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 court-appointed counsel in federal capital cases brought under the Anti-Drug Abuse Act of 1988, 21 U.S.C. §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 §848(e) and later under the Federal Death Penalty Act of 1994 (18 U.S.C. §3591 et seq.). In addition to working with individual court-appointed 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.capdefnet.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 Congress1 and in the press,2 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. 9-10.010 et seq. 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, roughly three-quarters were members of racial and ethnic minority groups, while only 20-30 percent were white.

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 Bradley 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 African-American 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 death-eligible) 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 non-authorized 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 currently-available 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

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 self-evident, 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.

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 color-blind way, the seemingly intractable problems of racial and regional disparity that afflict the system today.

In the meantime, let’s call a halt. Juan Garza isn’t going anywhere, and no one seriously believes that marijuana-related 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

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 self-evident 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.

   1"Racial Disparities in Federal Capital Prosecutions, 1988-1994," 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).

   2New 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.

   3One 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 all-white 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.

   4To 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.

   5As 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).

   6See Jim Oliphant, "An Island's Holy War Against the Death Penalty," Legal Times (Dec. 14, 2000).

   7See David Bruck, "On Death Row in Pretoria Central," The New Republic, July 13-20, 1987.