The hearing will come to order. Good morning. Welcome to this hearing of the Senate Judiciary Committee’s Subcommittee on the Constitution. 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 this subcommittee. But, as often happens, external circumstances and events made it imperative that we schedule this hearing quickly. I sincerely thank all of 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 this 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.

     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. Seventeen 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 that 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. Attorney offices. She also directed the National Institute of Justice to 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 what Attorney General Reno said in September:

"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 effect 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.

     I’ve 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. Attorney’s 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 Garza until June 19th 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 19th.

     And significantly, in answer to my questions at his confirmation hearing, Attorney General Ashcroft said that he would continue the study – that he would continue the study – ordered by former Attorney General Reno. He said: "[T]he studies that are under way, I’m 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:

"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 five 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’m 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 10th. 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 a 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 mention 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 six of the 17 people awaiting execution 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 Department of Justice.

     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 this 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, and I understand that the Chairman and ranking member of the Committee would also like to make short statements before we hear from our first witness. Senator Thurmond.

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