Hearing Statement on
"Racial and Geographic Disparities in the Federal Death Penalty System"
at the Senate Judiciary Committee
Subcommittee on Constitution, Federalism and Property Rights
June 13, 2001
Last September, the Justice Department released a report on the
administration of the Federal death penalty. The report revealed dramatic racial
and geographic disparities in the Federal death penalty system. Of the 682 cases
submitted to the Justice Department over the previous five years for approval to
seek the death penalty, 80 percent involved defendants who were black, Hispanic,
or another racial minority, and five jurisdictions out of 94 accounted
for about 40 percent of the submissions.
These raw figures did not prove whether implementation of the federal
death penalty is or is not racially biased. But they did raise serious
questions whether discrimination exists at early stages of the prosecutorial
process. They 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 must be
unbiased, especially when it seeks to impose the ultimate sanction of death.
Attorney General Reno did the right thing last year, on the day she released
the September 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 President Bush’s nominee for Attorney General came before this
Committee, we – and especially Senator Feingold – questioned him closely
about whether he would continue the analytical process that his predecessor
initiated. His answers were reassuring. He expressed concern about the findings
in the September report and agreed on the need for further study. More
specifically, he promised to continue and support all efforts initiated by
Attorney General Reno to undertake a thorough review and analysis of the federal
death penalty system.
We are here today to check in on the Attorney General’s promise to this
Committee and to the American people. 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. I regret to say that it falls far short of what this
Committee was promised, and far short of what the American people deserve.
Instead of a thorough and objective empirical analysis, we are given a
superficial and one-sided set of legal arguments. Instead of answers, we are
given more questions.
I used to be a prosecutor myself. One of the skills you learn as a prosecutor
is to listen to what the witness is not saying. That is how you have to
read this report.
To take one example, the report notes that 48 percent of white defendants
have avoided the risk of a death penalty by pleading to a non-capital charge,
while this occurred for only 25 percent of black defendants, and 28 percent of
Hispanic defendants. The report then argues that "it takes two to make a
plea agreement," implying that maybe minority defendants are
disproportionately disinclined to seek or accept plea agreements. What the
report does not say is whether minority defendants are given the same
opportunities to plead to non-capital charges. The Department could have
investigated this question by asking its prosecutors which defendants were
offered plea bargains and which were not. Apparently, this was not done.
I do not know if there is bias or prejudice in the application of the federal
death penalty. There may be innocent explanations for the disparities identified
in the September report. But the latest report makes little effort to determine
the reasons for the racial disparities, and dismisses the geographic disparities
as if they did not matter.
Since the report issued last week, the Attorney General has indicated that he
may yet follow through on his commitment to this Committee by initiating a
comprehensive study of fairness in the administration of the federal death
penalty. I hope that he does, and that no more time is squandered.
I want to thank Senator Feingold for holding this hearing today, and commend
him for his principled involvement in this debate. I look forward to the
witnesses’ testimony.
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