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).

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

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

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

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

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 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.

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:// 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.

3 Citizens for a Moratorium on Federal Executions, Letter to President Clinton, November 20, 2000, Exhibit A.

4 The White House, Office of the Press Secretary, Statement by the President, December 7, 2000.

5 CMFE letter to President Clinton, January 4, 2001, Exhibit B.

6 CMFE letter to President Bush, June 4, 2001, Exhibit C.