Nevertheless, I think we all share Attorney General
Ashcroft's concern and my colleagues' concern that nearly 80
percent of defendants in Federal capital cases are minorities.
We also must commit ourselves to identifying and solving the
socio-economic factors that underlie these statistics.
Doing something about this, however, requires that we first
have the courage to acknowledge a painful but undeniable fact:
the offenses that may lead to homicides and capital charges in
the Federal system are not evenly distributed across all
population groups.
Moreover, while many complain about the racial disparity
among death penalty defendants, there is hardly a mention of
the disparity among murder victims. As former Deputy Attorney
General Eric Holder pointed out last year, ``Although young
African-American men are only 1 percent of our Nation's
population, they are fully 18 percent of our Nation's homicide
victims. Although black people make up 12 to 15 percent of the
Nation's population, they are about 50 percent of the Nation's
homicide victims.''
Sounding the call of racism makes for good political
theater, but it unjustly defames our Federal law enforcement
professionals, and more importantly does nothing to address the
socio-economic factors that may have caused the problems to
begin with.
In releasing this latest report, Attorney General Ashcroft
continues to fulfill the commitments he made during his
confirmation hearing. He has also completed one of the projects
undertaken by former Attorney General Reno in the waning days
of the Clinton administration. Given the deadlines imposed on
this project by former President Clinton and the need to make
as complete an analysis as possible prior to the previously
scheduled executions, it was important for General Ashcroft to
complete the internal review of the expanded data which was
gathered for this supplemental report.
This does not mean that other studies have been or will be
terminated. In fact, to the contrary, Attorney General Ashcroft
has informed the Committee that studies, including studies
utilizing outside experts, are continuing, as called for by the
previous administration. Attorney General Ashcroft promised to
continue those efforts. He has done so and he will continue to
do so.
Predictably, some death penalty opponents still insist that
there should be a moratorium on all pending executions until
completion of these additional research projects. I
respectfully submit that such action is simply not warranted on
the facts before us. That was the conclusion of the prior
administration, as made clear by the public statements of
President Clinton, Attorney General Reno, and Deputy Attorney
General Eric Holder. They agree with me on this. It is not
surprising, therefore, that the current administration takes
the same position as the prior administration.
As stated last year by Attorney General Reno, there simply
is no question of the guilt of the current defendants on death
row. While we can, and will, continue to see to better
understand and improve the current system, there is no
justifiable reason to fail to carry out the sentences properly
imposed in those cases.
The case of Juan Garza, who is scheduled to be executed
next week, illustrates why the call for a moratorium is
misguided. No one seriously questions that he is guilty of
murdering three members of his drug trafficking organization.
The evidence also shows that he was responsible for five
additional murders, and that while in custody pending trial
Garza threatened prosecutors and jurors.
In addition to his certain guilt, no one can seriously
argue that Garza was the victim of a racist system. All but one
of Garza's victims were Hispanic. The judge hearing his case is
Hispanic, and the Assistant U.S. Attorney who prosecuted him is
Hispanic. Furthermore, the majority of the jurors who convicted
and sentenced him to death had Hispanic surnames.
Nor is there any evidence that Mr. Garza was unfairly
exposed to the death penalty because he is Hispanic. Statistics
show that there was no large proportion of Federal capital
cases involving Hispanic defendants in the period in which Mr.
Garza's case arose. The Federal district in which he was
prosecuted generated few cases involving charges of capital
crimes at any time, and that particular district sought the
death penalty in only one case, Garza's, in the overall 1988-
2000 period examined in the Department's study.
Like all of the defendants on Federal death row, Mr. Garza
faces execution not because of his race, ethnicity, or place of
residence, but because he is guilty of committing these heinous
crimes. Attorney General Ashcroft, like Attorney General Reno
before him, is right to reject calls for a moratorium.
I thank you again, Mr. Chairman, for your kindness and
courtesy to us and to me, in particular, and I look forward to
the rest of this hearing. I have to go to a meeting at Finance,
but I will try and get back.
Chairman Feingold. I thank the Ranking Member for his
comments.
We will now begin the testimony. Our first witness will be
Deputy Attorney General Larry Thompson.
Mr. Thompson, welcome. Thank you for being here today. I
enjoyed getting to know you a bit and voting for you during the
confirmation process. I would ask you to limit your remarks to
5 minutes and your full written statement will be included in
the record.
STATEMENT OF HON. LARRY THOMPSON, DEPUTY ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Thompson. Good morning, Mr. Chairman, Senator Leahy,
Senator Thurmond. I thank you for the opportunity to appear
here today to consider this important issue.
In the brief time I have enjoyed serving as Deputy Attorney
General, I have been involved in some matters involving the
enforcement of the Federal death penalty, and I can assure you,
Senator Feingold, that you and I fully appreciate the magnitude
of the Department's responsibilities in this area.
I also appreciate and respect the devotion you bring to
this issue, Senator Feingold. Though we may disagree over the
appropriateness of the death penalty in certain circumstances,
I believe we both share a deep commitment to the fair and
impartial enforcement of the law.
As you know, Attorney General Ashcroft has set a clear
direction for the Department. We intend to act in a manner
consistent with the highest standards of integrity and with an
abiding respect for the constitutional rights of all persons.
Of course, the mission of the Department of Justice is to
enforce vigorously the laws passed by Congress, including
dozens of criminal prohibitions carrying the possibility of
capital punishment. These death-eligible offenses, nearly all
of which were included in the 1994 crime bill, are the duly
established laws of the land and they define the interests of
the Federal Government. They reflect the will of the American
public, as expressed through their elected representatives.
Just as former Attorney General Reno put aside her own
views on capital punishment and approved all of the Federal
capital cases we will be discussing here today, so too must the
current administration fulfill its duty to enforce the law.
This commitment is especially important to the victims of
violent crime. When the lives of family members and friends are
shattered by deadly violence, their one simple hope is that the
perpetrators of the suffering might be caught and punished. We
all witnessed the singular importance of this accountability 2
days ago when the victims of Timothy McVeigh's terrorist attack
repeatedly explained how his execution brought some degree of
closure to their long nightmare.
It is a fact that minorities are more likely to be victims
of violent crime today than the majority. As Senator Hatch
noted, my predecessor, former Deputy Attorney General Eric
Holder, observed at the September press conference which you
referred to, Senator Feingold, that African-Americans
constitute about 50 percent of the Nation's homicide victims. I
find that a horrific statistic. In fact, Senator Feingold, 63
percent of the victims murdered by those individuals sitting on
death row in the Federal system are African-American.
All of America has been victimized by nearly two decades of
drug trafficking violence. We have become accustomed to nightly
news stories about drive-by shootings and execution-style
killings by ruthless drug gangs. We have been worried by
reports of stray bullets killing children who were simply
standing in the wrong place at the wrong time.
The criminal justice system itself has been threatened by
violent intimidation and witness retaliation. Many law
enforcement officials have sacrificed their lives to rescue
communities from the ravages of violent drug trafficking. This
why the Attorney General has pledged to reinvigorate the battle
against drug trafficking and Congress has provided powerful
tools to law enforcement, including the death penalty, to stop
these violent criminals.
But as I said, Mr. Chairman, the fulfillment of our law
enforcement mission must strengthen and not weaken the public's
confidence in the fair administration of justice. Even the
appearance of ethnic or racial bias in the enforcement of
capital punishment is a serious concern.
To address this problem, last week Attorney General
Ashcroft announced three important steps, and we will briefly
discuss those this morning, with your permission.
First, the Department released a report containing
additional statistical data on potential capital cases
prosecuted by the Department since 1995. The report also
included an analysis of the Department's enforcement practices
during the same period of time.
Secondly, the Department announced that the protocols for
reviewing death-eligible charges have been slightly revised to
increase uniformity in the system and ensure greater scrutiny
of cases in which a U.S. Attorney is recommending capital
punishment.
Third, the Attorney General announced that he is directing
the National Institute of Justice to conduct a study of how
capital cases are brought into the Federal system.
Please allow me to briefly explain each of these three
developments.
With regard to the survey results and analysis, as you know
last September Attorney General Reno released the results of a
survey that included information on 700 capital cases since
1995 that had been submitted to the Department for review
pursuant to the capital case review protocol.
I see that I have a yellow light, but I would like to
proceed, if you will, a little bit longer.
Chairman Feingold. Go ahead.
Mr. Thompson. Attorney General Reno directed the Department
to collect additional data on cases that had not been submitted
for review over the same period of time. The cases in this
category were not submitted because, for example, U.S.
Attorneys entered into plea agreements with defendants before
indictment on a capital offense charge. She took this action to
ensure that this additional information did not undermine the
findings reached on the basis of the original data. The new
data consists of nearly 300 cases. It is similar to the
original data of the Reno report, in that it provides no
evidence of favoritism toward white defendants in comparison
with minority defendants.
All in all, the Reno study and our analysis found that the
proportion of minority defendants in Federal capital cases did
exceed the proportion of minority individuals in the general
population. For example--and we need to discuss this statistic
and that is the purpose of this hearing--in cases submitted to
the Department's capital case review procedure, 20 percent of
the defendants were white, 48 percent were African-American, 29
percent were Hispanic, and 4 percent were other.
Nevertheless, Mr. Chairman, our reports confirm that
African-American and Hispanic defendants were less likely at
each stage of the Department's review process to be subjected
to the death penalty than white defendants. In other words, the
United States Attorneys recommended the death penalty in
smaller proportions of the submitted cases involving African-
Americans or Hispanic defendants than in those involving white
defendants.
The Attorney General's Capital Cases Review Committee
likewise recommended the death penalty in smaller proportions
of the submitted cases involving African-American or Hispanic
defendants than in those involving white defendants. And when
the Attorney General made a decision to seek the death penalty,
it was made in smaller proportions of the cases submitted
involving African-American or Hispanic defendants than in those
involving white defendants.
Our study found abundant evidence that the statistical
disparities observed in Federal capital cases resulted from
non-invidious factors rather than from racial or ethnic bias. A
factor of particular importance was the focus of Federal law
enforcement efforts on drug trafficking enterprises and related
criminal violence.
Senator Feingold, as Attorney General Reno noted in
September, many of these cases resulted from the crack
epidemic. During this crack epidemic, violence spread across
our country as a result of the use of crack cocaine. This
violence had a disparate impact on African-American
neighborhoods, and African-American citizens called out to law
enforcement, both State and Federal law enforcement authorities
for help.
The active role of Federal law enforcement in investigating
and prosecuting these kinds of cases possibly resulted in a
higher proportion of minority defendants. This is particularly
true where State laws were inadequate for effectively combating
such crimes. This is not the result of any form of bias, but
reflects the normal factors that affect the division of labor,
if you will, between Federal and State prosecutorial
responsibility in both capital and non-capital cases.
If you will allow, I will turn to the revised protocols and
discuss that briefly, and then the NIJ study, if that is OK.
Chairman Feingold. If we could begin with the questioning
shortly, take a couple of more minutes.
Mr. Thompson. Just briefly, sir, turning to the subject of
the protocol revision, the Attorney General instituted a
protocol, as you know, designed to ensure uniformity in the
invocation of a capital crime. Attorney General Ashcroft and
his Committee did slightly revise the capital crime protocol.
That is detailed, I think, in detail in my prepared statement.
If you have any further question on that, I will be happy to
answer it.
Then turning to the NIJ study, the Attorney General has
directed that the National Institute of Justice continue to go
forward with a study to study the relationship between State
and Federal criminal justice systems and the policies and
practices that result in a capital case being prosecuted by the
Federal Government.
Issues relating to the race and ethnicity of defendants and
the location of prosecution will be included in the study. The
National Institute of Justice will consider in the study the
effectiveness of Federal, State and local law enforcement in
the investigation and prosecution of murder in America. The
primary purpose of this study, as you noted, Senator Feingold,
is the same as that which was contemplated by the Clinton
administration. We expect the solicitation for independent
research to be released in the near future.
We need to continue to examine these issues, Senator
Feingold, to ensure to the fullest extent that we can public
confidence in the administration of justice. That is important,
and I know, Senator Feingold, that you have been patiently
waiting for a response to the letter that you wrote to the
Attorney General several days ago. The Attorney General is
anxious to respond in writing to you and will do so very
shortly. As you have noted in your opening statement, you
indicate that you understand that we intend to go forward with
this important study in the way that you requested in your
letter.
I am pleased to answer any questions that you may have.
[The prepared statement of Mr. Thompson follows:]
Statement of Larry Thompson, Deputy Attorney General, Department of
Justice
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to appear here today to consider this important issue. In
the brief time I have enjoyed the privilege of serving as Deputy
Attorney General, I have been involved in a number of matters involving
the enforcement of the federal death penalty. I can assure you that I
fully appreciate the magnitude of the Department's responsibility in
this area.
I also appreciate and respect the devotion you bring to this issue,
Mr. Chairman. And though we may disagree over the appropriateness of
the death penalty, we share a deep commitment to the fair and impartial
enforcement of the law. As you know, Attorney General Ashcroft has set
a clear direction for the Department. We intend to act in a manner
consistent with the highest standards of integrity and with an abiding
respect for the constitutional rights of all persons.
Of course the mission of the Department of Justice is to enforce
vigorously the laws passed by the Congress, including dozens of
criminal prohibitions carrying the possibility of capital punishment.
These death eligible offenses, nearly all of which were included in the
1994 crime bill, are the duly established laws of the land and they
define the interests of the Federal Government. They reflect the
unmistakable will of the American public as expressed through their
elected representatives. Just as former Attorney General Reno put aside
her own views on capital punishment and approved all of the federal
capital cases we will be discussing here today, so too must the current
Administration fulfill its duty to enforce the law.
This commitment is especially important to the victims of violent
crime. When the lives of family members and friends are shattered by
deadly violence, their one simple hope is that the perpetrators of
their suffering might be caught and punished. We all witnessed the
singular importance of such accountability two days ago when the
victims of Timothy McVeigh's terrorist attack repeatedly explained how
his execution brought closure to their long nightmare.
It is a fact that minorities are more likely to be victims of
violent crime than the majority. My predecessor former Deputy Attorney
General Eric Holder observed at a September press conference that
African Americans are about 50 percent of the nation's homicide
victims. In particular, all of America has been victimized for nearly
two decades by drug trafficking violence. We have become accustomed to
nightly news stories about drive-by shootings and execution style
killings by ruthless drug gangs. We have been horrified by reports of
stray bullets killing children who were simply standing in the wrong
place at the wrong time. The criminal justice system itself has been
threatened by violent intimidation and witness retaliation. Hundreds of
law enforcement officers have sacrificed their very lives to rescue
communities from the ravages of violent drug trafficking. This is why
the Attorney General has pledged to reinvigorate the battle against
drug trafficking and Congress has provided powerful tools to law
enforcement, including the death penalty, to stop these violent
criminals.
But as I said, Mr. Chairman, the fulfillment of our law enforcement
mission must strengthen and not weaken the public's confidence in the
fair administration of justice. Even the appearance of racial or ethnic
bias in the enforcement of capital punishment is a serious concern.
To address this problem, last week Attorney General Ashcroft
announced three important steps. First, we released a report containing
additional statistical data on potential capital cases prosecuted by
the Department since 1995. The report also included analysis of the
Department's enforcement practices during this same period of time.
Second, the Department announced that the protocols for reviewing death
eligible charges have been revised to increase uniformity in the system
and ensure greater scrutiny of cases in which a U.S. Attorney is
recommending capital punishment. And third, the Attorney General
announced that he is directing the National Institute of Justice to
conduct a study of how capital cases are brought into the federal
system.
Mr. Chairman, please allow me to briefly explain each of these
three developments.
SURVEY RESULTS AND ANALYSIS
With regard to the survey results and analysis, as you know last
September Attorney General Reno released the results of a survey that
included information on nearly 700 capital cases since 1995 that had
been submitted to the Department for review pursuant to the capital
case review protocol. (I will have more to say about this protocol in a
moment.) Attorney General Reno directed the Department to collect
additional data on cases that had not been submitted for review over
the same period of time. The cases in this category were not submitted
because, for example, U.S. Attorneys entered into plea agreements with
defendants before indictment on a capital offense charge. She took this
action in order to ensure that this additional information did not
undermine the findings reached on the basis of the original data.
The new data consists of nearly 300 cases. It is similar to the
original data of the Reno report in that it provides no evidence of
favoritism towards White defendants in comparison with minority
defendants. Rather, potential capital cases involving African American
or Hispanic defendants were less likely to result in capital charges
and submission of the case to the review procedure. The new data, in
combination with the previously available data on submitted cases,
shows specifically that capital charges were brought and the cases were
submitted for review for 81% of the White defendants, 79% of the
African American defendants, and 56% of the Hispanic defendants, in
potential capital cases. A further specific finding was that the
various actions taken by the U.S. Attorney offices resulted in non-
capital treatment for 74% of the White defendants, 81% of the African
American defendants, and 86% of the Hispanic defendants.
All in all, the Reno study and our analysis found that the
proportion of minority defendants in federal capital cases exceeded the
proportion of minority individuals in the general population. For
example, in cases submitted to the Department's capital case review
procedure, 20% of the defendants were White, 48% were African American,
29% were Hispanic, and 4% were ``Other.'' Nevertheless, our reports
confirmed that African American and Hispanic defendants were less
likely at each stage of the Department's review process to be subjected
to the death penalty than White defendants. In other words, United
States Attorneys recommended the death penalty in smaller proportions
of the submitted cases involving African American or Hispanic
defendants than in those involving White defendants; the Attorney
General's capital case review committee likewise recommended the death
penalty in smaller proportions of the submitted cases involving African
American or Hispanic defendants than in those involving White
defendants; and the Attorney General made a decision to seek the death
penalty in smaller proportions of the submitted cases involving African
American or Hispanic defendants than in those involving White
defendants.
In the cases considered by Attorney General Reno, she decided to
seek the death penalty for 38% of the White defendants, 25% of the
African American defendants, and 20% of the Hispanic defendants. The
finding that the death penalty was sought at lower rates for African
American and Hispanic defendants than for White defendants held true
both in ``intraracial'' cases, involving defendants and victims of the
same race and ethnicity, and in ``interracial'' cases, involving
defendants and victims of different races or ethnicities.
Our study found abundant evidence that the statistical disparities
observed in federal capital cases resulted from non-invidious factors
rather than from racial or ethnic bias. A factor of particular
importance was the focus of federal law enforcement efforts on drug
trafficking enterprises and related criminal violence. In areas where
large-scale, organized drug trafficking is largely carried out by gangs
whose membership is drawn from minority groups, the active federal role
in investigating and prosecuting these crimes results in a high
proportion of minority defendants. This is particularly true where
state laws are inadequate for effectively combating such crimes. This
is not the result of any form of bias, but reflects the normal factors
that affect the division of federal and state prosecutorial
responsibility in both capital and non-capital cases.
In this connection, our analysis examines in detail several of the
districts which generated the largest numbers of capital offense
charges, accounting collectively for about half of the cases submitted
to the Department's review procedure. For example, the Eastern District
of Virginia submitted 66 cases, mostly involving African American
defendants. The large number of cases involving charges of capital
crimes, and the racial proportion in these cases, resulted mainly from
the district's involvement in the investigation and prosecution of drug
gangs carrying on large-scale trafficking activities in its geographic
area, and from the district's jurisdiction over killings committed by
inmates in the District of Columbia's prison in Lorton, Virginia. The
district of Puerto Rico submitted 72 cases, all involving Hispanic
defendants. This district had an unusually large number of homicide
cases because of an agreement by the U.S. Attorney with local
authorities to prosecute fatal carjacking cases, and the defendants in
these cases were Hispanic because the population of Puerto Rico is
generally Hispanic. The U.S. Attorney office in the District of
Columbia submitted 23 cases, most involving drug-related killings by
African American defendants. The racial composition of these cases
reflected D.C.'s demographics and the decision to pursue federal
charges (as opposed to charges under local D.C. law) reflected
advantages of federal prosecution that were unrelated to the race of
the defendants. Other districts with high numbers of capital case
submissions were the District of Maryland (41 cases), the Eastern
District of New York (58 cases), and the Southern District of New York
(50 cases). These districts recommended against seeking the death
penalty in the vast majority of their submitted cases involving
minority defendants, contravening any notion that their exercise of
federal jurisdiction in a large number of potential capital cases
reflected an invidious desire to secure capital sentences against
minority defendants.
THE REVISED PROTOCOLS
Turning to the subject of protocol revision, Attorney General Reno
instituted a protocol designed to ensure consistency in decisions
concerning capital punishment. Under this protocol, in all cases
involving charges of crimes legally punishable by death, the
responsible United States Attorney submits the case and makes a
recommendation about whether to seek the death penalty to the
Department. The case is then reviewed by a committee of senior
attorneys, who receive input from both the U.S. Attorney and defense
counsel. The Committee evaluates the facts of the case, the federal
interest in the case, the likelihood of success, and the aggravating
and mitigating factors that Congress has identified as relevant in such
cases. The Committee then makes a recommendation to the Attorney
General. The case is then reviewed by attorneys in my office, the
Attorney General's office, and finally by the Attorney General. The
advantage of this approach is that a uniform, equal process governs,
and ultimately one person reviews all of the cases to ensure a
consistent treatment based on the alleged conduct of the defendants.
Even though Ms. Reno's study and ours have found no evidence of
racial or ethnic bias in the Department's treatment of minorities in
the system, we did note some statistical disparity in the treatment of
plea agreements following a decision by the Attorney General to seek
the death penalty. This is the one component of the process that is not
subject to subsequent review under the current protocols.
In order to have greater consistency in all aspects of the
application of the federal death penalty, we are changing the protocol
to require prior approval by the Attorney General before a death
penalty prosecution may be dropped in the context of a plea agreement.
Another requirement of the revised protocol is that U.S. Attorneys must
report all potential capital cases to the Department so that our data
will be more complete.
THE NATIONAL INSTITUTE OF JUSTICE STUDY
Finally, Mr. Chairman, the Attorney General has directed the
National Institute of Justice to go forward with a study of the
relationship between the state and federal criminal justice systems and
the policies and practices that result in a capital case being
prosecuted by the Federal Government. Issues relating to the race and
ethnicity of defendants and the location of prosecution will be
included in the study. NIJ will also consider in the study the
effectiveness of federal, state and local law enforcement in the
investigation and prosecution of murder in America. The primary purpose
of this study is the same as that which was contemplated by the Clinton
Administration but which did not progress beyond the planning process.
We expect the solicitation for independent research to be released in
the near future.
CONCLUSION
In conclusion, Mr. Chairman, while the Justice Department continues
forward with vigorous enforcement of the law we will do so with an
equally vigorous commitment to fairness and impartiality. We look
forward to working with you to achieve these critical goals.
Senator Thurmond. Mr. Chairman?
Chairman Feingold. Senator Thurmond?
Senator Thurmond. I would like to place into the record
letters from the Fraternal Order of Police and the Federal Law
Enforcement Officers Association in support of the death
penalty and in opposition to a Federal moratorium.
Chairman Feingold. Without objection.
I thank the witness for his testimony. I look forward to
the written response, as well, with regard to the NIJ study.
I just want to remind everyone here that what we are trying
to get at is a reality, which is that 90 percent of the people
on Federal death row now are either black or Hispanic.
All the different statistics you suggested relate to
certain aspects of the system and are part of the story. But I
think we need to remember at some point there is a decision
whether to defer to the State or to send it to the Federal
level by a prosecutor. Then there is a decision whether to make
it a capital case or a non-capital case. Then there is a review
process by the Attorney General whether to do the death penalty
or not. Then a jury takes up the matter whether to sentence to
death or not to sentence to death.
All of these junctures are relevant to the question of how
did we end up with 90 percent of the people on death row being
minorities in this country. Perhaps it is a legitimate, just
result. But given the fact that I don't think we have carefully
analyzed all those elements, I think there is a very serious
question. I appreciate your respect for that concern.
We will do 5-minute rounds, and I will start off by asking
you to explain what happened to the NIJ study that Attorney
General Reno ordered and to say a little bit more about what
your current plans are.
You did hear me say in the opening remarks that Attorney
General Ashcroft pledged to me that he would not terminate the
NIJ study. I understand that the Department convened a meeting
on January 10 that we are all aware of. I understand, based on
conversations between our staffs, that the Department actually
did not take any further action on this study after President
Bush was inaugurated until perhaps recent days.
In fact, a specific decision was made within a few weeks
after the Attorney General was sworn in to put this study and a
number of other Clinton administration initiatives on hold. Is
that correct?
Mr. Thompson. It is not my understanding that a decision
was made to put the study on hold, and I will qualify my
comments as to my understanding of what happened.
As you know, Senator Feingold, I was just recently
confirmed less than a month ago, but what I understand happened
was that in January there was a meeting involving various
individuals who would have input into the formulation of the
study. There were minutes, if you will, or a report summarizing
what was discussed. I have reviewed that report.
One of the things that was discussed, and it was a concern
of all the participants, apparently, no matter which side of
the issue they were on, was that the contemplated study would
really not bring to bear a definitive answer as to the issues
that we are discussing today, the issues that are the purpose
of your hearing.
Given the other factors that you had a transition between
administrations, there was not Presidentially appointed
leadership in the Department except for Attorney General
Ashcroft, and the concern that I just mentioned, there was a
delay, if you will, in moving forward on the parameters of the
study. But it was not an unreasonable delay, in my estimation.
One of the things that was done was to try to bring more
focus on the answer as to the genesis, if you will, of some of
the issues that we were hoping to get answered in the study.
The Department asked a number of the prosecutors who were
actually involved in these case submissions to come to the
Department and discuss what happened, get anecdotal information
as to what happened, so that could be transmitted, if you will,
and brought to bear with respect to the work of the NIJ in
formulating the study. That was done in April of this year.
Of course, on June 6, I think it was, Attorney General
Ashcroft directed the Department to go forward with the study.
The solicitation, as I understand it, is ready to go out. The
study's parameters will be instituted by independent social
scientists and criminologists. It will be reviewed by career
people in the Department of Justice, and we are looking forward
to the results of the study.
I do not believe there was any conscious decision, based
upon what I have examined, to stop the study. It was more or
less a decision to try to get at the answer to some of the
problems. At the January meeting, there was sort of a
consensus, as I understand it, that perhaps the study as
contemplated would not give a definitive answer to the problem
of these disparities.
Chairman Feingold. Well, in my mind it is sort of a bad
news/good news situation. The bad news is that it is certainly
my sense that the study was going nowhere and that the delay
was really a result of a decision not to move forward with it.
That is my genuine interpretation of the events.
But on the good news side, that is not what I am hearing
today. What I am hearing today is that there is an intention to
move forward and we are going to explore that. The only
regrettable part, of course, is that this was a time period
prior to Mr. Garza's scheduled execution where perhaps this
information could have had some bearing on the events that are
likely to occur next Tuesday, and I find that regrettable.
Mr. Thompson. Senator, may I just make a point of
clarification?
Chairman Feingold. Please.
Mr. Thompson. As I understand it, the solicitation is not
yet fully developed, but we anticipate that it will go out
shortly.
Chairman Feingold. Thank you for that and I am pleased to
hear it.
Well, let us move on to your study. How does the study
differ from that which the Attorney General ordered last year?
Mr. Thompson. Well, as you know, the study that the
Department of Justice just recently instituted was really a
supplement to the study that Attorney General Reno announced in
September.
Senator, with respect to the questions that you raised in
your opening statement and your questions to me, I have looked
carefully at Attorney General Reno's analysis of this and, as
you know--and this has been very important to me in my
examination of where we are on this important issue based upon
the numbers and the statistics--Attorney General Reno was
absolutely confident that with respect to those individuals who
are on death row now, there was no doubt in her mind, there was
no question in her mind as to the guilt or innocence of those
individuals. I think that is very important. Further, she was
convinced, as was the Deputy Attorney General, my predecessor,
Deputy Attorney General Holder, that the evidence in law with
respect to those cases warranted the invocation of the death
penalty.
Finally, the important statistic that I have asked for in
terms of my staff is to further look at who is on death row
now. Sixty-three percent of those individuals' victims were
minorities, and I find that an equally troubling statistic.
Chairman Feingold. Well, I think it is only fair to point
out that Attorney General Reno and President Clinton chose to
delay the execution of Mr. Garza for the reason that the
studies suggested racial and geographic disparities in the
death penalty. While the other statements may be true, there
was a reason why that execution was delayed. Because of the
need for further study, that is why the June 19th date was
chosen.
Let me ask you directly, then; you have talked about it,
but let me just put it on the record. Will a purpose of the
study that is now ordered by Attorney General Ashcroft be to
address and analyze the questions of racial and geographic
disparities, as Attorney General Reno's directive contemplated?
Mr. Thompson. I certainly hope so, Senator. Public
confidence in the administration of the criminal justice system
is very important, and we have to have as full an understanding
as possible. I don't know if we can get to a total and complete
understanding, but we have to have as full an understanding as
possible of these disparities.
Chairman Feingold. Well, all I asked is will the purpose of
the study be to study these issues?
Mr. Thompson. That will be one of the purposes, to study
those issues.
Chairman Feingold. As you know, in order for the NIJ to
carry out a complex and extensive review like this, the AG must
ensure that it has the resources to do it. Does the Justice
Department commit to providing the NIJ with the resources and
support it needs to conduct this study?
Mr. Thompson. I understand that sufficient resources are
available, Senator. And with respect to support, I understand
that that will be made available, including access to
information that the scientists need to conduct the study; of
course, reasonable access consistent with privacy issues,
handling sensitive law enforcement issues, and grand jury
secrecy.
Chairman Feingold. Mr. Thompson, did you agree with
President Clinton's decision to postpone the execution of Juan
Garza because of the issues raised by the September 2000
survey?
Mr. Thompson. No, I didn't, Senator. As I have looked at
the issue and have examined the issue, I was more persuaded by
the response to Attorney General Reno and Deputy Attorney
General Holder with respect to the individuals who are on
Federal death row now, and that is that there really are no
issues of guilt or innocence and that the evidence and the law
in those cases warranted the invocation of the death penalty.
Chairman Feingold. Thank you. I will conclude my round at
this point and turn to the Senator from Alabama, Senator
Sessions, and then return for more questions.
Mr. Thompson. Thank you, Senator.
Senator Sessions. Thank you, Mr. Chairman. It is an
important issue.
Mr. Thompson, I think you are correct. Being open and
making sure the public has confidence in the system is
important.
With regard to how this death penalty is carried out, I
think it would be instructive for the American people to
understand just how serious the Department of Justice takes it.
It is not handled like a routine case, is it?
Mr. Thompson. No, it isn't.
Senator Sessions. Former Attorney General Janet Reno, who,
by the way, as I understand it, personally felt strongly that
the death penalty was not appropriate, promised to enforce it
as Attorney General.
She set up within the Department of Justice in the early
1990's, did she not, a comprehensive and detailed review
process before any United States Attorney could charge a
defendant with a capital crime or ask for the death penalty?
Isn't that correct?
Mr. Thompson. That is correct, Senator.
Senator Sessions. In fact, she had a team that reviewed
those cases and she personally had to sign off before any of
the 94 United States Attorneys around the country could charge
a defendant and ask for the death penalty?
Mr. Thompson. Correct.
Senator Sessions. And part of that was to deal with this
very problem of disparity and equal rights and uniformity of
punishment, right?
Mr. Thompson. And to deal with issues of fairness and guilt
or innocence as well.
Senator Sessions. Yes, so they reviewed guilt or innocence.
They reviewed all kinds of issues.
Mr. Thompson. That is correct.
Senator Sessions. And that remains in effect under this
administration, is that correct?
Mr. Thompson. That is correct.
Senator Sessions. In fact, over the years I think it has
been strengthened.
Now, during the appellate process, the trial prosecutors,
the United States Attorneys--and you and I were both United
States Attorneys in another life--The United States Attorney
tries the case, but is the Department of Justice involved in
the appellate work on the case, the Washington-based Department
of Justice?
Mr. Thompson. Yes, it is.
Senator Sessions. And doesn't that give an additional
protection that even if a United States Attorney acted wrongly
or made some error? Like Attorney General Ashcroft did on this
McVeigh case, the Department of Justice could step in and make
changes or ask for a delay or stay of an execution?
Mr. Thompson. Absolutely.
Senator Sessions. And that would be an additional
protection for a criminal defendant.
Mr. Thompson. That is right, Senator Sessions.
Senator Sessions. Well, I think that is important for us to
understand. It is also important to remember that Attorney
General Ashcroft in his testimony, to my knowledge, never said
he would agree to a delay in the implementation of the death
penalty beyond the delay that had been issued in the Garza
case. Is that correct?
Mr. Thompson. That is my understanding.
Senator Sessions. He swore to us repeatedly that he would
enforce the law. Mr. Thompson, whether or not you personally
believe in the death penalty, does not Attorney General
Ashcroft have a duty to enforce the law passed by this Senate
and this Congress?
Mr. Thompson. Absolutely. That is my view of our
responsibility.
Senator Sessions. To the best of his ability, and if the
facts and the law call for the implementation of the death
penalty, whether he believes in it or not, just like Janet Reno
didn't believe in it--she carried it out and a number of
individuals are on death row at this time.
Mr. Thompson. That is correct.
Senator Sessions. I think that is important because we are
a Nation of laws. One of the greatest errors that could occur
would be for governmental officials who have sworn to enforce
the law somehow to receive political pressure and feel that
they shouldn't carry out the law that we have passed, which as
I recall was passed in 1988 before I became a Senator, but was
a Federal prosecutor at that time. Congress voted
overwhelmingly for it. I know President Clinton was in favor of
the death penalty.
Mr. Thompson. And, Senator, you were asking me a question
about the protocol and the procedures, and Senator Feingold
mentioned that in his opening statement. Our study was really
not designed to show whether or not whites were treated
harshly. What we were really trying to do was to see whether or
not there were any invidious factors, whether or not there was
any bias and whether or not the statistics went to that.
One of the changes we have made in the protocol procedures
is that--at every step of this protocol review process, our
statistical analysis indicated that blacks were treated
slightly more favorably than whites, in fact. However, one step
in which whites did have a better treatment from the
statistical analysis was whether or not after the death penalty
had been warranted a plea was subsequently negotiated, and
there was a little bit more favorable statistical analysis on
that part. The procedures were revised so as to require a U.S.
Attorney to obtain the approval of the Attorney General before
a plea is entered into.
Senator Sessions. That was an Ashcroft-initiated decision?
Mr. Thompson. Yes, sir.
Senator Sessions. So the concern might be that a prosecutor
would be more favorable in a plea bargain to a defendant based
on race, and the Attorney General now has established a
procedure by which if he or she is charged with a death
penalty, before he can recommend something less than a death
penalty under a plea bargain, that would also have to be
reviewed by the Department of Justice?
Mr. Thompson. That is right, so as to assure greater
uniformity in our review process.
Senator Sessions. And one more question. I guess my time is
out. These prosecutorial memoranda from the field to the
Department of Justice are not pro forma documents, are they?
They typically are very detailed, including legal research and
a large amount of facts and documents before the Department of
Justice makes a decision on it?
Mr. Thompson. Yes, they are very detailed and are reviewed
by a number of experienced prosecutors in the Department of
Justice, including career prosecutors.
Senator Sessions. Thank you, Mr. Chairman. I want to thank
you for your concern for justice in America and your high
ideals in making sure that the law is carried out faithfully
and that we have good laws.
Thank you.
Chairman Feingold. Thank you, Senator Sessions.
Just on one point the Senator from Alabama raised, he
indicated that the Attorney General has an obligation, of
course, to follow through with the law. That is a fair point,
but I want to read what the Attorney General said on the day
that he delayed the execution of Tim McVeigh, of all people.
He said, ``Our system of justice requires basic fairness,
even-handedness, and dispassionate evaluation of the evidence
and the facts. These fundamental requirements are essential to
protecting the constitutional rights of every citizen and to
sustaining public confidence in the administration of justice.
It is my responsibility to promote the sanctity of the rule of
law and justice, and it is my responsibility and duty to
protect the integrity of our system of justice.''
So I would suggest that just as it is possible and, in
fact, occurred in the McVeigh case that a delay was
appropriate, it is certainly possible, given the evidence
before us, that the Attorney General could still be executing
his responsibility of following the law if he were to take into
account these factors.
One quick follow-up, Mr. Thompson, to our earlier
discussion with regard to the supplemental report. When it was
submitted it stated, ``This report completes a survey and
assessment of the Federal death penalty system.'' That is not
what I am hearing today, and I am pleased about that.
What I am hearing today is that, in fact, the NIJ study has
been ongoing and will continue. Is that right?
Mr. Thompson. That is correct.
Chairman Feingold. So it would not be correct to say that
the DOJ's assessment of the Federal death penalty system is
complete?
Mr. Thompson. As I understand that phrase in the report, it
was the completion of the statistical analysis of the available
data that we had. Obviously, we need to examine the issues
regarding the disparity, racial and geographic, further.
And I hope you understand, Senator, that I am in no way
suggesting that we shouldn't do that. I don't know if we will
ever have a full and complete understanding, but we certainly
need to try to have as complete an understanding as possible
for the public confidence that I think we all want in our
criminal justice system.
Chairman Feingold. Thank you for that statement.
Senator Hatch?
Senator Hatch. Thank you, Mr. Chairman.
Let me just put in the record, if I can, a letter from
Ruben Garcia, Jr., the Assistant Director of the Criminal
Investigative Division, written to you. I will just read a
couple of paragraphs.
``We understand the deep concern that you and your
colleagues have that the criminal justice system be
administered without consideration of race. This principle is
fundamental to the fairness of our system and one to which the
FBI constantly dedicates itself in every aspect of enforcing
the laws.''
``Submitted for your hearing today is testimony of
Professor Goss of Columbia University suggesting that the FBI
and DEA determine which Federal drug investigations to
undertake based upon the race of the drug dealers involved.
While examination of the issue can be a healthy exercise to
help address this postulation, reaching such a conclusion
ignores the laws, guidelines, and Congressional and judicial
scrutiny under which we operate. Just as in every type of
violation addressed by the FBI, race is not and cannot be a
factor, let alone the dominant factor, in determining whether
the threshold guidelines predicate has been reached for
conducting an investigation.''
I think that is important.
Mr. Thompson, Senator Sessions mentioned the extensive
internal review process at DOJ prior to charging anyone with
the death penalty. If you would, could you tell us a little bit
about that process or describe that protocol for us?
Mr. Thompson. Well, as you noted, it is an extensive
process. If a capital-eligible crime is contemplated by the
U.S. Attorney, that is submitted to the Department of Justice
for review. It is reviewed by a capital case review team which
is comprised of senior Department lawyers, many career
attorneys. They review the submission of information from the
U.S. Attorney's office. Then attorneys in my office review the
results of those findings, and then I personally review those
findings and then they are submitted to the Attorney General
for review.
Senator Hatch. So it isn't just the prosecutor making that
decision by himself or herself?
Mr. Thompson. No, sir.
Senator Hatch. Why are drug trafficking cases such a large
percentage of Federal death penalty cases?
Mr. Thompson. That is an interesting and complex question,
Senator Hatch. As you know, the Federal interest in the 94
Federal judicial districts is operated, if you will, in a
complementary and supplemental manner with respect to local law
enforcement.
In many districts in which there is a great deal of drug
trafficking activity, local law enforcement has the resources
and the available legal tools to sufficiently and vigorously
prosecute those crimes. In a number of districts, that is not
available, and when that happens, especially in a situation
involving the crack cocaine epidemic--for example, in the
Eastern District of Virginia, which is a district that had a
high number of case submissions, State prosecutors at some
point in time in this process did not have available to them
investigative grand juries. The Federal system did. State
prosecutors, in the way that Federal prosecutors do, did not
have the use of statutes like continuing criminal enterprise,
RICO, and conspiracy statutes. The Federal system did.
So this disparity is the result of the complementary nature
or the supplementary nature of the invocation of Federal law
enforcement in those districts where the Federal Government
needed to exercise the Federal interest. It is a complex
question, but I think that is the way Federal law enforcement
has operated for a number of years. And there is certainly
nothing wrong with that; that is what Federal law enforcement
is for.
Senator Hatch. In your judgment, is there any reason or
justification for a moratorium on Federal executions at this
time?
Mr. Thompson. No, sir, and I agree with the conclusion on
that issue reached by Attorney General Reno and my predecessor,
Deputy Attorney General Holder.
Senator Hatch. Is there any doubt in your mind that it is
appropriate to go forward with the execution of Juan Raul Garza
on June 18?
Mr. Thompson. The Department has received a petition for
clemency in that case, Senator Hatch. I would feel
uncomfortable, given the nature of where that is, commenting
any further on that.
Senator Hatch. That is fine.
Thank you, Mr. Chairman. That is all I need to ask.
Chairman Feingold. Thank you.
I will start another round at this point of 5 minutes. I
would just make a quick comment within that time that given the
fact that the Deputy Attorney General has indicated that the
study with regard to racial and geographic potential bias is
not completed, and the statement that was made earlier that
there simply was no bias in the system, in the supplemental
report, I think it really does raise a question of whether
things should proceed with this execution.
You admit it. Your analysis is not done, and the execution,
of course, would be irreversible if it suggests that there was
a bias in the system. We don't know yet, but let me get into a
little more of the detail at this point.
As I understand it, except for five espionage cases, which
are almost always brought in the Eastern District of Virginia
because it is home to the Pentagon and the CIA, each of the
remaining 61 cases submitted for death penalty authorization in
the Eastern District of Virginia involve black or Hispanic
defendants.
In the supplemental report, most of the death penalty
prosecutions in the Eastern District, as you suggested, are
attributed to drug-related killings. The report concludes, and
I am quoting here, ``The defendants in these cases are not
white because the members of the drug gangs that engage in
large-scale trafficking in the Eastern District of Virginia are
not white.'' It definitely states that. Now, that is a stunning
statement.
How did you reach this conclusion that whites are not
members of drug gangs or otherwise engaged in large-scale drug
trafficking in Virginia?
Mr. Thompson. I don't think the statement could be read,
Senator, to conclude that whites are not members of drug gangs.
What I stated and what Attorney General Reno stated in her
September testimony is that in districts like the Eastern
District of Virginia where Federal law enforcement is focusing
on violent drug trafficking gangs, many of which result from
the crack cocaine epidemic, the violence associated with that
activity has a disparate impact on minority communities. That
is something that Federal law enforcement needed to address.
As I mentioned in my opening statement, and as Attorney
General Reno stated, many African-American citizens were
calling out to the Federal Government, and to State government
as well, to assist the communities in checking the violence
associated with these violent gangs.
I don't think the statement was meant in any way to mean
that whites are not members of violent drug trafficking gangs.
But in many of these drug trafficking gangs that involve the
crack cocaine epidemic, these gangs had a disparate impact upon
minority communities, and the Federal Government had an
obligation to address this crime problem for its African-
American citizens.
Chairman Feingold. Well, I appreciate your attempt to
moderate the actual words, but the words were pretty clear, and
the words were quite stunning in light of the, I believe, lack
of evidence that this is so exclusively the province of one
group of people.
What I would like to do is ask you if you are familiar with
a Virginia law enforcement operation called the Brotherhood.
Mr. Thompson. I am not familiar with it.
Chairman Feingold. Let me go into some detail on it with
you. I have a February 26, 1999, press release from the U.S.
Attorney's office in Norfolk announcing the arrest of 29
individuals with the Renegades Motorcycle Club on charges of
conspiracy to distribute methamphetamine. The indictment
charges them with money laundering, possession with intent to
distribute cocaine and marijuana, and various firearms
violations.
All of the individuals named in the indictment are white,
and this was a huge investigation. It shows that the statement
in the supplemental report that ``members of the drug gangs
that engage in large-scale trafficking in the Eastern District
of Virginia are not white'' is false.
Do you agree that the supplemental report is inaccurate on
that point?
Mr. Thompson. Well, as I said, I don't think a fair reading
of the report was that white citizens are not members of drug
gangs or violent gangs. We know about the bike gangs that seem
to comprise white citizens who are members of those gangs.
As I indicated, as I understood what was going on in the
Eastern District of Virginia, many of these drug trafficking
gangs that were prosecuted by the Federal Government there--and
this is what Attorney General Reno indicated--were a result of
the crack cocaine epidemic, and certainly that was something
that Federal law enforcement should address. But I don't think
the report in any way meant to suggest, and I certainly don't
suggest, Senator, that whites are not members of violent gangs
or that we shouldn't go after them.
Chairman Feingold. Do you happen to know how many murders
have been committed by members of these meth gangs?
Mr. Thompson. No, sir, I do not.
Chairman Feingold. Did the Department do any investigation
to find out?
Mr. Thompson. I am sure it did. I am just not aware of the
results of--
Chairman Feingold. Well, the reason I ask it is the report
we were given last week says that it was based on common
experience that they came to the conclusions they did about who
is doing the drug trafficking. It almost smacks a little bit,
in the language of it, of the type of profiling that we are so
very concerned about in this Congress. So if you do have any
information on it, I would appreciate receiving it
subsequently.
Mr. Thompson. I can look at that and get back to you. As I
understand it, the reference to the Eastern District of
Virginia was the reference because of the number of case
submissions that involved minority defendants. It wasn't a
representation that there are no violent gangs in the Eastern
District of Virginia that are not comprised of white
individuals. It was a reference to the number of minority
defendants whose criminal conduct was submitted to the
Department of Justice for capital case review.
Chairman Feingold. Well, the report attempts to justify the
absence of white death penalty defendants by saying that whites
aren't part of these gangs. And that is false, and that gets to
my fundamental point. How do we end up with 90 percent of the
people on death row being black or Hispanic? This might be part
of the answer, but you may respond.
Mr. Thompson. Senator, we do not disagree with that, but I
think from my standpoint my own personal viewpoint is to look
at the nature of the individuals who are on death row now. I
agree with Attorney General Reno and Deputy Attorney General
Holder, and that is--and I have looked at a number of these
cases--there is no evidence of the guilt or innocence of these
individuals, and that in each of these cases the law and the
evidence warranted the invocation of the death penalty. Again,
getting back to my statistic on the victims, 63 percent of the
victims were minorities. I think that is important.
Chairman Feingold. Thank you. My time on this round is
over, and I will turn to Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
I thank you, Mr. Thompson, and I am glad we have someone of
your decency and broad experience both as a prosecutor and most
of your career as a top-flight litigator with one of America's
great law firms. So I think the perspective you bring there and
the commitment you have to equal justice under law is important
for all of us.
You mentioned that former Deputy Attorney General Eric
Holder supported the conclusion that there was no racial bias
here. I think it would be important also to note that he is an
African-American, a former Federal judge here in Washington.
Let me ask you briefly a couple of things. The review by
Reno and Ashcroft, those studies that were done, the
prosecutors who carried out those cases, who employed them? Who
was the person who employed and was responsible for those
prosecutors?
Mr. Thompson. It was the Department of Justice.
Senator Sessions. It would be Janet Reno during her term in
office?
Mr. Thompson. Oh, certainly.
Senator Sessions. And who appointed the United States
Attorneys who were making decisions to prosecute these cases
that you have been reviewing?
Mr. Thompson. They were appointed by President Clinton.
Senator Sessions. So I guess you have only been in office a
few months, and the same for Attorney General Ashcroft.
Mr. Thompson. It seems like 2 years sometimes.
Senator Sessions. You are being asked to answer for a
policy that took place under a previous administration.
Frankly, from what I have seen, your analysis and the Reno
analysis are fair and just.
You know, Mr. Chairman, there are tendencies in life, and
it is an important matter. For some reason, crack cocaine has
been a more serious problem in the African-American community.
Would you not agree, Mr. Thompson?
Mr. Thompson. Yes, that is my understanding.
Senator Sessions. Indeed, our Sentencing Guidelines that
are so tough on crack have been criticized as in a way
targeting the African-American community. And I think I have
told you, Mr. Thompson, that I am a little bit troubled by
that. I think maybe there is too much disparity between the
crack sentences for crack cocaine and the powder cocaine, which
is more typical of a white community as opposed to the African-
American community. That is a fact.
There has been a good bit of violence, in my experience,
within the crack cocaine gangs. You were United States Attorney
in Atlanta and you were there, I guess, during at least part of
the crack epidemic. It unfortunately did have an unusual amount
of violence connected with it, did it not?
Mr. Thompson. That is correct, and that was Attorney
General Reno's read on some of the data and statistics,
Senator.
Senator Sessions. I think about the United States
Attorney's burden, and you have an organized crime drug
enforcement task force that you were the first head of for the
Southeast Region. That focused on large cocaine rings for the
most part, did it not?
Mr. Thompson. That is correct.
Senator Sessions. Many of those were Colombians, and those
would qualify as Hispanics and there was a lot of violence
among those cocaine gangs and rings, was there not?
Mr. Thompson. That is correct.
Senator Sessions. And so the Federal Congress decided that
under certain circumstances major drug dealers of that kind
would be subjected to the death penalty if they murdered people
in the course of their activities and those would be prosecuted
in Federal court.
Mr. Thompson. That is correct.
Senator Sessions. You remember the terrible violence that
happened, the cocaine wars in Miami, and people were afraid
that would spread around the country. Those had a lot of
involvement with Colombians, did they not?
Mr. Thompson. That is right, Senator.
Senator Sessions. Mr. Chairman, I don't know how these
numbers come out the way they do. I would say only 21
defendants now facing execution in the Federal system is a
rather small number to get a statistical trend from, No. 1.
And with regard to the Garza case, he allegedly murdered
three individuals personally and ordered the execution of three
more.
Mr. Thompson. I believe five more.
Senator Sessions. Do you know the racial identity of those
who were murdered by Mr. Garza?
Mr. Thompson. I believe they all were Hispanic, with the
exception of one.
Senator Sessions. So I think that is a factor here that we
ought to consider.
I would offer for the record a series of letters from
African-American women in Alabama who have had loved ones lost,
children particularly, by murder who do believe the death
penalty is an appropriate penalty.
Thank you, Mr. Chairman, and I would like to offer those.
Chairman Feingold. Without objection.
I am going to start another round, and perhaps I won't use
the whole time here because I do want to go to the next panel.
Let me just briefly comment and say that the very comments
that Senator Sessions was making about the emphasis on crack
cocaine and connecting it to African-Americans is exactly the
reason why we are concerned and need this study.
And then to suggest that there is no reason not to have a
moratorium on the death penalty when we don't have these
answers, to me, really does get into the direction of what it
says over the United States Supreme Court, ``Equal Justice
Under Law.''
Just because somebody may be guilty and many people would
feel they should be executed, if one person is executed for
essentially the same crime and another person isn't, that does
raise questions of equal justice under law. So I would suggest
that is a reason.
And I want to take another angle on this because we have
been talking about the drug aspect. It appears that there is
some undercurrent to the supplemental report, and I know you
have indicated that you did not want it read that way, that
minorities are more likely to commit these death-eligible
crimes.
But I think we need to look not only at who is committing
the crime, but also how crimes are prosecuted at the Federal
level. I would like to turn your attention to an article by Tom
Brune that appeared in Newsday today.
I will submit a copy of it for the record, without
objection.
It is intriguing and it presents another perspective on the
issue of racial and geographic disparities in the Federal
Government's administration of the death penalty.
Brune compares Federal prosecution of street gangs to
Federal prosecution of the Mafia. He found that the Federal
Government is more likely to seek the death penalty against
members of street drug gangs than members of the Mafia.
Now, one reason for this disparate treatment is the focus
of Federal law enforcement. Individuals who might be involved
with the Mafia are investigated through the FBI's Organized
Crime Unit, which was created after the enactment of the RICO
statute in 1970. It follows the so-called enterprise theory of
investigation. In other words, the Federal Government is more
interested in wrecking a criminal organization than just
focusing on individuals.
In contrast, in 1992, the Federal Government for the first
time took on investigation and prosecution of street drug
gangs, as Senator Sessions indicated. Through enactment of the
drug kingpin statute in 1988, Congress equipped Federal law
enforcement with the death penalty as a tool. Now, rather than
focusing on the gang organization, law enforcement is focused
on the individual.
Introduction of the death penalty as a tool, combined with
our Nation's war on drugs, appears to have influenced who does
and does not get charged with a death-eligible offense at the
Federal level. I believe the article illustrates that the
Justice Department cannot robotically, in your words, enforce
vigorously the laws passed by Congress, but must also look at
how the laws are applied.
Since 1996, according to Brune, an FBI crackdown has led to
the conviction of 1,500 organized crime defendants, but not a
single death penalty case, not a single one. I am concerned
that these two starkly different approaches to prosecuting
criminal organizations by Federal law enforcement could be a
reflection of our societal attitudes. Does our society somehow
view mob figures as more sympathetic than black or Hispanic
drug kingpins?
Wouldn't you agree that this street drug gang versus
mobster prosecution comparison deserves exploration and perhaps
even some empirical research?
Mr. Thompson. Well, Senator, I would agree that we need to
understand fully and, as I said, to the fullest extent that we
can the issue of the racial disparity of the number of
individuals who are on Federal death row. As an African-
American, that is something I am concerned about and I don't
think we should ignore it.
I do not think we should turn a blind eye toward this
issue. I think sometimes that is perhaps some of the problem
that we have in our country with respect to racial issues that
we do not want to discuss them, we do not want to look at them.
So I am in favor of us examining this important issue.
But with respect to the question that you posed to me with
respect to violent crime, I would submit, Senator, that it is
very important for the Federal Government to be involved in
those kinds of cases. As I indicated and as Deputy Attorney
General Holder indicated, African-Americans constitute 50
percent of the homicide victims in our country. And it is even
worse; it affects the quality of life of the individuals who
live in some of these communities who are ravaged by these
crack cocaine gangs. People are afraid to go out of their
homes. They are locked up in their homes as prisoners.
If the local law enforcement authorities do not have
sufficient tools or resources to address this issue, I think it
is very important for the Federal Government to be involved in
this so as to bring these individuals to justice and to protect
the vast majority of law-abiding citizens who live in these
communities.
Chairman Feingold. Well, I appreciate the tone of those
remarks, and I hope in the letter that I will receive
concerning the NIJ study that you are going to do that there
will be some assurance that the study will include not only the
general matters we have talked about on racial and geographic
disparity, but also some of these issues relating to drug gangs
and the difference in treatment between the organized crime
type of cases involving, say, mob type issues versus the street
gangs are included in the analysis.
Mr. Thompson. Yes, sir, and I will get back to you on the
question that you posed.
Chairman Feingold. I thank you.
Let's see if Senator Sessions has anything further of this
witness.
Senator Sessions. Mr. Chairman, I would just note, as we
talk about the statistical numbers being small, I have a report
here that 29 out of 35 Federal executions since 1927 have been
white. I think you are correct to look at the numbers we are
looking at today, but in the long run those numbers are
somewhat comforting, I think, in terms of racial bias.
I would also note that I think you raised a good question
about meth cases, which tend to be more white. Sometimes,
motorcycle members are violent. Ecstasy is a growing problem,
and I think the Department of Justice will need to monitor
those gangs and criminal enterprises and ensure that it is as
vigorous in prosecuting murders that may occur during those
enterprises as they are in the ones that are ongoing now.
And the Mafia question is a good one. I know it is often
very difficult to penetrate their code of silence and maybe the
proof is difficult. But it has appeared that a number of Mafia
people have been convicted involving murders. Of course, if
those murders occurred before 1988, they wouldn't be subject to
the death penalty.
Is that correct?
Mr. Thompson. That is correct.
Senator Sessions. But if they have occurred since then,
then I think the Department has a high burden to make sure that
death penalties are sought in appropriate cases there.
Thank you, Mr. Chairman.
Chairman Feingold. Well, I thank the Senator, and I must
say I appreciate working with him. He is a great ally and a
very formidable opponent on many issues. But I just have to say
that not only did I take no comfort from the statistics you
gave, they appall me because what they are are based on is the
Federal death penalty that stopped basically in 1963.
The modern death penalty, a statistic that you call not
significant, involves, out of 19 people, 17 minorities; 14 are
black. That is the face of the modern death penalty at the
Federal level, something that I believe never was true in
American history. So I would take a different read, rather than
comfort, on those numbers.
Senator Sessions. Maybe it is just a short-term statistical
anomaly.
Chairman Feingold. Let us hope.
Senator Sessions. Let us hope.
Chairman Feingold. Thank you, Senator Sessions.
If there are no further questions for this witness, we will
ask the second panel to come forward. But before you go, Mr.
Thompson, I thank you. Let me state that the record for this
hearing will remain open for a week's time. So if there is
anything further you would like to submit for the record, you
may do so.
In addition, I will ask that members of the Committee
submit any written follow-up questions by the close of business
on Friday, and I am sure you will answer those promptly.
I thank you for all the time you have spent with us here
today.
Mr. Thompson. Thank you for your courtesy, Senator.
Chairman Feingold. I will ask the next panel to come
forward.
Our next panel consists of Julian Bond, Andrew McBride, Sam
Gross, James Fotis, and David Bruck. We will start with Mr.
Bond and then move down the table. I will ask again, if you
please could, given the hour, limit your opening statements to
5 minutes so that we will have time to ask questions. Your
entire written statements will, of course, be included in the
record.
Let me begin with Mr. Bond. Julian Bond is Chairman of the
Board of the NAACP. He is frankly somebody whom I have admired
and followed throughout my entire life. He is a former State
legislator in Georgia and one of our country's greatest civil
rights activists. He is also currently a professor of history
at the University of Virginia.
Mr. Bond, it is an honor to have you here and you may
proceed.
STATEMENT OF JULIAN BOND, CHAIRMAN, NATIONAL ASSOCIATION FOR
THE ADVANCEMENT OF COLORED PEOPLE, AND MEMBER, CITIZENS FOR A
MORATORIUM ON FEDERAL EXECUTIONS, WASHINGTON, D.C.
Mr. Bond. Thank you, Mr. Chairman. Thank you for inviting
me to offer my perspective as Chair of the Board of the NAACP
and a member of Citizens for a Moratorium on Federal
Executions.
The NAACP is the Nation's oldest and largest civil rights
organization. We have long been opposed to the death penalty.
We are horrified by its all too frequent and easily documented
racially discriminatory application. We do not believe it
deters crime. It targets and victimizes those who cannot afford
decent legal representation. It is used against the mentally
incompetent. It tragically sends the innocent to death.
It serves as a shield for attitudes on race. It is used
most often in States with the largest African-American
populations, and disproportionately used when the accused is
black and the victim is white. In addition to being bad
domestic policy, it increasingly alienates the United States
from our allies and lessens our voice in the international
human rights arena.
I am also here as a member of Citizens for a Moratorium on
Federal Executions. We are a coalition of dozens of American
public figures who joined together last fall when Juan Garza
was scheduled to be the first individual executed by the United
States in nearly 40 years. Some members of this group support
the death penalty in specific circumstances; others are
inalterably opposed. Nonetheless, we spoke with one voice in
urging President Clinton to declare a moratorium on Federal
executions.
There can be no question that we were able to assemble a
broad cross-section of prominent U.S. citizens to call for a
moratorium because the public is prepared to carefully
reexamine the use of capital punishment in this Nation. At no
time since the death penalty was reinstated by the Supreme
Court in 1976 have Americans voiced such grave doubts about the
fairness and reliability of capital punishment.
At the State level, those doubts are reflected in the
unprecedented moratorium put in place by Governor Ryan of
Illinois and death penalty moratorium bills introduced in State
legislatures and in studies commissioned by Governors in other
States.
At the national level, Mr. Chairman, you have introduced a
bill calling for a moratorium, and Senator Leahy has introduced
legislation that would require greater protections for those
prosecuted for capital crimes at the State and Federal levels.
Professional community and civil rights organizations,
including the League of United Latin American Citizens, the
National Urban League, the NAACP, the Black Leadership Forum,
the Leadership Conference on Civil Rights, and the American Bar
Association all have called on the executive branch to suspend
Federal executions. And religious organizations have
intensified their longstanding calls for a death penalty
moratorium.
When CMFE addressed President Clinton on November 20, we
were responding to the September 12 release of the DOJ survey
that documented racial, ethnic, and geographical disparities in
the charging of Federal capital cases. We wrote to the
President, ``Unless you take action, executions will begin at a
time when your own Attorney General has expressed concern about
racial and other disparities in the Federal death penalty
process. Such a result would be an intolerable affront to the
goals of justice and equality for which you have worked during
your presidency. Consequently, we urge you to put in place a
moratorium until the Department completes its review of the
Federal death penalty process.''
As I speak to you today, of course, the first Federal
execution in almost 40 years has been carried out. The man put
to death was not Mr. Garza, who now faces execution in less
than a week's time, on June 19. He did not precede Timothy
McVeigh to the death chamber in Terre Haute because on December
7, 2000, President Clinton stayed his execution for 6 months.
While the President announced he was not prepared to halt
all Federal executions, he nonetheless told the Nation that
further examination of possible bias in the Federal death
penalty system ``...should be completed before the United
States goes forward with an execution in a case that may
implicate the very questions raised by the Department's
continuing study.'' ``In this area,'' he said, ``there is no
room for error.''
Nothing has transpired since President Clinton's December 7
statement and grant of reprieve that warrants going forward
with Mr. Garza's execution, nor with carrying out the death
sentence of any of the other 19 individuals on Federal death
row.
We reject any suggestion that the report released by Mr.
Ashcroft on June 6 constitutes a reliable or thorough study of
possible racial and regional bias in the Federal death penalty
system. Nor does it answer the troubling questions raised by
the Department's September 12 survey.
On December 8, the day following the President's decision
to stay Mr. Garza's execution, I was one of several CMFE
representatives who, with Congressman John Conyers, met with
former Attorney General Reno, former Deputy Attorney General
Holder, and other Justice Department attorneys to discuss the
President's announcement and plans for a more comprehensive
investigation of the death penalty, which would include the
participation of outside experts.
Members of the Department acknowledged this critical task
could not be accomplished by the end of April of this year, the
timetable set by the President when he announced the December
reprieve for Mr. Garza. The result of that discussion with
Attorney General Reno and Deputy Holder was memorialized in our
letter to President Clinton dated January 4 of this year.
We next learned that on January 10 the National Institute
of Justice assembled a group of experts from within and without
the Department of Justice to discuss the parameters of the
investigation that the Attorney General, Deputy, and President
had announced was needed.
At his confirmation hearing, then Attorney General-
designate John Ashcroft stated that evidence of racial
disparities in the application of the death penalty ``troubles
me deeply.'' Acknowledging he was unsure why more than half the
Federal capital prosecutions were initiated in less than one-
third of the States, he said he was also ``troubled'' by this
evidence. He expressed his approval of a ``thorough study of
the system,'' and proclaimed, ``Nor should race play any role
in determining whether someone is subject to capital
punishment.''
On June 4, CMFE wrote to President Bush, repeating our call
for a moratorium. We raised the concerns that the Attorney
General's actions and statements subsequent to his confirmation
hearing ``cast doubt'' on ``the administration's commitment to
the principles he set forth at his confirmation hearing.''
We noted, ``There has been no indication that the
Department intends to continue the necessary independent
investigation of racial and geographic bias in the death
penalty, which was to have been administered by the National
Institute of Justice. Moreover, General Ashcroft's statements
to Members of Congress, including his testimony before the
House Appropriations Committee in early May, suggest that even
the internal inquiry that the Department embarked upon will
consist of little more than a re-analysis of the same data
already examined and found to demonstrate `troubling' racial
and geographic disparities.''
Just 2 days later, on June 6, the Department released a
flawed study purporting to demonstrate that Federal
administration of the death penalty was bias-free. Now, General
Ashcroft claims ``there is no evidence of favoritism toward
white defendants in comparison with minority defendants.'' But
such evidence does exist, and its existence raises serious
doubts about fairness in our criminal justice system.
Without guarantees of fairness, there can be no public
confidence in the administration of justice. That lack of
confidence is heightened and the guarantees of fairness are
lessened by the Department's recent report on the Federal death
penalty system.
Evidence of race-of-victim discrimination was ignored.
Differences among geographical regions in which the penalty is
sought by United States Attorneys, approved by the Attorney
General, and imposed by juries were ignored. Stark racial
differences in death penalty avoidance by whites and minorities
who enter a plea to a non-capital charge were not fully
examined or explained. The entrance of racial disparities that
discreet stages in decisionmaking was evaded. Arguments for
further study by researchers assembled by the Department of
Justice were ignored.
Before Tuesday, the United States had not executed anyone
for nearly 40 years. What is the hurry, when life and liberty
are at stake?
When asked at his confirmation hearing, ``Do you agree with
President Clinton that there is a need for `continuing study'
of `possible racial and regional bias' because `in this area
there is no room for error,''' the Attorney General
unequivocally answered, ``Yes.''
Attorney General Ashcroft has broken his pledge to the U.S.
Senate. There has been no thorough study of this system. It has
fallen to you to assure Americans that at least when it comes
to the ultimate penalty in our Federal system, justice is blind
to race and ethnicity. You cannot fix everything that is wrong
in our system, but you can fix this.
Thank you, Mr. Chairman.
[The prepared statement and attachments of Mr. Bond
follow:]
Statement of Julian Bond,* Chairman, National Association for the
Advancement of Colored People (NAACP)
Chairman Feingold, as this Subcommittee examines the administration
of the federal death penalty, thank you for inviting me to offer my
perspective as Chairman of the Board of the National Association for
the Advancement of Colored People (NAACP) and as a member of Citizens
for a Moratorium on Federal Executions (CMFE).
---------------------------------------------------------------------------
* Julian Bond has been an active participant in the movements for
civil rights, economic justice, and peace for more than three decades.
He was a founder, in 1960, while a student at Morehouse College, of the
Atlanta student sit-in and anti-segregation organization, and of the
Student Nonviolent Coordinating Committee (SNCC). Mr. Bond is a veteran
of more than 20 years of service in the Georgia state legislature. He
is currently a Professor of History at the University of Virginia and a
Distinguished Professor-in-Residence at the American University in
Washington, D.C.
---------------------------------------------------------------------------
The NAACP is the nation's oldest and largest civil rights
organization. We have long been opposed to the death penalty and are
horrified by its all too frequent and easily documented racially
discriminatory application.
We do not believe it deters crime. It targets and victimizes those
who cannot afford decent legal representation. It is used against the
mentally incompetent. It tragically sends the innocent to death.
The death penalty serves as a shield for attitudes on race. It is
used most often in states with the largest African-American populations
and disproportionately used when the accused is black and the victim is
white.
In addition to being bad domestic policy, it increasingly alienates
the United States from our allies and lessens our voice in the
international human rights arena.
I am also a member of Citizens for a Moratorium on Federal
Executions (CMFE). CMFE is a coalition of dozens of American public
figures who joined together last fall when Juan Raul Garza was
scheduled to be the first individual executed by the United States
Government in nearly 40 years. Some members of CMFE support the death
penalty in specific circumstances; others are unalterably opposed.
Nonetheless, we spoke with one voice in urging President Clinton to
declare a moratorium on federal executions.
Among the 40 people who signed CMFE's first letter to President
Clinton, delivered on November 20, 2000, were former high-ranking
members of the Justice Department, former Clinton administration
officials, the Dean of the Yale Law School, a Nobel Laureate,
Congressional Gold Medal and Presidential Medal of Freedom recipients,
civil rights, religious and civic leaders, former U.S. Senators, and
prominent individuals in the world of arts and entertainment.\1\ Since
last November, CMFE's roster has expanded to include an even broader
spectrum of civil rights and religious leaders, the Founder and
President of the Rutherford Institute, the Editor of the American
Spectator, and a former United States Ambassador.\2\
---------------------------------------------------------------------------
\1\ Letter of Citizens for a Moratorium on Federal Executions
(CMFE), November 20, 2000, attached hereto as Exhibit A. Information
about CMFE is available at http:ll www.federalmoratorium.org. The
website also posts the written statements of other organizations that
joined with CMFE in calling for a moratorium on federal executions.
\2\ Letters of CMFE, January 4, 2001 and June 4, 2001, attached
hereto as Exhibits B and C.
---------------------------------------------------------------------------
There can be no question that CMFE was able to assemble this cross-
section of prominent U.S. citizens to call for a moratorium on federal
executions because the public is prepared to carefully re-examine the
use of capital punishment in this nation. At no time since the death
penalty was reinstated by the Supreme Court in 1976 have Americans
voiced such grave doubts about the fairness and reliability of capital
punishment. At the state level, those doubts are reflected in the
unprecedented moratorium on executions put into place by Governor Ryan
of Illinois, in death penalty moratorium bills introduced and enacted
in state legislatures, and in studies commissioned by Governors in
other states. At the national level, Senator Feingold has introduced a
bill calling for a moratorium on federal executions and Senator Leahy
has introduced legislation that would require greater protections for
those prosecuted for capital crimes at the state and federal levels.
Professional, community and civil rights organizations, including the
League of United Latin American Citizens (LULAC), the National Urban
League, the NAACP, the Black Leadership Forum, the Leadership
Conference on Civil Rights and the American Bar Association, have
called on the Executive Branch to suspend federal executions, and
religious organizations have intensified their long-standing calls for
a death penalty moratorium.
When CMFE addressed President Clinton on November 20, we were
responding to the September 12 release of the Department of Justice
survey that documented racial, ethnic and geographic disparities in the
charging of federal capital cases. The CMFE wrote: ``Unless you take
action, executions will begin at a time when your own Attorney General
has expressed concern about racial and other disparities in the federal
death penalty process. Such a result would be an intolerable affront to
the goals of justice and equality for which you have worked during your
Presidency. Consequently, we urge you to put in place a moratorium
until the Department of Justice completes its review of the federal
death penalty process.'' \3\
---------------------------------------------------------------------------
\3\ Citizens for a Moratorium on Federal Executions, Letter to
President Clinton, November 20, 2000, Exhibit A.
---------------------------------------------------------------------------
As I speak to you today, of course, the first federal execution in
almost 40 years has been carried out. The man put to death was not Mr.
Garza, who now faces execution in less than a week's time, on June 19.
Mr. Garza did not precede Timothy McVeigh to the death chamber in
Terre Haute because, on December 7, 2000, President Clinton stayed Mr.
Garza's execution for six months. While the President announced that he
was not prepared to halt all federal executions, he nonetheless told
the nation that further examination of possible racial and regional
bias in the federal death penalty system ``. . . should be completed
before the United States goes forward with an execution in a case that
may implicate the very questions raised by the Justice Department's
continuing study. In this area there is no room for error.'' \4\
---------------------------------------------------------------------------
\4\ The White House, Office of the Press Secretary, Statement by
the President, December 7, 2000.
---------------------------------------------------------------------------
Nothing has transpired since President Clinton's December 7
statement and grant of reprieve that warrants going forward with Mr.
Garza's execution nor with carrying out the death sentence of any of
the other 19 individuals on federal death row. We reject any suggestion
that the report released by Mr. Ashcroft on June 6 constitutes a
reliable or thorough study of possible racial and regional bias in the
federal death penalty system. Nor does it answer the troubling
questions raised by the Justice Department's September 12 survey.
On December 8, the day following the President's decision to stay
Mr. Garza's execution, I was one of a several CMFE representatives,
who, along with Congressman John Conyers, met with former Attorney
General Reno, former Deputy Attorney General Holder and other Justice
Department attorneys to discuss President Clinton's announcement and
plans for a more comprehensive investigation of the federal death
penalty, which would include the participation of outside experts.
Members of the Department of Justice acknowledged that this critical
task could not be accomplished by the end of April of this year, the
timetable set by President Clinton when he announced the December
reprieve for Mr. Garza.
The result of that discussion with Attorney General Reno and Deputy
Attorney General Holder was memorialized in the CMFE's letter to
President Clinton, dated January 4, 2001.'' \5\
---------------------------------------------------------------------------
\5\ CMFE letter to President Clinton, January 4, 2001, Exhibit B.
---------------------------------------------------------------------------
We next learned that on January 10, 2001, the National Institute of
Justice assembled a group of experts from within and without the
Department of Justice to discuss the parameters of the comprehensive
investigation that the Attorney General, Deputy Attorney General and
the President had announced was needed.
At his confirmation hearing, then-Attorney General-designate John
Ashcroft stated that evidence of racial disparities in the application
of the federal death penalty ``troubles me deeply.'' Acknowledging he
was ``unsure'' why more than half the federal capital prosecutions were
initiated in less than one-third of the states, the Attorney General
asserted that he was also ``troubled'' by this evidence.
He expressed his approval of a ``thorough study of the system,''
and proclaimed, ``Nor should race play any role in determining whether
someone is subject to capital punishment.''
On June 4, 2001, CMFE wrote to President Bush, reiterating our call
for a moratorium on federal executions. We raised the concern that the
Attorney General's actions and statements subsequent to his
confirmation hearing ``cast doubt'' on ``the Administration's
commitment to the principles he set forth at his confirmation
hearing.'' We noted that ``[t]here has been no indication that the
Department intends to continue the necessary independent investigation
of racial and geographic bias in the death penalty, which was to have
been administered by the National Institute of Justice. Moreover,
Attorney General Ashcroft's statements to members of Congress,
including his testimony before the House Appropriations Committee in
early May, suggest that even the internal inquiry that the Department
of Justice embarked upon will consist of little more than a re-analysis
of the same data already examined and found to demonstrate
``troubling'' racial and geographic disparities.'' \6\
---------------------------------------------------------------------------
\6\ CMFE letter to President Bush, June 4, 2001, Exhibit C.
---------------------------------------------------------------------------
Just two days later, on June 6 2001, the Department of Justice
released a flawed study purporting to demonstrate that federal
administration of the death penalty was bias-free.
Now, Attorney General Ashcroft claims that ``there is no evidence
of favoritism towards white defendants in comparison with minority
defendants.'' But such evidence does exist, and its existence raises
serious doubts about fairness in our criminal justice system.
Without guarantees of fairness, there can be no public confidence
in the administration of justice.
That lack of confidence is heightened and the guarantees of
fairness are lessened by the Department of Justice's recent report on
the Federal Death Penalty System.
Evidence of race-of-victim discrimination was ignored. Differences
among geographical regions in which the penalty is sought by United
States' Attorneys, approved by the Attorney General, and imposed by
juries were ignored. Stark racial differences in death-penalty
avoidance by whites and minorities who enter a plea to a non-capital
charge were not fully examined or explained. The entrance of racial
disparities at discrete stages in decision-making was evaded. Arguments
for further study by researchers assembled by the Department of Justice
were ignored.
Before Tuesday, the United States had not executed anyone for
nearly 40 years. What is the hurry, especially when life and liberty
are at stake?
When asked at his confirmation hearing, ``Do you agree with
President Clinton that there is a need for `continuing study' of
'possible racial and regional bias' because `in this area there is no
room for error?"' the Attorney General unequivocally answered, ``Yes!''
Attorney General Ashcroft has broken his pledge to the United
States Senate.
There has been no ``thorough study of the system.''
It has fallen to you to assure Americans that, at least when it
comes to the ultimate penalty in our federal system, justice is blind
to race and ethnicity.
You cannot fix everything that is wrong in our justice system, but
you can do this.
EXHIBIT A
CITIZENS FOR A MORATORIUM ON FEDERAL EXECUTIONS
Dear President Clinton:
As you know, the federal government is preparing to carry out the
first federal execution in nearly forty years. The first of twenty-one
individuals on death row, Juan Garza, is scheduled for execution on
December 12, 2000. Unless you take action, executions will begin at a
time when your own Attorney General has expressed concern about racial
and other disparities in the federal death penalty process. Such a
result would be an intolerable affront to the goals of justice and
equality for which you have worked during your Presidency.
Consequently, we urge you to put in place a moratorium until the
Department of Justice completes its review of the federal death penalty
process.
There is a compelling need for you to intervene: a recent
Department of Justice survey documents racial, ethnic and geographic
disparity in the charging of federal capital cases.
The survey of the death penalty authorization process by the
Department of Justice reveals that, among all the federal capital
defendants against whom the Attorney General has authorized seeking the
death penalty, 69% have been Hispanic and African American (18% and 51%
respectively), while only 25% have been white. The Department of
Justice has no data concerning the potential pool of persons against
whom federal capital cases might be filed and authorized. However,
analogous data does exist concerning state prisoners. Only 12% of all
persons entering the state prisons after being convicted of homicide
are Hispanic. Using similar data, 40% of all persons entering the state
prisons after being convicted of homicide are white. As the Attorney
General has recognized, these data indicate that minorities are over-
represented in the federal death penalty system.
These disparities persist when the Department's data is examined
from other perspectives. For example, 47% of all white defendants for
whom the Attorney General authorized seeking the death penalty
subsequently entered into a plea bargain in exchange for a non-death
sentence, as compared to only 27% of Hispanic defendants whose cases
were authorized for death. And on death row itself, as of the time of
the Department's survey, 17 of the 21 persons on federal death row--81
% were racial or ethnic minorities.
The Justice Department survey also reveals inexplicable geographic
disparities in the administration of the federal death penalty. In 16
states, prosecutors seek and obtain death penalty authorization in at
least 50 % of the federal capital cases that are submitted for review
by the Attorney General. On the other hand, there are eight states in
which that rate is much lower, ranging from 8--30 %. And there are 21
states in which U.S. Attorneys have either never requested or never
obtained authorization to seek the death penalty. These disparities in
death penalty authorization rates are striking even among the states
with the highest number of cases submitted for consideration. Among the
eight states where U.S. Attorneys have submitted 20 or more cases for
consideration, the death penalty authorization rate exceeds 50% in only
one state--Texas--and ranges from 15--38% in the rest.
When the survey was made public by the Department of Justice on
September 12, 2000, the Attorney General acknowledged that the survey
shows ``minorities are over-represented in the federal death penalty
system.'' She also noted that the Department could not explain the
disparities and because of this, ``[a]n even broader analysis must
therefore be undertaken to determine if bias does in fact play any role
in the federal death penalty system.''
The Deputy Attorney General added at the press conference on
September 12 that ``no one reading this report can help but be
disturbed, troubled, by this disparity.'' He then urged that the
problem of race bias in the criminal justice system be confronted
openly:
Ours is still a race-conscious society, and yet people are afraid
to talk about race. At times, this issue seems to be one of the last
remaining ... topics of conversation that is taboo, but it is
imperative, moral and legally, that we confront this problem. Promoting
an honest dialogue is essential to achieving a criminal justice system
where race is never a factor.
When asked whether, in light of the disparities revealed by the
survey, the federal death penalty system was fair, the Deputy Attorney
General acknowledged some uncertainty:
I am a little surprised. I thought that, seven months ago, when we
got to this point we would have substantially greater numbers of
answers than we now have, and one of the things that I've been struck
by is the number of questions that these numbers have raised in my
mind, and I think that's one of the chief reasons why the attorney
general has asked for further studies to be done. . . .
The explanation for these extremely troubling disparities is
unclear, but, as the Attorney General and the Deputy Attorney General
recognized, the possibility of discrimination and bias cannot be ruled
out. The Department of Justice is taking the responsible course and
studying the matter further to see if the causes of disparity can be
identified and, if appropriate, remedied. But, in the face of these
unexplained findings, the Attorney General and the Deputy Attorney
General have also suggested that the proper response, in relation to
persons already sentenced to death, is to take this information into
account in the clemency process. We fail to see how you as President
can make an informed and just decision to deny clemency in a particular
case without understanding the reasons for these extremely troubling
disparities. When the Attorney General and the Deputy Attorney General
cannot say with confidence that race and ethnic bias have not played a
role in the application of the death penalty, and that they must have
further studies to answer this question, there can be no question: No
federal death sentence can be carried out until the studies and the
``honest dialogue'' that must follow from them have been completed.
Mr. Garza's case reflects precisely the concerns over racial,
ethnic and geographic disparities in capital cases that the Justice
Department itself has raised. Mr. Garza is Hispanic and from Texas--two
factors that appear to increase substantially the chances that the
government will seek the death penalty in a potential capital case.
What if, after further study, the Department itself determines that
race or the arbitrary factor of geography does in fact influence who is
prosecuted for death and who is not? We cannot bring Mr. Garza or
others back if we decide that they were the victims of a death penalty
system distorted by bias and arbitrariness.
We have heard voices from various quarters of society taking
comfort from the lack of evidence that death row inmates are actually
innocent. We recognize the moral difference between executing an
innocent person and executing someone who is guilty of a horrible
offense but is sentenced to death because of his racial or ethnic
background or the happenstance of where he is tried. But we believe it
would be wrong and unconscionable for society to make actual innocence
the final test for who should live or die. This view would sanction the
executions of defendants who, but for their race or ethnicity, might
never have been sentenced to death, and it demeans human life by
implying that, for defendants who cannot prove their innocence, there
is no legal or moral distinction between executing them or imprisoning
them. We reject that view.
Our plea to you comes at an historic moment. At no time since the
death penalty was reinstated by the Supreme Court in 1976 have
Americans voiced such grave doubts about the fairness and reliability
of capital punishment. At the state level, those doubts are reflected
in the unprecedented moratorium on executions put into place by
Governor Ryan of Illinois, in death penalty moratorium bills introduced
and enacted in state legislatures, and in studies commissioned by
Governors in other states. At the national level, several bills have
been introduced in the United States Congress calling for a moratorium
for state and federal executions, or for greater protections for those
prosecuted for capital crimes; diverse community and civil rights
organizations from the National Urban League, to the NAACP, to the
American Bar Association, have called on the Executive Branch to
suspend federal executions; and religious organizations have
intensified their long-standing calls for a death penalty moratorium.
The international community echoes these concerns, as does public
opinion, with recent polls suggesting that a majority of the American
public supports a moratorium on executions until issues of fairness in
capital punishment can be resolved.
The problems that we have highlighted here are problems that
resonate profoundly with our nation's historic struggle to secure equal
justice under law for all our citizens. These problems are like the
ones that have rumbled beneath the surface of state death penalty
systems for years, which have finally erupted into the public
consciousness and conscience and fueled the growing call for a
moratorium.
Some of those who have signed this letter agree with you that
capital punishment is appropriate in principle, provided that it is
administered in a fair caseby-case manner. However, all of us agree
that a moratorium should be adopted while these fairness issues are
being resolved.
We believe that the step we ask you to take is squarely consistent
with the power to grant reprieves that is given to you by Article II of
the Constitution. We are aware of your support for the death penalty
under some circumstances and we are not asking that you change your
long-held position. We are asking only that you prevent an
unconscionable event in American history--executing individuals while
the government is still determining whether gross unfairness has led to
their death sentences. Granting this delay would not only avoid the
specter of fundamental injustice in individual cases, it would address
the legitimate reservations about capital punishment that burden the
hearts and minds of so many citizens.
Respectfully,
Dr. Mary Frances Berry
Chair, U.S. Commission on Civil Rights
Julian Bond
Chairman of the Board, National Association for
the Advancement of Colored People (NAACP)
Senator Alan Cranston
U.S. Senate 1969-1993; President, Global Security
Institute
Kerry Kennedy Cuomo
Human Rights Activist; Founder and Former
Executive Director of the RFK Center for Human
Rights
Lloyd Cutler
Former Counsel to President Clinton and to
President Carter
Tom Eagleton
U.S. Senate, 1968-1987
Most Reverend Joseph A. Fiorenza
Bishop of Galveston-Houston; President, National
Conference of Catholic Bishops
Dr. John Hope Franklin
Chair, Advisory Board One America: The
President's Initiative on Race
Bishop Thomas Gumbleton
Auxiliary Bishop, Archdiocese of Detroit
Wade Henderson
Executive Director, Leadership Council on Civil
Rights (LCCR)
Antonia Hernandez
President and General Counsel, Mexican-America
Legal Defense and Education Fund (1VIALDEF)
Rev. Theodore M. Hesburgh, C.S.C.
President Emeritus, University of Notre Dame
Reverend Jesse Jackson
Civic and Political Leader; President and Founder
Rainbow Coalition/PUSH
Fred Korematsu
Japanese American Civil Rights Leader
Dean Anthony Kronman
Dean of Yale Law School
Reverend James Lawson, Jr.
Pastor Emeritus, Holman United Methodist
Church, Los Angeles
Norman Lear
Director and Founding Member of People for the
American Way; Chairman, ACT III Communications
Jack Lemmon
Actor; President, Jalem Productions, Inc.
Robert Litt
Former Principal Associate Deputy Attorney
General in the U.S. Department of Justic
(DOJ)
Reverend Dr. Joseph E. Lowery
Co-Founder and President Emeritus, Southern
Christian Leadership Conference (SCLC)
Cardinal Roger Mahony
Archbishop of the Roman Catholic Archdiocese of
Los Angeles
Irvin Nathan
Former Principal Associate Deputy Attorney
General in the U.S. Department of Justice (DOJ)
Angela E. Oh
Member, Advisory Board One America: The
President's Initiative on Race
Mario G. Obledo
President, National Coalition of Hispanic
Organizations
Professor Robert Reich
Former U.S. Secretary of Labor
Arturo Rodriguez
President, United Farm Workers of America,
AFL-CIO
Michael Rosier
President-elect,
National Bar Association
Rabbi David Saperstein
Director, Religious Action Center of Reform
Judaism
The Honorable H. Lee Sarokin
Retired Judge, U.S. Court of Appeals for the Third
Circuit
Stanley Sheinbaum
Economist; Founding Publisher,
New Perspectives Quarterly
Sidney Sheinberg
Former President and Chief Operating Officer of
MCA, Inc./Universal Pictures
Senator Paul Simon
U.S. Senate, 1984-1997, U.S. House of
Representatives, 1974-1984
George Soros
Philanthropist; President and Chairman
of Soros Fund Management LLC.
Barbra Streisand
President, The Streisand Foundation
John Van de Kamp
California Attorney General, 1983-1991
Arturo Vargas
National Latino Leader
Reverend C.T. Vivian
Founder and Board Chair, Center for Democratic
Renewal (formerly the National Anti-Klan
Network); President, Black Action Strategies and
Information Center (B.A.S.I.C.)
Reverend Jim Wallis
Editor-in-Chief/Executiue Director,
Sojourners magazine
Bud Welch
Board Member, Murder Victims Family for
Reconciliation
Professor Elie Wiesel
Nobel Peace Laureate; Founder, The Elie Wiesel
Foundation for Humanity
EXHIBIT B
CITIZENS FOR A MORATORIUM ON FEDERAL EXECUTIONS
Dear President Clinton:
We are writing to make an impassioned plea that you do all you can
before you leave office to ensure that the federal death penalty will
not become a civil rights disaster during the next four years.
We are grateful for the first step you took in relation to this
crisis: your intervention in the case of Juan Raul Garza on December 7,
2000. The reprieve of Mr. Garza's execution until June 19, 2001, was
particularly significant because of your acknowledgment of the
unexplained racial and geographic disparities that beset the federal
government's decisions to seek the death penalty. Your willingness to
address the troubling direction that the federal death penalty has
taken, and your recognition that executions would be intolerable until
the disparities are better understood and necessary remedies
considered, are predicates for the steps that must be taken before you
leave office.
On December 7, you stated that ``the gravity and finality of the
[death] penalty demand that we be certain that when it is imposed, it
is imposed fairly.'' You explained the need for ``continuing study'' of
``possible racial and regional bias'' by declaring that ``[i]n this
area there is no room for error.'' When you addressed the nation on
December 7, the result of the presidential election was uncertain. The
outcome is now final. Your immediate and decisive action will help
assure that the leadership in the next Administration carries out your
stated objective to thoroughly examine and address racial and
geographic disparities in the federal death penalty system before the
United States ``goes forward with an execution in a case that may
implicate the very questions raised by the Justice Department's
continuing study.'' To this end, we ask you to take several additional
steps before January 20, 2001.
First, a reliable, credible and comprehensive study of these
disparities must be undertaken. Such a study cannot possibly be
concluded by April, 2001. Attorney General Reno, Deputy Attorney
General Holder, and Acting Director of the National Institute of
Justice Julie Samuels agree that April is not a realistic deadline for
completion of the thorough examination and evaluation to which you
committed in your December 7 statement. The timetable for a reliable,
credible and comprehensive investigation cannot be set arbitrarily. It
is dependent upon the design of the study. A blueprint for such a study
can and must be developed before you leave office. A realistic
timetable will emerge from that blueprint and the date for completion
can then be rescheduled. To assure its viability and integrity, the
study must be undertaken under the supervision and authority of a
citizens' advisory committee. This committee can be established and
given appropriate responsibilities and authority under the Federal
Advisory Committee Act before the end of your term in office.
Second, the blueprint for the study, the timetable for its
completion, and the citizens' advisory committee must be embodied in
appropriate executive actions, to emphasize the importance of these
matters to the nation and to help ensure that the next Administration
completes these critical tasks. An executive order addressing these
issues and directing the Attorney General to establish a citizens'
advisory committee is imperative. Moreover, the citizens' advisory
committee must be established before January 20, 2001, with the duty to
report to Congress and the Library of Congress at the conclusion of its
responsibilities.
Third, a moratorium on federal executions must be ordered, with
appropriate reprieves, before you leave office. Without this, there is
no assurance that those who are affected by the disparities will not be
executed before the necessary process of study and remediation has been
completed.
The substance of your remarks on December 7 led the nation to
believe that you acted with full appreciation of the significance of
the task that lies ahead. The steps that we have outlined will solidify
this belief and strengthen the nation's commitment to equal justice
under law. They will also help assure that any consideration of this
issue in the new Administration takes place in the open, with full
debate illuminating all sides of this important issue.
Because time is of the essence, we reiterate our request for a
meeting with you. Some of our representatives are already working with
members of Deputy Attorney General Holder's staff to consider the DOJ
study design and the need for a citizens' advisory committee. We
believe that a discussion with you is essential if the three measures
we have outlined are to be adopted before January 20.
We look forward to meeting with you at the earliest opportunity.
Respectfully,
Dr. Mary Frances Berry
Chair, U.S. Commission on Civil Rights
Julian Bond
Chairman of the Board, National Association for
the Advancement of Colored People (NAACP)
Kerry Kennedy Cuomo
Human Rights Activist; Founder and Former
Executive Director of the RFK Center for Human
Rights
Most Reverend Joseph A. Fiorenza
Bishop of Galveston-Houston; President, National
Conference of Catholic Bishops
Dr. John Hope Franklin
Chair, Advisory Board One America: The
President's Initiative on Race
Bishop Thomas Gumbleton
Auxiliary Bishop, Archdiocese of Detroit
Wade Henderson
Executive Director, Leadership Council on Civil
Rights (LCCR)
Antonia Hernandez
President and General Counsel, Mexican-America
Legal Defense and Education Fund (1VIALDEF)
Rev. Theodore M. Hesburgh, C.S.C.
President Emeritus, University of Notre Dame
Reverend Jesse Jackson
Civic and Political Leader; President and Founder
Rainbow Coalition/PUSH
Fred Korematsu
Japanese American Civil Rights Leader
Dean Anthony Kronman
Dean of Yale Law School
Reverend James Lawson, Jr.
Pastor Emeritus, Holman United Methodist
Church, Los Angeles
Robert Litt
Former Principal Associate Deputy Attorney
General in the United States Department of Justic
(DOJ)
Reverend Dr. Joseph E. Lowery
Co-Founder and President Emeritus, Southern
Christian Leadership Conference (SCLC)
Cardinal Roger Mahony
Archbishop of the Roman Catholic Archdiocese of
Los Angeles
Kweisi Mfume
President and CEO, National Association for the
Advancement of Colored People (NAACP)
Irvin Nathan
Former Principal Associate Deputy Attorney
General in the U.S. Department of Justice (DOJ)
Angela E. Oh
Member, Advisory Board One America: The
President's Initiative on Race
Michael Rosier
President-elect, National Bar Association
Rabbi David Saperstein
Director, Religious Action Center of Reform
Judaism
The Honorable H. Lee Sarokin
Retired Judge, U.S. Court of Appeals for the Third
Circuit
Stanley Sheinbaum
Economist; Founding Publisher, New Perspectives
Quarterly
Sidney Sheinberg
Former President and Chief Operating Officer of
MCA, Inc./Universal Pictures
Senator Paul Simon
U.S. Senate, 1984-1997, U.S. House of
Representatives, 1974-1984
Dr. Yvonne Scruggs-Leftwich
Executive Director, Black Leadership Forum
John Van de Kamp
California Attorney General, 1983-1991
Arturo Vargas
National Latino Leader
Ray Velarde
National Legal Advisor, League of Latin American
Citizens (LULAC)
Reverend C.T. Vivian
Founder and Board Chair, Center for Democratic
Renewal (formerly the National Anti-Klan
Network); President, Black Action Strategies and
Information Center (B.A.S.I.C.)
Reverend Jim Wallis
Editor-in-Chief/Executiue Director,
Sojourners magazine
Bud Welch
Board Member, Murder Victims Family for
Reconciliation
Ambassador Andrew Young
President, GoodWorks International;
Former UN Ambassador
EXHIBIT C
CITIZENS FOR A MORATORIUM ON FEDERAL EXECUTIONS
June 4, 2001
The Honorable George W. Bush
President of the United States
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Dear President Bush:
As you know from our previous correspondence to you and to
President Clinton, Citizens for a Moratorium on Federal Executions
(CMFE) is a growing coalition of individuals with differing views on
the authority of government to impose the death penalty. Some who have
signed letters to you and to President Clinton agree that capital
punishment is appropriate in principle, provided that it can be carried
out fairly, equitably and reliably. However, all of us agree that
current information about the administration of the federal death
penalty calls for an immediate executive moratorium on federal
executions.
Citizens for a Moratorium on Federal Executions originally came
together to urge President Clinton to declare a moratorium when Juan
Raul Garza was scheduled to be the first individual executed by the
federal government system since 1963. Results of the Department of
Justice survey of the administration of the federal death penalty
released in September of last year revealed disturbing evidence of
geographic and racial disparities. The outcome of the DOJ review and
concerns expressed by the former Attorney General and the former Deputy
Attorney General were focal points of the CMFE's letters to President
Clinton in November and January. In those letters, we urged that ``no
federal execution should be carried out at a time when the nation
questions the reliability and fairness of capital punishment and no
person should be executed until it is certain that the process does not
discriminate. The very reason for a moratorium is to allow a period for
careful study about the administration of the federal death penalty.
Whatever one's views on the appropriateness of the death penalty, it is
unconscionable to carry it out while questions remain about the
fairness of its application.''
On December 7, 2000, President Clinton announced that he had
granted a reprieve to Mr. Garza because of his conclusion that ``the
examination of possible racial and regional bias should be completed
before the United States goes forward with an execution in a case that
may implicate the very questions raised by the Justice Department's
continuing study.'' The President called upon the Department of Justice
to conclude a further examination of the federal death penalty system
by the end of April of this year in advance of June 19, the execution
date now scheduled for Juan Raul Garza. Then-Deputy Attorney General
Holder followed up by expanding the internal Department of Justice
inquiry to include gathering internal data that had been missing from
the September 2000 survey.
Ultimately, Attorney General Reno, Deputy Attorney General Holder,
and Acting Director of the National Institute of Justice Julie Samuels
concluded that April of this year was not a realistic deadline for
completion of a thorough examination of the system. The Department
determined that a credible evaluation of the federal death penalty
could not be conducted without studies by independent experts. It
recognized that a reliable study required that data be collected and
analyzed that had not been maintained by the United States Attorneys in
the 94 federal districts. The Department authorized the National
Institute of Justice to commence this process. In January,
representatives of the NIJ met with experts to begin discussions
essential to designing and carrying out independent studies.
Your Administration's early statements and actions indicated its
concurrence with this course of action. Responding to questions during
the confirmation process, the nation's new Attorney General, John
Ashcroft, stated that evidence of racial disparities in the application
of the federal death penalty ``troubles me deeply.'' Acknowledging that
he was ``unsure'' why more than half the federal capital prosecutions
were initiated in less than one-third of the states, the Attorney
General agreed that he was also ``troubled'' by this evidence. He
expressed his approval of a ``thorough study of the system,'' and also
stated, ``Nor should race play any role in determining whether someone
is subject to capital punishment.'' While declaring that he
``personally'' did not believe a moratorium on federal executions was
warranted, the Attorney General answered with an unequivocal ``yes''
when asked: ``Do you agree with President Clinton that there is a need
for `continuing study' of `possible racial and regional bias' because
`[i]n this area there is no room for error?'' '
Unfortunately, the Attorney General's more recent actions and
statements cast doubt on your Administration's commitment to the
principles he set forth at his confirmation hearing. There has been no
indication that the Department intends to continue the necessary
independent investigation of racial and geographic bias in the death
penalty, which was to have been administered by the National Institute
of Justice. Moreover, Attorney General Ashcroft's statements to members
of Congress, including his testimony before the House Appropriations
Committee in early May, suggest that even the internal inquiry that the
Department of Justice embarked upon will consist of little more than a
reanalysis of the same data already examined and found to demonstrate
``troubling'' racial and geographic disparities. While Attorney General
Ashcroft and Department of Justice press advisories indicated that the
supplemental study would be made public before May 16, it was not. This
sequence of events is far from the ``thorough study of the system''
that the Attorney General promised.
Finally, revelations just days before May 16 that the FBI had
failed to provide defense counsel for Timothy McVeigh with thousands of
documents to which they were entitled have further shaken confidence in
the reliability and fairness of the administration of the federal death
penalty. In announcing a delay in Mr. McVeigh's execution, the Attorney
General declared that ``if any questions or doubts remain about this
case, it would cast a permanent cloud over justice, diminishing its
value and questioning its integrity.'' In expressing your support for
the Attorney General's decision, Mr. President, you stated that
`[t]oday is an example of the system being fair.'' You emphasized that
the Attorney General's action was appropriate because ``we live in a
country that protects certain rights.''
Mr. President, the doubts and questions that were raised about the
fairness and reliability of the federal death penalty system remain. In
your own words, they call into question precisely whether the ``system
[is] fair'' and whether ``we live in a country that protects certain
rights.'' We await action by this Administration which will assure the
American public that if we are to have a federal death penalty,
reliability, fairness and equality will be guaranteed. Those assurances
cannot be given today because, as Attorney General Ashcroft has
recognized, there is need for a ``thorough study.'' We again urge you
to declare an immediate moratorium on all federal executions.
Sincerely,
Barbara Arnwine
Executive Director, Lawyers' Committee
for Civil Rights Under Law
Elizabeth Frawley Bagley
Former US. Ambassador to Portugal
Dr. Mary Frances Berry
Chair, U.S. Commission on Civil Rights
Harry Belafonte
Artist/Activist
Julian Bond
Chairman of the Board, National Association
for the Advancement of Colored People (NAACP)
Kerry Kennedy Cuomo
Human Rights Activist; Founder and Former
Executive Director, RFK Center for Human Rights
Bishop Thomas J. Gumbleton
Auxiliary Bishop, Archdiocese of Detroit
Wade Henderson
Executive Director, Leadership Conference
on Civil Rights (LCCR)
Reverend Jesse Jackson
Civic and Political Leader; President
and Founder, Rainbow Coalition/PUSH
Fred Korematsu
Japanese American Civil Rights Leader
Dean Anthony Kronman
Dean, Yale Law School
Reverend James Lawson, Jr.
Pastor Emeritus, Holman United Methodist Church,
Los Angeles
Norman Lear
Director and Founding Member, People for the
American Way; Chairman, ACT III Communications
Robert S. Litt
Former Principal Associate Deputy Attorney General,
U.S. Department of Justice
Reverend Dr. Joseph E. Lowery
Co-Founder and President Emeritus, Southern
Christian Leadership Conference (SCLC)
Cardinal Roger Mahony
Archbishop, Roman Catholic Archdiocese
of Los Angeles
Karen K. Narasaki
President, National Asian Pacific American
Legal Consortium
Mario G. Obledo
President, National Coalition of
Hispanic Organizations
Angela E. Oh
Member, Advisory Board One America:
The President's Initiative on Race
George M. Ong
National President, Organization of
Chinese Americans
Sister Helen Prejean
Author, Dead Man Walking; Chair,
The Moratorium Campaign
Hugh B. Price
President, National Urban League
Arturo S. Rodriguez
President, United Farm Workers ofAmerica,
AFL-CIO
Michael S. Rosier
President-Elect, National Bar Association
Dr. Yvonne Scruggs-Leftwich
Executive Director/Chief Operating Officer,
Black Leadership Forum, Inc.
Stanley Sheinbaum
Economist; Founding Publisher,
New Perspectives Quarterly
Sidney Sheinberg
Former President and Chief Operating Officer,
MCA, Inc./Universal Pictures
Senator Paul Simon
U.S. Senate, 1984-1997;
U.S. House of Representatives, 1974-1984
Tavis Smiley
Commentator, Author, Civil Rights Leader
R. Emmett Tyrrell, Jr.
Editor in Chief The American Spectator
John Van de Kamp
California Attorney General, 1983-1991
Reverend C.T. Vivian
Founder and Board Chair, Center for Democratic
Renewal (formerly the National Anti-Klan Network);
President. Black Action Strategies and Information
Center (B.A.S.LC)
Bud Welch
Board Member, Murder Victims' Families
For Reconciliation
John W. Whitehead
Founder and President, The Rutherford Institute
Chairman Feingold. Thank you, Mr. Bond.
I would like to ask to place in the record statements from
Professor David Baldus and the ACLU, without objection.
Now, we will turn to Mr. McBride. He is a partner at the
firm of Wiley, Rein and Fielding, here in Washington, D.C. He
served as an Assistant U.S. Attorney in the Eastern District of
Virginia from 1992 to 1999. He also served in the Department of
Justice in a variety of posts from 1989 to 1992, and is a
former law clerk to Supreme Court Justice Sandra Day O'Connor
and to former D.C. Circuit Judge Robert Bork.
Mr. McBride, I thank you for being here and you may
proceed.
Senator Sessions. Mr. Chairman, I would like to offer for
the record on behalf of Senator Hatch a letter from the DEA on
this subject dated June 13.
Chairman Feingold. Without objection.
Mr. McBride?
STATEMENT OF ANDREW G. MCBRIDE, FORMER ASSISTANT UNITED STATES
ATTORNEY FOR THE EASTERN DISTRICT OF VIRGINIA, AND PARTNER,
WILEY, REIN AND FIELDING, WASHINGTON, D.C.
Mr. McBride. Chairman Feingold, thank you for having me
here today. As a former Federal prosecutor who has charged
death penalty offenses and tried death penalty cases, I commend
the Chairman and the Committee for their oversight on this
issue. I think it is critically important. I know the Committee
is studying this issue very carefully and is deeply concerned
about, and I think the changes in the protocol that were
explained by the Deputy Attorney General today are positive
changes and the Committee has played a role in that.
I would like to make three points from my testimony that I
hope the Committee will keep in mind. There has been
discussion, of course, of cases in the Eastern District of
Virginia. I would like to make myself available to the members
of the Committee to discuss specifically the charging practices
in the Eastern District of Virginia in which I played a role
during those 7 years.
The first point from my testimony that I would like to
emphasize is that I would ask the Committee members to be
particularly careful in using regression analysis or
statistical analysis to draw conclusions about death penalty
prosecutions.
Regression analysis depends upon controlling for all the
legitimate factors to expose the influence of illegitimate
factors. In my opinion, there are too many variables that
prosecutors, judges and juries correctly consider in assessing
moral culpability to identify them and weigh them all in a
computer model.
Trying to statistically assess the deathworthiness of
Timothy McVeigh or the embassy bombers who did not receive the
death penalty, as we know, today and then compare them with the
deathworthiness of other Federal offenders who may be eligible
for the death penalty, in my view as a former prosecutor, is a
fool's errand.
The problem is particularly difficult at the Federal level,
where any statistical model must account for the additional
factors that affect State versus Federal prosecution. And
statistical conclusions must be drawn, as Senator Sessions
mentioned, from a very limited pool of unique Federal cases. We
wouldn't want computers to make capital sentencing decisions
and we shouldn't pretend that computers are capable of
perfectly emulating them after the fact.
Second, having found that the very limited numbers that we
do have do not support any inference of discrimination against
minorities within the procedures that the Attorney General has
laid out--in other words, crimes that are submitted to the
Department of Justice by the U.S. Attorneys' offices, there is
no evidence of discrimination there. And as the Deputy Attorney
General stated, in fact, white capital-eligible defendants are
slightly more likely to actually be charged, noticed up with
the death penalty and have the death penalty sought than are
minority defendants.
Opponents now make the claim that these same prosecutors
must be motivated by racism when they make the initial decision
to take the case to Federal court. I believe this charge is
unfair, and it is leveled by individuals who do not have
experience with our criminal justice system.
The decision whether or not to take a case from the State
to the Federal level is generally made at the supervisory level
in the United States Attorney's office. It is not made by an
individual Assistant United States Attorney, nor could it ever
be made by an individual Federal law enforcement officer. The
decision is often made where the U.S. Attorney's office will
have certain protocols or guidelines already in place.
For instance, in Prince William County, Virginia, they
prosecute no armed bank robberies. They allow the FBI to
investigate and prosecute all those cases. So if there is an
armed bank robbery that results in a homicide, it will be a
Federal case. It has nothing to do with the individual
discretion of any particular person, Federal agent or
prosecutor. That is a protocol we have in place. There are
other similar protocols that result in cases becoming Federal
cases.
I believe that the charge that the Federalization of cases
is infected with race, from my personal experience, is wrong. I
also believe that it implies bad faith on the part of State
officials in their decisions to seek Federal assistance. In
fact, I think State officials, in my experience, seek the
assistance of Federal authorities most often when crimes remain
unsolved and they are multijurisdictional in nature. In my
view, that is a proper role for the Federal U.S. Attorney's
office when a State or local official comes to them and says,
we have unsolved homicides, they appear to stretch outside our
jurisdiction, we would like your intervention. My experience in
the Eastern District of Virginia was we answered calls; we did
not make calls.
Finally, as has been discussed, and as the Chairman noted,
we have in place a Federal system that I believe is designed to
ensure fair and even-handed enforcement of the death penalty.
The Attorney General's review process, which as a prosecutor I
twice participated in, is a rigorous process. The documents
that are filed by the Assistant U.S. Attorneys include a draft
indictment and a long memo that discusses all the possibilities
of the case.
It is unique in the sense that defense attorneys are
allowed to make a presentation at the charging stage before the
committee. I think that is an important protection, and we know
from the small number of statistics that we have that that
process in and of itself is fair. And if that process is fair,
I think the burden is then on those who would charge that the
process of taking cases from State court to Federal court,
which involves the same individuals, the same prosecutors, the
same people at the Department of Justice, is how somehow
radically unfair or infected with race. The burden is on those
who would make that charge to prove it, and my personal
experience suggests that it is not so.
Again, I commend the Chairman for his interest in this
issue. I think it is a very important issue. I think the
committee's oversight has already assisted the Department in
revising the protocol, and I would be happy to discuss my
experience with the protocol or with prosecutions in the
Eastern District of Virginia with the Chair and the committee.
Thank you.
[The prepared statement of Mr. McBride follows:]
Statement of Andrew G. McBride
I. Introduction
Chairman Feingold, Senator Thurmond, distinguished Members of the
Subcommittee, and learned colleagues. I am honored to appear before the
Subcommittee today on the important subject of the fair and even-handed
enforcement of the federal death penalty. By way of background, I am a
former law clerk to Justice Sandra Day O'Connor. I served as an
Associate Deputy Attorney General in the first Bush Administration,
where I helped draft then-President Bush's crime control bill. I have
testified several times before Congress regarding the federal death
penalty and habeas corpus reform. I also served as a federal prosecutor
for almost seven years in the United States Attorney's Office for the
Eastern District of Virginia. As a prosecutor, I appeared twice before
the Attorney General's capital case review committee, and I tried a
fourdefendant capital case in federal district court in Richmond,
Virginia in 1997.
I believe that the death penalty serves an important role in the
spectrum of penalties that the federal criminal justice system has
available. Recent studies indicate the death penalty does in fact play
a role in the general deterrence of capital crimes. See, e.g.,
Dezhbackhsh, Rubin & Shepherd, Does Capital Punishment Have a Deterrent
Effect? New Evidence from Postmoritorium Panel Data, Department of
Economics, Emory University (January 2001). We know the death penalty
accomplishes specific deterrence, for it eliminates the possibility
that a known-killer will kill again in prison or upon eventual release.
The death penalty offers an additional measure of protection for our
federal law enforcement officers--who are often faced with the prospect
of arresting violent felons who are already facing life imprisonment.
Most importantly, the death penalty sends a message of society's
outrage and resolve to defend itself against the most heinous of
crimes. As we have seen most recently in the McVeigh case, it gives
survivors a sense of justice and closure that even life imprisonment
without parole cannot accord.
As a former prosecutor who has tried capital cases, and as a
citizen, I share the concern of the Chairman and the entire
Subcommittee that the death penalty be enforced in a fair, even-handed,
and race-neutral manner. At the same time, I am wary of the misuse of
race and racial statistics as a ``stalking horse'' for those who are
opposed to the death penalty in all circumstances. Honest opposition to
capital punishment on moral grounds is one thing, throwing charges of
racism at federal law enforcement officers and federal prosecutors in
order to block enforcement of a penalty the Congress has authorized and
the American people clearly support, is another. I fear that some of my
fellow panelists today have let vehement opposition to all capital
punishment blind them to some simple facts about enforcement of the
federal death penalty.
II. There is no Credible Statistical Evidence of Racial Bias in the
Enforcement of the Federal Death Penalty
The dangers of statistical analyses are perhaps best captured in
the old saying ``Figures never lie but liars often figure.'' The
Subcommittee should be very wary of the results of regression analysis
or other statistical devices applied to capital punishment. No two
capital defendants are the same. No two capital crimes are the same.
Federal law and the Eighth Amendment require that juries be allowed to
consider every aspect of the crime, the background and competence of
the defendant, and even impact evidence regarding the victim, in
arriving at the correct punishment. Regression analysis posits that
each factor relevant to the imposition of the death penalty can be
identified and then given an assigned weight, such that very different
cases can be meaningfully compared. This premise is simply false. There
are literally millions of legitimate variables that a prosecutor or
jury could consider in seeking or imposing capital punishment. If we
truly believed that they could all be identified and weighted, we would
allow computers to deliberate and impose penalty. Instead, we quite
properly rely upon human judgment, the judgment of the prosecutor, the
death penalty committee in the Department of Justice, the Attorney
General, the district court judge, and a fairly-selected jury from the
venue where the crime occurred. In my opinion, and in my experience for
seven years as a federal prosecutor, I saw no evidence that the race of
defendants or victims had any overt or covert influence on this
process. I believe the charge is fabricated by those who wish to block
enforcement of the federal death penalty for other reasons.
I would ask the Subcommittee to keep four points in mind as it
evaluates these very serious, but, in my opinion, wholly unsupported
charges. First, pointing to statistical disparities between racial
percentages of capital defendants and racial percentages in the
population at large is utterly specious. The population at large does
not commit violent felonies--only a small percentage of both the white
and non-white communities are ever involved in violent crime. The sad
fact is that non-whites are statistically much more likely to commit
certain crimes of violence that might lead to death penalty
prosecutions. African Americans make up approximately 13 percent of the
nation's population. Yet, according to the FBI's 1999 uniform crime
reports, there were 14,112 murder offenders in the United States in
1999, and of those offenders for whom race was known, 50 percent were
black. Given that most murders are intraracial, it is not surprising
that of the 12,658 murder victims in 1999, 47 percent were black.
Capital crimes also are more likely to occur in urban areas that
are more densely populated and tend to have higher minority
populations. According to the FBI data, 43 percent of murders in 1999
were recorded in the South, the most heavily populated area of the
country. The same data shows that the Nation's metropolitan areas
reported a 1999 murder rate of 6 victims per 100,000 inhabitants,
compared to rates of 4 per 100,000 for rural counties and cities
outside metropolitan areas.
One cannot simply ignore these facts in evaluating the performance
of our criminal justice system. Indeed, if the numbers of federal
capital defendants of each race precisely mirrored their representation
in society as a whole, that would be truly a cause for alarm. It would
suggest real ``racial profiling'' in the death penalty.
Second, the federal government does not have general jurisdiction
over all violent crimes committed within its jurisdiction. From 1988 to
1994, the only federal death available was for murder in relation to
certain drug-trafficking crimes. See 26 U.S.C. Sec. 848(e). This period
coincided with the worst drug epidemic in our Nation's history--the
spread of crack cocaine from New York and Los Angeles to all our major
urban centers. Most of the participants in the drug organizations that
distributed crack cocaine were black, and most of the homicides
connected with this drug trade were black-on-black homicides.
Approximately half of the defendants presently on federal death row
were convicted of a drug-related homicide.
The Department of Justice study released last week indicates that
the Eastern District of Virginia is a prime example of an area where
the type of crime at issue and the needs of state and federal law
enforcement have shaped the statistics. I was a prosecutor in that
district for a period of seven years, and I can assure the Subcommittee
that I never saw any racial bias in the investigation or charging
stages by federal agents or prosecutors during my tenure there.
Drugrelated homicide was a major problem in the urban areas of
Richmond, Norfolk, and Virginia Beach. Many of these homicides were
unsolved and had in fact been committed by interstate drug gangs with
roots as far away as New York, Los Angeles, and even Jamaica. Joint
task forces, composed of federal agents, state police, and local
detectives investigated these cases under the supervision of federal
prosecutors. Local leaders and politicians, including leaders of the
African American community, welcomed this effort to focus federal
resources on inner-city crimes and the unsolved murders of African-
American citizens. These prosecutions were a classic example of the
federal government lending support where support was needed and
requested and the crimes had a significant interstate element. The
results of aggressive federal prosecutions have included cutting the
murder rate in Richmond, Virginia in half from its high in the early
1990's.
Third, the available statistical evidence indicates that whites who
enter the federal capital system (both pre- and post-1994) are
significantly more likely to face the death penalty than minority
defendants. Thus, even opponents of the federal death penalty seem to
concede that there is no racial bias in the Department of Justice
procedures for determining whether or not to seek the death penalty.
Instead, they posit racial bias in the decision to take a case federal
in the first place. It is obvious that these critics have never served
as a state or federal prosecutor. The same federal prosecutors who make
the initial intake decision regarding state or federal prosecution also
make the initial decision on the death penalty and prepare the
recommendation memorandum to the Attorney General's standing committee.
The proposition that they are severely racially biased in the former
(the intake decision when capital status is unsure) but are not biased
in the latter (when the decision to seek the death penalty is actually
made) is absurd. Intake decisions are made by supervisors in the United
States Attorney's Offices, who often have fixed protocols with their
state counterparts regarding certain crimes. The fact that a group of
bank robbers is multi-jurisdictional, or that an organization's
trafficking level of cocaine has gone above 10 kilograms of crack are
factors likely to result in federal prosecution. Race is never a factor
and the notion that federal law enforcement agents are making
``racist'' intake decisions (by themselves) is a baseless charge that
displays a shocking lack of knowledge of how our federal/state criminal
justice system actually works.
Fourth, the Subcommittee should not place any stock in statistical
patterns or comparisons. A ``pool'' of approximately 700 federal
capital cases is too small a cohort for any serious statistician to
produce any reliable conclusions. Moreover, all such studies suffer
from the flaw noted above--they assume that all the factors that
influence capital punishment can be quantified. It is clear that they
cannot be. Rather than focus on largely meaningless statistical games,
we should focus on continuing and improving the procedures in place at
the Department of Justice to ensure that every capital eligible crime
is submitted and reviewed, and that every decision to seek the death
penalty is fully justified by the facts and circumstances of the case.
Conclusion
In my opinion as a former federal prosecutor, there is no racial
bias in the federal capital system. The decision to seek federal
prosecution itself is made by federal prosecutors based on largely
fixed criteria regarding the interstate nature of the crime or other
objective, non-racial factors. The decision to actually seek the death
penalty for a capital eligible crime has several layers of review and
includes a standing committee that ensures fairness and continuity.
Statistical evidence is of little or no probative value in this area
and is, in my opinion, being manipulated by those who simply oppose the
federal death penalty for any crime. The American people overwhelmingly
support capital punishment and Congress has made it available for a
limited set of federal crimes. I believe that the Department of Justice
has enforced these laws in an unbiased manner to date and that it will
continue to do so under the leadership of Attorney General Ashcroft. I
will be happy to answer any questions that the Members of the
Subcommittee might have.
Chairman Feingold. Thank you, Mr. McBride.
Now, we will hear from Professor Samuel Gross. Professor
Gross is currently a visiting professor at Columbia University
Law School. He is a professor of law at the University of
Michigan Law School and he has written widely on the subject of
the death penalty over nearly two decades.
Professor Gross, thank you for coming this morning.
STATEMENT OF SAMUEL R. GROSS, VISITING PROFESSOR, COLUMBIA
UNIVERSITY LAW SCHOOL, NEW YORK, NEW YORK
Mr. Gross. Thank you for having me, Mr. Chairman, Senator
Sessions. I will try to be brief.
The starting point of this problem, as you have mentioned,
Mr. Chairman, is that Federal death row is now approximately 90
percent minorities. Federal capital cases are overwhelmingly
minorities, 75 or 80 percent. It is, of course, true that
minorities are overrepresented on death rows across the Nation,
but not to that extent. Whites are a majority of death row
inmates in the States, but not in the Federal system.
The question is, is this caused in whole or in part by
discrimination? The answer is that we don't know, and the
problem with the report that was submitted by the Attorney
General last week is that it reaches a conclusion, the report
and his testimony before the House Judiciary Committee, in
which he said that he concluded that there is no racial bias in
the way we are administering the Federal system. That
conclusion is premature and not based on facts.
Why? The big issue is the creation of the pool of cases
that are tried in Federal court on charges that could be
subject to the death penalty, what is colloquially known as
``making a Federal case out of it.'' As we know, few cases are
made into Federal cases; most are left to the State
authorities. At that point, in the creation of that initial
pool, large disparities are injected into the system, for
reasons that have not been explained.
How does this report respond to that? Well, they respond by
examining only the cases that the Department of Justice did
take on. If I can offer an analogy, Mr. Chairman, think of a
firm that is charged with gender discrimination because they
hire a workforce that is 90 percent men and they say, well,
let's look at the people we hired. There is Mr. Smith; he got
excellent evaluations from his previous employer, did a
wonderful job. That is why we hired him, not because he is a
man. And Mr. Jones had 10 years of experience; that is why we
hired him, not because he is a man.
We would immediately say, wait a second, we don't know
about the female applicants that you didn't hire. They might
have been just as qualified. That is what we have here, I am
afraid. We don't know anything about the cases that the
Department of Justice didn't take, and therefore we can't reach
any conclusion about the cause of the disparities at that
stage.
What about what happens after that stage in the processing
within the Department of Justice? Attorney General Ashcroft and
Deputy Attorney General Thompson talked about this at some
length.
Let's talk about that same company. Let's say they now say,
well, look at the female employees that we have hired. On
average, they are paid more than the men. So, that shows that
we are not discriminating. Well, we would say, wait a second,
first we were talking about hiring discrimination, and it is
perfectly possible to discriminate in hiring and then not
discriminate in compensation.
Second, that doesn't tell us that you are not
discriminating in compensation. The few women that you hired
may all be superstars; they may be much more qualified or more
experienced than the men. Unless we know about these
individuals and unless we know about the cases, we can't make a
judgment on that. But that is all we have here.
The report does offer some attempt to explain this
basically on what is described as common experience. Deputy
Attorney General Thompson in his remarks suggested repeatedly
that some of the aspects of that common experience are not well
known to us. But the basic explanation is that the Federal
Government is focusing on drug trafficking and violence
associated with drug trafficking which is carried on
predominantly by minority gangs. But no evidence is offered to
support this, except the say-so of the Department of Justice.
As you have pointed out, Mr. Chairman, in the Eastern
District where they make this statement in very strong terms,
it appears to be, in fact, obviously false. Does that mean that
there is discrimination? We don't know, but we need to learn by
studying it.
If I can draw an analogy, in 1991 here is what we knew
about traffic stops on the New Jersey Turnpike. We knew that
minorities were much more likely than whites to be stopped and
searched by the New Jersey State Police. And the New Jersey
State Police said that is not discrimination; that is based on
appropriate law enforcement considerations. The New Jersey
Attorney General said that.
Now, 10 years later, we are in a different world. Now, the
Governor of New Jersey, the Attorney General and the State
Police themselves all agree that this was a program of
discrimination, what we now call racial profiling and,
incidentally, not one based on racism or some belief in white
supremacy, but one put into place by law enforcement agents
acting in good faith because they believed that that
intentional focus on minorities was effective law enforcement.
The reason we know that now is because the problem was
studied over a period of years. Studies were conducted of how
drives on that highway, how many people speed, what the
policies of the New Jersey State Police are, how they decide
who to stop and who to search. And after those studies, it is
possible to reach this evaluation.
Here, I am afraid the Attorney General has put the cart
before the horse. He has concluded that there is no
discrimination without the evidence, and the issues are, if
anything, more important than they were with racial profiling
on the highway.
Thank you.
[The prepared statement of Mr. Gross follows:]
Statement of Samuel R. Gross, Visiting Professor, Columbia University
Law School*
Chairman Feingold, Senator Thurmond, Honorable members of the
Subcommittee, thank you for inviting me to testify before you this
morning. I have been asked to speak about race and the federal death
penalty generally, and in particular about a recent report on this
topic from the Department of Justice.
I. Summary
On June 6, 2001 the Department of Justice released a report
entitled The Federal Death Penalty System: Supplementary Data, Analysis
and Revised Protocols for Capital Case Review (the ``Ashcroft Report
''). This report follows a detailed study of the federal death penalty
system that was released in September of last year, by former Attorney
General Janet Reno. That earlier study found stark racial and
geographic disparities in federal capital prosecutions. The most
important was that the vast majority of federal capital defendants
since 1988 have been African American or Hispanic.
Announcing the release of the new report, Attorney General John
Ashcroft said in testimony before the House Judiciary Committee: ``Our
conclusion is, as the Reno study concluded, that there is no evidence
of racial bias in the administration of the federal death penalty.'' In
fact, the June 6 report provides no basis to conclude that the
administration of the federal death penalty is free of racial
discrimination. What's more, former Attorney General Reno did not reach
that conclusion. On the contrary, she expressed deep concern about the
racial patterns revealed in the DOJ's self examination, and she called
for more detailed study by academic experts from outside the
Department.
---------------------------------------------------------------------------
*Samuel R. Gross is Thomas & Mabel Professor of Law at the
University of Michigan Law School. He is an expert on criminal
procedure, evidence, and the use of social science in legal
proceedings. He has written extensively about the death penalty,
including a book on racial discrimination in capital punishment (Death
and Discrimination, Northeastern University Press, 1989, with Robert
Mauro), and about the use of expert evidence in litigation.
---------------------------------------------------------------------------
Attorney General Ashcroft seems to have concluded that an external,
professional study of race and the federal death penalty is
unnecessary. That is a serious mistake. Based on the evidence reported
last September, there was every reason to be worried that racial
discrimination might play a role in the use of the federal death
penalty. The new report does nothing to change that.
II. The Reno Study
On September 12, 2000 former Attorney General Janet Reno released a
study entitled Survey of the Federal Death Penalty System (1988-2000)
(the ``Reno Study '').\1\ Among others, the Reno Study reported the
following findings:
\1\ See http://Www.usdoj.govldaglpubdocldpsurvey.htmil.
---------------------------------------------------------------------------
The Department of Justice sought the death penalty
against 206 defendants from 1988 through 2000. Of these 75%
(155) were minorities (and 51% (105) were African Americans);
only 25% (51) were white. Reno Study pp. 23-24, Table (``T'') -
245, T-266.
Of 19 defendants under a federal sentence of death as
of July 20, 2000, 79% (15) were minorities and 68% (13) were
African American; only 21% (4) were white. Reno Study p. 36. By
contrast, as the study points out, 55% of state death row
inmates across the country at the end of 1998 were white, and
63% of the 505 inmates executed in the United States from 1988
through 1999 were white. Id. at p. 36 n.28.\2\
---------------------------------------------------------------------------
\2\ That disproportion has since become even more extreme, as a few
new defendants have joined federal death row, and a few others have
been removed by the courts, or, in the case of Mr. McVeigh, by
execution. As of today, 18 of 20 of Federal capital defendants-90%--are
minorities.
---------------------------------------------------------------------------
These racial disparities are generated primarily at
the early stages of federal capital cases. Thus, among the 235
defendants for whom United States Attorneys recommended seeking
the death penalty from 1988 through July, 2000, 77% (180) were
minorities (and 51% (120) were African American), while only
23% (55) were white. Reno Study, T-5, T-6. For the death
penalty ``protocol'' period separately (1995-2000) the pattern
is nearly the same: United States Attorneys recommended capital
charges for 183 defendants, of whom 26% (48) were white and 74%
(135) were minorities, including 44% (81) African Americans.
Id. p.12. In fact, the major problem seems to occur in the
initial selection of cases for federal prosecution on capital-
eligible charges. Of 682 such cases across the country from
1995 through July, 2000, 80% (548) involved minority defendants
(and 48% (324) involved African American defendants), while
only 20% (134) involved white defendants. Id. at T-6.
The DOJ report also contains many other troubling items. For
example, since 1995 only 49 of the 94 United States Attorney offices
have recommended any capital prosecutions (Reno Study, p. 12); 21
districts did not even file charges in a single capital-eligible case.
Id. At the other end of the spectrum, the Eastern District of Virginia
sought the death penalty against 21 of 66 defendants in potentially
capital cases filed from 1995 through 2000. Id. at T-41. At the end of
the judicial process, 12 of the 19 men on federal death row as of July,
2000, were sentenced in the South, including 6 from Texas and 4 from
Virginia. Id. at T-307-T-309. There were also pronounced disparities by
race of victim. For example, United States Attorneys were twice as
likely to recommend capital punishment for black defendants charged
with killing white victims (22 out of 55, or 40%) as for black
defendants charged with killing black victims (46 out of 227, or 20%).
Id. T-67.
When the Reno Study was released, Attorney General Reno and Deputy
Attorney General Holder conducted a press conference. The Attorney
General summarized the key findings of the study, expressed her concern
about them, and described some of the study's limitations, including
the absence of information on why the defendant was ``arrested and
prosecuted by federal authorities rather than state authorities,'' and
why ``the U.S. attorney submitt[ed] the case for review rather than
enter a plea bargain.'' She added that:
``More information is needed to better understand ... how
homicides make their way into the federal system, and once in
the federal system, why they follow different paths. An even
broader analysis must be undertaken to determine if bias does,
in fact, play any role in the federal death penalty system.''
She called for studies by experts outside the Department. Later, in
response to a question, Attorney General Reno amplified this point:
``[W]e want to continue to do everything we can to expose any bias if
it exists. But at this point, we are troubled by the figures, but we
have not found the bias.''
Deputy Attorney General Holder was equally explicit:
``I am a career law-enforcement officer. . .I have approved the
death penalty in several cases. But I can't help but be both
personally and professionally disturbed by the numbers that we
discuss today. . . .[N]o one reading this report can help but
be disturbed, troubled by this disparity. We have to be honest
with ourselves. Ours is still a race-conscious society, and yet
people are afraid to talk about race.''
The present Attorney General, John D. Ashcroft, in response to
written questions submitted to him as part of his confirmation hearing
before the U.S. Senate Judiciary Committee, echoed the sentiments of
Ms. Reno and Mr. Holder. For example, Senator Russel D. Feingold asked:
``Are you troubled by the fact that about 75% of those against whom the
Department of Justice seeks the death penalty are people of color or
ethnic minorities, even though far less than 75% of the people who
commit federal capital crimes are people of color and ethnic
minorities?'' and Attorney General Designate Ashcroft answered: ``Yes,
it troubles me deeply.'' Asked to comment on Ms. Reno's statement that
further studies are needed ``to determine if bias does in fact play a
role in the federal death penalty system,'' Mr. Ashcroft said: ``I
fully agree that the Department of Justice should do everything
necessary to eliminate any racial bias from the federal death penalty
system, including undertaking all reasonable and appropriate research
necessary to understand the nature of the problem.'' Attorney General
Ashcroft also stated that ``federal law should be applied uniformly
across the country,'' and promised to help ensure that, if
confirmed.\3\
---------------------------------------------------------------------------
\3\ z http://www.senate.gov/-Ieahy/press/200I01/ashcroft.html
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III. The National Institute of Justice
On January 10 of this year the National Institute of Justice
convened a meeting of practitioners, researchers and government
representatives, to discuss the federal death penalty. The main purpose
of the meeting was to discuss how best to proceed to conduct the study
that Attorney General Reno requested. I attended that meeting.
The Ashcroft Report (p.12) says that the discussion at that meeting
``indicated'' that such a study ``could not be expected to yield
definitive answers concerning the reason for disparities in federal
death penalty cases.'' This description is puzzling. The researchers at
the meeting did not talk in these terms, which have a peculiar lawyerly
ring.\4\ (What is a ``definitive'' answer? Do we have ``definitive''
evidence that nicotine is addictive?) In fact, the clear consensus at
the meeting was that a thorough and highly informative study of the
federal death penalty could be done, given the resources and the will.
---------------------------------------------------------------------------
\4\ The report lists no author(s), so it is unclear who provided
the information on which this description is based.
---------------------------------------------------------------------------
The Ashcroft Report correctly states that the researchers present
saw this study as a ``multi-year'' project. The general estimate was
two years. The main requirement that was discussed, in addition to
funding, was cooperation from the Department of Justice. As I recall,
the representatives of the Department who were present were strongly
opposed to the notion of providing information on federal capital
charging for such a study, regardless of any guarantees of
confidentiality that were discussed by the researchers and that are
available by statute under the authority of the NIJ. Excellent studies
of capital charging and sentencing have been completed in several
states, using data from a wide range of state agencies. With DOJ
cooperation, the same could be done for the federal system.
The NIJ representatives present on January 10 said that they were
committed to going ahead with this study, and promised to keep the
participants at the meeting informed of their plans. Since then, I have
heard nothing from the NIJ on the matter. In his testimony before the
House Judiciary Committee, Attorney General Ashcroft said that he had
already concluded ``that there is no racial bias in the way we are
administering the death penalty in the federal system.'' I believe this
conclusion is unsupported, as I will explain. Given that conclusion,
Mr. Ashcroft seems to have decided that there is no need to proceed
with the study that Ms. Reno requested in order ``to determine if bias
does, in fact, play any role in the federal death penalty system.''
Instead, he announced that:
``[IJn order to assure public confidence and guarantee that our
future efforts in the enforcement of the federal death penalty
are consistent with the high standards of fairness that are
required in charging, trying and sentencing those accused of
federal death-eligible murders, I am directing today that the
National Institute of Justice initiate a study of how death
penalty cases are brought into the federal system.'' (Emphasis
added.)
To summarize: Former Attorney General Reno requested a study by
outside experts to determine whether there is racial bias in the
system; a meeting was convened by the NIJ, the study was discussed, and
we were assured that it would take place; no action was taken on the
proposed study; despite the absence of the planned study, Attorney
General Ashcroft concluded that there is no racial discrimination; he
then proposed a similar sounding study, on a problem that he has
already stated does not exist, for the explicit purpose of generating
``public confidence''. I know no independent researcher who would agree
to conduct a study under these circumstances.
IV. The Ashcroft Report
The most striking thing about the Ashcroft Report is how little new
material it contains. The new information in this report consists of
two things:
(1) Information on 291 additional potentially capital federal
cases that were not included in the Reno Study. Unlike the Reno
Study, the Ashcroft Report provides few details on these new
cases. It seems, however, that the great majority of these new
cases are comparatively low severity crimes that were initially
omitted because the defendants had pled guilty to non-capital
offenses before capital charges were ever filed. Ashcroft
Report, n. 10.
(2) The DOJ's own explanations for the racial disparities in
federal capital prosecutions, in general and in four selected
federal districts.
These items add nothing of substance to the Reno Study. As a
result, the Ashcroft Report does not support any new conclusions about
the administration of the federal death penalty.
1. initial federal charging and later stages of the prosecution
Federal prosecutors occupy an unusual position in our system. For
state prosecutors, charging in most homicide cases is automatic. If
someone has been killed and there is good evidence against a known
suspect, they almost always file charges (although not necessarily
first degree murder). But nearly all federal crimes can also be
prosecuted locally, so the Department of Justice can pick and choose a
small number of cases and leave the rest to state authorities. The most
conspicuous racial disparities in the use of the Federal death penalty
are generated at this initial step. The pool of potentially capital
cases that are selected for federal prosecution consists overwhelmingly
of minority defendants, and nothing that happens later does much to
change that stark disparity. That is why Attorney General Reno asked
for additional information on ``how homicides make their way into the
federal system.''
The Ashcroft Report purports to study this issue without looking at
the much larger universe of cases in which federal capital charges
could have been filed, but were not. It cannot be done. Whatever this
report may be, it is not the sort of factual research that any scholar
would ever rely on.
Imagine a company that is charged with gender discrimination for
hiring a workforce that is 90% male. What if they responded by talking
only about the men they did hire: ``Mr. Smith had ten years of
experience, so that's why we hired him, not because he's a man; Mr.
Jones did an outstanding job for his previous employer;'' and so forth.
The immediate reaction would be: ``That's no good. You have to tell me
about the female applicants that you didn't hire. For all we know they
were just as qualified.'' But that is just what the Department of
Justice did not do. For all we know there were many white defendants
with cases just as suitable for Federal prosecution as the minority
defendants who were charged, or more so.
The Ashcroft Report emphasizes that among cases that are charged as
federal capital crimes, the death penalty is sought more frequently for
white defendants than for minority defendants. In his testimony on June
6, Attorney General Ashcroft relied on this finding repeatedly as
evidence of lack of discrimination. This finding is not new--the same
pattern was reported last September--and it does not show lack of
discrimination.
What if the same company we discussed before said: ``Look, we pay
our female employees just as much as our male employees. Clearly we
don't discriminate by gender.'' Nobody would believe it. We'd answer:
``Wait a second. Maybe that shows that you don't discriminate in pay;
but you were charged with discrimination in hiring.'' And yet this is
the substance of the argument on this point in the Ashcroft Report and
in the Attorney General's testimony.
It is, of course perfectly possible that the DOJ does discriminate
by race in the initial intake decision on who to prosecute on capital
charges, and then does not further discriminate among those who are
chosen for federal prosecution. In fact, it would not be surprising.
The Ashcroft Report focuses on the professionalism of Assistant United
States Attorneys, the lawyers who make the legal decisions once a case
has been taken on. But the initial decision to undertake a federal
investigation is often made by law enforcement agents rather than
prosecutors, by the FBI or the DEA rather than the United States
Attorneys. Perhaps these two sets of DOJ employees have different
patterns of behavior.
In general, it is impossible to conclude anything about
discrimination from the proportions of cases that are treated in a
particular manner without detailed information on those cases. The
imaginary firm I mentioned could discriminate against its female
employees in compensation, even if they are paid more on average than
the men, if the few women it hires are far more skilled and experienced
than most of the men. This report provides essentially no information
about the characteristics of the cases that were prosecuted federally.
As a result, we cannot know why DOJ lawyers asked for the death penalty
in some but not others.
The new data that are included in the Ashcroft Report illustrate
how little can be learned from aggregate numbers like these. The Reno
Study reported that among those charged with federal capital offenses
from 1995 through 2000, the death penalty was sought for 38% of the
white defendants, 25% of the black defendants, and 20% of the Hispanic
defendants. Reno Study, p. 7. In the Ashcroft Report, the corresponding
percentages are 27% for whites, 17% for blacks, and 9% for Hispanics.
Do these new figures--which show that Hispanics are only \1/3\ as
likely as whites to face the death penalty--provide new evidence of
absence of discrimination against Hispanics, or even of discrimination
in their favor? Not at all.
As I mentioned, it appears that most of the 291 new cases that are
added in the Ashcroft Report are comparatively low seriousness cases in
which the defendant was allowed to plead guilty to non-capital charges.
We also know that 53% of all the 291 new cases involve Hispanic
defendants. See pie chart attached to Ashcroft Report. As result, the
proportion of Hispanic federal defendants in capital eligible cases
increased from 29% in the Reno Study (p.6) to37% in the Ashcroft Report
(n.10), mostly by adding low aggravation cases. Inevitably, the
proportion of death charges went down.
Does this decrease in the percentage of death charges for Hispanics
mean there has been a decrease in discrimination against them? Consider
a police department that is charged with racial profiling because 70%
of the tickets it issued were given to minorities. What if they said:
``But wait. There's another batch of cases where we just gave warnings,
and those drivers were 90% minorities. So, overall, among all the
drivers we stopped, minorities were less likely than whites to get
tickets rather than warnings.'' Would anyone take this defense
seriously? Unfortunately, the Ashcroft Report's use of numbers is no
more convincing.
2. explanations for the racial disparities in federal charging
The Ashcroft Report does offer some explanations for the racial
disparities in federal death cases, but they are unsupported by data.
The main one is that federal prosecutors target crimes associated with
drugs, and that in the districts where they do so most actively
``organized drug trafficking is largely carried out by gangs whose
membership is drawn from minority groups.'' Ashcroft Report, p.3. No
evidence is offered for this sweeping assertion.
The report goes into some detail about federal capital prosecutions
in the Eastern District of Virginia. Ashcroft Report, pp. 16-18. This
is a natural choice. Overall, 26 of the 206 federal cases in which the
death penalty was requested from 1988 through July 2000 were from this
one district, 13% of the national total. Reno Study, T-203 and T-207.
All of these 26 death penalty defendants were African American.
Most of the potentially capital federal cases in the Eastern
District of Virginia are homicides in the course of drug trafficking.
The Ashcroft Report explains why there are no whites among the 34
federal defendants charged with capital murder for drug-related
killings in that district:
``[T]he members of the drug gangs that engage in large-scale
trafficking in the Eastern District of Virginia are not
white.'' Ashcroft Report, p.17.
How does the Department of Justice know that all major drug
traffickers in that entire district from Arlington to Norfolk to
Richmond--are minorities? The report does not say. Are we supposed to
accept this extraordinary statement on faith?
Worse, this explanation has a depressingly familiar ring. Police
departments that are charged with racial profiling sometimes respond:
``It's not discrimination. We're stopping and searching mostly black
and Hispanic drivers because we're looking for major drug traffickers,
and they're all black and Hispanic.'' Is something similar going on
here? Are Federal law enforcement agencies, the FBI and the Drug
Enforcement Administration, searching for African American and Hispanic
drug dealers because they think they know that the worst drug
traffickers are all black or Latin American? Are the racial disparities
in Federal capital prosecutions a manifestation of race-specific drug
investigations? We don't know, and this report does nothing to allay
our fears.
Chairman Feingold. Thank you, Professor Gross.
Our next witness is James Fotis. Mr. Fotis is the Executive
Director of the Law Enforcement Alliance of America. The LEAA
is a non-profit advocacy organization with more than 65,000
members, representing law enforcement professionals, crime
victims and concerned citizens.
Mr. Fotis, we are pleased you could be here today and you
may proceed.
STATEMENT OF JAMES J. FOTIS, EXECUTIVE DIRECTOR, LAW
ENFORCEMENT ALLIANCE OF AMERICA, FALLS CHURCH, VIRGINIA
Mr. Fotis. Good afternoon, Mr. Chairman. I would like to
thank you and the members of the Committee for having me here
today on behalf of the more than 65,000 members and supporters
of the Law Enforcement Alliance of America. I respectfully
submit the following testimony as the position of the Law
Enforcement Alliance of America with respect to capital
punishment in the United States and questions as to the
possible racial disparities in such sentencing.
However, before I go forward with my formal testimony, I
have a letter directed to you, Mr. Chairman, from one of our
Federal law enforcement officers.
It says, ``Dear Mr. Chairman, as a former Federal law
enforcement officer, I have seen the need for appropriate
punishment in our criminal justice system. On those rare
occasions when we are confronted by the most horrible criminals
and their murderous deeds, it is extremely important to have a
punishment that fits the crime--capital punishment. Death
penalty opponents have made all sorts of attacks on the death
penalty in order to see it abolished. One such attack is based
on claims of racial bias. I am an African-American, a law
enforcement officer, but most importantly an American citizen.
It is my utmost concern that we have a fair and effective
justice system, and capital punishment is part of that system.
I urge you not to let those who cry `wolf' over race and
capital punishment convince you to support a moratorium on the
death penalty. Their concerns are not for racial justice, as
they would oppose the death penalty with any excuse they can
find. One of the most fundamental principles of our justice
system is that the application must be color-blind. So should
the preservation of justice. Those violent criminals facing the
death penalty should not be judged, counted or queried based on
the color of their skin, but on their guilt or innocence. I
urge you not to let unproven allegations revoke the justly
given sentences of those whose crimes are proven.'' And it is
signed Kenneth F. Blanchard.
The Law Enforcement Alliance of America has long been a
firm believer in the importance of capital punishment as a
critical part of America's criminal justice system. This
sentence is held out for those extremely horrific and rare
cases that warrant such profound punishment.
Capital punishment in America is a rarely exercised
discretion, saved for the most heinous of crimes. Those guilty
of such crimes and sentenced to capital punishment have the
greatest protections of due process and appeal. Our justice
system is second to none in protections afforded the accused.
The right to remain silent, the right to have counsel
provided by the state, the right to a jury of one's peers, and
the right to extensive appeal are just some of the careful
measures that make our system the most sensitive and protective
in the world. No nation does more to protect the rights of the
accused.
Capital punishment is defined by statute to be reserved for
only the most extreme and horrible crimes. In fact, for our
most serious crime of murder, less than 1 percent result in the
killer receiving a sentence of capital punishment.
In addition to full discretion in sentencing, every
possible measure of appellate protection is afforded to those
sentenced to capital punishment. Evidence of the overwhelming
appellate protections granted to convicted murderers under
sentence of death since the U.S. Supreme Court reinstated
capital punishment in 1976 is shown by the fact that only 90
percent of those sentenced to death have had their sentences
carried out. The average time on death row is more than 10
years.
Contrary to the claims of those who wish to abolish the
death penalty, the majority of prisoners on death row are white
males. In a report to President Clinton in September of 2000,
then Attorney General Janet Reno noted that with regard to
capital punishment in the Federal system, in cases eligible for
capital punishment, the Government sought the death penalty at
a higher rate for whites than minorities.
Anti-death penalty advocates; only response to these facts
are baseless and shameful racist accusations that law
enforcement officers are somehow selectively apprehending
criminals based on the color of their skin. These claims are an
insult to the men and women of all colors who serve their
communities as law enforcement officers.
The only statistical indications available to make the
claim of racial bias with regard to the death penalty are those
that show minorities are represented on death row in higher
proportions than their representation in the general
population. These findings are mirrored in minority
representation among the general prison population and show
that these figures have nothing to do with capital punishment.
Conversely, the same method of statistical analysis of the
death penalty that opponents use to make claims of racial bias
is far more suited to assert a claim of gender bias, as males
make up a far greater proportion of our death row inmates than
they do of the general population. Anti-death penalty activists
do not make claims that the death penalty is sexist because
they know there is no willingness among the public to believe
such nonsense, even though the numbers are far more favorable
than the arguments of a racist death penalty.
Finally, I would like to specifically address the idea of a
moratorium on the death penalty and the threat of withholding
Federal prison grants to enforce such a demand. As I have
stated earlier, the average time for a death row inmate
awaiting sentence is approximately 10 years. This is ample time
to exhaust all manner of legal protections on a case-by-case
basis.
We are adamantly opposed to granting a universal reprieve
to all those justly convicted and properly sentenced to death
for the purpose of conducting even more studies in the area of
racial bias and death penalty. Every person under the sentence
of death in this country should have their case judged on an
individual basis and not granted the opportunity to escape
their sentence based on obscure, overly broad or racist
accusations against the death penalty.
Each of these individuals has been found guilty and
sentenced in accordance with the law. Any effort to avoid that
sentence must come from the facts of their own individual case
and be conducted in our court system, a court system, I might
add, which grants that anyone under the sentence of death who
can make a showing that the prosecutor or other decisionmaker
in the case acted on the basis of racial or ethnic bias is
entitled to relief from a capital sentence.
Further, for the Federal Government to put prison funding
in jeopardy by holding Federal prison grants hostage to demands
over the death penalty threatens not only the legal rights of
each individual State to set forth and carry out their own
system of capital punishment, but endangers the operation of
prisons that house criminals convicted of other types of
crimes.
Thank you.
[The prepared statement of Mr. Fotis follows:]
Statement of James J. Fotis, Law Enforcement Alliance of America
Executive Director
Chairman Feingold, Members of the Senate Committee on the Judiciary
Subcommittee on Constitution, Federalism end Property Rights;
On behalf of the more than 65,000 members arid supporters of the
Law Enforcement Alliance of America. I respectfully submit the
following testimony as the position of the Law Enforcement Alliance of
America (LEAA) with respect to capital punishment in the United States
and questions as to possible racial disparities in such sentencing.
The Law Enforcement Alliance of America has long been a firm
believer in the importance of capital punishment as a critical pan of
America's criminal justice system. This sentence is held out for those
extremely hortifie and rare cases that warrant such profound punishment
Capital punishment in America is a rarely exercised discretion
saved for the most heinous of crimes. Those guilty of such crimes sod
sentenced to capital punishment have the greatest protections of due
process and appeal.
Our justice system is second to none in protections afforded the
accused. The right to remain silent, the right of counsel provided by
the state and the right to a jury of one's pecans with sentences
subject to extensive appeal are just some of the careful measures that
make our justice system the most sensitive and protective in the world.
No nation doves more to protect the rights of the accused.
Capital, punishment is defined by statute to be reserved for only
the most extreme and horrible crimes. ht Fact, for our most serious
crime of murder, less than 1 % result in the fcillor receiving a
sentenet of capita punishments.\1\
---------------------------------------------------------------------------
\1\ FBI Uniform Crime Reports, 1999
---------------------------------------------------------------------------
In addition to the careful discretion in sentencing, every possible
measure of appellate protection is afforded to those scntencod to
capital punishment. Evidenrx of the overwhelming appellate protections
granted to convicted murderers under sentence of death is the fact that
since the U.S, Supreme Court reinstated capital punishment in 1976,
only 9% of those sentenced to death have had their sentences carried
out.\2\ The average time on death row before a sentence is carried out
is over ten years.\3\
---------------------------------------------------------------------------
\2\ USDOJ, OJP-BJS '`Capitol Punishment 1999'' December 2000 NCJ
184795
\3\ USDOJ, OJP-13 JS ``Capitol Punishment 1999'' December 2000 NCJ
184795
---------------------------------------------------------------------------
Contrary to the claims of those who wish to abolish the death
penalty, the majority of prisoners on death roar are white males.\4\ In
a report to President Clinton in September of 2000, then-Attorney
General Janet Rcno noted that with regard to capital punishment in the
fcdcral system, in cases eligible for capital punishment, the
government sought the death penalty at a higher rate for whites than
for minorities.\5\ Anti-death penalty advocates' only response to those
facts are basclcss and shmreful racist accusations that law enforcement
offlcers are somehow selectively apprehending criminals based on the
color of their skin. These claims are an insult to the men and women of
all colors who serve their communities as law enforcement officers.
---------------------------------------------------------------------------
\4\ USDOJ, OJP-BJS ``Prisoners in 1999'' August 2000 NCJ 193476
\5\ USDOJ, ``Fedcral Death Penalty System Review'' September 12,
2000
---------------------------------------------------------------------------
The only statistical indications available to make a claim of
racial bias with regard to the death penalty are those that show
minorities represented on death row in higher proportions than their
representation in the general population. These findings are mirrored
in minority representation among the general prison population and show
that these figures have nothing to do with capital punishment.
Conversely. the same method of statistical analysis of the death
penalty that opponents use to make claims of racial bias is far more
suited to asset a claim of gender bias. As males make up a far greater
proportion of death row inmates than they do the general population.
Anti-death penalty activists do not make claims that the death penalty
is sexist because they know there is no willingness among the public to
believe such nonsense, even thought the nurnbors are more favorable
than the arguments of a racist death penalty.
Finally, I would like to specifically address the idea of a
``moratorium' on the death penalty and the threat of withholding
fcdcral prison grdnts to enforce such a demand. As I have stated
earlier, the average time on death row for an inmate awaiting sentence
is approximately ten years. This is ample time to exhaust all manner of
legal protections on a case by case basis. We are adamantly opposed to
granting a univwsdl reprieve to all those justly convicted and properly
sentenced to death for the purposes of conducting even more studies in
the area of racial bias and the death penalty.
Every person under sentence of death in this country should have
their case judged on an individual basis and not be granted the
opportunity to escape their sentence based on obscure, overly broad or
racist accusations against the death penalty process. Each of these
individuals has been found guilty and sentenced in accordance with the
law. Any effort to avoid that sentence must come firm the facts of
their own individual cases and be conducted in our court system. A
court system I might add which grants that anyone under sentence of
death who can make a showing that chc prosecutor or other decision
makers in the case acted an the basis of racial or ethnic bias is
entitled to Tchef from a capital sentence.\6\
---------------------------------------------------------------------------
\6\ McCesKey v. Kemp, 481 U.S. 279, 309 do x30 (1987).
---------------------------------------------------------------------------
Further. for the Federal Government to put state prison Rending in
jeopardy by holding federal prison grants hostage to demands over the
death penalty threatens not only the legal tights of each individual
state to set forth and carry out their own system of capital punishment
but endangers the operation of prisons that house criminals convicted
of all other types of crimes.
Chairman Feingold. Thank you, Mr. Fotis. I just need to
clarify something here. You talk about the withholding of
Federal prison grants to enforce a moratorium on executions.
For the record, the moratorium bill I have introduced doesn't
do that and we have no intention of doing that.
Mr. Fotis. We understood that the bill was leaning toward
that direction to withhold.
Chairman Feingold. It is not in the bill, and I think I
have done the only moratorium bill in the Senate, just to
clarify that.
Mr. Fotis. OK.
Chairman Feingold. There is not a whole lot of them. Thank
you, though, sir.
Our last witness is David Bruck. Mr. Bruck is a defense
attorney in private practice, in Columbia, South Carolina,
specializing in capital cases. He serves as one of the three
Federal Death Penalty Resource Counsel to the Federal Defender
System nationwide. He has represented capital defendants in
more than 15 trials, has handled more than 60 capital appeals
in State and Federal courts, and has argued 6 death penalty
cases in the United States Supreme Court.
Mr. Bruck, I thank you for coming as well and for your
patience.
STATEMENT OF DAVID I. BRUCK, FEDERAL DEATH PENALTY RESOURCE
COUNSEL, COLUMBIA, SOUTH CAROLINA
Mr. Bruck. Thank you very much, Mr. Chairman.
As one of the three Federal Death Penalty Resource Counsel,
I have been involved in greater or lesser extent in virtually
every Federal death penalty prosecution in the last 10 years in
the entire country, from the Virgin Islands to Alaska, to
Hawaii, to Boston, and everywhere in between. So I suppose I am
something like Mr. McBride's counterpart, and I want to for a
couple of minutes talk to you about what this problem looks
like from the ground level, where the cases are being tried.
Part of the work we do in trying to assist on the defense
side is to monitor the cases, see where they are being brought.
Early on, in 1992, 1993, 1994, we noticed something very
strange, which was that the Federal death penalty system that
was just then coming into being seemed to only involve minority
defendants, black and Hispanic, and only a tiny handful of
white defendants, and that that was different than the State
systems. It was more all-minority than Alabama, than
Mississippi, than South Carolina, where I have most of my
experience. It was something new and quite odd.
Before long, we discovered that the Justice Department had
been tracking these numbers, as we had, and that they had the
same numbers that we did. Because of the McCleskey decision, it
has proven extremely difficult to challenge or even to get
discovery of this issue in the courts. But in September 2000,
the Attorney General did something very unusual, which was that
she and the Government faced up to the situation and said there
was going to be a reckoning.
Now, we hear that while the research might go on, there is
no unfairness in the system. Yes, it appears to be an all-
minority system, but that is just because that is who commits
the crimes, or at least that is who happens to commit the
crimes that we as the Federal Government think are worth
prosecuting in Federal court. Now, that may be true, but we
don't know.
It is familiar to me. A little while before I undertook
this 10-year project, I made a trip to South Africa in 1986 and
studied and researched how South Africa at that time used the
death penalty, because they were the only country with a
Western judicial system that used the death penalty as a
routine part of its criminal justice system and I thought we
might learn something from their experience.
That was during the days of the apartheid regime. The South
African system at that time executed 120, 140, 160 people a
year. Ninety-eight percent of the people they hanged in South
Africa every year were non-whites. But everybody you talked to
in the system, including some very liberal judges whom I would
talk to, stoutly denied there was any racial discrimination
going on. What they said was that is just who commits the
crimes. This isn't discrimination. What do you want us to do,
hang people by a quota system so that it won't look so bad?
Now, that also may have been largely true. There was much
more crime in the black townships under the apartheid regime,
and still today, than in the rich white suburbs in South
Africa. But would anyone have taken the word of the South
African regime without looking in great detail at how the
system actually processed the cases? Of course not.
Probably, if there had ever been a study in South Africa,
it would turn out that that was partly true. There was some
discrimination and there was also some actual disparity in the
rates of crime, and both sides had a point. But certainly there
was discrimination in the system that produced these remarkably
racially one-sided results.
I have the feeling that when the day comes when finally a
thorough and adequate and reliable study of the Federal death
penalty system is done, we will find that there is some merit
on both sides. But what that will mean is that, yes, there is
discrimination in the system, perhaps not as much as the raw
numbers would suggest, but nevertheless. My point is that we
don't know and we had better find out, and we had better find
out before we press ahead with executions of people that have
been put there in this way.
Now, that is for the 20 people who are on death row
already. What about the future? You are charged not only with
making sure that we don't execute people unfairly, but also how
are we going to get out of this mess in the future. There is a
reason why the death penalty 30 and 40 years ago in the Federal
system involved predominantly white defendants and why it
involves, I think, predominantly black and Hispanic defendants
now, and it has to do with some non-racial reasons.
The Federal death penalty now overlaps with the State
system in a way that it didn't used to. It used to be that
there was a Federal interest for bringing each of those cases.
It was a narrow death penalty. Now, it is very broad.
I would suggest that for the future, if the Department of
Justice adopts a stringent Federal interest standard and only
seeks the death penalty in cases that are truly attacks on the
Federal Government--and the Oklahoma City bombing is a pretty
good example of such a crime--you will find that we will have a
smaller Federal death penalty like we used to have, but that it
also will not be characterized by these stark racial
disparities. Now, I can't prove that either, but that is a
proper subject for the National Institute of Justice to analyze
and try to figure out.
In the end, the South African regime declared a moratorium
by President DeClerc. Because of the fact that it was costing
that country terribly in the court of world opinion to have a
death penalty like that. He did it on the very same day that he
announced the freeing of Nelson Mandela and recognized the
African National Congress. It was part of the process of
democratization.
We must in this country also have a reckoning, and I hope
it will come soon because this is costing us a great deal. We
cannot afford to divide our people when we are in the face of
violent crime.
Thank you.
[The prepared statement of Mr. Bruck follows:]
Statement of David I. Bruck, Federal Death Penalty Resource Counsel,
Columbia, South Carolina
Administration of The Federal Death Penalty
Chairman Feingold, Senator Thurmond, I would first like to thank
you for the opportunity to appear before the Subcommittee today as you
consider the grave questions surrounding how the federal government has
been implementing the death penalty statutes passed by Congress since
1988.
1. HOW THE PROBLEMS OF RACIAL DISPARITY AND ARBITRARINESS EMERGED
I have been a criminal defense attorney in Columbia, South
Carolina, for the past 25 years, and have been a close observer of the
federal death penalty for almost a decade, beginning in 1992. In
January of that year, the federal defender system contracted with me
and Kevin McNally, a colleague in Frankfort, Kentucky, to provide
expert assistance on as ``as-needed'' basis to federal defenders and
courtappointed counsel in federal capital cases brought under the Anti-
Drug Abuse Act of 1988, 21 U.S.C. Sec. 848(e). Over the nine-and-a-
half years since then, Mr. McNally and I (joined in 1997 by a third
lawyer, Richard Burr of Houston, Texas), have worked roughly half-time
in assisting counsel who have been appointed to defend the increasing
numbers of federal death penalty prosecutions brought under Sec. 848(e)
and later under the Federal Death Penalty Act of 1994 (18 U.S.C.
Sec. 3591 et sea.). In addition to working with individual
courtappointed lawyers, our responsibilities as Resource Counsel
include:
identification and recruitment of qualified,
experienced defense counsel for possible appointment by the
federal courts in death penalty cases,
monitoring and data-collection concerning the
implementation of the federal death penalty throughout the
nation's 94 federal districts,
development of training programs and publications,
including a web site, www.calpdefnet.org, to assist federal
defenders and court-appointed private counsel in death penalty
cases;
responding to Congressional inquiries addressed to the
federal defender system concerning proposed capital punishment
legislation, and
maintaining a liaison between the federal public
defender system and the Department of Justice regarding the
administration of federal death penalty statutes.
This effort has led to our involvement, to a greater or lesser
extent, in virtually every federal death penalty case brought by the
federal government since the beginning of 1992.
It wasn't long before we noticed something strange about the
federal cases that we were tracking and helping to defend. As lawyers
whose working lives have been spent representing clients facing the
death penalty in Southern state courts, we were accustomed to seeing
large proportions of minority defendants facing capital charges. But
none of us had ever seen anything like this. Within a year or two, it
began to appear that almost all the defendants in the federal death
penalty cases were African-American or Hispanic, and most of the cases
were originating in the ``Death Belt'' states of the Old Confederacy
that were already producing most of the state courts' death sentences.
This pattern began to attract attention in Congress' and in the
press,\1\ and was apparently a large part of the motivation for
Attorney General Reno's promulgation of regulations, in January, 1995,
that created a multi-tiered system for reviewing and systematizing the
exercise of prosecutorial discretion in death-eligible cases. U.S.A.M.
910.010 et sea. But while the charging system became more complex as a
result of the 1995 protocols, the overall picture did not change:
whether one looked at the death-eligible defendants considered for
death penalty authorization, at the defendants actually authorized for
capital prosecution by the Attorney General, or at those ultimately
sentenced to death,\2\ roughly threequarters were members of racial and
ethnic minority groups, while only 20-30 percent were white.
---------------------------------------------------------------------------
\1\ ``Racial Disparities in Federal Capital Prosecutions,
19881994,'' Staff Report by the House Judiciary Subcommittee on Civil
and Constitutional Rights, March 15, 1994; ``Jury asked to condemn 3
blacks while lawmakers assail legal bias,'' (Norfolk) Virginia Pilot-
Ledger (March 16, 1994) (reporting statements by Norfolk-area
Congressman Robert C. Scott).
\2\ New York Times, ``Another Biased Death Penalty'' March 17,
1994; Carl Rowan, ``Judgment day for race and the death penalty,''
Sunday Star-Ledger, May 15, 1994.
---------------------------------------------------------------------------
Legal challenges based on this largely ``minorities-only'' record
of federal prosecution went nowhere. In one 1994 case, United States v.
Bradley, 880 F.Supp. 271 (M.D. Pa. 1994), a federal court in
Pennsylvania did order the Justice Department to produce files on other
cases that were rejected or approved for federal prosecution. However,
after reviewing the files and discovering that up to that point the
Attorney General had approved almost every death penalty prosecution
request received from U.S. Attorneys, the court declared that its
inquiry was at an end, because the Department's ``rubber stamp''
approach was certainly non-discriminatory: as for the decision by the
local prosecutor, the particular U.S. Attorney involved in Bradlev had
never handled any other potential death penalty case, and so could not
possibly be guilty of disparate treatment. (As far the argument that
discrimination might have been occurring in the 93 other districts, the
court read McCleskey v. Kemp, 481 U.S. 279 (1987), as rendering any
such discrimination irrelevant, since the other U.S. Attorneys were not
involved in the defendant's own case, and thus could not have
discriminated against him.). United States v. Bradley, No CR-92-200-01,
slip op. at 5-6 (M.D.Pa. May 27, 1994). Other federal courts went no
further than Bradley in responding to claims of racial discrimination,
and the racially-lopsided roster of federal death penalty prosecutions
continued unabated throughout the 1990s.
2. THE GOVERNMENT RESPONDS
There things stood until September 12, 2000, when something quite
unusual occurred: the government itself, unprompted by an adverse court
decision, acknowledged the problem on its own. On that day Attorney
General Reno released the Department's preliminary analysis of its
death penalty prosecution record, and acknowledged that the persistence
of an overwhelming majority of AfricanAmerican and Hispanic defendants
on the roster of federal capital prosecutions raised disturbing
questions that could not be answered on the basis of then-available
information. Attorney General Reno recognized that a much deeper
examination of the federal system of homicide prosecution would be
needed to answer the fundamental question--was the prevalence of
minority defendants simply reflect that such defendants committed most
of the death-eligible federal crimes, or were black and Hispanic
defendants being singled out in some way? Ms. Reno directed the
National Institute of Justice to enlist the expertise of researchers
outside the government in answering this and related questions. And
because the answers were still pending in early December of last year,
President Clinton stayed the first scheduled federal execution--that of
Juan Garza--for another six months.
On January 10, 2001, the National Institute of Justice convened a
one-day meeting of social scientists and lawyers representing both
prosecution and defense to discuss how to respond to the Attorney
General's directive. Since a new Administration was only 10 days away,
the issue of whether this directive would actually be implemented was
on the minds of many at the meeting. However, we were assured several
times by NIJ officials, including the Acting Director, that although
NIJ is an agency of the Department of Justice, its research is
conducted independently and would go forward regardless of political
changes. Thus reassured, we spent the day in what seemed a very useful
exchange of ideas, and participants identified a series of research
questions that might finally clarify why the federal death penalty
seems to have been almost totally reserved for members of racial and
ethnic minorities. These questions included:
1. Identifying the entire universe of homicides that could have
been indicted as federal (and deatheligible) offenses--either
nationwide, or within given districts or states--including in states
that have already undertaken careful studies of homicide prosecution
practices such as New Jersey and New York.
2. Researching offense characteristics of authorized and
nonauthorized cases already within the federal system.
3. Evaluating processes by which homicides are (a) referred and (b)
accepted or rejected for federal prosecution.
4. Examining offense characteristics of all negotiated (i.e. plea-
bargained) death-eligible cases, both before and after capital
authorization.
5. Re-analyzing authorized and non-authorized cases using a model
designed to measure the extent of ``federal interest'' in each case.
6. studying the effect of federalization on the racial composition
of the decision-makers--prosecutors, judges and juries.
No one at the January 10 meeting underestimated the challenges
inherent in such a national research initiative. But it is simply not
true, as the Department of Justice asserted in its June 6, 2001
statement, that the January 10 session produced any consensus to the
effect that ``that even if such a study were carried out, it could not
be expected to yield definitive answers concerning the reasons for
disparities in federal death penalty cases.'' On the contrary, the
majority of those in attendance concluded (as had Attorney General
Reno) that such studies were needed precisely to obtain such answers,
and that no such answers would ever be forthcoming absent much more
probing investigation than had taken place so far.
Then, so far as we know, nothing more occurred at NIJ. The
Department did gather data on some 291 additional cases that had been
omitted from the 2000 study (and, reportedly, from the DOJ death
penalty itself), but the addition of these new cases only proved that
the pool of death-eligible cases indicted in the federal courts was
even more overwhelmingly comprised of minority defendants than had been
previously reported (83 percent, as compared to the 80 percent figure
in the September, 2000 report). Once again, the Department released no
identifying case information, so no qualitative analysis of the
Department's decision-making record can be undertaken. And most
important, the question posed by President Clinton when he stayed the
execution of Juan Garza last December appears no closer to an answer
now than then.
3. THE GOVERNMENT'S CURRENT POSITION
Under these circumstances, the Attorney General's announcement,
just thirteen days before Mr. Garza's scheduled execution, that the
questions raised by Attorney General Reno and President Clinton can't
be answered (or should be answered on the basis of speculation by
Department of Justice lawyers rather than facts and evidence) is simply
not good enough. It is hard to avoid the suspicion that the Attorney
General's apparent short-circuiting of the inquiry begun by his
predecessor reflects concern for what an independent and truly through
probe might reveal, rather than confidence in the fairness of the
federal death penalty system. Perhaps further study will confirm the
Department's premature conclusion that the racial and ethnic patterns
in capital indictments simply reflect the race and ethnicity of the
entire pool of people who commit federal capital crimes. If so, nothing
will have been lost--and a great deal gained--by having taken the time
to do the work.
Until that research has been commissioned and completed, there is
little point in debating competing theories about what might explain
the current racial and ethnic makeup of the federal death row. The
government now claims vindication; critics point to the
currentlyavailable racial statistics as clear evidence of
discrimination. In truth, both sides ought to admit that whiled there
is cause for concern, we just don't know. What matters is that every
effort be made to gather the evidence, and to withhold judgment till
then.\3\
---------------------------------------------------------------------------
\3\ One issue that bears serious study in this process is the
significance, if any, of the fact that removing a murder case from
state to federal court can mean the virtual exclusion of nonwhite
decision-makers from the process. In many urban jurisdictions-Atlanta,
Richmond, Baltimore, to name three--African-American defendants charged
in state courts are likely to be tried by majority-black juries.
However, prosecutors can draw an allwhite or almost all-white jury by
the simple expedient of indicting the case in federal court instead.
The gravity of this problem, and the risk of race-based prosecutorial
decision-making it creates, is perceptively described by Senior U.S.
District Judge Richard L. Williams, in United States v. Claiborne, 92
F.Supp.2d 503 (E.D.Va. 2000). If conscious racial considerations do
enter federal death penalty decision-making at all, they are much more
likely to appear in such ways as these, rather than as the straw man of
explicit racial ``favoritism'' that the Department of Justice seeks to
dispel in its June 6 release.
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Gathering the evidence will mean taking the time to commission
independent research, and to allow the work to be done. It will also
mean disclosing-under appropriate safeguards--relevant data now held by
government prosecutors, for only by taking into account many factual
variables about each case can anyone tell whether truly similar cases
involving defendants and victims of different races are being treated
alike.
Although he has already expressed his conviction that the federal
death penalty system is operating in a color-blind manner, the Attorney
General still seems to recognize the need for further study. I hope and
trust that he will ensure that qualified researchers are given both the
time and the information needed to complete this important assignment.
4. THE NEED TO HALT EXECUTIONS
Which brings up the question of what should be done with the
handful of federal death row inmates who face execution in the
meantime. Of these only one, Mr. Garza, currently has an execution
date, and only 9 others have even begun the process of post-conviction
review (after the initial or ``direct'' round of appeal). This makes it
very unlikely that any other federal death row inmate beside Juan Garza
will have an execution date set during 2001. In fact, it is entirely
possible that no other federal prisoner will be scheduled for execution
during 2002. Given the tiny numbers of cases that are at or near the
end of the appellate process, halting executions until a thorough
review of the selection process by which the 20 prisoners now on the
federal death row in Terre Haute came to be there would affect almost
no cases at all.
But ignoring the issues of racial and regional disparity that led
President Clinton to stay Juan Garza's execution, and continuing to
execute in the face of grave questions about the integrity of the
process, would have serious consequences indeed. The death penalty's
practical impact is minute, but its symbolic meaning is enormous. The
United States Government has generated a death row population more
overwhelmingly populated by minority defendants than that of any state.
For our Government to insist on executing one, two or three of those
prisoners without taking the time--and without disclosing the
information--that is necessary to determine whether racial bias helped
put them there, would be terribly corrosive of public confidence in our
government. Government's response to the worst of crimes should be
designed to knit our society back together, not tear it further apart.
5. RACE, GEOGRAPHIC DISPARITY, AND THE CASE FOR A FEDERALISM-BASED
APPROACH.
In addition to achieving a reliable understanding of how the
federal death penalty system came to concentrate so exclusively on
minority defendants in a relative handful of (primarily Southern)
states, we should also think constructively about how to avoid
recreating this situation in the future. The first step is to
understand that the federal death penalty is fundamentally different
today than it was during most of the first 200 years of our nation's
existence.
From the first federal ``crime bill'' in 1790 until quite recently,
federal jurisdiction over violent crime was limited to offenses
committed on federal land or that could not be prosecuted in state
court. Now, with the Anti-Drug Abuse Act of 1988, and especially the
Federal Death Penalty Act of 1994, the federal government has
concurrent jurisdiction with state courts over many hundreds and even
thousands of murders each year. What we do not yet have is a principled
method of determining which murder cases should be prosecuted capitally
by the federal government, and which should be left to the states.
My own belief, based on experience with hundreds of actual and
potential federal death penalty cases over the past nine-and-a-half
years, is that the current controversy over racial and geographic
disparity would never have arisen had the Department of Justice
embraced federalism as its guiding principle in the exercise of
prosecutorial discretion in capital cases. So long as the federal death
penalty is misconceived as a sort of parallel death penalty structure
that duplicates the states' systems, considerations of fairness will
mandate reasonable uniformity in application throughout the country,
and among various groups of defendants. The experience of the 1990s
suggests that such uniformity will never be attained, and so the
federal death penalty will remain a divisive distraction within the
federal criminal justice system.
However, if the federal death penalty is returned to its historic
role--as a penalty to be invoked only where state homicide jurisdiction
is substantially lacking, or where the homicide involved is self-
evidently one against the federal government or the nation as a whole,
rather than against the people of a particular state--the penalty will
be understood as one that is by its nature infrequent and somewhat
random, simply because the crimes that trigger it are infrequent and
random.\4\ Terrorist attacks on federal buildings, murders of federal
law enforcement personnel, assassinations of federal officials, murders
in the course of large scale international or nationwide drug
trafficking operations--these are the truly federal capital crimes
where the justification for federal prosecution and federally-
authorized punishment is selfevident, and where race and geography
simply do not matter. If the federal death penalty was limited to cases
such as these--as it has been for most of our nation's history-the
current controversy over the application of the federal death penalty
would resolve itself.
---------------------------------------------------------------------------
\4\ To be sure, the Justice Department's current death penalty
protocol advises that where concurrent state-federal jurisdiction
exists,''a Federal indictment for an offense subject to the death
penalty will be obtained only when the Federal interest in the
prosecution is more substantial than the interests of the State or
local authorities.'' U.S.A.M. 9 10.070. But this guideline has failed
to produce any sort of uniform application of federal death penalty
statutes throughout the country, and we know of only a tiny handful of
cases that have been rejected for federal capital prosecution for lack
of a sufficient federal interest. A bill now pending in the Senate, S.
486 (``The Innocence Protection Act of 2001 '') would codify the
existing ``federal interest'' requirement. Id. Sec. 303. While such
codification is desirable, the standard remains vague, and must be
stringently applied if any change is to result.
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The alternative is what we have now, and it isn't working. In the
absence of a rigorously-enforced ``federal interest'' requirement, the
application of the federal death penalty will continue to follow local
fashion: as has already occurred, it will be invoked frequently in
states where death sentences and executions are routine, and almost
never in states where they are rare or unknown.\5\ It is beyond the
power of the federal government to override local opposition to the
death penalty in any substantial number of cases: the current
experience of Puerto Rico, where 15 death penalty authorizations by the
Attorney General have produced intense and mounting public protest but
not a single capital trial (let alone any death sentences), provides an
especially clear example.\6\ Narrowing the scope of the federal death
penalty may not do much good either, but it can be expected to do a lot
less harm. And it will also solve, in a colorblind way, the seemingly
intractable problems of racial and regional disparity that afflict the
system today.
---------------------------------------------------------------------------
\5\ As the Committee is aware, the Justice Department's September,
2000 report reveals that between 1995 and mid-2000, 40 of the nation's
94 federal districts did not request authorization to seek the death
penalty in even a single case. Survey of the Federal Death Penalty
System at 21. At the other end of the spectrum, 14 of the 20 prisoners
now on the federal death row were prosecuted in the three states whose
state courts have generated the nation's highest execution rates--Texas
(6 federal death row inmates), Missouri (4), and Virginia (4).
\6\ See Jim Oliphant, ``An Island's Holy War Against the Death
Penalty,'' Legal Times (Dec. 14, 2000).
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In the meantime, let's call a halt. Juan Garza isn't going
anywhere, and no one seriously believes that marijuanarelated murders
in the Rio Grande Valley (or any other crimes anywhere else) are going
to increase if he is not executed on schedule next week. But the cost
of going forward, in the face of such grave doubts about the fairness
of our system, may be large indeed.
6. CONCLUSION
I am reminded today of a trip I made to South Africa 15 years ago.
In 1986, South Africa was the only major country besides ours that
attempted to use the death penalty as an instrument of crime-control
within a western-style judicial system. I spent several weeks there,
watching capital trials, interviewing judges and lawyers, and
researching the South African system of capital punishment to learn how
the death penalty works within such a judicial system once it has
become ``routine.''\7\
---------------------------------------------------------------------------
\7\ See David Bruck, ``On Death Row in Pretoria Central,'' The New
Republic, July 13-20, 1987.
---------------------------------------------------------------------------
In 1986, Nelson Mandela was still in prison, and the apartheid
regime was still firmly in power. The nonwhite majority of the
population was wholly excluded from the political system. In court, the
defendants were usually black, while whites did all the prosecuting and
all the judging. Not surprisingly, black and ``mixed-race'' defendants
made up almost all of South Africa's death row, and some 98 percent of
the scores of prisoners hanged every year.
Given such stark racial disparities, it seemed selfevident that the
gallows, like almost every other facet of South African life, was
organized by race. But the South Africa judicial system had a ready
response. ``We're not discriminating, it's just that the people who
commit the capital crimes happen to be nonwhite. So what do you want us
to do? Institute quotas?"
And unpleasant as it was to admit it, the South African regime had
a point. Violent crime tends to be found amidst poverty and
hopelessness, and those conditions were certainly not evenly
distributed by race. Even so, it seemed unlikely that an all-white
judicial system operated on a powerless black population in an
impartial and race-neutral manner. At a minimum, any objective person
would want to see some convincing evidence of the system's fairness
before accepting its verdict on itself.
I personally believe that our country will eventually abolish
capital punishment--as South Africa has now done--and that until we do,
we will continue to isolate ourselves among the world's democracies,
while dividing our own people here at home. But whether one supports or
opposes capital punishment as a general matter, it should be apparent
that we must not implement the federal death penalty under a cloud of
suspicion and resentment. We now know that the great majority of those
targeted for federal capital prosecution have been black or Hispanic
Americans. We still do not know whether this troubling fact simply
reflects the demographics of federal crime, or the inclinations and
assumptions of those charged with prosecuting it, or some of both. It
is time to do whatever is necessary to find out, and then to be
governed by what we learn.
I would be happy to answer any questions that the Committee may
have.
Chairman Feingold. I certainly thank you for that.
We will now go to 5-minute rounds of questions, and my
colleagues have been very patient. I am going to begin with
Senator Durbin and then Senator Sessions, and then I will do
some questions.
I want to thank Senator Durbin for being here. It is his
State, the State of Illinois, that really took notice of this
issue and gave us a wake-up call, and I really appreciate his
attendance.
Senator Durbin. I want to thank Senator Feingold for this
hearing. It takes some courage to even schedule this hearing
and I am glad he did it. It is time that we faced this issue
head-on, as painful as it is.
The credit in my State does not go to me. It goes to
Governor George Ryan, a Republican Governor who in January of
the year 2000 declared a moratorium on all executions in my
home State of Illinois. When he imposed this moratorium,
Governor Ryan cited, ``the shameful record of convicting
innocent people and putting them on death row.''
I support Governor Ryan's decision. I have, as he has in
the past, supported the death penalty, but I believe he has
taken the only morally coherent position for those of us who
support the death penalty. During the past 14 years, the State
of Illinois has released 13 people from death row. These people
were convicted of the most heinous crimes our criminal justice
system could find and they were facing the most serious
punishment any society can exact, a death penalty. Yet, none of
them were apparently guilty of the crimes they were charged
with. Eight of the 13 were black.
I have listened to a lot of conversations by people in both
Democratic and Republican administrations about racial
profiling. It appears that we are all ready to concede the fact
that this occurs, and we should. Certainly, people that I have
spoken to who have been victimized by this can cite chapter and
verse and their own personal experience.
I wonder why it is so obvious when a State trooper pulls
someone over and they happen to be black or brown that that is
racial profiling, but that when we look at the population in
our prisons or the people on death row, that isn't racial
profiling. It strikes me that it is all part of the same
continuum; it is part of the justice process. If the process is
wrong from the investigation forward, it could ultimately
result in someone sitting on death row, a helpless victim of
racial profiling.
Mr. Fotis, you made a point that I just have to go to for a
moment. To use as a defense that the number of minorities on
death row reflects the number of minorities in prison, I think
is to miss the point. I think you have to start at the
beginning of the process and ask whether or not the process is
fair to minorities from the beginning.
Roughly 12 percent of Americans are African-American.
Thirteen percent, according to our drug statistics, commit drug
crimes. Thirty-five percent are arrested. Over 50 percent are
convicted, and over 65 percent of the drug incarcerations are
African-Americans.
Now, if I am sitting at this table as an African-American,
I have to think this system is not really treating my race
fairly. If we committed as many crimes to warrant this type of
incarceration, that makes sense. But if we don't, if we are
only 13 or 13 percent of the actual crimes and represent so
much of the incarceration, you can understand the feelings of
many toward this system that it isn't fair, that the statue of
justice is not blind.
And the same thing is true, sadly, when it comes to meting
out the death penalty. The statistics we have been given here
suggest that some 75 percent of those against whom the
Department of Justice seeks the death penalty are people of
color or ethnic minorities, even though far less than 75
percent of the people who commit Federal capital crimes are
people of color and ethnic minorities.
My question to the panel is this, and I will open it to any
who want to answer it. How can we preserve a jury system in
America, a system that is open to all Americans, and expect
justice to come from it if the minorities in America feel that
the system is stacked against them, if they see racial
profiling from investigation through arrest and conviction and
incarceration, and even the death penalty?
Mr. Bruck. Senator, if I can make a comment about that,
your comment about juries, I think, sheds some light on what
really may be happening with these numbers on the Federal death
penalty.
Mr. McBride said those who raise the question are accusing
prosecutors of intentional racism. Let me suggest on the
ground, in reality, another thing that actually happens. It
isn't intentional racism.
I have cited in my written submission an opinion by Judge
Richard Williams of the Eastern District of Virginia, in United
States v. Claiborne, in which Judge Williams agonizes over a
case in which a defendant in a drug murder case was acquitted
in State court by a jury of six to eight African-Americans, a
majority-black jury, in Richmond, Virginia, and then was re-
prosecuted by the Federal Government in the Eastern District in
Federal court under circumstances where simply because the case
was moved from Richmond State court into Federal court, the
expectation was that the jury would probably be all white.
That typically is what happens when you Federalize a case
that arises from inner-city Baltimore, from inner-city Atlanta,
from inner-city Richmond, all through the country. Now, that,
on the ground, at the level of reality, is the sort of thing
that actually happens when drug trafficking murders are
targeted by the Federal Government and cases are taken out of
State court.
That doesn't mean we shouldn't do it, but let's think a
little bit on the competitive pressures. Think of the Claiborne
case. They couldn't get a conviction with a majority-black
jury. Is there no temptation--and this is what Judge Williams
struggled with--is there no temptation to say we can fix this?
There is no double jeopardy. We can take the case into Federal
court, and think of the white suburban jury we will have for
the next go-around.
That may be part of the story of what explains these
numbers, and it is a very sobering issue. I am not saying it
is. That is one of the topics that was put on the table at the
NIJ meeting on January 10, the suggestion being made of let's
look at that. That is the sort of thing that we must look at.
Has that been happening and how can we make sure it doesn't
happen in the future?
Senator Durbin. I think the jury system is the bedrock of
our system of justice, and if we find ourselves reaching the
point where we cannot trust the jury system, then I don't know
where we are going to turn for justice in this society.
Chairman Feingold. Mr. McBride, did you want to respond?
Mr. McBride. Yes, Mr. Chairman. I just wanted to say that I
have probably tried 30 to 40 criminal cases in the Eastern
District of Virginia, in Alexandria and Richmond. In the
Richmond Division, I don't believe I ever tried a criminal case
before an all-white jury, and the capital cases that I tried
were before racially mixed juries.
It is true that when you expand the pool to the district,
the division, the Richmond Division, it encompasses some of the
suburbs, but it also continues to encompass the city of
Richmond. And the idea that these are all white juries or that
prosecutors are manipulating the process to get juries of a
certain racial composition, I don't believe that to be the
case.
I appreciate the Senator's concern, and I share the concern
as a former Federal prosecutor. I don't think a death penalty
that is infected by overt or covert racism serves any function
for us. It doesn't help the victims of crime, it doesn't help
us deter crime, and I appreciate the committee's efforts to try
and root out any bias that is there.
As I said in my opening statement, my experience was that
we as Federal prosecutors were called to the scene. We weren't
making selections. The State would say we need help with this.
What you see, Senator Durbin, I think, on Federal death row
now is a reflection of what the priorities were from 1988 to
1994, and the tools that you, the Congress, gave us. All we had
then was the death penalty for large-scale drug-dealing, and
what we set out to do was to prosecute crack cocaine offenders
in the inner cities, in our case in Richmond and Norfolk and
Virginia Beach, unsolved homicides largely of African-American
citizens. And we were called by the local authorities to
assist, and that may explain some of the statistical
disparities.
The Chairman mentioned the motorcycle gangs and organized
crime, and I think it is a fair point. On the other hand, we
did not receive authority to impose the death penalty under the
RICO Act for racketeering, aside from drug-dealing, until 1994.
So you really can't judge our performance as a prosecutorial
body until you gave us all the death penalties in 1994. And you
do notice in the statistics that the number of white capital-
eligible defendants going into the Federal system increases
after 1994.
Senator Durbin. Mr. Chairman, I will conclude because my
time is up here, but I hope to get back and ask a question
related to the areas where you do have prosecutorial
discretion. In the September 2000 report from the Attorney
General, where they have approved a capital prosecution, 48
percent of white defendants avoid the risk of a death penalty
by entering a plea agreement to a non-capital charge. Rates
that blacks and Hispanics enter such agreements are 25 percent
and 28 percent, respectively.
So where there was prosecutorial discretion, we find that
white defendants facing capital charges on an almost two-to-one
basis were then allowed to enter a plea agreement to a non-
capital charge.
Mr. McBride. Senator, if I may, I think that is an issue
that the Deputy Attorney General addressed. He agreed, No. 1,
that the Department needs to keep statistics on this issue.
There is not a full range of statistics.
No. 2, at least in my experience, I interpreted the
protocol to mean that if I charged a capital offense and sought
the death penalty, I had to go back to the review Committee in
order to take a plea to life without parole. Now, my
understanding is that, in fact, the protocol as it existed did
not call for that. It has been amended to do so.
But I agree with the Senator that plea agreements are an
area that the Department needs to monitor under the protocol or
the protocol can be bypassed.
Mr. Gross. Senator, may I correct a misstatement, no doubt
unintentional, by Mr. McBride?
Chairman Feingold. Yes.
Mr. Gross. I don't remember the exact numbers. I am sure
Mr. Bruck does, but the great majority of Federal prosecutions
since 1988 have been brought since 1995 under the new, expanded
Federal death penalty law that was passed in 1994 and under the
Department of Justice's 1995 death penalty protocols.
I am sure Mr. McBride didn't intend to mislead the
committee, but I think he gave the impression that most of what
we are seeing is based on the first Federal death penalty,
when, of course, that is not true.
Chairman Feingold. Thank you.
Senator Sessions?
Senator Sessions. Thank you.
Professor Gross and Mr. Bruck, I first would like to point
out that this is indeed an administration who has been in
office only a few months, and the cases we are referring to
overwhelmingly were either prosecuted by or the appeals were
handled by the Clinton-Reno Department of Justice.
You would agree that Attorney General Reno, after a review
of all these cases on death row, did conclude there were none
that were innocent or there was a factor of guilt question
there?
Mr. Bruck. No, actually I don't. She said that, and then 4
months later she sent a letter to President Clinton asking him
to commute the sentence of Ronald David Chandler because of
grave doubts concerning his guilt. And solely on the basis of
the Department of Justice's recommendation made through her
President Clinton did commute that sentence to life without
parole because of the risk of executing an innocent man.
So, actually, that really illustrates how things seem to be
OK, and 3 months later with a closer look it turns out that
they are not OK. I think there is a lesson to be learned there.
Senator Sessions. Chandler was white, if I recall, was he
not?
Mr. Bruck. He was white, and he was probably innocent.
Senator Sessions. Well, I don't know about that, but he was
not released from prison, was he?
Mr. Bruck. No. He is serving life without parole.
Senator Sessions. The death penalty was pulled back.
Mr. Bruck. That is correct.
Senator Sessions. Well, I think that is the way the system
should work. If the Attorney General ever has a doubt about
whether or not a person is guilty, a commutation recommendation
to the President would be appropriate. That is the way the
system ought to work.
I guess what I would be interested in pursuing would be the
question of what can we do. Now, we know that for people who
are deeply opposed to the death penalty, there will always be
objections to that death penalty. There will never be a system
that will satisfy them.
Senator Durbin raised the numbers on the plea bargains.
Having looked at all the statistical data that I have seen, the
only thing that seems a bit aberrational would be those plea
bargain numbers, and Attorney General Ashcroft has committed to
reviewing those carefully to make sure that plea bargains are
also reviewed carefully.
I guess I would first ask do any of you see anything in the
death penalty statute itself that is racially biased?
[No response.]
Senator Sessions. Do any of you see anything within the
detailed guidelines that the Reno Justice Department declared
to review every death penalty case before charges were made and
all the way to its conclusion--do you see anything in those
guidelines that is in itself racially biased?
Mr. Bruck. Nothing in the statute and nothing in the
guidelines. They are susceptible to racial bias, but clearly
there is no statute in the whole country that is itself
racially biased.
Senator Sessions. Mr. McBride, do you want to comment?
Mr. McBride. Senator, I think Mr. Bruck would agree that
the procedures that we now have in place in the Federal
system--he would probably like to see them in every State that
has capital punishment. I think that Attorney General Reno is
to be commended for the protocol that she adopted.
I think it is unique in the criminal justice system to
allow defense attorneys to make a presentation to prosecutors
at the charging phase when you decide whether or not to seek
the death penalty. The defense can actually make a presentation
to avoid the death penalty being charged, and that is a very
unique right that has been granted in the Federal death penalty
system.
As someone who has participated in it as a prosecutor, the
review is extremely rigorous and the materials that an
Assistant United States Attorney, as you know, as a former
United States Attorney, must submit, including a draft
indictment and an analysis of aggravating and mitigating
factors in each of the individual cases that might be charged
as a capital case--it is a very rigorous review and I think
Attorney General Reno and her staff and the changes that
Attorney General Ashcroft has proposed can be very proud of
that system. I think it is one that works very well.
Senator Sessions. I appreciate that. Oftentimes, there is a
lot more likelihood, in my experience, of an individual
district attorney, Mr. Bruck, in a county who maybe only had
one death penalty case in his career--with the kind of
universal review by experienced prosecutors dealing with all
these cases, you probably have got a more coherent picture in
the Federal system than in most State-charging situations, do
you not?
Mr. Bruck. Yes, I think that is right. Once the case enters
the Federal system, I think that is true.
Senator Sessions. Then it strikes me that what we have got
to be careful about and what we are asking of the Federal law
enforcement officers--I am sure it is galling to Mr. Fotis, as
a man who has committed his life to the rule of law and doing
what is fair and just, and every Federal FBI agent and DEA
agent who work these cases, and every prosecutor, to have it
suggested repeatedly that they are somehow biased in what they
have done, when all they have done is enforce the law that the
Congress of the United States has passed, and complied with the
greatly detailed guidelines that the Attorney General of the
United States has required of them.
So, first of all, I want to defend those officers and their
integrity and their commitment to doing the right thing. I
don't know anybody involved in a death penalty case who does
not take that seriously. It is really an awesome thing to have
that matter fall in your lap.
I won't take any more time, Mr. Chairman. I just would say
that I think it is significant that we don't have a complaint
about the way the law is written or the guidelines are
established.
Chairman Feingold. Thank you, Senator Sessions.
Let me be clear. I have listened carefully today and I have
also followed this debate. No one has accused anyone in the
system of being intentionally racist or biased. In fact, every
witness has been modest and careful in their remarks to suggest
that if there is a problem--and we are not certain that there
is--it is more likely to be on the basis of institutional
concerns about discrimination rather than any intentional
conduct.
I think this issue has to be discussed in that way, and
that is my intent and I think it is the intent of every Senator
involved and everybody on this panel on both sides. This is not
about accusing people of racism. The question is whether the
system, however it is constituted, ends up operating in a
discriminatory manner. That is a very different thing. Of
course, I join with you in praising the law enforcement people
throughout our country who do a very good job.
My first question is for Mr. Bruck and Mr. Gross. You have
heard Mr. McBride say that the Subcommittee should not place
any stock in statistical patterns or comparisons, or focus on
largely meaningless statistical games. What is your response to
what he said, Professor Gross?
Mr. Gross. I am sorry. That was a comment by Mr. McBride?
Chairman Feingold. Yes.
Mr. Gross. I did hear Mr. McBride's comments on that, and
also saying that you shouldn't rely on regression analysis. I
was puzzled by them because I wasn't sure to whom they were
addressed.
The only statistics that we have here are those that have
been provided by the Department of Justice, and on the basis of
the statistics provided by the Department of Justice the
Attorney General was willing to reach a conclusion that there
is no discrimination in the administration of the Federal death
penalty. I don't think Mr. McBride was saying that that was an
inappropriate conclusion, but that is the only set of
statistics and the only conclusion based on statistics that we
are dealing with today.
If he means, on the other hand, that we will never be able
to do a study that will shed light on this issue because it is
not a question that is studyable, that no matter what we do it
will never be good enough, I think that is an extremely
pessimistic view, and that, in fact, we can learn a lot.
Whether we will know for sure at the end of the day, I can't
say. But if we don't look, we will never know.
Chairman Feingold. Mr. Bruck?
Mr. Bruck. I really have very little to add to that. It is
true that no matter how sophisticated and thorough and
exhaustive a study is done, one can always say, well, it could
have been better. But I think we can learn a lot.
I would like to say that perhaps the most crucial moment
for the NIJ study came when you, Mr. Chairman, asked Mr.
Thompson in a very brief exchange about whether the Department
of Justice would be willing to turn over the data. And Attorney
General Thompson said, yes, we will, subject to various
restrictions.
Now, the size of those restrictions will decide whether
this topic can be studied because all of the data is in files
at the Department of Justice. The one, I have to say, rather
discordant note at the January 10 meeting was some very strong
expressions by prosecutors of reluctance or refusal--a
prediction that the Department of Justice would refuse to turn
over the very, very exhaustive files in which the answers to
these questions are contained.
There obviously have to be safeguards, but it will be
crucial for the Department of Justice to be forthcoming with
the data, and I know that the Committee will ensure that that
happens.
Chairman Feingold. Let me follow up with one more for you,
Mr. Bruck. The supplemental report's discussion of geographic
disparities is pretty skimpy. It says that there is nothing
illegitimate about a district focusing on the actual needs of
the geographic area for which it is responsible in decisions
about the exercise of Federal jurisdiction. It further says the
geographic disparities are neither avoidable or undesirable.
What is your reaction to those conclusions?
Mr. Bruck. You know, that is one thing as far as it goes
that I agree with. There will never be a uniform application
geographically of the Federal death penalty, and I think it is
a hopeless effort--this country is too different--any more than
there could be a uniform application of the Fugitive Slave Act
150 years ago.
The culture of various parts of this country are different
and some parts of the country simply will not tolerate the
level of capital prosecutions that are commonplace and routine
in other parts of the country. It is useless to try to make
Vermont like Texas; it is never going to happen.
What can be done is that the disparity geographically ought
to be informed not by the culture of Texas or the culture of
Vermont, but whether the crime is really a Federal crime. We
have been spinning our wheels down in Puerto Rico, where 15
death penalty cases have been authorized by the Attorney
General in the last 5 years. Not one of them has ever gone to
trial. It is the most divisive issue in Puerto Rico, except for
the shelling of the island of Vieques. There is never going to
be a trial. We are spending hundreds of thousands and millions
of dollars chasing our tail there. It is time to call a halt.
If there is truly a Federal capital crime in Puerto Rico,
God forbid, the attack on a Federal building or the murder of a
Federal agent, that will be one thing. But simply to try to
have some sort of uniformity based on the happenstance of
whether there happens to be a Federal program against violent
crime in this or that district, or whether States don't provide
for grand juries and the Federal system somewhere does, that is
no basis for deciding how the Federal death penalty should be
distributed. It should be distributed based on where there are
capital crimes that are attacks against the country.
Chairman Feingold. Thank you. I have just one more question
and then I think Senator Durbin has another question.
Mr. Bond, as a longtime leader in the civil rights
movement, could you please place the death penalty issue in the
context of the struggle for civil rights, equal rights, and
equal protection of the laws?
Mr. Bond. Well, it has long been true that in parts of the
United States in our past, there was ample evidence of
discriminatory application of the death penalty, with African-
Americans being the usual victims, selective prosecutions,
discriminatory prosecutions, prosecutions for crimes which in
another context the death penalty would not have been sought.
Luckily, to some extent we have moved away from that, but
it has long been troublesome for those in the civil rights
community, and I think for Americans generally, that there at
least appears to be discriminatory application of a wide
variety of our laws.
A study done in the fall of a year ago, I believe, in
conjunction with the Department of Justice demonstrated a high
level of discretion where race entered from the moment of
arrest through the sentencing phase, and spoke, I believe, if
memory serves, about two young men, a white young man involved
in some minor scrape, patted on the back--go home, see your
parents, make sure this doesn't happen again--and the black
young man sent into the criminal justice system. A record
attaches to him. If he falls afoul of the law later on, that
record is a part of the system and he receives an even heavier
punishment. So on and on and on and on.
Equally as troubling are these statistics from the
newspaper report that you referenced a moment ago. Those are
troublesome, they are bothersome, and they create in African-
Americans and racial minorities, and I believe in the larger
public, too, serious questions about justice and fairness.
All of us want to believe we live in a country dedicated to
equal justice under the law. All of us want to believe that if
we run afoul of the law, we are going to be treated fairly and
decently. All of us want to believe that if a relative or a
friend is the victim of some crime, the perpetrator is going to
be punished strongly and strictly and severely. But none of us
wants to believe that this process is going to be unfair, and
large numbers of Americans, I think, believe sincerely that
this process is awfully unfair.
Chairman Feingold. Thank you so much.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
FROM THE STATE OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman.
Very briefly, I would just like to make one point here. I
am glad that we are having this hearing and it relates to the
death penalty, but I think that I would like to put it in this
perspective: I think we focus on the death penalty because the
universe involved is relatively small and the people can be
identified and their cases carefully analyzed.
Those who are interested in this issue on either side can
look at them ever so carefully, scrutinize them, and decide
whether there was competent counsel, whether a DNA test might
have some impact on the outcome, while we ignore the mass of
humanity sitting in prisons for crimes, short of a death
penalty, who may have been subject to the same imperfect system
of justice that brought them to their end. They may never made
the headlines and they may never become a university project.
But the fact is we are filling our prisons at the Federal
and State level at record numbers, and this hearing, although
it focuses on the death penalty, raises a larger question. If
we recognize, acknowledge and condemn racial profiling, it
shouldn't end with a discussion of the death penalty. It has to
go back through every step of the process.
African American men end up in Illinois prisons on drug
convictions at a rate 57 times greater than white men, the most
striking gap of any State in the Union. Ninety percent of drug
offenders admitted to State prisons in Illinois are African-
Americans, the highest percentage in the country. This troubles
me, representing this great State.
I will acknowledge what Senator Sessions and Senator
Feingold said. The men and women on the front line who put
their badges on everyday and put their lives on the line to
protect us deserve our respect and admiration, as to the
prosecutors in every part of the system. But there is something
imperfect, there is something broken in the system. We see it
at its worst on death row, but I am afraid it permeates the
entire system. Will we have the courage to face it? I hope we
will.
Chairman Feingold. Well, I couldn't agree with the Senator
from Illinois more. The only reason that this was the first
hearing was the urgency relating to the execution next week.
But as Senator Durbin knows, this Subcommittee will have the
opportunity to take up the racial profiling bill which I
introduced and Senator Durbin cosponsored last week with
Representative Conyers, and also the issue of disproportionate
minority incarceration. All of these have to be central to the
work of this Subcommittee and the committee, and I am so
pleased that, his help, we are finally moving in that
direction.
After hearing the testimony this morning, it seems to me
that we have surprisingly a lot of agreement here. The experts
on the panel all said we don't know whether bias is responsible
for the racial disparities on Federal death row. The Deputy
Attorney General has told us that the Department of Justice,
through the NIJ, will continue its study of this issue. Of
course, I am pleased to hear that because it seemed that just
the opposite was the case a few days ago.
The difference is quite clear, though. The Attorney General
of the United States is prepared to execute an Hispanic man
before that study is completed. I believe that is a tragic
mistake and an unnecessary mistake. Mr. Garza is not going
anywhere. He is in a high-security prison in Indiana. Whether
he is executed next week or next year makes in the long run
very little difference. But if the study that the Deputy
Attorney General said today will continue reveals bias in the
system, the confidence of the public in our system of justice
in this country will be forever undermined.
Let me sincerely thank all of our witnesses for their
testimony and what I thought was a very thoughtful discussion.
We appreciate your taking all this time to be here on short
notice. We thank you for your insights.
As I told the Deputy Attorney General, the record will
remain open for a week, if you wish to submit additional
materials for the record. In addition, any individual or
organization that wishes to submit a statement for the record
may do so within that time.
Written questions from members of the Committee are due by
the close of business Friday, and we will ask that the
witnesses provide answers promptly.
Thank you, Senator Durbin, and thank you all for coming.
The hearing is adjourned.
[Whereupon, at 1 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
QUESTIONS AND ANSWERS
Responses of David Bruck to questions submitted by Senators Leahy,
Feingold, Sessions, and Thurmond
Question from Senator Leahy
Question: Do you have any suggestions for strengthening (the
``federal interest'') provision of S. 486?
Answer: Upon reflection, I doubt that any greater clarity can be
achieved in this necessarily imprecise question. However, the
certification requirement of subsection (b) could usefully be made
slightly more explicit, by requiring that
(a) certification under sub-section (a) shall state the basis
on which the certification was made, including the federal and
state interests identified, and the reasons for the
certification.
Subsection (b) as currently drafted requires an articulation of the
federal interest only, and this might produce only an unenlightening
boilerplate recitation of the federal interest in combating whatever
federal crime might be involved. A requirement that the state interest
also be articulated might well encourage a genuine federalism-based
analysis in each case, based on traditional notions of caution and
restraint in federalizing a difficult and divisive area of criminal
justice policy that has heretofore been consigned to the states. Such
an analysis, in turn, offers the best hope of ameliorating the racially
and geographically lopsided patterns that have characterized the
federal death penalty to date.
Question from Senator Feingold
I have conferred with Professor Gross concerning the issues to be
addressed and the data to be gathered by the National Institute of
Justice, and request that his follow-up answer to this question be
considered as having been submitted by me as well.
Question from Senator Sessions
Question: Do you oppose the imposition of the death penalty in all
cases whatsoever, regardless of guilt, including Timothy McVeigh's
murder of numerous children, women, and women in Oklahoma City,
Oklahoma?
Answer: A. Yes.
Questions from Senator Thurmond
Question (1): Is there any criminal conduct that you personally
believe warrants the death penalty?
Answer: Yes, I do. However, this does not answer the more difficult
question of whether we should maintain a system for inflicting capital
punishment. I do not think we should, because experience has shown that
as fallible human beings, we will never find a way to determine
reliably and fairly, without ever making mistakes, which defendants
warrant the death penalty.
Question (2): Given (that Justice Department decision-makers
generally are not told the race of the defendants whose cases they
consider) how could there reasonably be racial bias in the capital
review process at Main Justice?
Answer: I do not contend that there is racial bias infecting the
system, either at Main Justice or at earlier or later stages of the
federal deathselection process. I suggest only that the question arises
from the data that have been released so far, and much more probing
inquiry is warranted. The most important point to keep in mind is that
if such bias does exist, it probably has the greatest impact at the
``intake'' stages when the decision to prosecute death-eligible crimes
in federal court is being made. If bias played any part in bringing
about the fact that three-quarters of the cases reaching DOJ involve
minority defendants, concealing the racial composition of this mostly-
minority pool once it arrives at DOJ would do little to remove the
effect of such bias. Moreover, much more careful review is needed to
determine whether racial and ethnic stereotyping infects the way that
information is received by local federal prosecutors and transmitted to
DOJ officials (who must, of course, rely on the information they
receive). Finally, the ``color blind'' procedures to which you refer
are hardly impenetrable: a decision-maker who knows that the defendant
has a Hispanic or Asian surname, or is a 22-year-old crack cocaine
dealer from inner-city Richmond, Virginia or a member of a Jamaica-
based criminal syndicate, does not need a checked box on a form to
intuit the defendant's race or ethnicity.
Question (3):Do you see socio-economic problems to be a more
realistic and fundamental explanation for disparity in the death
penalty rather than the choices of federal authorities?
Answer: The hypothesis that minority citizens commit a greatly
disproportionate share of federal death-eligible crimes, and that this
is attributable to poverty, social isolation and marginalization, is a
plausible one. However, at this point that's all it is--a hypothesisand
it cannot be accepted as the entire explanation for the racial
lopsidedness of the federal death penalty system without much more
evidence than the Department of Justice has produced to date. You may
recall that in my testimony, I cited this hypothesis as the defense
offered by South African officials of the apartheid era for the
nonwhites-only death penalty system that operated in that country
through the 1980s. That explanation may have been true there too. Or it
may have been wholly false- Or (and this seems most likely) it may have
accounted for some, but not all, of the racial disparity reflected in
South Africa's execution statistics. If this last possibility were
correct, then the system would was infected by bias, even though an
unbiased system would still have produced a higher execution late among
nonwhites that among whites (and among killers of white, as opposed to
nonwhite, victims).
The only way to know whether bias explains any of the observed
disparity is to identify all of the death-eligible cases that were or
could have been considered in the death-selection process, and then to
carefully compare how they were treated, taking into account the myriad
non-racial factors present in each case. The South African regime
refused to conduct such a painstaking selfexamination. We should choose
a different course.
Question (4): The Attorney General will simplify the procedure for
reviewing cases in which the U.S. Attorney is not recommending the
death penalty. . . . Do you believe this change is beneficial?
Answer: Yes. As one of the part-time resource counsel who have been
helping the federal defender system address the need for adequate
indigent defense services in capital cases, I have been urging such a
``fast-track'' procedure ever since the Department of Justice
instituted its death penalty protocol in 1995. I hope that this change
will reduce somewhat the cost and delay that the unprecedented
expansion of the federal death penalty has brought to the federal
criminal justice system since 1994.
Responses of Andrew G. McBride to questions submitted by Senators
Thurmond and Sessions
Question from Senator Thurmond
Question: Mr. McBride, based upon your experience as a federal
prosecutor, did you ever have any reason to think that prosecutors and
investigators sought the death penalty for any invidious reasons?
Answer: The answer to Senator Thurmond's question is that I did
not, I served as an Assistant United States Attorney in the Eastern
District of Virginia from 1992 to 1999, in both the Alexandria and
Richmond offices. During that time period, I sought the death penalty
against four criminal defendants and prosecuted numerous other murder
cases in which the decision was made not to seek the death penalty. I
never observed any evidence that prosecutors or investigators were
influenced by race or any ocher invidious factor in their; 1) decision
to proceed with federal prosecution of a particular case; or 2)
decision to seek or not to seek the death penalty.
Both intake decisions and capital punishment decisions were subject
to multiple layers of supervisory review. No individual prosecutor or
investigator could make the decision to undertake federal prosecution
or to seek the ultimate penalty. During my tenure, those decisions were
made by the United States Attorney, in consultation with the first
assistant, the chief of the criminal division and other prosecutors.
Intake decisions were based on a number of factors, including the
federal interest in the crimes and the local need or desire for federal
assistance. Death penalty decisions were made in the United States
Attorney's Office after rigorous review of the facts of the case--often
requiring several lengthy meetings between the line prosecutors and
supervisors. Of course, after the United States Attorney made the
decision to recommend the death penalty, the case was subject to
another layer of review before the Attorney General's capital
punishment committee. At none of these stages of the process did I
observe any evidence of overt or subtle racial bias entering the
proeess----
Questions from Senator Sessions
Question: Do you oppose imposition of the death penalty in X11
cased whatsoever, regardless of guilt, including Timothy McVeigh's
murder of numerous children, women, and men In Oklahoma City, Oklahoma?
Answer: The answer to Senator Sessions' question is that I am in
favor of the death penalty for a limited number of particularly heinous
crimes. I believe that the death penalty does defer murder--
particularly in the felony murder situation where a rapist or murderer
may have a strong incentive to kill a victim or police officer to avoid
apprehension. Only a punishment more severe than life imprisonment can
provide any general deterrence in these situations. The death penalty
also provides specific deterrence--it ensures society that a particular
individual who has already taken the life of another human being will
not do so again. l also believe that the death penalty properly
expresses society's moral outrage at the taking of innocent human life,
such as that involved in the McVeigh case. The survivors of McVeigh's
victims almost uniformly indicated chat his execution brought them a
sense of closure and a sense of justice.
Question: In your experience as as Associate Deputy Attorney
General under President Bush and as an Assistant United Stags Attorney
under President Clinton, did you ever see a federal employee engage in
racial bias is the performance of his profossional duties with respect
to a federal capital case.
Answer: The answer to Senator Session's question is no I did not.
As to my tenure as an Assistant United States Attorney, I have
indicated in my answer to Senator Thurmond's question that I saw no
evidence of overt or covert bias in the selection of federal cases or
the decision to seek or forego the death penalty. In addition, from
1990 to 1992, I was employed in the Department of Justice as an
Associate Deputy Attorney General (1990-91 ) and as an Assistant to the
Attorney General (1991-92). In both those capacities, I was involved in
reviewing the applications to seek the death penalty from the United
States Attorney's Offices and making recommendations to the Attorney
General. While serving in this capacity, T newer saw any evidence of
federal investigators, prosecutors, or Department of Justice personnel
considering race or ether improper factors in assessing whether a case
was worthy of capital punishment. In fact, neither the race of the
victim nor the defendant is disclosed to Department of Justice
personnel who review death penalty applications.
I hope these responses assist the subcommittee and its Members in
addressing these issues. Thank you again for the opportunity to address
the subcommittee regarding this important criminal justice issue.
Responses of Samuel R. Gross to questions submitted by Senators
Sessions, Thurmond, and Feingold
Questions from Senator Sessions
Question 1. Do you oppose the imposition of the death penalty in
all cases whatsoever, regardless of guilt, including Timothy McVeigh's
murder of numerous children, women, and men in Oklahoma City, Oklahoma?
Answer: Yes, I do. I believe that the death penalty is unnecessary,
even for the worst crimes, and that its use produces many bad effects
and no significant benefits. That is why most democratic countries in
the world, including our closest allies--Canada, Great Britain,
Germany, France, among others--have abolished capital punishment and so
suffered no ill effects. On the contrary, they have benefitted. The
same is true of my home state of Michigan.
Question 2. On page 7 of your written testimony, you state:
The Ashcroft Report focuses on the professionalism of Assistant
United States Attorneys, the lawyers who make the legal decisions once
a case has been taken on. But the initial decision to undertake a
federal investigation is often made by law enforcement agents rather
than prosecutors, by the FBI or the DEA rather than United States
Attorneys. Perhaps these two sets of DOJ employees have different
patterns of behavior.
Further, on page 9 of your written testimony, you state:
Are Federal law enforcement agencies, the FBI and the Drug
Enforcement Administration, searching for African-American and Hispanic
drug dealers because they think they know that the worst drug
traffickers are all black or Latin American? Are the racial disparities
in Federal capital prosecutions a manifestation of race-specific drug
investigations? We don't know, and this report does not allay our
fears.
Answer: Apparently, the actual question was lost in the facsimile
transmission. Unfortunately, I only just returned from a two-week trip
abroad. I would be happy to answer the question that Senator Sessions
intended to ask as soon as possible, if it is re-sent to me.
Questions from Senator Thurmond
Question 1: Mr. Gross, is there any criminal conduct that you
personally believe warrants the death penalty?
Answer: I'm unsure how to understand the term ``warrants,'' but I
take the question to be whether I personally oppose the death penalty
in all circumstances. On that assumption, the answer is that I do, for
the reasons given in response to a question by Senator Sessions: I
believe that the death penalty is unnecessary, even for the worst
crimes, and that its use produces many bad effects and no significant
benefits. That is why most democratic countries in the world, including
our closest allies--Canada, Great Britain, Germany, France, among
others--have abolished capital punishment and so suffered no ill
effects. On the contrary, they have benefitted. The same is true of my
home state of Michigan.
Question 2: Mr. Gross, I understand that when a death eligible case
is forwarded to the death penalty review committee at the Justice
Department, the committee members are told the race of the defendant,
unless the defense attorney chooses to disclose it. Given this, how
could there reasonably be racial bias in the capital review process at
Main Justice?
Answer: I agree that to the extent that the committee members are
unaware of the race of the defendants and the victims, they cannot
engage in intentional racial discrimination.
Question from Senator Feingold
Question 1: What are the questions that need to be answered and
data that needs to he gathered in the study to be conducted by the
National Institute of Justice?
Answer 1: The basic questions that need to be answered in the study
to be conducted by the National Institute of Justice are:
(1) How are potentially capital cases chosen for Federal rather
than state prosecution? What factors effect that decision? Is it
influenced by race, or by geography, or by other illegitimate or
arbitrary factors?
(2) Among those potentially capital cases that are prosecuted
federally, how does the DOJ decide when to seek the death penalty? What
factors affect that decision? Is it influenced by race, or by
geography, or by other illegitimate or arbitrary factors?
(3) How does the DOJ decide when to offer or agree to plea bargains
in capital cases, and when not to do so? What factors affect that
decision? Is it influenced by race, or by geography, or by other
illegitimate or arbitrary factors?
(4) What general prosecutorial policies, if any, affect the DOJ's
decisions to prosecute potentially capital cases, to seek the death
penalty, and to engage in plea bargaining in capital cases? If such
policies exist, how are they determined and how do they affect the
racial composition of the cases in which the DOJ seeks the death
penalty, and of the cases in which it is imposed? (for example, a
recent news article describes a difference in practice between the DOJ
units that investigate and prosecute mostly white ``organized-crime''
defendants, and those that deal with mostly minority ``street-crime''
defendants: the street-crime unit is far more likely to seek the death
penalty. See Tom Brune, ``The Two Faces of the Death Penalty; Minority
Gangs Face It, White Mobsters Do Not.'' Newsday, 6/13/01, P.A6.)
It is impossible to describe specifically the data that will be
needed to answer these questions until we find out what data are
maintained by the DOJ, and what data will be made available for this
study. To the extent that the data that need to be gathered can be
described in advance, they include:
(1) Data on the entire universe of homicides that could be
prosecuted as death-eligible federal offenses, including, to the extent
possible, information on the nature of the alleged crimes; the evidence
available to prove them; the criminal histories of the defendants and
the victims; and the age, sex and race of the defendants and the
victims.
(2) Data on potentially capital federal cases that are prosecuted
by the DOJ, including, to the extent possible, information on: the
nature of the alleged crimes; the evidence available to prove them; the
criminal histories of the defendants and the victims; and the age, sex
and race of the defendants and the victims.
(3) Data on the decision-making process in potentially capital
federal prosecutions, including, to the extent possible, data on: the
actions taken and the information considered in deciding whether to
prosecute a case federally, whether to seek the death penalty, and
whether to offer or to agree to a plea bargain.
(4) Data on any prosecutorial policies that affect the DOJ's
decisions to prosecute potentially capital federal crimes or to decline
to do so, to seek or not to seek the death penalty, and to engage in
plea bargaining or not to do so.
SUBMISSIONS FOR THE RECORD
Statement of American Civil Liberties Union, Washington, DC
News Release
ACLU CALLS ASHCROFT DEATH PENALTY POSITION SWITCH, REMARKABLE AND
UNBELIEVABLE
WASHINGTON--In light of last week's remarkable--and frankly
unbelievable--switch of positions by Attorney General Ashcroft on the
federal death penalty, the American Civil Liberties Union continued its
call today for the Justice Department to fulfill its pledge to
conclusively investigate the extent of racial and geographic disparity
in the imposition of the death penalty by the federal government.
``It appears that Mr. Ashcroft has decided to turn his bailiwick
into the Department of Injustice,'' said Rachel King, ACLU Legislative
Counsel. ``The Administration is obviously playing politics with
people's lives.''
In a preliminary report issued in September of last year, the
Justice Department found very significant disparities that led
President Clinton, a death penalty supporter, to impose a six-month
delay in what was scheduled to be the first federal execution in almost
40 years. During that six-month period, Clinton ordered the Justice
Department to finish its preliminary report.
The preliminary report had found that in 75 percent of the cases in
which a federal prosecutor sought the death penalty in the last five
years, the defendant had been a member of a minority group, and that in
more than half of the cases, the defendant was an African American.
But the report that came out last week from the new Bush
Administration Justice Department found no significant disparity.
The preliminary report found that 85 percent--or 17 out of 20--of
those on federal death row are people of color. And in 80 percent--or
548 out of 684--of the cases submitted to the Attorney General as a
possible federal death penalty case, the defendant was not white.
In addition to concerns about race and ethnic bias, the survey
revealed geographic disparities in the federal capital prosecutions
sought. For example, most death penalty prosecutions were pursued by
only a handful of federal prosecutors--42 percent or 287 out of 682 of
the federal cases submitted to the Attorney General for review came
from just 5 of the 94 federal districts.
``This Administration is seeking political cover for its desire to
execute Juan Garza,'' King said. ``Worse, they're willing to get it at
the expense of the truth. It's that simple.''
The ACLU is releasing a report detailing the problems with the
Justice Department's current analysis, and will be placing an ad in
Friday's Washington Times criticizing the findings.
News Article from Associated Press, June 14, 2001
Death Penalty System Racism Disputed
Washington (AP)--Days before a Hispanic drug dealer is to be
executed in the same chamber as Oklahoma City bomber Timothy McVeigh,
death penalty advocates told members of Congress that racism doesn't
exist in the federal death penalty system.
``In my experience for seven years as a federal prosecutor, I saw
no evidence that the race of defendants or victims had any overt or
covert influence on this process,'' said Andrew BcBride, former
Virginia federal prosecutor who testified before a Senate Judiciary
subcommittee on Wednesday. ``I believe the charge is fabricated by
those who wish to block enforcement of the federal death penalty for
other reasons.''
Juan Raul Garza, 44, is a convicted drug runner who killed one many
and ordered the deaths of two others he thought were informers. His
lawyers argue that he should be spared because there are more Hispanics
and blacks on federal death row than whites.
Sen. Russ Feingold, D-Wis., a death penalty opponent, said
Wednesday that 17 of the remaining 19 federal death row inmates are
minorities, 14 of whom are black. Besides Garza, no other death row
inmates have executions scheduled. Monday's execution of McVeigh was
the first time the federal death penalty has been carried out in 38
years.
Attorney General John Ashocroft issued a report last week that said
there is not evidence of racial bias in federal death penalty cases.
``The case of Juan Garza illustrates why the call for a moratorium
is misguided,'' said Sen. Orrin Hatch, R-Utah. He said Garza is facing
the death penalty because he is guilty of committing heinous crimes,
not because he is Hispanic.
Ashcroft's report differed from a report former Attorney General
Janet Reno issued in September that led former President Clinton to
delay Garza's execution for six months, until June 19. Reno's report
said the Justice Department found significant racial and geographic
disparities in the system.
Feingold said nothing had been done on Reno's limited study since
early January, despite Ashcroft's pledge to continue looking into the
issue.
``I believe that the execution of Juan Garza should again be
postponed, and indeed, there should be a moratorium on all federal
executions until a thorough and independent study by (the National
Institute of Justice) is completed and considered,'' Feingold said.
Julian Bond, chairman of the National Association for the
Advancement of Colored People, said, ``At no time since the death
penalty was reinstated by the Supreme Court in 1976 have Americans
voiced such grave doubts about the fairness and reliability of capital
punishment.''
Editorial from the Atlanta Journal-Constitution, June 8, 2001
The evidence is clear
Opponents of the death penalty should quit ignoring facts that
refute claims of racial bias and work instead to determine why
minorities are overrepresented in the commission of crimes.
When the U.S. Justice Department issued a report proving that
racial prejudice doesn't play any significant role in imposition of the
death penalty in federal cases, the reaction from staunch opponents to
capital punishment was predictable: Don't confuse us with the facts,
our minds are made up.
As we noted in an editorial last month, no objective and fair-
minded person can seriously argue that the system used to determine
which federal cases merit death-penalty prosecution is biased.
All cases in which capital punishment is a possibility are sent by
U.S. attorneys to a special review panel and eventually to the attorney
general; information about the ethnic background of the defendants is
concealed during this process. The result is that capital punishment is
recommended at a higher rate for white defendants than for minorities.
The fact that more blacks and Hispanics end up on federal death row
is the result, then, of the reality that more minorities are convicted
of crimes that carry the potential of capital punishment.
As we wrote earlier, even if there is no bias at the end of the
process, it would be useful to exmine earlier stages for signs of
questionable practices.
The Justice Department report issued this week does just that, and
produces a wholly satisfactory explanation. It turns out that there are
several special circumstances in various locations that have resulted
in a larger number of minority defendants being tried in the federal
court system for crimes that carry the death penalty.
In Puerto Rico, for instance, local authorities and the U.S.
attorney have an agreement that fatal carjacking cases should be
handled as federal, not local crimes. That resulted in 72 murder cases
being submitted for review during the past five years, all of them
involving Hispanic defendants.
In Virginia, federal prosecutors handled the cases of 66 defendants
charged with multiple murders committed by a non-white drug gang; in
California, prosecution of members of a ``Mexican Mafia'' prison gang
skewed the proportion of Hispanics sent up for death-penalty review;
and in the District of Columbia, where the U.S. attorney has
jurisdiction over local as well as federal crimes, 22 of 23 cases
involved minorities because the district's population is predominatly
black.
No amount of evidence, of course, will ever satisfy those who
simply oppose capital punishment altogether and seize on supposed
racial bias as a tool to use against the death penalty itself. But for
people to whom facts are important, this study offers considerable
reassurance that the federal criminal justice system is not driven by
racism, but in fact bends over backward to be certain that each stage
of the process is fair.
No institution created and operated by human beings can be perfect,
but this one appears to be as nearly above reproach as any we've seen.
If the critics really want to be useful, why don't they turn their
efforts to determining why minorities are overrepresented in the
commission of crimes, and see if they can find a cure for that?
Editorial from the Atlanta Journal-Constitution, Thomas Sowell, June
15, 2001
Journal: Opponents Getting Desperate:
examining the death penalty debate
Palo Alto, Calif.--The execution of Timothy McVeigh has again
raised the issue of capital punishment. Much of the case against
capital punishment does not rise above the level of opaque
pronouncements that it is ``barbaric,'' by which those who say this
presumably mean that it makes them unhappy to think of killing another
human being. It should. But we do many things we don't like to do
because the alternative is to have things that make us even more
unhappy.
As Adam Smith said, two centuries ago, ``Mercy to the guilty is
cruelty to the innocent.'' Those who lost loved ones in the Oklahoma
City bombing do not need to spend the rest of their lives having their
deep emotional wounds rubbed raw, again and again, by seeing Timothy
McVeigh and his lawyers spouting off in the media. McVeigh inflicted
more than enough cruelty on them already and they need to begin to
heal.
Sometimes those who oppose capital punishment talk of ``the
sanctity of human life.'' Ironically, many of these same people have no
such reluctance to kill innocent unborn babies as they have to execute
a mass murderer. But the issue of capital punishment comes up only
because the murderer already violated the sanctity of human life. Does
his life have more sanctity than the life or lives he has taken?
Shabby logic often tries to equate the murderer's act of taking a
life with the law's later taking of his life. But physical parallels
are not moral parallels. Otherwise, after a bank robber seizes money at
gunpoint, the police would be just as wrong to take the money back from
him at gunpoint. A woman who used force to fight off a would-be rapist
would be just as guilty as he was for using force against her.
It is a sign of how desperate the opponents of capital punishment
are that they have to resort to such ``reasoning.'' Since these are not
all stupid people, by any means, it is very doubtful if these are the
real reasons for their opposition to executions. A writer for the
liberal New Republic magazine may have been closer to the reason when
he painfully spoke on TV about how terrible he felt to watch someone
close to him die.
Nothing is more universal than the pain of having someone dear to
you die, whether or not you witness it. Nor should anyone rejoice at
inflicting such pain on someone else. But one fatal weakness of the
political left is its unwillingness to weigh one thing against another.
Criminals are not executed for the fun of it. They are executed to
deter them from repeating their crime, among other reasons.
Squeamishness is not higher morality, even though the crusade
against capital punishment attracts many who cannot resist anything
that allows them to feel morally one-up on others.
It is dogma on the political left that capital punishment does not
deter. But it is indisputable that execution deters the murderer who is
executed. Nor is this any less significant because it is obvious. There
are people who would be alive today if the convicted murderers who
killed them had been executed for previous murders they had committed.
Glib phrases about instead having ``life in prison without the
possibility of parole'' are just talk. Murderers kill again in prison.
They escape from prison and kill. They are furloughed and kill while on
furlough. And there is no such thing as life in prison without the
possibility of a liberal governor coming along to pardon them or
commute their sentence. That, too, has happened.
The great fear of people on both sides of the capital punishment
debate is making an irretrievable mistake by executing an innocent
person. Even the best legal system cannot eliminate human error 100
percent. If there were an option that would prevent any innocent person
from dying as a result of our legal system, that option should be
taken. But there is no such option.
Letting murderers live has cost, and will continue to cost, the
lives of innocent people. The only real question is whether more
innocent lives will be lost this way than by executing the murderers,
even with the rare mistake--which we should make as rare as possible--
of executing an innocent person.
Thomas Sowell is a senior fellow at Stanford University's Hoover
Institution. His column appears occasionally.
Statement of David C. Baldus, Joseph B. Tye Distinguished Professor of
Law, College of Law, University of Iowa
I have read U.S. Department of Justice, The Federal Death Penalty
System: Supplementary Data Analysis and Revised Protocols for Capital
Case Review (June 6, 2001) (``the report''), which supplements the DOJ
report of September 12, 2000. The following comments explain why in the
face of the findings and data in the DOJ September 2000 report, the
latest DOJ report utterly fails to convince me that there is no
significant risk of racial unfairness and geographic arbitrariness in
the administration of the federal death penalty. I believe there is
still the just as much reason to be concerned about these issues as
there was when the September 2000 report was issued.
1. The report completely overlooks the evidence of race-of-victim
discrimination documented in the September 12, 2000 report.
A main theme of the latest report (p. 10) is that the death penalty
authorization rate is higher for whites (.38) than it is for blacks
(.25) and Hispanics (.20). These are the same figures that appeared in
the September 2000 report. The latest report's emphasis on these
statistics appears to suggest that white defendants are actually
treated more punitively than minority defendants.
A more plausible explanation for the higher authorization rates for
the white defendants is plainly documented in the September report--(1)
white defendants are more likely to have killed whites \1\ and (2) the
U.S. Attorney charging and DOJ authorization rates are much higher in
white-victim cases than they are in minority-victim cases. For example,
data in the September 2000 report indicate that the Attorney General
(AG) authorization rate for capital prosecutions is .37 (61/167) in
whitevictim cases and .21(81/383) in minority-victim cases--a 16
percentage point difference that is statistically significant at the
.001 level. The more punitive treatment of white-victim cases is a
plausible alternative explanation for the higher authorization rates in
white-defendant cases that the new DOJ report does not even recognize,
let alone dispel.
---------------------------------------------------------------------------
\1\ For the cases for which both race-of-defendant and race-of-
victim data are available, 92% (109/119) of the white defendant cases
involved a white victim.
---------------------------------------------------------------------------
The September 2000 report also documents race-of-victim disparities
in the actual imposition of death sentences in the federal system.
Among all death-eligible offenders, those data indicate that the death-
sentencing rate from 1995 to 2000 is twice as high in white victim
cases as it is in minority victim cases. Nationwide, the rates are .05
(10/198) for the white-victim cases versus .02 (10/446) for the
minority-victim cases; in the eleven states in which death sentences
were actually imposed, the rate in the white-victim cases was .17 (10/
59) versus .08 (10/119) in the minority-victim cases--a nine
percentage-point difference.\2\
---------------------------------------------------------------------------
\2\ The race-of-victim disparity nationwide is significant at the
.06 level while the disparity in the states in which death sentences
have been imposed is significant at the .09 level. The states in which
death sentences were imposed between 1995 and 2000 are Arkansas,
Georgia, Illinois, Kansas, Louisiana, Missouri, North Carolina,
Oklahoma, Pennsylvania, Texas, and Virginia.
Of particular relevance are the race-of-victim disparities in case
involving black defendants. Nationwide, in black defendant/white victim
cases, the death-sentencing rate was .11 (6/55) while in the black
defendant/minority victim cases, the rate was .03 (7/253), an 8
percentage-point difference significant at the .O1 level. In the eleven
death-sentencing states, the death-sentencing rate in the black
defendant/white victim cases was .24 (6/25) while in the black
defendantlminority victim cases, the rate was .07 (7/95), a 17
percentage-point difference significant at the .02 level.
---------------------------------------------------------------------------
These are the same kinds of race-of-victim disparities documented
in McCleskey v. Kemp.\3\ The latest report simply ignores the data on
race-of-victim disparities in the charging and authorization process,
and in the actual imposition of federal death sentences.
---------------------------------------------------------------------------
\3\ 481 U.S. 279 (1987).
---------------------------------------------------------------------------
2. The report confounds the issue of ``regional disparities'' in the
administration of the federal death penalty with the issue of racial
disparities in the distribution of death eligible cases.
The report argues that we should not expect the proportions of
black, white, and Hispanic offenders among death-eligible cases that
are accepted for federal prosecution to correspond to ``the racial and
ethnic proportions in the general population.'' (p.13) Perhaps, but
that is not the question. The real issue in this regard is the racial
composition of the pool of death-eligible cases that are not accepted
for federal prosecution. The report offers no data on that question. As
a result, we do not know to what extent the death-eligible cases that
were prosecuted in federal court are representative of all homicides
that could have been charged as federal capital crimes, in the
districts that are discussed in the report (pp.14-18) and in the
country as a whole.
More importantly, the report seeks to equate its arguments
concerning geographic disparities in the racial distribution of death-
eligible cases with an explanation for clearly documented geographic
and regional disparities in the administration of the death penalty.
(Pp. 17-18) This is extremely misleading. The patterns that need to be
studied are differences between regions in the rates at which death
sentences are (a) sought by United State's Attorneys, (b) approved by
the Attorney General, and (c) imposed by juries.
The September 2000 report clearly shows that in practice the
federal death sentencing system is largely a Southern program. Twelve
of the 19 men on federal death row as of September were sentenced in
the South, including 6 from Texas and 4 from Virginia. The new report
focuses on regional differences in the racial composition of the pools
of potential capital cases that the districts have generated (p. 17).
This has nothing to do with regional disparities in the rates at which
death eligible defendants in the system are capitally charged and
sentenced to death.
3. The report presents no data or other compelling reasons to dispel
concerns about the exercise of discretion by U.S. Attorneys in the
post-authorization stage of the process.
One the most striking findings of the September 2000 report is that
in the period after the AG has approved a capital prosecution, 48% of
white defendants avoid the risk of a death penalty by entering a plea
agreement to a non-capital charge, while the rates that blacks and
Hispanics enter such agreements are 25% and 28% respectively. (p.19)
The department is obviously concerned about this issue because it plans
to limit the power of U.S. Attorneys to enter such agreements without
AG approval. (p. 22)
The report seeks to dispel concerns created by these data by
pointing out first that it ``takes two to make a plea agreement'' and
the data do not reflect racial differences in the rates at which the
government offered post-authorization plea agreements. This argument
raises an empirical question about the 62 cases (as of the September
2000 report) in which a postauthorization plea agreement was not
reached. Was a plea bargain offered by the prosecution in these cases
and rejected by the defense, or was none offered? It would have been
easy for the DOJ to ask its own prosecutors whether they offered plea
agreements in these cases. Apparently, it was not done.
The report further argues that even if differential acceptance
rates by white and minority defendants did not explain the race
disparities in the post-authorization guilty pleas, the September 2000
report's findings on this issue ``would not be suggestive of bias by
the U.S. Attorney's offices.'' (p. 20) The argument is that the
detection of discrimination by U.S. Attorneys must rest on an analysis
of ``what happens in the process as a whole'' and that decisions taken
``at the final plea stage are uninformative as possible indications of
bias by the U.S. Attorney offices.'' (p.20) Certainly it is important
to view the system as a whole, but prior research demonstrates that
race disparities may operate at discrete stages in a decision making
process that overall appears to be evenhanded. There is serious cause
for worry here, and the report makes no attempt to address it.\4\
---------------------------------------------------------------------------
\4\ The report's argument also overlooks the fact that many of the
post-authorization plea agreements are made in cases in which the U.S.
Attorney's initial recommendation to waive the death penalty was
overruled by the AG, a circumstance that needs to be factored into any
analysis of the post-authorization decisions.
---------------------------------------------------------------------------
The claim that no differential treatment exists in the post-
authorization plea stage is a mere assertion with no evidence whatever
to support it. Without data on the comparative culpability of the
offenders (and the race of the victims) in the cases affected by these
postauthorization pleas bargaining decisions, one has no idea the
extent to which similarly situated defendants were in fact treated
comparably.
4. The report provides no compellin reason for the DOJ's failure to
authorize a comprehensive state of the art study of fairness in the
administration of the federal death penalty system.
The report notes a meeting of ``researchers and practitioners on
January 10, 2001'' in Washington D.C. to consider the feasibility of
conducting a comprehensive empirical study and evaluation of fairness
in the administration of the federal system. (p.11) 1 was one of the
researchers at that meeting.
The report correctly states that there was general agreement at the
January meeting that the conduct of such a study would entail a
``multi-year research initiative.'' Two years would be the likely time
line. In the meantime, half a year has passed since that meeting, and
nine months since the release of the initial report, and neither the
NIJ nor any other agency of the Department of Justice has taken any
visible step to begin to make such a study possible. Quite the
opposite. Attorney General Ashcroft's testimony last week suggested
that he believes that the idea should be abandoned.
The report also states that ``discussion'' at the January 10
meeting ``indicated,'' that such a study ``could not be expected to
yield definitive answers concerning the reasons for disparities in
federal death penalty cases.'' This was certainly not the consensus of
the researchers at the January 10 meeting. On the contrary, the
consensus was that such a study would provide the best possible
evidence on the question. Certainly the results of such a study would
yield far more definitive answers to the issue of racial fairness in
the system than the arguments presented in the department's latest
report.
The new report offers no reason at all why such a study should not
be conducted even if it would require up to two years to complete. It
also offers no reason why the DOJ appears unwilling to identify by
defendant name and docket number the more than 700 death-eligible cases
that make up the database for its latest study. With this information
independent researchers could collect data on the cases in the DOJ
database and conduct the kind of study that would provide the best
evidence available on the question of fairness in the federal death
sentencing system.
5. The report misconceives the nature of race discrimination in the
administration of the federal death penalty.
A main theme of the report is that the core issue of racial
fairness is whether U.S. Attorneys are consciously engaged in
``favoritism towards White defendants.'' (p. 11) In other words, are
their decisions based on ``invidious'' racial reasons (p.12) or
motivated by ``bias'' (p. 20) or a ``particular desire to secure the
death penalty for minority defendants.'' (p. 17) This states the issue
far too crudely. No one with an understanding of the system suggests
that it is driven by such a conscious and blatant animus against
minority defendants or defendants whose victims are white.
The concern about racial unfairness in the system is whether
defendants with similar levels of criminal culpability and
deathworthiness are treated comparably or differently because of their
race or the race of their victims. The reasons for differential
treatment by U.S. Attorneys--and by agents of the FBI, the DEA and
other are federal law enforcement agencies--are almost certainly
nonconscious. More importantly, the reasons for the differential
treatment of similarly situated offenders on the basis of their race or
the race of the victim are irrelevant. It is the fact that differential
treatment cannot be explained by legitimate case characteristics that
makes it morally and legally objectionable, when it exists. Without a
systematic study based on full information concerning the criminal
culpability and the race of the victims of all of the death eligible
offenders, we will remain in the dark about whether unexplained
differential treatment based on the race of the defendant and victim
exists in the federal death penalty system, and if so, what causes it.
Editorial from the Boston Globe, Jeff Jacoby, June 18, 2001
Death penalty `arguments'
TWO DAYS after Timothy McVeigh's execution, The New York Times
published eight letters to the editor discussing the event and
expressing an opinion on the death penalty. Six of the eight were
against executing murderers, one was in favor, and one was in favor in
a case of mass atrocity like McVeigh's.
Four days earlier, the Times had published a letter from a death-
penalty supporter. The day before that there had been three letters on
the subject, all opposed. A few days earlier, three more letters;
again, all opposed. And four letters opposing capital punishment had
appeared in May, around the time McVeigh was originally supposed to
die.
By my count, then, over the past six weeks the Times has run 19
letters remarking in some fashion on the death penalty, of which 16-
84--percent were anti-execution.
Now, letters to the editor, even in the nation's unofficial ``paper
of record,'' are no gauge of public opinion. It is common knowledge
that Americans support capital punishment--in McVeigh's case,
overwhelmingly.
But even if letters published in the Times are no reflection of
society at large, they do tell us one thing: what sort of letters the
Times, with its global readership and famously high standards, deems
worthy of publication.
So it is striking that the collective case made by the Times's
recent blizzard of anti-death penalty letters was so feeble.
With McVeigh's death, wrote Rob Ham of California, ``What has
changed? The victims are still dead. Do the families now have closure?
Can anyone ever have closure after losing a child, a husband, a wife,
or a parent? ''
This is an appeal to emotion, not reason. Of course the victims are
still dead. They would still be dead if McVeigh had gotten life in
prison, too. Or 20 years. Or probation. No one thinks the purpose of
punishment is to undo the crime, yet death penalty abolitionists
routinely remind us that killing a murderer won't bring his victims
back to life. If that is a reason to ban executions, it is a reason to
ban all punishment.
Ham's ``closure'' argument, meanwhile, is simply uninformed. The
families of murder victims do not stop mourning when the killer dies,
but for many, there is indeed a measure of solace in knowing that the
monster who destroyed their loved one will never hurt anyone again.
Abolishing executions certainly won't bring ``closure'' to grieving
relatives. On the contrary, it will deepen their torment, mocking them
each time they remember that the person they their torment, mocking
them each time they remember that the person they loved is in the
grave, while his killer continues to breathe.
From Michigan, Dawne Adam wrote that she wept at the news of
McVeigh's execution. ``It is barbaric for any country to murder its
citizens, despite the damage they may do.''
The barbarism of the death penalty is taken for granted by anti-
execution fundamentalists. They believe fervently that when the state
kills, it commits a great evil. This is not something they can prove
logically or explain rationally--it is, for them, simply an article of
faith.
Why is it barbaric to require that one who violently steals the
life of an innocent (or 168 innocents) not be allowed to keep his own?
Where is the moral tradition that prescribes life for mass-murderers?
How can it be civilizing to tell the world's worst people that no
matter how many victims they butcher, no matter what cruelty they
inflict on others, the worst that will happen to them is that they will
go to prison? Those are questions that abolitionists never answer.
``The loss of freedom for the remainder of one's life is no mild
punishment,'' James Bernstein of New York wrote to the Times. ``We do
not need the death penalty to express society's utter repudiation of
those who would take the lives of others.''
Bernstein has it exactly wrong. A society that bans the death
penalty outright Buy a Globe photo is confirming that it does not
utterly repudiate its worst murderers. The United States last week made
clear just how seriously it regards McVeigh's monstrous crime. Change
the law so that no future McVeigh can be put to death, and the United
States will be sending a different message: Mass murder isn't that bad.
Other letters made even weaker arguments. McVeigh should have been
kept alive, in one Oklahoma writer's view, so scientists could study
him and ``try to determine the cause of these acts of violence.'' A
Michigan psychologist wanted him spared so we could analyze ``the
psychopathy that creates people Search the Globe: like him.''
And then there were those who hated to see McVeigh miss out on the
finer things in life.
``Would we not all have been better off it Mr. McVeigh had lived a
long, secluded life in prison?'' asked Michael Pressman of New York.
``He could have read history and literature. He could have painted and
sculpted and listened to great music. His new-found knowledge and
maturity could have obliterated his warped views. He could have lived
in profound regret.''
Those of us who favor death for murderers rely on history, on
common sense, and on a moral tradition stretching back to Sinai. But in
our time as in all times, there are those who would rather let
evildoers get away with murder. The debate goes on.
Article from the Boston Herald, Don Feder, June 20, 2001
Timothy McVeigh was a test of faith for anti-death penalty die-
hards. With Juan Raul Garza, executed yesterday in Terre Haute, Ind.,
they were on more familiar ground.
The drug dealer and convicted murdered of three became the second
federal prisoner executed since 1963. Late last year, then-President
Bill Clinton issued a stay of execution after a Justice Department
study disclosed that between 1995 and 2000, where U.S. attorneys sought
the death sentence, 80 percent of defendants were minorities.
This led NAACP Chairman Julian Bond to sermonize, ``I don't believe
that anyone, ever the strongest supporter of the death penalty, wants
anyone to die unfairly,'' Note that Bond isn't specking of the innocent
dying, but violation of some mythical standard of absolute fairness.The
possibility that a disproportionate number of minorities may be
committing capital crimes under federal law never penetrates their
mindset.
A more recent study showed that where the feds could have sought
the death penalty, they did so 58 percent of the time when the
defendant was Hispanic, in 79 percent of cases where he was black and
in 81 percent of cases where the accused was white.
Two of Garza's victims were Hispanic, as was the judge who tried
this case and the assistant U.S. attorney who prosecuted him. Bias here
exists only in the eyes those who see everything through race-colored
glasses.
Sadly for them, the race card couldn't be played with McVeigh.
``We're executing too many white, militia types,'' just doesn't cut it.
The mad bomber admitted to his horrific crimes, for which--to his dying
breath--he showed no remorse.
According to a Gallup poll, 81 percent of the American people
wanted McVeigh put down. Among them were 58 percent of those who say
they're against capital punishment.
Death penalty opponents were reduced to stamping their feet like
petulant children. ``We're giving him exactly what he wants''--a media
menagerie followed by a quick end--they pouted.
Quite the contrary. After his conviction, McVeigh decided not to
prolong the inevitable. When there seemed to be a chance that his
sentence might be overturned--based on FBI files not initially turned
over to the defense--he instructed his attorneys to petition for a stay
of execution.
When it became clear that this was futile (after the 10th U.S.
Circuit Court of Appeals turned him down), he accepted his fate.
McVeigh wanted to live but knew his course was hopeless.
Yes, but whether clear that this was futile (after the 10th U.S.
Circuit Court of Appeals turned him down). he accepted his fate.
McVeigh wanted to live but knew his cause was hopeless.
Yes, but whether or not a murderer wants to die, life in prison is
a much better punishment, opponents urge. Let him rot in a cell.
If Timothy McVeigh had lived another 60 years behind bars, he would
have spent that time using his screwball philosophy to justify his
atrocities--mocking his victims and their families in the prcess.
What exactly did those who opposed his execution have in mind for
the mass murder? That he be kept in solitary confinement, shackled and
blindfolded, denied diversions and all human contact?
Hardly. Wile McVeigh's life in prison would been circumscribed,
Still he would have visits from family and friends, letters from
deranged admirers, and access to books, music and television.
Opponents think themselves especially clever when the observe that
an execution won't resurrect the murderer's victims. But punishing a
rapist won't undo his crime either. There are very few cases, mostly
restitution for property crimes, where the victim is returned to his
original condition.
For death-penalty foes, the argument doesn't turn on racism,
innocents dying or any of the other facile arguments advanced.
Exhibit A is Michael Radelet, a University of Florida professor who
candidly argues, ``The death penalty debate is not about the McVeighs
and Bundys,'' but ``the poor, victims of child abuse, people who had
bad attorneys.'' (Ted Bundy was a notorious serial Killer of the
1970's.)
In other word, if the murderer was impoverished, aroused, a victim
of discrimination, denied the services of a Johnnie Cochran Jr.--if he
was emotionally deprived, confused--he doesn't deserve to die.
Given enough time, Radelet and Co. could find extenuating
circumstances for any killer, even a McVeigh or a Bundy.
Article from the Dallas Morning News, Michelle Mittelstadt, June 14,
2001
Some urge more study of death penalty, bias
Washington--A week after Attorney General John Ashocroft declared
there is no evidence of racial or ethnic bias in the use of the federal
death penalty, his remarks are continuing to provoke consternation on
Capitol Hill.
Senate Democrats and several witnesses at a congressional hearing
hastily called in advance of next week's execution of a Hispanic
murderer from Texas said Wednesday that it's far too early to make such
a sweeping pronouncement.
``That conclusion is premature and not based in fact,'' said
Columbia university law school professor Samuel Gross, a death penalty
expert.
He and others contend that further analysis is required to explain
the cause of persistent racial and geographic disparities that are most
graphically manifested by the composition of federal death row--where
17 of the 19 convicts are minorities, more than half of them dispatched
there by just two states: Texas and Virginia.
``We cannot in good conscience put people to death until we are
confident in the fairness of the system that leads to those
decisions,'' said Sen. Russell Feingold, D-Wis., chairman of the Senate
Judiciary subcommittee that held Wednesday's hearing. ``I do not yet
have that confidence, and many in the country share my concerns.''
TRAFFICKER'S CASE
Mr. Feingold, who is pressing for a moratorium on federal
executions until questions about the treatment of minorities are fully
answered, renewed his call for the government to halt the impending
execution of Brownsville marijuana trafficker Juan Raul Garza.
The 44-year-old, who was sentenced to death for the murders of
three associates, faces lethal injection Tuesday at the federal
execution facility in Terre Haute, Ind., where Oklahoma City bomber
Timothy McVeigh met his death Monday. Mr. Garza's lawyers are asking
President Bush to commute his sentence to life imprisonment without
possibility of parole, contending that the capital punishment system is
``grossly'' discriminatory.
The attorney general has said he knows of no reason to defer Mr.
Garza's death date. He also opposes a moratorium on executions.
Mr. Ashcroft said last week that a Justice Department review of
nearly 1,000 cases in which defendants were charged with federal crimes
punishable by death turned up ``no indication'' of any racial or ethnic
bias.
The study ``provides no evidence of favoritism towards white
defendants in comparison with minority defendants,'' Deputy Attorney
General Larry Thompson reiterated Wednesday. While the study found that
more minorities are charged with crimes punishable by death, he said
white defendants were statistically more likely to be recommended for
capital prosecution at every level of the process.
SUBJECT OF CRITICISM
That study, which is a follow-up to a Justice Department study last
year that found pronounced racial and geographic disparities, was
roundly denounced by critics.
``We reject any suggestion that the report released by Mr. Ashcroft
on June 6 constitutes a reliable or thorough study of possible racial
and regional bias in the federal death penalty system,'' NAACP Chairman
Julian Bond told the subcommittee.
He and others say there cannot be a definitive answer about whether
the system is biased until researchers examine prosecutors' decisions
on which criminal charges to file; which plea bargains to grant; or
whether to file in state or federal court.
Some of those questions could be answered by a study that Mr.
Ashcroft is directing the National Institute of Justice to undertake,
using independent experts to examine the prosecution of murder cases at
the state and federal levels. That review first was suggested by Mr.
Ashcroft's predecessor, Janet Reno, but never got off the ground.
Mr. Feingold, who was critical Wednesday of the delay in starting
the National Institute of Justice study, said it would be a ``tragic
mistake and an unnecessary mistake'' to execute Mr. Garza while the
latest study is in progress.
There was little sympathy for that view--or for a moratorium--from
subcommittee Republicans, who noted that Mr. Garza's guilt is not in
doubt. The prisoner has acknowledged responsibility for the crimes.
``Like all of the defendants on federal death row, Mr. Garza faces
execution not because of his race, ethnicity or place of residence, but
because he is guilty of committing heinous crimes,'' said Sen. Orrin
Hatch, R-Utah.
The hearing, said Sen. Strom Thurmond, R-S.C., is ``really about an
endless political effort to discredit the death penalty by any possible
means.''
James Fotis, executive director of the Law Enforcement Alliance of
America, a lobbying group, bristled at what he called ``baseless and
shameful racist accusations that law enforcement officers are somehow
selectively apprehending criminals based on the color of their skin.''
But, Mr. Feingold replied, ``No one has accused anyone in the
system of being intentionally racist or biased.''
COCAINE QUESTION
Sen. Jeff Sessions, R-Ala., questioned whether some of the racial
disparity in the system might be due to federal sentencing guidelines
that order far harsher penalties for crack cocaine than powder cocaine.
The federal government's focus on drug trafficking does play a
role, said Mr. Thompson, the deputy attorney general ``In areas where
large-scale, organized drug trafficking is largely carried out by gangs
whose membership is drawn from minority groups, the active federal role
in investigating and prosecuting these crimes results in a high
proportion of minority defendants,'' he said.
Department of Justice
Drug Enforcement Administration
Washington, D.C. 20537
The Honorable Russ Feingold
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
After reviewing the testimony of Samuel R. Gross before the United
States Senate Judiciary Subcommittee on Constitution, Federalism, and
Property Rights on June 13, 2001, I feel compelled to respond to some
of his points which I believe acre erroneous. Mr. Gross suggests that
the Federal Bureau of Investigation (FBI) and the Drug Enforcement
Administration (DEA) discriminate by race in the initial decision to
undertake a federal investigation.
Mr. Gross states that ``The Ashcroft Report focuses on the
professionalism of Assistant United States Attorneys, the lawyers who
make the legal decisions once a case has been taken on. But the initial
decision to undertake a federal investigation is often made by law
enforcement agents rather than prosecutors, by the FBI or the DEA,
rather than United States Attorneys. Perhaps these two sets of DOJ
employees have different patterns of behavior.'' Mr. Gross continues by
asking ``Are Federal law enforcement agencies, the FBI and the Drug
Enforcement Administration searching for African American and Hispanic
drug dealers because they think they know that the worst drug
traffickers are all black or Latin American- Are the racial disparities
is Federal capital prosecutions a manifestation of race-specific drug
investigations?''
For the record, I would like to inform the committee that the men
and women of the Drug Enforcement Administration (DEA) do not engage in
racial profiling, nor do they engage in discriminatory practices on the
basis of ethnicity--More specifically, DEA does not adopt a blanket
assumption that individuals engage in criminal activity simply because
they are minorities. To the contrary, crime is universal, and DEA
investigates illegal activity wherever it may occur. Furthermore, DEA
does not selectively enforce the law based upon race or ethnicity as a
basis for law enforcement action. Drug enforcement based on race or
ethnicity is not only ineffective, but it is illegal.
The DEA does not use race, national origin, or religion as part of
a ``profile'' to target individuals. Rather, in making investigative
decisions, DEA relies on other factors which, in the totality of the
circumstances, create reasonable suspicion that an individual is
involved in criminal activity.
Mr. Chairman, attached is a memo from me to the men and women of
the DEA articulating my unwavering opposition to the unlawful use of
race or ethnicity in the discharge of our law enforcement duties. I
respectfully request that this letter, and the attached memo be entered
into the hearing's official record.
I would like to assure the Committee that DEA will continue to
uphold its longstanding opposition to racial profiling and that I, as
the Agency head, will not tolerate any form of racial or ethnic
profiling in the discharge of DEA's mission.
Sincerely,
Donnie R. Marshall
Administrator
Memorandum of Donnie R. Marshall, Acting Administrator, Drug
Enforcement Administration, Washington, DC
Executive Order: Fairness in Law Enforcement (FFS: 601-Q2.1)
all dea employees
Over the last two years, there has been increased national
attention given to racial profiling--the unlawful use of race or
ethnicity is the discharge of law enforcement duties. At ever
opportunity, while working with the Department of Justice, DEA has
always articulated its unwavering opposition to this unlawful and
unethical technique.
AS ever, I continue to state emphatically that DEA has not and will
not investigate or collect intelligence against any one or say group
based on their racial or ethnic makeup. DEA investigates individuals
and criminal organizations-regardless of their origin or base of
operation-that manufacture and traffic illicit drugs throughout the
United States.
Crime is universal. Race sad ethnicity, therefore, are never a
basis for law enforcement to suspect an individual of wrongdoing. In
both DEA policy and case law, it is well established that a law
enforcement officer may not rely on race or ethnicity as the sole basis
for law enforcement action, such as a traffic or pedestrian stop or a
request for consent to search.
On June 9, 1999, the President issued an Executive Order entitled,
Fairness in Law Enforcement. Collection of Data. This Order directs the
Departments of Interior, Justice, and Treasury to; (1) begin collection
of Federal law enforcement data is as attempt to track the truce,
ethnicity, and gender of persons stopped or searched by law
enforcement; and (2) prepare a report on training programs, Policies,
bad practices regarding the rue of rare, ethnicity, and gender in
Federal law enforcement activities, along with recommendations far
improving those programs, policies and practices. In compliance with
the Order, and at the request of the Attorney General, DEA nominated
Operation Jetway for inclusion in the pilot study. The pilot study is
underway in several Jetway sites around the nation. The Attorney
General will report to the President it the end of the first year field
test. According to the Order, the Attorney General's report shall
include:
(i) an evaluation of the first year of the field test; (1) an
implementation plan to expand the data collection and reporting
system to other components and locations within the agency and
to make such system permanent; and (iii) recommendations to
improve the fair administration of law enforcement activities.
I will continue to uphold DEA's longstanding position and, as the
Agency head, will not tolerate any form of racial or ethnic profiling
in the discharge of DEA's mission. Supervisors end managers and will
continue to be, held accountable for the quality, outcomes, and
constitutionality of encounter, with the public.
Proactive narcotics law enforcement is an effective way to protect
the public from drug-related crime and violence. Drug enforcement based
on race or city is not only ineffective, but is unethical and illegal.
Such methods have no place in DEA, nor in law enforcement in general.
U.S. Department of Justice
Federal Bureau of Investigation
Washington, D.C. 20535
June 13, 2001
Hon. Russ Feingold, Chairman
Subcommittee on the Constitution,
Federalism and Property Rights
Committee on the Judiciary
Washington, D.C. 20510
Dear Mr. Chairman:
We understand the deep concern that you and your colleagues have
that the criminal justice system be administered without consideration
of race. This principle is fundamental to the fairness of our system
and one to which the FBI constantly dedicates itself in every aspect of
enforcing the laws.
Submitted for your hearing today is testimony of Professor Goss of
Columbia University suggesting that the FBI and DEA determine which
federal drug investigations to undertake based upon the race of the
drug dealers involved. While examination of the issue can be a healthy
exercise to help address this postulation, reaching such a conclusion
ignores the laws, guidelines, and congressional and judicial scrutiny
under which we operate. Just as in every type of violation addressed by
the FBI, race is not and cannot be a factor, let alone the dominant
factor, in determining whether the threshold guidelines predicate has
been reached for conducting an investigation.
Our commitment and our practice is to expend our valuable
investigative resources in a manner that is color blind, regardless of
the program or violation. Consistent with our strategic plan, resources
dedicated to fighting violent crimes and major drug organizations are
deployed based on analysis of factors such as crime patterns,
complexity, levels of available local resources, levels of violence,
degree of organized gang enterprises, and the likely impact our efforts
will have on the overall safety of the community. There is no place in
the equation for any factors that are not color blind in their
application. This is true for these programs and every other, whether
it be cybercrime, terrorism or any other of our major investigative
programs.
Finally, I might add that the FBI devotes considerable resources to
vigorously enforce the civil rights laws. No law enforcement officer is
immune from investigation and prosecution for violating these laws.
There is no alternative if we are to ensure fairness in the application
of criminal justice.
Sincerely yours,
Ruben Garcia, Jr.
Assistant Director
Criminal Investigative Division
Federal Law Enforcement Officers Association
Lewisberry, PA 17339
June 12, 2001
Hon. Russ Feingold, Chairman
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Hart Building, Room 506
Washington, DC 20510
Honorable Strom Thurmond
Ranking Member
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Russell Building, Room 217
Washington, DC 20510
Dear Mr. Chairman and Ranking Member:
On behalf of the more than 19,500 members of the Federal Law
Enforcement Officers Association (FLEOA), I wish to express our strong
opposition to any national moratorium on the death penalty. FLEOA
believes the option of imposing the death penalty should be available
in certain extreme cases--In each of the pending cases in the federal
system there is no doubt whatsoever of the person's guilt, nor is there
any question that they haven't been afforded complete and competent
counsel.
FLEOA is a volunteer, non partisan, professional association,
exclusively representing federal agents, with members from the agencies
listed on our left masthead. We recognize and understand the concerns
expressed by individuals who want to ensure that any one convicted of
heinous crimes is afforded all rights and privileges accorded under our
Constitution. However, once these rights are afforded and a person is
convicted and a jury determines this person should forfeit his right to
live--than this option should be available. This would even include any
federal agent (Philip Hassen) why would sell our country's most
valuable secrets to our enemies.
On a personal note, in my Basic Criminal Investigators Class at the
Federal Law Enforcement Training Center was Paul Broxterman. On April
19, 1995, he was sitting in his office in the Murrah Building in
Oklahoma City, OK. He died that day along with 7 other federal agents,
19 children and 141 other people. It is our belief, any one
perpetrating a crime such as this forfeits his right to exist in our
society.
If you have any questions, or need further information please feel
free to contact me directly at (212) 264-8406, or through FLEOA's
Administrative offices at the numbers listed above. Thank you for your
attention to this matter.
Richard J. Gallo
Federal Law Enforcement Officers Association
Lewisberry, PA 17339
June 13, 2001
Hon. Russ Feingold, Chairman
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Hart Building, Room 506
Washington, DC 20510
Honorable Strom Thurmond
Ranking Member
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Russell Building, Room 217
Washington, DC 20510
Dear Mr. Chairman and Ranking Member:
On behalf of the more than 19,500 members of the Federal Law
Enforcement Officer Association (FLEOA), I wish to address an false
accusation of racism by federal law enforcement officers being made by
Samuel R. Gross who is testifying before you Subcommittee today. Page
seven of Gross' testimony, in substance, insinuates the FBI and DEA
make decisions to initiate investigations based on a discriminatory
racial basis. FLEOA believes nothing can be further from the truth.
FLEOA is a volunteer, non partisan, professional association,
exclusively representing federal agents, with members from the agencies
listed on our left masthead. We appreciate someone who has passion for
his point of view, since we believe law enforcement is a calling, not
just a job. However, when someone's passion is so great he manipulated
the truth and thus becomes less than credible we feel it is our
responsibility to bring this to your attention.
Federal law enforcement has many levels of oversight. We take a
moment to remind everyone that each department has its own Internal
Affairs unit as well as an Inspector General's Office. In addition,
there is the Office of Professional Responsibility, the Civil Rights
Division of the DOJ, tile FBI and many individual U.S. Attorney's
offices. Historically, state and local prosecutors investigate the
actions of Federal officers involved in shootings, or high profile
cases of alleged wrongdoing. Federal Agents are subject to civil suits
in Federal, state and local courts.
Finally, there is Congress itself, which is the ultimate oversight
authority, since they control the purse strings of each agency. I
challenge anyone to name a state or local law enforcement group that
has as many layers of oversight as the Federal law enforcement
community. If Gross has ever seen, heard or dreamed about any such
decision that he implies the FBI and DEA are making, why has he never
spoken out before this? Is he shy? Doesn't he know whom to call? Or is
it. possible his passion over an issue tie feels so strongly about has
blinded him to a higher set of ethics? FLEOA hopes you can get the
answer since his statement may start as misguided accusations but then
mutate into the media exclaiming this ``theory'' as the given truth.
Thus, Gross will do more harm to our society and the law enforcement
officers within it then he may realize.
If you have any questions, or need further information please feel
free to contact me directly at (212) 264-8406, or through FLEOA's
Administrative offices at the numbers listed above. Thank you for your
attention to this matter.
Richard J. Gallo
National President
Fraternal Order of Police
Albuquerque, New Mexico 87109
June 13, 2001
The Hon. Strom Thurmond Ranking Member,
Subcommittee on the Constitution,
Federalism and Property Rights
United States Senate
Washington, D.C. 20510
Dear Senator Thurmond:
I am writing on behalf of the more than 294,000 members of the
Fraternal Order of Police to express our views at the hearing being
held today on the application of the death penalty as examined through
the lens of race, It is my hope that the hearing will affirm the
results of a review initiated by former Attorney General Janet Reno--
the death penalty is meted out to our nation's worst criminals,
regardless of their race.
The FOP supports the use of the death penalty at the state and
federal level. This week, for the first time in almost forty years, a
federal execution was carried out. Timothy McVeigh's horrific cringe
precluded any real debate about whether the death penalty was
appropriate in his case. Clearly, it was. However, X remind you and the
Subcommittee that there are twenty-one (21) other criminals on death
row whose crimes may lack the scope of this terrorist, but are
deserving of the death penalty nonetheless.
We urge the Subcommittee to reject any suggestion or legislation
that would end, curtail or delay the use of the death penalty at the
federal level. If the death penalty is to be effective justice, federal
executions must continue. It is our hope that Juan Raul Garza will be
executed as scheduled on June 19. A moratorium on the death penalty is
a moratorium on justice for the victims of the most heinous of crimes.
There is no evidence that a moratorium is necessary and to delay
the application of justice in capital crimes thwarts the aims of
justice and the will of the people and the Congress that put these laws
in place. We do not want the administration of justice to become a
political football.
In fact, we would ask that you consider joining with us to correct
a loophole in federal law that makes the death penalty applicable to
any person who murders a state or local law enforcement officer only if
that officer is assisting a federal law enforcement officer or a
federal investigation. We believe that anyone who murders a law
enforcement officer--local, state or federal--should face the death
penalty.
I thank you for your attention to the views of our nation's police
officers, if I can be of any further help on this or any other issue,
please do not hesitate to contact me or Executive Director Jim Pasco
through my Washington on office.
Sincerely,
Gilbert G. Gallegos
National President
Statement of Joseph D. Hubbard, District Attorney, Calhoun County
Courthouse, State of Alabama
Dear Senator Sessions:
On his last day in office, President Clinton commuted the death
sentence of David Ronald Chandler who had been convicted ire United
States District Court for the Northern District of Alabama in 1991 for
murder in the furtherance of a continuing criminal enterprise. The
Supreme Court of the United States was soon due to consider this case
further when the commutation was granted. I implored the President not
to intervene. While Chandler's attorneys and supporters, many in the
media, have viciously attacked the integrity of those investigators and
prosecutors who diligently pursued Chandler, the truth is that the
President commuted a death sentence that was appropriate and fair under
the circumstances of the case. My understanding is that the former
Attorney General concurred, at least tacitly, in the President's
actions. It is disheartening that both of these officials saw tit to
turn their backs on their line personnel who had done nothing except
vigorously enforce the law as written.
The evidence at trial showed that Chandler was the controlling
partner in a large marijuana growing, transporting and trafficking
operation between 1957 and 1990. He and his partners cultivated and
harvested thousands of marijuana plants in eastern Alabama and western
Georgia, and bought and sold large quantities of marijuana fair
distribution. Testimony showed Chandler had attempted to use deadly
physical force against a Georgia Bureau of Investigation officer upon a
previous arrest, and that Chandler had said that ``if he got set up
again, he'd have to kill somebody.''
Persons with intimate knowledge of Chandler's operation testified
that Chandler had solicited them to kill an informant and the local
police chief who had been instrumental in bringing Chandler's
activities to the knowledge of state and federal law enforcement
officials, according to these witnesses, Chandler offered money to
secure these deaths, even providing a weapon for such use Martin
Shuler, the deceased victim of Chandler's crime, informed local law
enforcement in March 7, 1990 that Chandler was having marijuana
distributed from the home of Shuler's ex-wife, Donna Shiner. A search
warrant revealed Shiner's allegations true and Ms. Shuler was arrested
for her possession of one kilogram of marijuana. The evidence at trial,
indicated Chandler learned of Martin Shuler's informant activities
during the legal proceedings concerning Ms. Shuler's arrest, Chandler,
according to one witness, solicited him, to kill Shuler and the local
police chief because of their intruding into his marijuana distribution
process.
Charles Ray Jarrell, Chandler's brother-in-law who worked with
Chandler in the growing and distribution, of the marijuana, testified
Chandler offered him money on several occasions to ``take care'' of
Martin Shuler Jarrell further testified that on the day of Shuler's
death, Chandler told him Shuler was ``going to cause us a lot of
trouble'' and that Jarrell ``better go on and get rid of him.''
Chandler told him he still had the money available to pay Jarrell if he
would do as he was asked, Jarrell testified that, using a gun given to
him by Chandler, he shot Shuler while they visited a local lake, that
he and Chandler buried the body in a remote mountain area, and hid
Shuler's car Jarrell later led authorities to the gravesite. An autopsy
was performed that revealed Shuler died from a gunshot wound to the
back of the head.
Later, in August and September, 1990, Chandler made threats with
respect to two other individuals who, according to testimony, he
believed were stealing his marijuana from where it was being grown or
stored. Neither of those individuals have been seen after early
September 1990. Their families have never been allowed to bury their
loved ones, yet Chandler has been able to sway the President of the
United States that his fife should be spared.
Chandler's attorneys have painted their client as a ``Robin Hood''
type character and his prosecutors has suborners of perjury and liars
themselves, They offer Jarrell's recantation of his trial testimony as
incontrovertible evidence of Chandler's innocence when, in actuality,
it is only one brother-in-law doing his best to have anorher removed
from a death row cell he helped build. After 23 years of prosecuting
criminals, I know there are no winners or losers in cases such as these
only--justice should win. In this case, justice is mysteriously absent.
Birmingham, Alabama
June 11, 2001
Chairman Russell Feingold,
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington, DC
Dear Chairman Feingold and Committee Members
It is my understanding that the judiciary committee wants to
somehow derail the federal death penalty. I am one who has witnessed
first hand what violent crime can do to devastate a family. My only
son, Dewayne was violently beat to death. There is no way the defendant
could ever feel the pain or injustice that me and my family has felt.
Justice truly is only served when the convicted murderer is given his
just sentence. Being an African-American, some of my brethren might
disagree. But, until you live through what we have lived through, you
cannot possibly make that decision. I implore you all to not water down
or try to place a moratorium on the death penalty. If you do, there
will be more acts performed by cowards like Timothy McVeigh and there
only punishment will be life. Thank you for your time in reading my
letter.
Sincerely,
Lucy Jackson
The Law Enforcement
Alliance of America
Falls Church, VA
June 13, 2001
Hon. Russell D. Feingold, Chairman
Committee on the Judiciary
Subcommittee on Constitution, Federalism
and Property Rights
United States Senate
Washington DC 20510
Dear Mr. Chairman,
As a former federal law enforcement officer, I have seen the need
for appropriate punishment in our criminal justice system. On those
rare occasions when we are confronted by the most horrible criminals
and their murderous deeds, it is extremely important to have a
punishment that fits the crime--capital punishment.
Death penalty opponents have made all sorts of attacks on the death
penalty in order to see it abolished. One such attack is based on
claims of racial bias. I am an. African American, a law enforcement
officer, but most importantly, an American citizen. It is my utmost
concern that we have a fair and effective justice system and capital
punishment is part of that system.
I urge you not to let those who cry wolf over race and capital
punishment convince you to support a ``moratorium'' on the death
penalty. Their concerns are not for racial justice, as they would
oppose the death penalty with any excuse they can find.
One of the most fundamental principles of our justice system is
that the application must be colorblind. So should the preservation of
justice. Those violent criminals facing the death penalty should not be
judged, counted or queried based on the color of their skin, but on
their guilt or innocence. I urge you not to let unproven allegations
revoke the justly given sentences of those whose crimes are proven.
Sincerely,
Kenneth V.F. Blanchard
Director
National Association for the Advancement of Colored People
Baltimore, MD 21215-3297
July 16, 2001
The Hon. Patrick J. Leahy
Senate Judiciary Committee
433 Russell Senate Office Building
Washington, DC 20510
Dear Senator Leahy:
In response to Senator Sessions' follow-up questions regarding the
federal death penalty, I do oppose the death penalty in all cases.
So does the NAACP.
My testimony does not state or imply that Attorney General designee
Ashcroft testified that he ``would delay all federal executions until
any or all studies were complete.''
My statement that he ``has broken his pledge'' is explained in my
written testimony.
Sincerely,
Julian Bond
Chairman
NAACP National Board of Directors
National Troopers Coalition
Albany, N.Y. 12207
June 19, 2001
Hon. Strom Thurmond
Ranking Member
Subcommittee on Criminal Justice
Senate Judiciary Committee
Russell Building, Room 217
Washington, DC 20510
Dear Senator Thurmond:
On behalf of our Chairman, Scott Reinacher, and the National
Troopers Coalition Membership, which represents this Nations' State
Police and Highway Patrol sworn law enforcement personnel I am writing
to affirm our support of the death penalty. The National Troopers
Coalition supports the death penalty at both the State and Federal
levels of government.
The death penalty is meted out in extreme conditions. When
criminals such as Timothy McVeigh commit unspeakable heinous crimes
that are even difficult to talk about the death penalty is the
appropriate remedy. The death penalty has an important role to play in
deterring and punishing the most heinous violent criminal offenders.
The death penalty serves to permanently incapacitate extremely violent
offenders. The death penalty serves as the important societal goal of
just retribution. The death penalty also reaffirms society's moral
outrage at the wanton destruction of innocent human life and assures
the family and other survivors of murder victims that society take
their loss seriously.
We urge the Subcommittee Members to reject any legislation that
would place a national moratorium on delay of the use of the death
penalty. The death penalty must continue to be an effective form of
justice in this country. There is no evidence that a moratorium is
necessary and to deny the will of the people and previously passed
legislation would be an injustice to society and our former lawmakers.
Many of our nation's law enforcement officers are killed in the
performance of their duties and we respectfully request that you remedy
a loophole in current federal law that makes the death penalty
applicable to any person who murders a state or local law enforcement
officer only if that officer is assisting a federal law enforcement
officer or a federal investigation. We believe that anyone who murders
a law enforcement officer--local, state, and federal--should have the
death penalty imposed.
Thank you for your continued support of this Nation's law
enforcement officers.
Sincerely,
Johnny L. Hughes
Director of Government Relations
Article in Newsday, Tom Brune, Washington Bureau, June 13, 2001
The Two Faces of Death Penalty
MINORITY GANGS FACE IT, WHITE MOBSTERS DO NOT
Washington--In September 1997, an aspiring organized crime
associate named John Pappa was arrested on charges he had carried out
several mob-war hits on orders of Colombo family members.
Two months later, an ambitious member of the Latin Kings street
gang in Yonkers named Jose Santiago was arrested on charges he was the
triggerman in a killing ordered by his leader to settle a personal
dispute.
Although indicted for separate, unconnected murders, Pappa and
Santiago, both 19 at the time of the crimes, each were charged with a
federal offense--murder in aid of racketeering--that made them eligible
for a capital trial and a sentence of death by lethal injection.
But after reviewing the cases, the federal government decided it
would not seek the death penalty for Pappa, a white mob hitman charged
in four murders, but that it would for Santiago, a Hispanic gang member
accused of a single slaying.
These two cases reflect the racial and geographic disparity that
clouds the federal death penalty, but they also highlight a little
noticed fact overlooked in the Justice Department analysis of capital
cases released last week. Scores of black and Hispanic street and drug
gang members have faced death-sentence prosecutions, but white mob
figures have been virtually exempt from the federal death penalty since
it was restored in 1988.
Since then, more than 700 defendants have been charged with death-
eligible federal offenses. The attorney general, who has the final say,
has authorized death penalty prosecutions of 211 of them, according to
court records and lists of cases compiled by the Federal Death Penalty
Resource Counsel Project. At least 40 of those facing capital
prosecutions were gang members but only one was a mob figure, the
records and project's lists show.
Those numbers arise from a criminal justice system that has created
two separate law enforcement strategies, one to pursue organized crime,
another to pursue street gangs, a review of cases and interviews found.
Prosecutors and the Justice Department might have considered any
number of undisclosed factors in making death-penalty decisions in the
cases of Pappa and Santiago, a department official said.
But the public record of the two cases show the difficult and
subjective choices the government must make in deciding which murders
are such a threat to national interests that the criminal responsible
deserves to die.
The decision to seek the death penalty in a case raises the stakes
so high that many defendants plead guilty to avoid a possible
execution, as Santiago did, rather than gamble on proving their
innocence.
``Why are the white Mafia guys any less of a national threat than
the black guys and Hispanic guys prosecuted for drug killings?'' asked
Elisabeth Semel, director of the American Bar Association's Death
Penalty Representation Project.
``These figures make a very compelling case that the decisions at
each stage of the process may very well contribute to the racial bias
that we see in the federal death penalty,'' said Marc Mauer, executive
director of the Sentencing Project.
Last week, however, Attorney General John Ashcroft said a Justice
Department report found no racial bias in the administration of the
federal death penalty. It blamed the fact that minorities are 90
percent of those on federal death row on factors such as regional
demographics and relationships between local and federal prosecutors.
The report also cited Congress' war on drugs--and its targeting of
high-volume, violent drug traffickers for death sentences.
Ashcroft stressed that Justice Department capital cases are based
on the offenses that Congress decided were worthy of death when it
passed death penalty laws in 1988, 1994 and 1996.
A Justice Department official, speaking on the condition of
anonymity, acknowledged the near absence of La Cosa Nostra death-
penalty cases. ``It think it's a real issue that we have to look at,''
the official said. ``I don't know that we have.''
Zachary Carter, who was the U.S. attorney based in Brooklyn from
1993 until 1999, charged more than a dozen mob figures, including
Pappa, with death eligible offenses but did not recommend seeking the
death penalty against any of them.
``The statistics won't tell the whole story,'' he said. ``It's
complicated. You've got to look at individual cases.''
Carter listed two guiding principles: whether an innocent victim
was murdered and the strength of the evidence. If the case was based on
accomplice testimony, he said he had doubts the evidence was strong
enough to sustain a death penalty case.
As a prosecutor considers a case, he or she must weigh many
factors, Carter said. ``There is a level of subjectivity that makes me
wonder if we should be making those decisions,'' he said.
Mauer said one factor could be the glorification of white mob
families as likeable, if criminal, in shows like the ``Sopranos,''
while depicting minority drug traffickers as cruel and intimidating in
movies like ``Traffic.''
``The idea of executing the `Sopranos' is not a welcome one to most
people,'' he said.
Such attitudes may have been evident in the only death-penalty
trial of an organized crime figure, conducted by the U.S. attorney's
office in Brooklyn in 1992.
A jury convicted hitman Tommy Pitera on charges he tortured and
killed six victims, dismembering and burying the remains of five in
suitcases in a Staten Island marsh. But three jury members couldn't
bring themselves to vote to give Pitera a sentence of death.
The government itself views the mob and street gangs as ``different
folks involved in the two different industries,'' said criminologist
Alfred Blumstein of Carnegie Mellon University.
In 1970, when federal capital punishment was on hold, Congress took
aim at organized crime with a package of tough laws that included the
Racketeer Influenced and Corrupt Organizations Act, known as RICO.
The FBI organized crime unit adopted the ``enterprise theory of
investigation,'' a long-term strategy to dismantle organizations--not
to target individual criminals--that relies on wiretaps, informants and
cooperating witnesses, said Tom Fuentes, chief of the FBI's Organized
Crime section.
Many of the best-known mob figures, including John Gotti, were
convicted before the federal death penalty resumed. But since 1996, an
FBI crackdown has led to the convictions of 1,500 organized crime
defendants, Fuentes said, but not a single death-penalty case.
``It's not our strategy, let us say, to go after them with the
death penalty,'' Fuentes said. ``We have used life without parole.''
In 1988, after violent street crime fueled by crack cocaine soared,
Congress restored federal capital punishment to target drug kingpins
and in 1994 expanded the death penalty to about 60 offenses aimed at
criminal enterprises and a variety of murders.
In 1992, the federal government for the first time took on street
gangs, employing drug laws and RICO but, unlike the organized crime
section, also using the death penalty.
``It's just one of the tools,'' said, Ken Neu, the FBI's assistant
section chief of violent crimes.
``Traditional organized crime has preyed on its own,'' Neu
explained. ``In the gang arena, a lot of innocent people have been
killed because they happened to be there when the shooting started.''
In the cases of John Pappa and Jose Santiago, the government had to
weigh separately whether to seek the death of a Colombo family
associate charged with four murders and accused of as many as six
more--all of them connected to organized crime--and a Latin King member
charged only with a single slaying of a man not connected to the gang.
Court records and interviews with defense attorneys show how
different Pappa and Santiago's criminal careers were, and how
prosecutors had to make difficult, and subjective, decisions on their
cases.
In September 1997, based largely on the FBI's confidential
informants, Pappa was arrested as he arrived at a Staten Island church
for the wedding rehearsal of the brother of John Sparacino, one of
Pappa's victims.
Pappa, prosecutors say, aspired to become a Colombo family hitman
like his slain father, and even got his back tattooed with a slogan in
Italian that said ``death before dishonor.''
To prove himself Pappa committed the 12th and final killing in the
bloody wars between rival factions of the Colombo family in the early
1990s, prosecutors said.
Pappa began a killing spree that would take four lives two weeks
after he turned 19 in October 1993, according to charges filed against
him.
On Colombo family orders, prosecutors said, Pappa helped gun down
Joseph Scopo, a rival faction's acting underboss, as he drove up to his
Queens home.
A few months later, charges say, Pappa shot and dumped associate
Rolando Rivera on the side of the Staten Island Expressway.
Several weeks after that Pappa and an associate shot Sparacino in
the back of the head, sliced off his genitals and tried to cut off his
face, then left him in a burning car on Staten Island, prosecutors
said.
Three days before his 20th birthday, Pappa fired a dozen bullets
into Eric Curcio in a Brooklyn auto body shop--for taking credit for
Scopo's murder -and then called a friend the next day to brag about it,
prosecutors said.
A grand jury indicted Pappa on charges of drug trafficking,
racketeering and murder. It included a death-penalty count for only
Curcio's murder, because the others had occurred before the capital law
cited in the case had gone into effect in 1994.
Carter recommended against seeking a death sentence for Pappa, and
the Justice Department's death-penalty review panel and Attorney
General Janet Reno agreed.
Prosecutors and Justice officials refuse to discuss the decision,
but Pappa's attorney, Michael Bachner, said a variety of factors came
into play.
``He was 19 years old at the time, and the evidence against him was
primarily based on statements he was said to have made,'' Bachner said.
``His father was a hitman for the mob. I think there was some thought
there might be psychological issues at work.''
But Bachner added, ``I think a lot of it was the victims were all
quote unquote people in the business. I think there were no quote
unquote innocent victims.''
Besides, Bachner said he believes prosecutors bought his argument
that what could be worse for a young man, death or being locked up for
the rest of his life?
Pappa pleaded not guilty and went to trial. In May 1999, a jury
convicted Pappa for all four murders, and a judge sentenced him to two
life terms plus 65 years and sent him to a maximum-security prison.
In November 1997, based on reports from informants and a wiretapped
conversation of Latin King members, Santiago was arrested on a murder
warrant for the shooting death of Efraim Torres.
Prosecutors charged that Santiago, who took the name King Monkey,
had sought to rise in the gang by volunteering to be the triggerman.
On March 17, 1995, Yonkers Latin King leader Hector Colon got into
a fight over a girlfriend with Torres. Torres stabbed and injured
Colon, court records show. Torres, known as Peewee, was not connected
to the Latin Kings.
Two weeks later, Colon learned where Torres was hiding and told
Santiago--who, like Pappa, had just turned 19--to go and kill Torres.
He did.
Prosecutors said informants and Torres family members told
authorities that Santiago had forced the wife and two children of
Torres to stay in the room to watch him shoot and kill him. ``Jose
always from the first denied that was what happened,'' said Loren
Glassman, Santiago's attorney.
Santiago was indicted in 1998 by the office of Manhattan U.S.
Attorney Mary Jo White, on two counts of murder, including murder in
aid of racketeering, that made him eligible for the death penalty.
Soon after the indictment, Santiago talked to prosecutors about
testifying against Colon, who also was charged but had evaded arrest,
Glassman said.
But that option was eliminated. FBI agents found Colon in
Connecticut in 1999. When they confronted him, Colon reached for his
cell phone and agents, thinking he was reaching for a weapon, shot and
killed him, according to a Justice Department investigation of the
incident.
Glassman argued against a capital prosecution in presentations to
the government's capital review panels. He said Santiago was only 19 at
the time of the murder, had committed no other major violent crimes and
regretted what he had done.
``He was the most remorseful client I ever had,'' Glassman said.
``If he were given the choice he would spend the rest of his life
trying to atone for what he had done.''
As Carter had done in the Pappa case, White recommended against
seeking a death sentence for Santiago. But this time the Justice
Department review panel and Reno disagreed.
``What I heard was that Mary Jo White and Janet Reno spent the
better part of three days arguing about this case,'' said Glassman.
``And in the end, Janet Reno prevailed and required Mary Jo White to
file a death penalty case.''
A spokesman for White declined to discuss internal discussions.
The government said the aggravating factor that justified a death
sentence was the presence of Torres' wife and two children: they were
endangered by the shooting and suffered when forced to watch the death
of a husband and a father.
Two months later, in April of last year, Santiago pleaded guilty to
the murder to avoid a death-penalty trial.
But he refused to admit in court in his plea agreement that he had
forced the family of Torres to watch the shooting. A judge sentenced
Santiago to 50 years in prison.
June 11, 2001
Chairman Russell Feingold and
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington D. C.
Chairman Feingold,
Losing a loved one under natural circumstances is hard enough to
deal with but imagine losing one under the most heinous circumstances.
No one wants to see another person's life ended but if someone thinks
nothing of another person's life and takes it, especially under the
most brutal circumstances, then he or she should pay with their lies.
Before we lost our son Komommo Offem to gun violence In March of
1998, we believed in the death penalty and we believe strongly in it
now. We are also strongly opposed to any moratorium for the death
penalty. We are not playing God, but if someone has no regard for human
life, why should we have regard for theirs?
Monday Offem and Elizabeth Offem
Members of V.O.C.A.L. (Victims of Crime and Leniency)
Dear Chairman Feingold:
I am an African-American crime victim advocate who strongly
supports the death penalty. In May 1999 my only child was found
brutally murdered in her apartment. The person who committed this
heinous crime has so far shown no remorse. He is now free on bond after
being incarcerated only one month. These types of criminals are a
threat to all of society and do not deserve to live among decent men
and women. I feel that the punishment should fit the crime and the
death penalty is certainly appropriate for those who are cold,
calculated murderers.
In my opinion, without the death penalty there is no hope in
curbing the escalating violence in our society. Most criminals today
have been in arid out of penal institutions all of their lives and have
no fear of being incarcerated for long periods of time. Some of them
even boast about their criminal activities during incarceration.
However, when it comes to their own lives being abruptly ended they do
have a substantial amount of fear.
I am urging you to please support death penalty legislation because
it is greatly needed. In a lot of instances criminals are not punished
to the fullest extent of the law because of parole board hearings,
appeals, etc., etc. The death penalty is needed now more than ever to
send a message to murderers that when you take someone's life be
prepared to give up your own.
Nell Rankins
(Mother of the late Katrina Jenelle Rankins)
Montgomery, AL
Article from Reuters, Sue Pleming, June 13, 2001
U.S. Senators urge executions halt amid bias fears
Washington, June 13 (Reuters)--With just six days until the
execution of drug kingpin Juan Raul Garza, several U.S. Democratic
senators on Wednesday called for a halt to federal executions until a
government study has been completed into possible racial and
geographies bias on death row.
Democratic Sen. Russ Feingold of Wisconsin told a Senate
subcommittee hearing the United States could not in ``good conscience''
put people to death while questions remained over the fairness of the
system.
The death of Garza, a Hispanic convicted of one murder and of
ordering two others, would be the second federal execution this month
following the lethal injection given to Oklahoma city bomber Timothy
McVeigh on Monday.
While state executions are more common, McVeigh's was the first
federal execution for 38 years and sparked condemnation abroad--
especially in europe--of the U.S. death penalty.
``I believe that the execution of Juan Garza should again be
postponed and indeed there should be a moratorium on all federal
executions until a thorough and independent study by the NIJ is
completed and considered,'' said Feingold.
Feingold, who chaired the Senate Judiciary sub-committee hearing on
``racial and geographic disparities'' in the federal death penalty
system,'' was referring to a study to be done by the Justice Department
National Institute of Justice.
That study follows an analysis by the Justice Department last year
into racial and geographic disparities on death row and another review
released by Attorney General John Ashcroft last week in which he said
there was no evidence of racial bias in the U.S. death penalty system.
``STATISTICAL DISPARITIES''
Feingold noted that of the 19 people currently on federal death
row, 17 were racial or ethnic minorities and that six of those were
from the president's home state of Texas and another four were from
Virginia.
``The concentration of death row inmates from particular regions of
the country is troubling and I don't think this issue has yet been
adequately addressed by the Department of Justice,'' Feingold said.
Garza is due to die by lethal injection in Terre Haute, Indiana, in
the special death row unit where McVeigh died.
Convicted in Texas, Garza, 44, has admitted to the drug-linked
killings but says he does not deserve death.
His lawyers filed a clemency petition on Tuesday in which they
said, among other arguments, he should not executed because it was
still an open question whether his sentence resulted from bias against
minorities in federal cases.
Deputy Attorney General Larry Thompson rejected suggestions of
racial and geographic bias in imposing the death penalty but said an
appearance of such a practice was cause for concern.
In fact, said Thompson, the death penalty was more likely to be
recommended by United States Attorneys for white defendants than for
blacks and Hispanics.
``Our study found abundant evidence that the statistical
disparities observed in federal capital cases resulted from non-
invidious factors rather than from racial or ethnic bias,'' Thompson
told the subcommittee.
Asked whether he supported former President Bill Clinton's decision
last year to postpone Garza's execution to allow for a review of the
death penalty, Thompson said he had not and that there was no question
about Garza's guilt.
Democratic Sen. Patrick Leahy from Vermont said the report released
by the Justice Department last week fee far short of what the American
people deserved.
``Instead of a thorough and objective empirical analysis we are
given a superficial and one-sided set of legal answers. Instead of
Answers we are given more questions,'' said Leahy.
Republican Sen. Strom Thurmond of South Carolina, a ranking member
on the judiciary subcommittee, countered a demand for a moratorium and
called the hearing an ``endless political effort to discredit the death
penalty by all possible means.''
``There is no death penalty crisis and there is absolutely no basis
for ending the federal death penalty,'' he said.
After the death penalty was struck down in 1972, the federal death
penalty was not reinstated until 1988 and then expanded in 1994 to
cover certain crimes, including major drug trafficking, terrorism, and
espionage.
In contrast, the states have executed more than 700 inmates since
the Supreme Court reinstated the death penalty in 1976.
by Sue Pleming
Statement of Hon. Jeff Sessions, a U.S. Senator from the State of
Alabama
I am glad that Senator Feingold called this hearing. The death
penalty is a serious issue, and the Senate should give it serious
consideration.
As a federal prosecutor for 15 years and as Attorney General of my
State, I have a different perspective on criminal justice issues than
many in the political arena. I have seen first hand how violent crime
devastates victims, families, and communities. And I have seen the
importance of demonstrating with words and deeds fairness and due
process of law to every segment of the community. Ultimately, the
truth, justice, and the certain rule of law are more important than
partisan political speeches. I hope this hearing will shed important
and constructive light on how our federal criminal justice system is
doing in its application of the death penalty.
Constitutional Recognition of the Death Penalty
The Constitution expressly recognizes that the federal and state
governments will impose the death penalty. The 5th Amendment, which
limits the power of the federal government, provides ``No person shall
be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury . . . .'' The 5th
Amendment's Double Jeopardy Clause provides that ``No person shall. . .
be subject for the same offence to be twice put in jeopardy of life or
limb . . . .'' Further, the 5th Amendment's Due Process Clause provides
that ``No person shall . . . be deprived of life . . . without due
process of law.'' Finally, the 14tn Amendment, which limits the powers
of State governments, provides that ``No State shall . . . deprive any
person of life . . . without due process of law.''
The simultaneous passage of the provisions recognizing the death
penalty in the 5th Amendment and the subsequent passage of such a
provision in the 14'' Amendment demonstrate the illegitimacy of
arguments that capital punishment is per se prohibited as cruel and
unusual under the 8th Amendment. Indeed, the same body that proposed
the 8th Amendment also provided, in the first Crimes Act of 1790, for
the death penalty for a number of offenses.\1\
---------------------------------------------------------------------------
\1\ 1 Stat. 112.
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FURMAN V. GEORGIA
Almost two centuries later, in 1972, however, a bare 5-4 majority
of the Supreme Court, in Furman v. Georgia,\2\ held that the death
penalty was cruel and unusual as applied by the States at that time.
The talisman of unconstitutionality was the unbridled discretion of
juries to mete out the death penalty for a wide range of crimes.
Justice Thurgood Marshall pointed out that this discretion resulted in
significant racial disparities. Of all the prisoners executed from 1930
to 1968, 54% were black and only 46% were white.\3\ He also pointed out
that over the same time period, 89% of prisoners executed for rape were
black.
---------------------------------------------------------------------------
\2\ 408 U.S. 238 (1972).
\3\ Id. at 316 (Marshall, J. dissenting).
---------------------------------------------------------------------------
POST-FURMAN DEVELOPMENTS
Later, in 1976, in Gregg v. Georgia,\4\ the Supreme Court approved
a new death penalty statute that provided guidelines to control the
discretion of the jury and make application of the penalty less subject
to the passions of the jurors. To pass constitutional muster, a statute
had to ensure that only heinous crimes in which one of a list of
certain specified aggravating circumstances was found were punishable
by death. Further, the statute had to provide that the jurors would
hear mitigating evidence.
---------------------------------------------------------------------------
\4\ 428 U.S. 153 (1976).
---------------------------------------------------------------------------
In 1977, in Coker v. Georgia,\5\ the Supreme Court held that
capital punishment could not be imposed for rape without a murder.
Thus, the plainly disproportionate and unjustified execution of black
prisoners for committing rape ended.
---------------------------------------------------------------------------
\5\ 433 U.S. 584 (1977).
---------------------------------------------------------------------------
In 1986, the Supreme Court's decision in Batson v. Kentucky \6\
prohibited the use of race in selecting a jury. Thus, ending the
practice of striking a potential juror just because of his race.
---------------------------------------------------------------------------
\6\ 476 U.S. 79 (1986).
---------------------------------------------------------------------------
Further, as the years went by, there were more black, Hispanic, and
women, law enforcement officers, jurors, prosecutors, and judges. The
entire criminal justice system looked more like America.
And the results showed up in the death penalty system. Since the
death penalty was reinstated by Gregg v. Georgia in 1976, the
percentage of blacks executed has dropped from 54% to 36%.\7\ While the
percentage of whites executed has climbed from 45% to 62%.\8\ And
today, 53% of the inmates on Alabama's death row are white and 47%
black.\9\ And not one innocent person has been executed since the death
penalty was reinstated in 1976.\10\
---------------------------------------------------------------------------
\7\ Bureau of Justice Statistics (visited June 11, 2001).
\8\ Id.
\9\ Death Penalty Information Center, Alabama Death Row Inmates
(visited June 13, 2001).
\10\ Paul G. Cassell & Stephen J. Markman, Protecting the Innocent:
A Resonse to the Bedau-Radelet Study, 41 STAN. L. Rev. 121 (1988).
---------------------------------------------------------------------------
THE STATISTICS ARGUMENT
In 1987, in McCleskey v. Kemp,\11\ the Supreme Court rejected a
challenge to the death penalty based on a 1983 statistical study
showing that in Georgia, a prisoner was 4.3 times more likely to face
the death penalty for killing a white victim than for killing a black
victim.\12\ The Court held that to prevail on a race-based equal
protection challenge, a defendant must show that the state legislature
or the decision makers in his particular case acted with a racially
discriminatory purpose. Although the author of the majority opinion in
McCleskey, Justice Lewis Powell, left the Court in 1987, McCleskey's
focus on the individual trial, as opposed to group statistics, was
reaffirmed by the Supreme Court in the 1994 case of Romano v.
Oklahoma.\13\
---------------------------------------------------------------------------
\11\ 481 U.S. 279 (1987).
\12\ Baldus, Pulaski, & Woodworth, Comparative Review of Death
Sentences An Empirical Study of the Georgia Experience, 74 J.CRIM.L. &
C. 661 (1983).
\13\ 512 U.S. 1 (1994).
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THE DOJ STUDIES
Since McCleskey's rejection of the statistical study, the
Department of Justice has completed 2 additional studies on how it
administers the death penalty: the September 12, 2000 study completed
by Democrat Attorney General, Janet Reno, and the June 6, 2001 study
completed by Republican Attorney General, John Ashcroft. These studies
provide even less evidence of racial discrimination than the 1983 study
that failed to win the day in the McCleskey case.
Both of these studies show that approximately 90% of the prisoners
currently on federal death row are minorities. The question then
becomes why is there an over representation, compared to the general
population, of minorities on federal death row? To find the answer, we
must examine two areas: (1) how defendants get into the criminal
justice system; and (2) how the federal criminal justice system
operates. With respect to how federal criminal justice system operates,
the question is whether racial bias played a role?
The Reno study and the Ashcroft study both found no racial bias in
the Department's administration of the death penalty. The high
proportion of black and Hispanic death row defendants results, in part,
from the population that the federal death penalty draws from: a
significant number of carj acking murders from Puerto Rico; a
significant number of murders at the Lorton Prison for District of
Columbia offenders; and a significant number of drug kingpin murders in
border states and inner cities.\14\
---------------------------------------------------------------------------
\14\ The Federal Death Penalty System Supplementary Data, Analysis
and Revised Protocols for Capital Case Review 3, 15-16 (June 6, 2001)
[The Ashcroft Report].
---------------------------------------------------------------------------
Once in the federal criminal justice system, the Ashcroft Report
shows that the attorney general's office, which reviews all death
penalty cases in the federal system, agreed to capital charges for 27%
of the eligible whites, 17% of the eligible blacks, and 9% of the
eligible Hispanics.\15\ Thus, the Justice Department is 59% more likely
to seek the death penalty for white murderers than black murderers; and
200% more likely to seek the death penalty for white murderers than for
Hispanic murderers.
---------------------------------------------------------------------------
\15\ The Federal Death Penal System: Supplementary Data, Analysis
and Revised Protocols for Capital Case Review 12 (June 6, 2001) [The
Ashcroft Report].
---------------------------------------------------------------------------
The study does not answer all the questions because all the data is
not yet available. Nor could this data have physically been gathered
before the April 1, 2001 deadline for this study set by President
Clinton. For the data that is available, however, no racial bias was
found. Further, Attorney General Ashcroft has directed that more
information be gathered from U.S. Attorney offices regarding conduct by
defendants that could result in a death penalty whether the U.S.
Attorney wants to pursue the death penalty or not. Further, more
information will be gathered about plea agreements. This will help
provide a more complete picture as to the application of the death
penalty.
Finally, Attorney General Ashcroft has ordered the National
Institute of Justice to complete a broad, multiyear study on the death
penalty. This will provide more information on the fairness of the
application of the death penalty across the country.
It is also important to note that Attorney General Ashcroft at his
confirmation hearing committed to finish ongoing death penalty studies,
but did not commit to a moratorium on the death penalty until all
studies were completed, or at any other time. Indeed, to delay
executions of clearly guilty murders to conduct a future study would be
a dereliction of the duty to faithfully enforce the law. Attorney
General Reno did not support such a delay and neither does Attorney
General Ashcroft. Instead, Attorney General Ashcroft has completed the
Reno study, ordered the NIJ study to continue, and he has carried out
the execution of Timothy McVeigh--the worst mass murderer in the
history of our country. He kept his word. He did his duty.
NO NEED FOR A MORATORIUM
I cannot favor a moratorium on the death penalty for several
reasons. First, as Attorney General Reno concluded in her September 12,
2000 report, all the prisoners now on federal death row are guilty.\16\
Second, not one innocent person has been executed since the death
penalty was reinstated in 1976.\17\ Third, DNA is now used up front to
prevent innocent persons from being tried, much less convicted, and put
on death row. Fourth, studies showing large error rates in capital
trials have been debunked by more accurate studies showing that many
reversal ``errors'' were caused by newly announced procedural rules
that applied retroactively and that upon retrial, an overwhelming
majority of defendants were reconvicted.\18\ Fifth, the death penalty
deters murder as studies as recent as this year have found.\19\ And
finally, the procedural protections and multiple levels of appellate
review ensure that we, in fact, have a very accurate and very fair
death penalty system.
---------------------------------------------------------------------------
\16\ Statement of Attorney General, Janet Reno, Press Conference
with Attorney General Janet Reno and Deputy Attorney General Eric
Holder on the Federal Death Penalty (Sept. 12, 2000). On January 20,
2001, President Clinton commuted David Ronald Chandler's capital
sentence to life without parole. Chandler was a white prisoner on
federal death row who was convicted of running a large drug enterprise
and of ordering the murder of an associate-turned-informer. Chandler's
clemency application presented evidence that a major witness against
Chandler had recanted his testimony. The application, however, was
strongly challenged by the prosecutor in the case who submitted the
attached letter. Chandler's case has been denied certiorari by the
United States Supreme Court and his conviction was upheld by an en banc
opinion of the Eleventh Circuit last year. The vigilance of the
Department of Justice's attorneys in administering the clemency review
process reaffirms the efficacy of the federal death penalty system's
safeguards for giving the defendant every reasonable opportunity to
establish his underlying innocence.
\17\ Paul G. Cassell & Stephen J. Markman, Protecting the Innocent:
A Resonse to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988).
\18\ See, e.g., Barry Latzen & James N.G. Cauthen, Another Recount:
Apepals in Capital Cases, THE PROSECUTOR 25, 26 (Jan./Feb. 2001);
Bennet A. Barlyn, A Res[ponse to Professor Liebman's ``A Broken
System,'' (Nov. 2000) ; Statement of Attorney General Bill Pryor to the Alabama
State Bar Commissioners Regarding the Death Penalty Moratorium (Oct.
27, 2000).
\19\ See, e.g., Hashem Dezhbakhsh, et al., Does Capital Punishment
have a Deterrent Effect? New Evidence from Post-Moratorium Panel Data,
Emory Univ. Dep't of Economics Report (2001) (concluding that each
execution results in an average of 18 fewer murders).
---------------------------------------------------------------------------
Indeed, the increased fairness in the application is also reflected
in the increased support for the death penalty by the American people.
When Furman was decided, only 51 % of the public supported the death
penalty.\20\ Today, that number has climbed to between 63% and 71%.\21\
And in the last election, the presidential candidates for both parties
said that they supported the death penalty.
---------------------------------------------------------------------------
\20\ See Furman v. Georgia, 408 U.S. 238, 330 n.9 (Burger, C.J.,
dissenting).
\21\ See, g.g., ABC News/Washington Post Poll (63%); Associated Press Poll (71 %).
---------------------------------------------------------------------------
CONCLUSION
The death penalty is a serious subject and deserves serious
attention. It should be studied to ensure that it is fair to all people
of all races. It should be remembered, however, that the victims of
these vicious killers are largely minorities. As Attorney General
Reno's report showed, 70% of the victims of those charged with federal
capital crimes were minorities.\22\ The death penalty protects our
poorest and most defenseless citizens against the most vicious murders.
---------------------------------------------------------------------------
\22\ U.S. Dep't of Justice, Survey of the Federal Death Penalty
System 22 (Sept. 12, 2001).
---------------------------------------------------------------------------
As Lucy Jackson from Birmingham, Alabama stated:
``I am one who has witnessed first hand what violent crime can
do to devastate a family. My only son, Dewayne, was violently
beat[en] to death. There is no way the defendant could ever
feel the pain or injustice that me and my family [have] felt.
Justice truly is only served when the convicted murderer is
given his just sentence. Being an African-American, some of my
brethren might disagree. But, until you live through what we
have lived through, you cannot possibly make that decision. I
implore you all to not water down or try to place a moratorium
on the death penalty. If you do, there will be more acts
performed by cowards like Timothy McVeigh and the[ir] only
punishment will be Life.''
Similarly, the Fraternal Oder of Police, the Federal Law
Enforcement Officers Association, and the Law Enforcement Alliance of
America all support the death penalty and oppose a moratorium because
their members, white, black, Hispanic, Asian, and Native Americans face
vicious criminals every day. They correctly believe that the death
penalty protects them as well. Violent criminals live by force. It is
often the only thing that they understand.
We have a profound duty to ensure that racial bias has no place in
the application of the death penalty. The death penalty, however, has a
place in protecting all citizens, especially minorities and police
officers. It is the responsibility of the Department of Justice to
ensure both. Under Attorney General Ashcroft, I am confident that every
defendant will receive due process of law and that every guilty
criminal will receive the penalty that he justly deserves.
Statement of Hon. Paul Strauss, a U.S. Senator from the District of
Columbia (Shadow), Washington, DC
Chairman Feingold, and members of the Senate Subcommittee on the
Constitution, federalism, and property rights, I am Senator Paul
Strauss, the United States Senator elected by the voters of the
District of Columbia, and an attorney who practices in our local
courts.
I appreciate the opportunity to provide this statement on behalf of
my constituents, the citizens of Washington, D.C. I am testifying in
order to raise my voice in favor of a moratorium on the federal death
penalty, until a full investigation into racial disparities in the
system can be conducted. I commend the leadership for bringing this
issue the attention that it deserves.
It is especially disturbing that seventeen of the nineteen people
on federal death row are minorities. One of the issues that was brought
up is that the racial disparities on federal death row, which seem to
be greater than those in the state system might be due to the federal
prosecution of local crimes. It has been noted that, in fact, many of
the federal death penalty cases are for crimes related to federal
crackcocaine prosecutions.
One of the witnesses, Mr. McBride, a former Federal prosecutor from
the eastern district of Virginia who has tried federal capital cases,
has stated that the federal government only steps into local cases when
there is a request for such action from state prosecutors. In the
District of Columbia, it appears that a different rule applies.
The residents of Washington, D.C. have consistently raised their
voices in opposition to the death penalty. First, in 1992, they voted
against it in a referendum, with a margin of two to one.\1\ Then, in
2000, the city council passed a resolution once again reaffirming
opposition to capital punishment. The city has certainly not asked for
federal intervention in order to have the death penalty imposed on its
residents.
---------------------------------------------------------------------------
\1\ On November 3, 1992, 66,303 voted in favor of the death
penalty, while 135,465 voted against it.
---------------------------------------------------------------------------
Recently, however, the Federal Government has seen fit to prosecute
Tommy Edelin, a District of Columbia resident, on charges of capital
murder, for crimes committed within the District of Columbia. Many see
his case as a test case for federal involvement in prosecuting crimes
committed within Washington, D.C. This case is not an issue of a crime
committed against the Federal Government, or on federal property, but
is an issue of a crime committed against the people of the District of
Columbia.
While I recognize that national sentiment seems to be in favor of
the death penalty, if local residents do not wish to see capital
prosecution for local crimes, then the death penalty should not be
forced upon them, whatever the national sentiment is. In light of
recent information showing possible racial disparities in
implementation of the federal death penalty, it seems that by
prosecuting residents of the District of Columbia, which has a large
minority community, these disparities will only increase.
Although my main concern is with the representation of the ideas
held by my constituency, I recognize the larger issue as well. The
debate about the death penalty as a whole is perhaps one of the most
divisive in our society today. Many people are adamantly opposed to its
continued use, and see it as cruel and unusual punishment, while even
more see it as a useful tool in the spectrum of punishments for crimes.
It is obvious that the debate on that issue will not end anytime soon.
The death penalty is the obviously most permanent form of
punishment that we have in this country. There should be no room for
error in its implementation, and not even an appearance of bias in its
prosecution. To continue to have a perception of bias would cause
further doubts in an institution that many Americans already see as
flawed.
Those who see the federal death penalty as fair and unbiased would
be wise to listen to the testimony of David Bruck. When he spoke about
the situation in South Africa during apartheid, he spoke of Judges who
said much of what many Americans are saying now: ``Blacks commit more
crime.'' in hindsight, and to many at the time, that statement seems to
be farcical. While I am not saying that we live under apartheid in this
country, long term prejudices against African-Americans and the other
minorities cannot be declared ``cured'' just because we wish that to be
the case. The exact opposite must be assumed.
While we are loathe to admit it, many Americans still harbor
prejudice against those that they see as ``other,'' that prejudice has
an effect on the decisions of Federal juries, which are more likely to
consist of people who have had vastly different life experiences from
those being charged, especially in drug cases.
In light of the execution of Juan Raul Garza, a man of hispanic
heritage, on June nineteenth--the second federal execution in one
month--I strongly urge the Federal Government to call an immediate
moratorium on all federal executions. We should not let another person
be executed before a review of the uncertainty surrounding the even-
handedness of the federal death penalty. In addition, as an advocate
for the residents of the District of Columbia, I raise the additional
concern of the federalization of what, rightfully, should be seen as a
local decision against capital punishment. On behalf of my
constituents, I thank you for bringing this issue to national
attention, and for allowing me the opportunity to make these comments.
Victims of Crime and Leniency
Montgomery, Alabama 36103
June 11, 2001
Chairman Russell Feingold and
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington, D.C.
Dear Chairman Feingold and Committee Members:
It has been brought to my attention that efforts are being made to
weaken the death penalty. The families of the homicide victims and the
public In general vehemently oppose this action.
I lost a daughter In 1976 by a vicious act of rape and murder by 3
srarnger5. One of the offenders has been executed but the fact that 2
others have not leaves my family with the realization that justice cry
never be served.
I did not ask to become a victim of the system, but having become
one, it has certainly changed my perspective on the entire judicial
process. I have been In the Victims' Movement for almost 25 years and
the battle for just the basic rights for the victim has been one of the
most grueling and snail-paced ventures I have ever endured. We have
made strides in the Victims' Movement for which I am eternally
grateful, but the tenuous efforts to eliminate the few accomplishments
we have been successful in getting Is disheartening.
I was honored to be selected as one of ten recipients of the
National Crime Victim Service Award presented in the Oval Office by
President Clinton In 1994. These awards indicate to me that the heads
of sate were concerned about the lifelong devastation for innocent
crime victims.
I do not know of anyone who advocates executing an innocent person,
however, Attorney General Ashcrofts report on the death penalty Is
10096 accurate. Those states that feel they have problems should most
assuredly address their problems. Alabama does not have a problem and
an effort too prolong an already lengthy process is so unjust. Alabama
has inmates that have been sitting on death row for 20 to 25 years and
still have riot exhausted their appeals. ``This Is NOT justice by any
of the Imagination. A provision to prove one's innocence Is already in
the system. The fact that the courts are finding some cases of
innocence only gives more credence that the present system is working
efficiently.
I have followed this effort to delay executions for some time and I
am convinced that the movement Is not about proving Innocence--It Is
rather to abolish-the death penalty. Having the knowledge that the
death penalty Is favored by the majority, this is the only tactic
opponents feel they tan be successful In using to accomplish their
goal.
Crime victims are counting on your support for justice. Please do
not succumb to false rhetoric and tilt the scales of justice even more
favorably for the perpedrator.
Respectfully yours,
Miriam Shehane
Executive Director
Columbia, SC 29203
June 13, 2001
Sen. Strom Thurmond
U.S. Senate Judiciary Comm.
Washington,D.C. 20510
Greetings:
We are the black parents of a murdered son and we are favor of the
death penalty.
Our son,Federal Corrections Officer, D'Antonio Washington was
murdered by Mr. Anthony Battles on December 22, 1994. D'Antonio was 31
years old and on duty at USP. Atlanta when Mr. Battles killed him , for
no reason. Mr. Battles was already serving time in Federal Prison for
killing his wife and inborn baby.
We sat through the trial in Atlanta and watched Mr. Battles admitt
killing our son, and he showed no remorse. He had his life spared after
the first killings. He does not deserve a chance to kill again. The
death penalty fits this case. The fact that Mr. Battles is black and
our son is black does not change our feelings.
Sincerely,
Mr. & Mrs. F.N. Washington
Montgomery, Alabama
June 11, 2001
Chairman Russell Feingold and
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington, D.C.
Dear Chairman Feingold and Committee Members
It is my understanding the Senate Judiciary Committee is making an
attempt to deplete the death penalty in Its current status. I would
like for you to know I am fervently against this movement.
In 1989, my brother Robert Mays, was brutally murdered by his
girlfriend. It was a cold and calculated murder. This murderer was so
callous, she shot him and stood over his body to make sure he was dead.
All the wile her children were begging her not to do it. Every year,
our family has to go to the Board of Pardons and Parole and beg them to
keep this murderer locked up. This case should have been a Capital
offense. Only until the convicted murderer receives the same sentence
that was Imposed on the victim, there will be no justice.
I am an African American woman and know full well the ramifications
being wrongly accused and punished. I for one am not advocating that
course of action. But, when there is no doubt and the case has went
through the courts and the appeals process the convicted murderer
should get what he or she so justly deserves. The death penalty will
not bring back the loved that was murdered but it will give the family
a sense of justification.
Sincerely,
Viola Watley