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Quick Reference to the Position on Capital Punishment of the 2004 Presidential Candidates   Inclusion or exclusion of a candidate on this page does not imply support by DPIC. For more information on each candidate, go to their individual 2004 Election homepage, or visit TheWashington Post's 2004 Election Tracker.


  • Candidates for the 2004 Democratic Party Nomination
  • Former Candidates for the 2004 Democratic Party Nomination
  • Republican Party Candidate for the 2004 Presidential Election


  • CANDIDATES FOR THE 2004
    DEMOCRATIC PARTY NOMINATION
    CANDIDATE
    WEBSITE
    STANCE
    QUOTE / RECORD
    John Kerry
    johnkerry.com Opposes capital punishment, except for terrorists.  Believes that the system is flawed so long as innocents are in danger of being executed. "I'm opposed to the death penalty in the criminal justice system because I think it's applied unfairly, as even Republican governors have determined, and because I'm for a worse punishment.  I think it is worse to take somebody and put them in a small cell for the rest of their life, deprived of their freedom, never to be paroled.  Now, I think that's tougher."  (Meet the Press, December 1, 2002)

    In a Chicago Tribune interview on March 9, 2004, Kerry said he came to his conclusions about the death penalty from his years as a prosecutor in the Middlesex County district attorney's office; from his work helping to free a man wrongly convicted of murder; and even from his time in Vietnam. "There are cases in the system where there are miscarriages," he said, noting that he stopped a number of cases from moving forward when he was a prosecutor because he realized the defendants were not guilty. Kerry's time as a lieutenant on a Navy swift boat also factored into his decision-making about the death penalty. "What it did was it translated the killing into a more real event," he said.  (Kansas City Star, March 9, 2004) NOTE:  The Democratic Party Platform adopted by the party at its 2004 Convention in Boston, Massachusetts, does not include language referring to the death penalty in order to better reflect the Kerry / Edwards ticket.
    FORMER CANDIDATES FOR THE
    2004 DEMOCRATIC PARTY NOMINATION
    CANDIDATE
    WEBSITE
    STANCE
    QUOTE / RECORD
    Carol Moseley Braun carolforpresident.com Opposes the death penalty in all cases. "I oppose the death penalty. In 1984, I filed Illinois' first bill to impose a moratorium on executions. The death penalty is too fraught with uncertainty and error, and is too often a revenge response. Civil society should not allow itself to be brutalized by resort to revenge and blood lust as an acceptable product of our system of criminal justice. Families who have been victims will often tell you that revenge does not bring redemption or even comfort: as Dr. King once said, "an eye for an eye will simply leave us all blind."  (Washington Post, november 6, 2003)
    Wesley Clark
    clark04.com Has expressed concerns regarding the implementation of the penalty. According to a recent Miami Herald interview, Clark endorsed a moratorium on the death penalty, saying there has been ''a lot of discrimination and a lot of injustice'' and that cases should be reviewed with DNA evidence.(Miami Herald, September 19, 2003)

    "I'll tell you, I'm uneasy about the death penalty.  A government like the United States has the right to, in extraordinary cases, take the life of a criminal, but I don't like the way the death penalty has been applied in America.  I think it's been applied in an unfair and discriminatory fashion and I think we need to go back and use modern technology and unpack all those cases on death row." (Village Voice, October 29, 2003)

    Howard Dean deanforamerica.com Believes in the use of the death penalty for heinous crimes involving children or police officers, or as a deterrent to terrorism. "I believe the death penalty should be available for extreme and heinous crimes, such as terrorism or the killing of police officers or young children.  But it must be carried out with scrupulous fairness.  I applaud former Illinois Gov. George Ryan, who imposed a moratorium rather than administer a system in which 13 innocent men were released from death row."  (deanforamerica.com) John Edwards johnedwards2004.com Supports capital punishment, but advocates reform. "We need to make DNA testing more available to death penalty defendants to reduce the risk of wrongful convictions."  (johnedwards2004.com) Dick Gephardt dickgephardt2004.com Supports capital punishment, but advocates reform. Co-Sponsor of the Innocence Protection Act (a bill  calling for DNA evidence to be allowed in appeals, and for better representation for those facing the death penalty). Bob Graham
    grahamforpresident.com Supports capital punishment.
    Voted to remove the Racial Justice Act from the 1994 Omnibus Crime Bill.  As Governor, oversaw 16 executions. Dennis Kucinich kucinich.us/ Believes the death penalty is morally wrong and racially biased.  Favors Life Without Parole as a morally viable alternative. "The imposition of the death penalty is both racially and economically biased.  African American defendants are more likely to receive death sentences than others who committed similar crimes. Ninety-eight percent of all defendants sentenced to death could not afford their own attorney."  (kucinich.us) Joseph Lieberman joe2004.com Once opposed, but now supports capital punishment.  Co-Sponsor of the Innocence Protection Act. "I have been a steadfast supporter of the death penalty for crimes so heinous that they cry out for the ultimate response, if for no other reason than to give some justice to the family and friends of the slain. We are blessed with an excellent system of criminal jurisprudence in America, but judges, juries and lawyers are human beings, and none of us is infallible. If there has been a mistake and available DNA evidence can demonstrate with certainty the innocence of the accused, how can we justify letting it gather dust in an evidence room?"  (senate.gov/
    ~lieberman/press/01/03/2001307641.html) Al Sharpton sharpton2004.org Opposes capital punishment. "[I want to] raise issues that would otherwise be overlooked—for example,  affirmative action, anti-death penalty policy, African and Caribbean policy."  (al2004.org) REPUBLICAN PARTY CANDIDATE
    FOR THE 2004 PRESIDENTIAL ELECTION

    CANDIDATE
    WEBSITE
    STANCE
    QUOTE / RECORD
    George W. Bush
    georgewbush.com/ Strongly favors the death penalty.  Was governor of Texas during a record 152 executions, the most of any recent governor. "I was the governor of a state that had a death penalty and, as far as I was concerned, I reviewed every case and I was confident that every person that had been put to death received full rights and was guilty of the crime charged."  (Bush press conference, May 11, 2001)


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    Testimony of Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center to the Illinois House of Representatives addressing innocence and

    HISTORIC ILLINOIS HEARINGS ADDRESS INNOCENCE AND THE DEATH PENALTY

    Following a series of celebrated releases of innocent defendants from its death row, Illinois's House of Representatives held hearings to address the state's system of capital punishment on September 15 & 16, 1999. Among those who testified were Sister Helen Prejean, author of Dead Man Walking; Mike Farrell, actor and human rights activist; Renny Cushing, Director of Murder Victims Families for Reconciliation; Bryan Stevenson, Director of Equal Justice Initiative; Professor Lawrence Marshall, Northwestern University School of Law; Richard Dieter, Executive Director of Death Penalty Information Center

    ***********

    Illinois House of Representatives

    Testimony of Richard C. Dieter, Esq. Executive Director,
    Death Penalty Information Center Washington, DC

    September 15, 1999

    Good afternoon. My name is Richard Dieter. I am an attorney and the Executive Director of the Death Penalty Information Center in Washington, DC, a position I have held since 1992.

    I want to thank the members of this committee for your recognition of the importance of this issue and for affording myself and others the opportunity of offering a variety of perspectives on how the death penalty is being administered around the country.

    The Death Penalty Information Center is a non-profit organization which seeks to educate the public about the practice of capital punishment through objective information and analysis. We are funded primarily through foundation grants. In our analysis of the death penalty, we examine questions of fairness and the possibility of mistake, and in this we have been critical of the death penalty. Nevertheless, the Death Penalty Information Center does not have a position on the death penalty per se.

    When it comes to the issue of innocent defendants being sentenced to death, I believe we have a special expertise to offer. In 1993, Representative Don Edwards, who was then Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, asked us to prepare a report on the dangers of executing innocent people. Our analysis of this issue included a discussion of 48 cases in the prior twenty years where people had been freed from death row after evidence demonstrated their innocence.

    That report was released as a Staff Report of the Subcommittee and the list of cases became a basis for an ongoing concern about innocence and the death penalty. The Subcommittee released an updated version of this report in 1994 and we released a further update in 1997. Our 1997 Report contained a total of 69 cases where innocent people had been released from death row. By the time of the national conference on innocence held here in Chicago in November of last year, that number had risen to 74 cases, and today it stands at 82.

    Clearly, the risks of executing innocent people that this large and growing number of cases represents, and the terrible costs to the lives of these 82 people, call for some radical changes in our system of justice. I commend the members of this committee and the Illinois House of Representatives for the courage to address this issue head-on. The problem is not one which is unique to Illinois. (In fact, more innocent people have been released from Florida's death row than from Illinois's.) And I have no doubt that many more such innocent people remain on death row today -- some in states that provide little or no representation for post-conviction review, or which resist releasing innocent inmates, even when the evidence of mistake is overwhelming.

    What can be done? On one level, this is a simple problem: if life imprisonment were substituted for the death penalty, there would be zero danger of executing the innocent. But I'm aware that this committee needs to hear concrete suggestions for changing the system without necessarily abandoning the death penalty. I will leave to those more familiar with the intricacies of Illinois's laws and procedures to suggest where practical changes could be made to ameliorate this problem. I would like to propose some broader areas of change:

    Racial Bias
    The issue of racial bias in the death penalty system is a different one than the issue of innocence. But they overlap. Ten out of the twelve people who have been released from Illinois's death row are members of a minority. Most are African-American. That doesn't prove racial bias, but it should raise concerns. Illinois's death row is made up of approximately 156 individuals, 97 of whom are black -- that's 62% in a state where the black population is less than 15%. Again, those figures do not prove any racial bias, but such a glaring disproportion is evidence that something is wrong at some level of society. If race is playing a role in who is sentenced to death, then it can also be playing a role in who is wrongly convicted. In any case, no one should be satisfied with racial bias in death sentencing, even if everyone charged is guilty.

    Around the country, there is overwhelming statistical evidence that race does play a significant role in the death penalty. The U.S. General Accounting Office was asked by Congress to review the race data that had been collected in the U.S. by 1990 and found that: the "race of [the] victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those murdering blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques."1

    Award-winning researcher David Baldus of the University of Iowa Law School recently made a more recent review of death penalty race studies data in the U.S. for the American Bar Association. He found relevant race data in 29 of the death penalty states. In 90% (26/29) of these states, there was evidence of race-of-victim disparities (i.e., under otherwise similar circumstances, a defendant was more likely to receive a death sentence if the victim was white than if the victim was black) -- and that included studies in Illinois.2 Unfortunately, the Illinois's studies are somewhat dated and new research needs to be conducted.

    Another recent study found that nearly 98% of the country's district attorneys responsible for the decision to seek the death penalty are white. Only 1% are black. In Illinois, at the time of this study in 1998, 100% of Illinois chief prosecutors were white -- there was not a single black or Hispanic among the 102 people who decide who is to face the death penalty in this state.3

    In 1990 and again in 1994, the U.S. House of Representatives passed a bill called the Racial Justice Act. It simply allowed those facing execution to challenge their sentences on the basis of patterns of racial disparities, just as such data are used in housing or employment discrimination suits. However, the bill was defeated in the Senate. Just this past year, a similar bill became law in Kentucky, the first state to adopt it. A Racial Justice Act would not end the death penalty. But it would limit it in a way that would make it fairer and more accurate.

    Mental Retardation

    Allowing those afflicted with mental retardation to be subject to the death penalty also results in a less reliable death sentencing process. Defendants with mental retardation are more likely to be inappropriately compliant with the police, less able to assist in their own defense, behave at trial in ways that the jury may misconstrue as flippant, unremorseful, or even dangerous. In 1987, the U.S. Supreme Court looked at the question of mental retardation and the death penalty. At that time, they found only one state, Georgia, that forbid the execution of the retarded. Today, 12 states and the federal government exclude those with mental retardation from the death penalty, with more states likely to follow. Illinois is not yet among those states.

    Lingering Doubt

    I would like to suggest one other change which would limit the death penalty in Illinois. One of the problems with capital punishment in the United States is that there is vast discretion among nearly 2,000 district attorneys to seek the death penalty. The result can only be described as arbitrary and unpredictable. We have the largest death row in our history and probably the largest in the world -- and it is getting larger. Such a method of punishment is incredibly burdensome to the taxpayers, the criminal justice system, and the judicial system. Illinois is a good example. In 25 years, Illinois has had 12 executions and 156 people remain on death row. At that rate, it would take 300 years to execute just those on death row today. Even assuming Illinois executed 2 people per year, which is it's more recent pace, it would still take 75 years to empty death row, provided no one else was sentenced to death.

    One limitation on this process would be to try to eliminate from death sentence consideration those cases where there is some doubt about the person's guilt. When states reinstated the death penalty after the Supreme Court's Furman decision in 1972, they looked to the Model Penal Code for language which might be acceptable to the Supreme Court. They largely followed the proposed statutes in the Model Code, except for one recommendation: an instruction on lingering doubt in death cases. The American Law Institute, the writers of the Code, suggested the following instruction. When a defendant is found guilty of murder, the Court shall impose a non-death sentence if it is satisfied that:

    (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt.4

    The American Law Institute explained the need for such a provision in its Commentary to this subsection:

    [This section] is an accommodation to the irrevocability of the capital sanction. Where doubt of guilt remains, the opportunity to reverse a conviction on the basis of new evidence must be preserved, and a sentence of death is obviously inconsistent with that goal.5

    Unfortunately, although many states employed a list of aggravating and mitigating circumstances for capital cases similar to the Model Penal Code's suggestions, no state or federal jurisdiction has adopted this protection against the execution of the innocent. In light of the heightened danger of error in capital cases, it is vital to at least amend existing statutes in line with the Model Code's recommendations. An additional revision would be needed to allow appellate courts to take similar action when evidence of innocence does not emerge until well after the trial.

    Besides the critically important goal of saving innocent lives, such legislative changes could quickly eliminate from the lengthy death penalty appeals process some of the most troubling and time-consuming cases, i.e., those approaching execution with a legitimate claim of innocence. This would save the criminal justice system both time and money.

    Conclusion
    I would like to close with one additional observation: Reform of the death penalty may be a futile task. Some of the best legal minds of our era have concluded, after close observation, that the death penalty is irredeemable within our constitutional framework and should simply be ended. This was not only the conclusion of Justice Thurgood Marshall (who actually represented people facing execution) and Justice William Brennan, but of Justice Lewis Powell and Justice Harry Blackmun, both of whom supported the constitutionality of the death penalty in the key Supreme Court decisions of 1972 and 1976.

    Certainly, there is no way that reform can completely eliminate the possibility of executing the innocent. But that is not to say that further reform should not be tried. The rest of the world is becoming increasingly critical of the U.S.'s use of the death penalty. Pope John Paul II and the U.S. Catholic Bishops, the United Nations Commission on Human Rights, the American Bar Association, the major human rights and civil rights organizations, the religious leaders of most of the major denominations in the U.S., family members of murder victims, and many, many others are saying that at least a moratorium should be placed on executions until this system can be more closely examined. It would be foolhardy for us not to make some positive response.

    Thank you. I would be happy to answer any questions from members of the committee.

    ________________________ .

    1. U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990), at 5.

    2. D. Baldus, et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell Law Rev. 1638, 1661 (1998).

    3. See J. Pokorak, Probing the Capital Prosecutor's Perspective: Race of the Discretionary Actors, 83 Cornell Law Rev. 1811 (1998).

    4. See Model Penal Code (Proposed Official Draft 1962), American Law Institute, at section 210.6(1) (emphasis added).

    5. Id., commentary (1980).

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    International Convention on the Elimination of All Forms of Racial Discrimination

     

    A Response to the Initial Report of the United States  to the United Nations

    Ford Foundation Symposium

    October 17, 2000

    by Richard C. Dieter, Esq. Executive Director, Death Penalty Information Center

     

    The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has signed and ratified, guarantees "the right to equal treatment before [all] tribunals . . . administering justice,"1 and this certainly includes the application of the death penalty. Although the Race Convention does not specifically address capital punishment, it binds all state parties to "condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms. . . ."2 The Convention further requires states to provide both a remedy and a forum for challenging racial discrimination.

    The United States, in its recent report on its compliance with the Race Convention, acknowledges the concerns that have been raised about the persistent problem of racial disparities in the death penalty, but it has failed to undertake or even to recommend the means that would help to remedy these disparities, as required under the Convention.

    The volume of evidence showing that race distorts and effects the critical decisions about who lives and who dies in this country is now overwhelming and irrefutable. The history of racial bias in the death penalty contributed to the United States Supreme Court's finding that the existing death penalty was unconstitutional in 1972.3 Subsequent revisions of state and federal laws were intended to correct for the arbitrary and capricious quality of capital punishment, which opened the door to racial bias.4

    But the problems of racial disparities have not been eliminated.5 African-Americans are sentenced to death and are executed in far greater numbers than their proportion in the U.S. population as a whole.6 Those who receive the death penalty have almost exclusively been convicted of committing a crime against a white person. Eighty-two percent of the executions carried out since 1976 have involved the murder of a white victim,7 even though whites are victims in only 50% of the murders committed in the U.S.8 When interracial murders are examined, the statistics are even more glaring. Since 1976, 158 black defendants have been executed for the murder of a white victim, but only 11 white defendants have been executed for the murder of a black victim.9 Indeed, in the entire history of the U.S., it has been extremely rare for a white person to be executed for murdering a black person, while executions of blacks for the murder of whites have been relatively common.10

    In 1990, the U.S.'s own General Accounting Office conducted a review of the existing studies on race and the death penalty and concluded that the overwhelming majority of these studies showed that: "those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks."11

    Supreme Court Justice Harry Blackmun, who voted to uphold the death penalty both in 1972 when it was halted, and in 1976 when it was reinstated, concluded that racial discrimination continues to infect the practice of the death penalty: "Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die."12

    Recent studies further confirm the persistent pattern of racial discrimination in the U.S. death penalty. A systematic analysis in Philadelphia by award-winning researchers David Baldus and George Woodworth revealed that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant.

    How does racial bias creep into a system which the U.S., in its report on compliance with the Race Convention, claims to be protected by "heightened procedural safeguards?"13 One way is through the key decision-makers, who make the crucial decisions about which defendants will be pursued with the death penalty. A study by Professor Jeffrey Pokorak of St. Mary's University Law School in Texas found that the key prosecutors who choose to pursue death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American. If such a pattern of race disparity were found in the employment records of a major U.S. corporation, there would surely be an official outcry and swift changes would be made.

    Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. A report to the American Bar Association found that in 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease.

    A most egregious example of this type of racial discrimination was revealed in a study of Kentucky's death row. In that state, there were over 1,000 murders of African-Americans since the death penalty was reinstated. However, not one person on Kentucky's death row was there for the murder of a black person. Death row was exclusively populated by those who murdered a white person.14

    Just yesterday, a study was released regarding Texas's use of the death penalty. Among other egregious examples of injustice, the pattern of racial bias stood out: Although almost a quarter of all Texas murder victims were black men, only 0.4% of those executed since the reinstatement of the death penalty were condemned for killing a black man. And Texas has never executed a white man for killing a black person.

    Perhaps most telling of all the studies on race and the death penalty was released last month by U.S. Department of Justice. Americans look to the federal government to be a model of equality and full due process. The regional biases which may distort local application of the law should be absent from a more centrally controlled federal government. The federal death penalty should not be clouded with the aura of racial discrimination.

    But the numbers revealed by the same government which reports that it finds no problem with race and the U.S. death penalty reveal a different story. By the government's own numbers, 80% of the nearly 700 cases submitted by U.S. Attorneys in the past 5 years for federal death penalty prosecution involved minority defendants. Over 70% of the capital prosecutions approved by Attorney General Janet Reno involved minority defendants. And 80% of those currently on the federal death row are minorities, including 2/3 who are African-American. That's a worse record than exists in any state death row around the country.

    The response of the Attorney General and the President of the United States to these embarrassing numbers is that they were "troubled." Perhaps even more studies will be conducted, but in the mean time, the first two federal executions in 37 years are scheduled to occur in the next two months, and there has been no acknowledgment that a moratorium is needed while such racial disparities are examined more closely. There has been no call for legislation to guarantee that statistical studies showing such patterns of racial bias be at least considered by courts reviewing them.15

    Without such remedial legislation, and despite this overwhelming evidence of discrimination, the response of the courts will be to deny relief. Such legislation, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in various states but it has only been passed by one state, Kentucky.16 In its stead, Congress enacted severe restrictions on the access of death row inmates to federal courts where race challenges can be brought,17 and eliminated all federal funding for the legal resource centers which had frequently raised these claims.

    The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and the devotion of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks.

    This persistent and pervasive evidence of racial discrimination in the application of the death penalty, coupled with the resistance to corrective legislation, undermines the U.S.'s compliance with the Race Convention. If blacks are being punished more severely because of their race, or if defendants who kill white victims are executed while those who kill blacks are given life sentences, then the death penalty is an instrument of discrimination in violation of the Race Convention and should be stopped.

    Endnotes

    1. International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969), Article 5(a) (hereinafter Race Convention).

    2. Race Convention, Article 2(1) (emphasis added).

    3. See Furman v. Georgia, 408 U.S. 238 (1972) (especially concurrences of Marshall, Brennan, and Douglas, JJ.).

    4. See Gregg v. Georgia, 428 U.S. 153 (1976).

    5. See, e.g., S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

    6. See Death Row U.S.A., NAACP Legal Def. & Educ. Fund, Inc. (July, 2000).

    7. Id.

    8. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-1998 293, Table 3.136 (1999).

    9. See Facts About the Death Penalty, Death Penalty Information Center (October 10, 2000).

    10. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, N.Y. Times, Sept. 7, 1991.

    11. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990) (emphasis added).

    12. Callins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun, J. dissenting from the denial of certiorari).

    13. Initial Report of the United States to the United Nations on the Elimination of Race Discrimination, Part II, C. Specific Articles, Article 5: Capital Punishment (Sept. 2000)

    14. See, Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7, 1996 (citing Univ. of Louisville study).

    15. See McCleskey v. Kemp, 481 U.S. 279 (1987) (rejecting all such studies, but positing legislation requiring their use in appeals).

    16. See, e.g., H.R. 4017, 103rd Cong., 2d Sess. (1994) (Racial Justice Act, not passed in the Senate).

    17. See S. Labaton, Bars on Death Row, N.Y. Times, April 19,1996 (calling the restrictions on habeas corpus "a monumental shift of power to the state courts from the Federal judiciary").

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    Dr. Sidney Wolfe's Letter to John Romine, M.D., urging the immediate suspension of Dr. Fred Pintz's license to practice medicine because of his involvement in an upcoming execution Dr. Wolfe's letter PUBLIC CITIZEN
    November 2, 2001
    Urgent: Immediate Attention

    John Romine, MD
    President, New Mexico State Board of Medical Examiners
    2nd Floor, Lamy Bldg.
    491 Old Santa Fe Trail
    Santa Fe, New Mexico 87501

    Dear Dr. Romine,

    I have learned from several sources that Dr. Fred Pintz, the Chief Medical Officer of the State of New Mexico, has flagrantly violated a principle implicit in the New Mexico Medical Practice Act by providing authorization for the acquisition and provision of the drugs to be used by the New Mexico Department of Corrections in the execution by lethal injection of Terry Clark, scheduled for next Tuesday, November 6th. Unless Dr. Pintz is willing to immediately revoke his order for providing these drugs and ensure that the drugs are returned to the pharmacy in the State Department of Health, I urge that there be an emergency suspension of his license to practice medicine with the plan to permanently revoke it.

    In 1992, the American Medical Association (AMA) articulated a position condemning the participation of physicians in state executions.^ A 1994 joint statement by the AMA, the American College of Physicians, the American Nurses Association and the American Public Health Association, Health Care Professional Participation in Capital Punishment: Statement from Professional Societies Regarding Disciplinary Action, recommended that "state professional licensure and discipline boards treat participation in executions as grounds for active disciplinary proceedings, including license revocation." The New Mexico Medical Practice Act has been interpreted to defer to the AMA's position on this issue, and thus, Dr. Pintz's participation in this planned execution clearly violates the ethical and legal principles governing the Board of Medical Examiners.

    Since the Medical Officer of the Department of Corrections left New Mexico several months ago and because the company contracted by the state to provide prison health services refused to be involved in the execution of Terry Clark, the Governor asked the Secretary of Health, Alex Valdez, to facilitate the provision of the drugs for the lethal injection. Valdez asked a state pharmacist to obtain the drugs but the pharmacist allegedly refused unless so ordered by a physician. Thus, Dr. Pintz, the Chief Medical Officer of New Mexico, was asked to facilitate the acquisition of the drugs so they could be provided to the Department of Corrections.

    There have been 739 executions in the United States since 1976, including 574 by lethal injection. In most, if not all cases, physicians have been involved in one or more of the activities proscribed in the 1994 Joint Statement which include: .... "Prescribing, preparing, administering or supervising injection drugs ....prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure.... monitoring vital signs....determining the point at which the individual has actually died...."

    Such participation unequivocally contravenes the Oath of Hippocrates as well as the AMA Code of Ethics. Unless these important codes are acted upon, adherence to them will be dangerously low. The only way to accomplish this is to revoke the license of any physician who so participates in any way in the execution of a person. Dr. Pintz is the first such physician whose identity has come to my attention. Unless the New Mexico Board takes immediate action to suspend and revoke his license if he refuses to reverse the violent course of action which he has facilitated, the Board will have failed in its responsibility to uphold the legal and ethical principles under which it must operate.

    Sincerely,
    Sidney M. Wolfe, MD
    Director, Public Citizen's Health Research Group

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    The Challenge of Holiness: A Sermon on the Death Penalty

    By Rabbi Peter J. Rubinstein,
    Senior Rabbi of Central Synagogue
    Delivered at Riverside Church, January 10, 2000

    Good morning. It is really humbling to be here on this pulpit in the presence of colleagues - ministers of this great church; to be with those who have devoted their lives fighting for a cause which I deem of ultimate importance; and to be with you, the members of a congregation which throughout its history has somehow always understood what needs to be done and somehow managed to get it done, and, more importantly, has been a light unto the nations, a light to the city, a light to our entire community.

    It is with that knowledge that I stand humbly before you, as a religious leader of this community who has walked side by side with members of your clergy staff, but also as one who, like you, cares about the sanctity of life, about which we will talk today.

    During this season in particular, we who are Jews are especially keenly aware of God's demands as we prepare for our High Holidays. It is during this season that we learn just how demanding God can be. We are about to embark upon the celebration of our new year and on the acknowledgment of our day of atonement, Yom Kippur. These days of reflection and atonement are a time of confession. And you would think that we should be able to ask God directly for forgiveness.

    Yet, God has a demand of us: that we face those we have hurt, that we look into the eyes of those we have wronged, and that we ask for their forgiveness. Only if we pass that test, only if we can stand before all those to whom we have done wrong, only then can we plead our case before the Divine throne.

    "Talk to those you have wronged," God says. "Don't begin with a prayer to me, with a litany of your sins. Talk to me of holiness, but ask your brothers and sisters whether you have acted holy." "Speak to me," God says, "of how you managed not to keep the Sabbath. But speak to them about how you have stepped over them when they huddled, tired and hungry on the street." "Talk to me," says God, "about your prayers. But talk to them about why you haven't educated their children. Oh, you can come and speak to me of the matters of ritual abstinence. But you had better speak to them of the huge matters of how you sent them to jail when they were not guilty, of how you stole years of their youth from them with unjustified punishment, of how you - but oh, about this you can't speak to them anymore, because you have killed them, murdered them with heart numbing chemicals and sent electric currents through their organs."

    Today gives us the opportunity to be aware of ourselves, the civilization we are building, the world we have inherited. And it is time to give serious thought to what we have wrought.

    We begin with a piece of history. Gary Graham had not been a nice guy. He was a dangerous criminal who had shot and seriously hurt two people in Houston. But other than one eyewitness who says that she saw his face for a few seconds through a car windshield from about 30 feet away, nothing nails Gary Graham to the murder of Bobby Lambert in a supermarket 19 years ago. And though the case had come before thirty judges, the two witnesses who said that Graham was not the shooter and whom the police had even listed on their report were never called to testify. In addition, there was a woefully incompetent trial lawyer, the fact that the gun Graham possessed when taken into custody was not one used in the murder, and that there was no physical evidence linking him to the crime.

    This past June 22, in a statement on the floor of the United States Senate, Senator Russell Feingold, who has been a staunch advocate for abolition of the death penalty, said, "Supporters of the death penalty, including Governor Bush, have said there is no conclusive proof that Texas has killed an innocent person." I add, as an addendum: What nerve to be so certain about anything -- much less innocence or guilt or the certainty that someone has done something deserving of being murdered himself! Senator Feingold went on to say, "Apparently, Gary Graham, who had the courthouse doors slammed shut on his claim of innocence, won't have a chance to prove that he is innocent." That same evening, Gary Graham was strapped to the execution gurney, a needle was inserted into his arms, and poisons flowed into his veins, ending his life.

    That was not the first time nor will it be the last in which the muddy waters of human and judicial judgement drown claims of innocence and bring death to those who may never have taken life.

    I first confronted the noxious potential of capital punishment when I read the story some years ago of Isidore Zimmerman. He had been sentenced to death for the murder of a Police Detective upon the testimony of a man who was part of a gang that was arrested for the murder. All seven of the gang were found guilty. 5 were executed in the electric chair. One died of natural causes. 2 hours before Zimmerman was scheduled to be electrocuted, his death sentence was commuted to life in prison.

    Zimmerman spent the next 24 years in New York state penitentiaries. In 1962, finding that a prosecutor in the DA's office had deliberately used perjured testimony and had suppressed evidence that might have proven his innocence, an appeals court overturned Zimmerman's conviction. 21 years later, the State Court of Claims awarded Zimmerman $1,000,000 for his ordeal, as though they could ever pay him for the years of suffering.

    Zimmerman died four months later, having spent 24 of his 66 years in prison for a crime in which the State finally admitted he had played no part. The article about his death is what called my attention to his story. I believe that he wanted to die to show that the State could not give him back those years, not even with $1,000,000.

    This example is one among others where judicial miscarriages have had horrifying outcomes. The statistics are awful. A recent study undertaken by law professor James Liebman and others at Columbia University reports that 68% of the death sentences that federal and state courts have reviewed in the past two decades have been overturned. In cases sent back for retrials, 82% of convicted capital defendants received new sentences other than death, including 7% who were found not guilty.

    I believe that communities do have the right to protect themselves from crime. We have the right to take criminals off the street, especially for repeated crimes. Punishment needs to fit the crime, and we also expect in this day and age that punishment will deter crime. So, we impose fines and incarcerate because we believe that if the lawbreaker hurts enough, he or she will not break the law again.

    But I am terriby concerned when our society turns to revenge and takes a criminal's life as the punishment for wrongdoing. Albert Camus described this base instinct and reflex of ours. He said that it goes like this: "Whoever has done me harm must suffer harm; whoever has put out my eye must lose an eye; whoever has killed must die." This is a particularly violent emotion.

    Yet, we are part of an American culture that honors vengeance -- especially in its choice to impose the death penalty. The execution chambers in our country are humming along. For example, just this week, Michael Scott is scheduled to be executed on Tuesday, on Wednesday, Miguel Richardson is scheduled to die in Texas and George Harris is scheduled to die in Missouri, and Derek Barnabei's execution is planned in Virginia for Thursday.

    Only China, Iran and Saudi Arabia execute more prisoners than we do. These are hardly countries we would want to emulate or to be grouped with. And we in the United States are leading the world in imposing the death penalty for juvenile convictions. We have also executed 34 people who have been diagnosed with mental illness or retardation, including some individuals who could not even read the statements they signed.

    James Roach from South Carolina had an IQ below 70. He had Huntington's Disease which was causing his brain to deteriorate. And when the State killed him in 1986, it did so for a crime convicted when he was only 17 years old.

    Our State of New York doesn't cause me to be proud either. After decades in which the death penalty did not exist here, New York in 1995 passed death penalty legislation. We inch precariously closer to reactivating executions, with 6 men already on New York's death row. If we are not vigilant, we could be grooming our death chamber to act on our behalf.

    Prior to the Governor of Illinois'imposition earlier this year of a moratorium on executions, an equal number of men there had been exonerated as had been executed since the reimposition of capital punishment there in the 1970's. Prior to the imposition of that moratorium, an editorial had aptly commented, "The exonerations are not a sign that the system is working. The innocence of many death-row prisoners was discovered only because outsiders went to great time and expense to investigate when the courts would not."

    Only sheer luck saved the life of Walter McMillian, who was released from Alabama's death row after having spent 6 years there on the basis of perjured testimony and withheld evidence. After listening to a tape of a key witness against McMillian, a volunteer lawyer happened to flip the tape to see if there was anything on the other side. He then heard the very same witness complain that he had been pressured to frame McMillian.

    A system that requires college students to provide justice as a class project -- as has happened more than once at Northwestern University -- cannot be called functional. A system that holds the balance of a man's life in the flipping of a tape cannot be called reasonable.

    How many innocent people are we going to have put to death on our behalf because there is no one left to champion their cause, because their time and money has run out? We know that the death penalty is going to kill innocent men and women.

    We also know that the death penalty is not an effective deterrent. A member of my congregation, Ron Tabak, has demonstrated that empirical studies disprove most of the popular arguments by proponents of the death penalty, including the proposition that it will deter crime.

    And above all the death penalty is unfair and unjust. It is downright discriminatory.

    When Supreme Court Justice Harry Blackmun spoke at Central Synagogue in 1993, he confided to me with a great deal of personal pain that he, in his position as a Supreme Court Justice, had come to know that more than a few innocent people have been executed in this country. Justice Blackmun early in his tenure on the Supreme Court had shamelessly voted to uphold the death penalty. But in 1994, he officially went on record reversing himself. In a dissent, he wrote:

    "From this day forward, I no longer shall tinker with the machinery of death-I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now, that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies."

    Justice Blackmun knew and told me that capital punishment is racially discriminatory, inconsistently applied, and fraught with constitutional danger. The skin colors of the victim and the perpetrator, the accused's financial resources or lack thereof, the location of the trial, the identity of the judge, and the expertise or lack thereof of the lawyers are all capricious matters that determine whether the accused will live or die.

    But I want to leave to the lawyers those constitutional arguments and the salami approach to the law in which lawyers appropriately chip away at the laws that are sending people to their deaths.

    For me, what is important is that we are sitting together in a sanctuary. In the spirit of this place, I proclaim that capital punishment is absolutely antithetical to the very foundation and principles of religious faith.

    The "eye for an eye" argument that is used vociferously by death penalty proponents -- some, sadly, my own colleagues * in an effort to garner support from Biblical law does not fit with what we believe. Before we use the "eye for an eye" argument to support the modern death penalty, we had better be especially cautious and had better start reading our Bible. I warn you that if we begin to literally apply the laws of the Bible -- in which the death penalty is also called for those who are adulterers, those who are blasphemers, those who don't keep the Sabbath, and those children who might be rebellious -- we would decimate our society.

    In the Jewish tradition, the Rabbinic authorities used textual devices to prevent the death penalty. The Rabbis interpreted the Torah using God's aversion to murder as a basic principle. And they referred to Torah texts which explicitly forbid capital punishment.

    The statute of an "eye for an eye" was interpreted to mean, at its very most, the "worth of an eye" for an eye. We have no recorded history, in Jewish tradition, of putting out eyes, of amputating hands, or of knocking out teeth. Criminals certainly needed to pay for wrongdoing, but not with the mutilation of their bodies or with their lives. The eye for an eye legislation remained conceptual and was used only in its interpreted form.

    The legislation that was used and needs to be used is one of the Commandments that stands before us everyday of our lives: "You shall not murder."

    Our forebears believed that only God has the right to take life. Not you, not me.

    I believe we must abolish the death penalty. We cannot become murderers.

    I cannot even imagine what it would be like to send 2000 volts through three electrodes attached to the head by a tightly fitting cap and strapped to a person's ankles. I dare not imagine the gassing of a human being or hanging a person or the loud sounds of a person's lungs being emptied of air by lethal injection before the poison stops the heart. I do not want the State to do this on my behalf.

    Taking a person's life by plan, by calculation, in cold blood is nothing short of murder -- no matter how its proponents want to make it seem different.

    Capital punishment is an ignoble, irrevocable act of revenge. Once someone has been executed, you can't go back. You can't ask for forgiveness. You can't say you are sorry and make it all better.

    When Samuel Pisar, one of the youngest survivors of the Nazi death camps, wrote his memoirs, he recounted an occasion in which he first responded to a fellow student's practical joke with punches and rage but then caught himself. He was mortified. "Fool," he said to himself, "what have you done? - Have those Nazis succeeded after all? You have got to learn some self-control. You have got to lock up the hoodlum in you and throw away the key." My friends, each of us personally -- and all of us as a community * must lock up the hoodlum in us and throw away the key.

    I worry about what I would do if any person harmed those whom I love. No doubt, I would want an attacker to feel pain. And let it be that murderers spend their entire lives in prison, facing the reality of their broken lives.

    But we are responsible for how we punish. We are responsible for what we do. At our best, we should be punishing to educate and to improve and to redeem, and should even let out of prison those who have recreated their lives.

    Isn't that what God is asking us to do: to atone, to turn our lives around? Can't people do that, and can't we let them do that?

    We can punish to deter, to protect. But we should not punish to take revenge. It makes us murderers. It diminishes us. It begets violence.

    Revenge turns us into thugs. We have no right, no reason, to take life.

    God implores us, "You shall be holy because I the Lord your God am holy." Reaching beyond our human reflexes and grasping for divine decency is no easy matter. But, then again, struggling to be holy is probably why God put us here in the first place -- here in this church, here in my synagogue, here in this creation.

    Sadly, it is absolutely impossible to seek atonement from those we have put to death. They are gone! But we can enmesh expiation in our commitment to action, to remove capital punishment from the menu of judicial responses.

    So let us stand up forcefully for the protection of life. Let us be warriors in defense of all life. Let us take our places in defending ourselves against forces of darkness. Let there be no blood on our hands, as there will be if someone else who acts on our behalf throws the switch or inserts the needle in the vein. Let it not be that life be taken for you or for me.

    God needs us to build this world, not to destroy this world. God pleads with us to heal this world, not to harm this world.

    These, my friends, are the missions before us. I pray that we will be worthy of God's trust in our goodness. For in the end, our goodness is the tool that God has given us to help complete this creation.

    Amen. Testimony, Resolutions, Statements, & Speeches on the Death Penalty


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    The US Death Penalty and International Law: US Compliance with the Torture and Race Conventions  

     

    Ford Foundation Symposium
    November 12, 1998


    by Richard C. Dieter, Esq.
    Executive Director, Death Penalty Information Center

    Introduction

    The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) was adopted by the General Assembly of the United Nations on December 10, 19841 and ratified by the United States ten years later. In all, 176 countries have either ratified or signed the torture convention.

    The thrust of this treaty is to forbid physical and psychological abuse of people in detention around the world. Whether the death penalty is implicated in this treaty depends on the definition of torture. Clearly, the U.S. was not about to sign a treaty which, on its face, outlawed capital punishment as a form of torture. But the application of the death penalty in the U.S. in specific instances may well be in violation of this convention.

    Article 1 of the Torture Convention defines torture, in part, as:

      any act by which severe pain or suffering . . . is intentionally inflicted on a person . . . by . . . a public official....2
    The definition warns of some of the impermissible reasons for which torture is frequently inflicted, including coercing a confession, punishment, or for "discrimination of any kind." The definition of torture "does not include pain or suffering arising only from . . . lawful sanctions."3

    There are three parts of this definition that deserve special note: First, there is an exemption for pain or suffering associated with lawful punishments. Thus, imprisonment may produce much pain and suffering like separation from loved ones, deprivation of freedom, etc. However, in so far as imprisonment is lawful, the normal suffering that results is not banned by the Torture Convention. Similarly, since the death penalty may still be considered a "lawful sanction," the considerable pain and suffering which inevitably accompany an execution are not torture under this definition. But, the exempted sanctions have to be lawful in the first place.

    Secondly, pain or suffering associated with a lawful punishment can be torture if it is not closely connected with that punishment. It must arise from, or be inherent in, or incidental to a lawful sanction. If certain forms of pain and suffering can easily be avoided without eliminating the basic punishment, then it is fair to ask whether that suffering is inextricably entwined with the punishment.

    Finally, the definition of torture forbids the infliction of pain and suffering based on discrimination of any kind. There is considerable historical and statistical evidence that the death penalty in the United States has been applied in a racially discriminatory way. If that is true, then Article 2 of the Torture Convention requires States to "take effective legislative, administrative, judicial or other measures to prevent acts of torture . . . ."4 As I will discuss later, this issue is also addressed in a general way by the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention), also ratified by the U.S. in 1994.

    I would now like to look into each of these three aspects of the definition of torture to see if the U.S. practice of capital punishment violates the Torture Convention.

    "Lawful Sanctions"

    Juveniles

    Although the death penalty is generally tolerated under international law, the same cannot be said of the execution of juvenile offenders. The International Covenant on Civil and Political Rights requires that the death penalty only be imposed "for the most serious crimes," and never upon those who were under 18 years of age at the time of their crime.5 Virtually all the countries of the world have signed or ratified this important treaty, including most recently, China. However, the United States is the only country with an outstanding reservation to the Article forbidding the execution of juvenile offenders.

    Only seven other countries in the world are known to have carried out an execution of a juvenile in the last ten years6 and the U.S. may be the most flagrant violator with 3 more juvenile offenders executed just this year. Since 1976, there have been 12 executions of those who were under 18 at the time of their crime in the U.S., with 9 of the 12 occurring in the 1990s. Seventy-two additional juveniles are on death row awaiting execution. While some states and the federal law set 18 as the minimum age of eligibility for the death penalty, the majority of death penalty states allow 16 or 17 year-olds to receive this ultimate punishment.7And some government officials have been calling for a reduction of the minimum age, even to as low as 11.8

    It is because of this history and practice that the U.S. took a specific reservation to the Civil and Political Rights Covenant essentially exempting itself from the ban on juvenile executions. The U.S. has also taken a reservation to the Torture Convention, stating that we understand "international law does not prohibit the death penalty, and does not consider this convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution . . . ." In other words, what the U.S. considers to be lawful punishment under the Torture Convention is what the U.S. courts, not the world community, consider lawful.

    Reservations to treaties, including human rights agreements, are generally recognized in international law. However, reservations which contradict the "object and purpose" of the treaty are not allowed. Eleven countries formally protested the U.S.'s reservation to the Civil and Political Rights Convention regarding juvenile offenders, and the U.N. Committee on Human Rights has stated that such a reservation is invalid. The U.S. Senate responded to this challenge by threatening to withhold funds from U.S. participation in the work of the U.N. Committee on Human Rights.9

    Other International Treaties and Juvenile Executions

    The U.N. Convention on the Rights of the Child also specifically prohibits the use of the death penalty for juvenile offenders. This treaty goes even further and outlaws the sentence of life without possibility of parole for those under 18. Virtually every country in the world has ratified this treaty, except the U.S. The U.S. has signed the treaty, but not ratified it, in part because we foresee the conflict between our practice of executing juveniles and the treaty.10

    Similarly, the U.S. has signed but not ratified the American Convention on Human Rights, which states: "capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age."11 The major role of these treaties in international law and the near unanimous acceptance of their prohibition regarding juveniles leads to the conclusion that this is no longer a "lawful sanction." In this sense, the U.S. violates the Torture Convention when it executes juvenile offenders because this grave infliction of pain and suffering is not associated with a lawful punishment.

    The Mentally Retarded

    A similar argument can be made that the execution of defendants suffering from mental retardation is unlawful in international law and hence is torture when applied to them. The treaties mentioned above are less clear when it comes to execution of the mentally retarded.

    Persons with mental retardation fall into the bottom two to three percent of the population in intellectual functioning. They are unlikely to achieve a mental age greater than 12 years old.12 Those who have committed a crime have a diminished capacity to understand right from wrong and the legal consequences of their actions. In this sense, they are comparable to juvenile offenders. If it is wrong to execute those under age 18 at the time of their crime, it would also be wrong to execute someone whose mental age was considerably under 18.

    The Civil and Political Rights Covenant states that the death penalty should be restricted to the "most serious crimes." The standard of what is most serious includes not only the gruesome facts of the crime, but also the culpability of the person charged. Less than 2 percent of those who commit murder receive the death penalty in the U.S. It seems absurd to maintain that the mentally retarded, who are in the lowest 2 percent in terms of intellectual functioning, are somehow among the highest 2 percent in culpability.

    Moreover, Article 16 of the Torture Convention requires states to prohibit any official cruel, degrading or inhuman treatment, even if it does not fall under the strict definition of torture. Again, what is degrading or cruel may be in eyes of the beholder, but even in the U.S., 24 states and the federal government do not allow the execution of a mentally retarded defendant. Justice William Brennan, in dissenting from the Supreme Court's decision which permitted such executions, wrote that "the execution of mentally retarded individuals is 'nothing more than the purposeless and needless imposition of pain and suffering . . . .'"13

    Thirty-three defendants with mental retardation have been executed in the U.S. since 1976.14 There has been some legislative movement towards stopping these executions. When the U.S. Supreme Court in 1989 upheld the constitutionality of the death penalty for those with mental retardation, it did so at a time when only one state forbade this practice.15 Today, 12 states and the federal government have a specific exemption for those with mental retardation.

    Foreign Nationals

    Another area in which the legality of the death penalty has been called into question is the execution of foreign nationals in the U.S. The U.S., along with almost all the other countries of the world, has long been a party to the Vienna Convention on Consular Relations.16Article 36 of this Convention requires officials in the U.S. who place foreign nationals under arrest to inform them of their rights to consult with the embassy of their home country.17 It is clear that this provision, which is binding in all states under U.S. law, has been consistently ignored.

    There are at least 72 foreign nationals on death row in the U.S. Virtually none of these defendants were informed of their consular rights under the Vienna Convention. Beginning with Carlos Santana from the Dominican Republic, who was executed in Texas in 1993, there have been 8 executions of foreign nationals in the U.S. since the death penalty was reinstated.

    Given that there are many defendants facing execution who were not informed of their consular rights in violation of both international and U.S. law, what should be the remedy ? This issue reached the highest courts of both the U.S. and the world with the pending execution of Angel Breard in Virginia in April of this year. Breard was a citizen of Paraguay and had come to the U.S. in 1986. He was not informed of his consular rights when arrested for murder in 1992.

    At trial, he rejected the advice of his appointed American lawyers, refused a plea agreement offered by the state and insisted on testifying in his own defense. On the stand, Breard claimed he was compelled by a satanic curse placed on him by his father-in-law.18 He was found guilty and sentenced to death in 1993.

    Paraguay attempted to intervene on his behalf in the appeals process, claiming that if Breard had been given the opportunity to discuss the U.S. legal system with counselors from Paraguay he might have accepted the plea bargain and avoided a death sentence, or at least he might have seen the pitfalls in taking the stand. However, Paraguay's efforts were barred by the Eleventh Amendment to the U.S. Constitution which forbids suits by foreign countries against a state.19 While this matter was being further appealed, Paraguay filed suit with the International Court of Justice at The Hague. In that forum, Paraguay asked for a ruling to prevent the imminent execution of Breard because of the U.S. violation of the Vienna Convention. The International Court, recognizing that there was not sufficient time before the execution to adequately hear both sides and render a decision, unanimously ruled that the execution should be delayed at least until the Court could fully review the matter.20

    U.S. Secretary of State Madeleine Albright asked the state of Virginia to comply with this injunction by the International Court. The U.S. Supreme Court refused to stay the execution, primarily because it found that Breard had not raised his claim regarding the Vienna Convention in a timely manner.21 The Court held that this procedural bar not only precluded Breard's individual claim, but also negated any influence of the International Court of Justice. The decision by the highest court in the world was summarily rejected because of U.S. procedural rules designed to speed up executions.

    Interestingly, while the U.S. Secretary of State was pleading with Governor Gilmore to halt the execution, the U.S. Justice Department was arguing that Virginia would suffer harm if it was not allowed to carry out the "execution in a timely fashion."22 Breard was executed on April 14, 1998, shortly after the Supreme Court rendered its decision. Outside of those who have volunteered for execution and waived their appeals, Breard's case was one of the fastest to go through the appeals process since the death penalty was reinstated. Even though Breard was executed, the case that Paraguay brought to the World Court continues. An opinion by the World Court that such executions would be illegal would also imply that the U.S. is in violation of the Torture Convention.

    Pain and Suffering Not Inherent to Death Penalty

    Although much of what is painful about the death penalty is inextricably linked to the ultimate execution, there is some suffering which is peripheral to executions and hence may constitute a form of torture. The length of time that people spend on death row in the U.S. is quite long and not an essential or an intended part of the punishment. Also, the methods of execution used in some states is gratuitously violent and torturous.

    Time on Death Row

    Death row inmates are subjected to years of uncertainty under dismal physical conditions not knowing when they will be executed. Albert Camus noted that "[t]he devastating, degrading fear that is imposed on the condemned for months or years is a punishment more terrible than death."23

    The average time between sentencing and execution in the U.S. is eight and a half years. There are over 3,500 inmates on death row and many have been there for 10 or even 15 years.24 Every year, many inmates give up legitimate appeals and ask that their executions go forward as quickly as possible. While the delay might seem to favor those who want to avoid their execution, it works against those who have been wrongly convicted or sentenced in that their relief is delayed. Over 35 percent of death sentences are overturned on appeal.25

    The time spent on death row is not inherent to the death penalty. It is the product of a number of factors. To begin with, in many cases incompetent attorneys are assigned to death cases and they frequently make fundamental mistakes in their representation. These cases may result in retrials and considerable delay. Another independent factor is the backlog of cases of all types which appellate judges have to consider. Appeals submitted by defense attorneys or prosecutors sometimes take years before a decision is rendered. Because of the high stakes in a death case, both sides typically appeal every adverse ruling. Only a part of the resultant delay is the responsibility of the defendant. In some cases, the state delays for years before even assigning an attorney to handle a death penalty appeal. The typical wait in California for the appointment of an attorney to just start the appeals process is three to four years.

    The attention of courts around the world have been drawn to the torment of the prisoner in this situation. In Pratt v. Attorney General of Jamaica, the highest court in the United Kingdom unanimously ruled that a 14-year delay between the trial and execution rendered the pending execution to be "cruel" and "inhumane."26 The British Privy Council ruled that such an inordinate delay would never have been permitted under English common law and commuted the sentence to life imprisonment. In considering a case involving a 17-year delay in U.S. courts, Justice Stevens of the Supreme Court called for consideration of this "important" issue by intermediate courts and hinted that the issue may become ripe for the Supreme Court in the future.27

    Methods of Executions

    In addition to the actual killing of a human being and the years of psychological torment leading up to this act, the methods of execution employed in the U.S. have resulted in the infliction of additional pain. At least 20 executions since 1976 involved mistakes in the process which led to prolonged and painful executions, such as an inmate's head catching fire during an electrocution and the torturous 45-minute search for a suitable vein to carry out a lethal injection.28 Four states use electrocution for execution with no alternative possible. Outside of the death penalty, the applying of powerful electric currents to the human body would unhesitatingly be called torture.

    Other states allow the inmates, many of whom are suffering from mental illness, to choose equally grisly forms of execution such as hanging, the firing squad or the gas chamber. At least some of the pain and suffering which these methods cause is gratuitous and could be avoided. To insist on the worst methods of execution, as recently exhibited in Florida, despite evidence of the severe pain inflicted and repeated mistakes in application, is a violation of the Torture Convention and of basic respect for human rights.

    Race Considerations

    As was mentioned above, the Torture Convention forbids the infliction of pain and suffering "based on discrimination of any kind." The death penalty in the United States has a long history of racial discrimination,29and is therefore suspect under the Torture Convention.

    The fact that race played a significant role in the imposition of the death penalty contributed to the United States Supreme Court's finding that the death penalty was being unconstitutionally applied in 1972.30 Subsequent revision of state laws convinced a majority of the Supreme Court that the arbitrary and capricious quality of capital punishment laws could be remedied and executions were allowed to continue.31

    The problem of racial disparities in the application of the death penalty has not, however, been eliminated. African-Americans are sentenced to death and are executed in far greater numbers than their proportion in the U.S. population as a whole.32 Those who receive the death penalty have almost exclusively been convicted of committing a crime against a white person. Eighty-three percent of the executions carried out since 1976 have involved the murder of a white victim,33 even though whites are victims in less than 50 percent of the murders committed in the U.S.34 When both race of defendant and race of victim figures are examined, the statistics are even more glaring. Since 1976, 117 black defendants have been executed for the murder of a white victim, but only 8 white defendants have been executed for the murder of a black victim.35 Indeed, in the entire history of the U.S., there have only been approximately 38 whites executed for murdering a black person.36

    In 1990, the U.S. General Accounting Office conducted a review of such studies and concluded that reliable studies showed: "those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks." 37

    Supreme Court Justice Harry Blackmun, who voted to uphold the death penalty both in 1972 when it was halted, and in 1976 when it was reinstated, recently concluded that racial discrimination continues to infect the practice of the death penalty: "Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die."38

    Recent studies further confirm the persistent pattern of racial discrimination in the U.S. death penalty. A systematic analysis in Philadelphia by award-winning researchers David Baldus and George Woodworth revealed that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant.

    Another study by Professor Jeffrey Pokorak of St. Mary's University Law School in Texas found that the key decision-makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American.

    These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years.39 Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease.

    A most egregious example of this type of racial discrimination was revealed recently in Kentucky. In that state, there have been over 1,000 murders of African-Americans since the death penalty was reinstated. However, not one person on Kentucky's death row was there for the murder of a black person. Death row was exclusively populated by those who murdered a white person.40

    Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief.41 When the Supreme Court rejected race claims based on statistical evidence, it indicated that the problem might be addressed through legislation.42 Such remedial legislation, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in various states but it has only been passed by one state, Kentucky.43 Instead, Congress recently enacted severe restrictions on the access of death row inmates to federal courts where race challenges can be brought,44 and eliminated all federal funding for the legal resource centers which had frequently raised these claims.

    The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and the devotion of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks.

    This persistent and pervasive evidence of racial discrimination in the application of the death penalty, coupled with the resistance to corrective legislation, undermines the U.S.'s compliance with the Torture Convention. If blacks are being punished more severely because of their race, or if defendants who kill white victims are executed while those who kill blacks are given life sentences, then the death penalty is an instrument of discrimination and should be stopped.

    The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has also signed and ratified, is implicated by a discriminatory death penalty, as well. Although the Race Convention does not specifically address capital punishment, it binds all state parties to "condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms. . . ."45 The Convention further requires states to provide both a remedy and a forum for challenging racial discrimination. This is precisely what a Racial Justice Act would do, but this proposed legislation has been rejected as too potent a threat to the whole death penalty.

    Conclusion

    The United States has ratified the Torture and Race Conventions with certain reservations because of the death penalty. However, while the death penalty itself may not constitute a violation of these conventions, specific applications of this punishment may be contrary to the law of these treaties.

    Punishments which may be unlawful in international law, such as the execution of juveniles, the mentally retarded, and those foreign nationals who were not informed of their consular rights, are not exempted from the Torture Convention. Pain and suffering which are peripheral to lawful punishments, such as the years of isolation on death row and the unnecessary infliction of pain through gratuitously cruel forms of execution, are also banned by the Torture Convention. Finally, the arbitrary and discriminatory use of any punishment is forbidden by both the Race and Torture Conventions. To the extent the death penalty is racially discriminatory, the U.S. is bound to take corrective measures to stop this discrimination. Instead of enacting legislation to prevent racial discrimination, the U.S. has expanded the death penalty to new offenses and reduced the opportunity and resources for appeal. Such actions defy not just the spirit but the letter of these important international treaties.

    Endnotes:

    1. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN General Assembly, Thirty-ninth Sess., Agenda item 99, A/Res/39/46 (Dec. 17, 1984).

    2. Id., at Article 1 (emphasis added).

    3. Id.

    4. Id., at Article 2.

    5. International Covenant on Civil and Political Rights, Article 6, adopted Dec. 16, 1966, entered into force March 23, 1976, G.A. Res. 2200, 21 U.N. GAOR, Supp. (No.16) 52, U.N. Doc. a/6316 (1966).

    6. Amnesty International, Juveniles and the Death Penalty: Executions Worldwide Since 1985, at 8-9 (Aug. 1995).

    7. See V. Streib, The Juvenile Death Penalty Today (April 12, 1996) (available from Cleveland-Marshall College of Law).

    8. See Governor Favors Death Penalty for Kids as Young as 13, Lubbock-Avalanche-Journal, Jan. 16, 1996 (Gov. Gary Johnson of New Mexico).

    9. W. Schabas, The Abolition of the Death Penalty in International Law 90 (2d edit 1997).

    10. Indeed, President Bush refused to even sign this accord because "it is contrary to some state laws, because it prohibits certain criminal punishment, including the death penalty, for children under age eighteen." T. McNulty, U.S. Out in Cold, Won't Sign Pact on Children, Chicago Tribune, Sept. 30, 1990, at 4.

    11. Amer. Conv. on HR, Article 4(5).

    12. See E. Reed, The Penry Penalty: Capital Punishment and Offenders with Mental Retardation 14 (1993).

    13. Penry v. Lynaugh, 109 S. Ct. 2934, 2963 (1989) (Brennan, J., dissenting).

    14. See D. Keyes, et al, People With Mental Retardation Are Dying Legally, Mental Retardation, Feb. 1997, at 60, with recent updates from Death Penalty Information Center.

    15. See Penry, 109 S. Ct., at 2954.

    16. Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 U.N.T.S. 261 (April 24, 1963) (ratified by the U.S. in 1969).

    17. Id., at Article 36(1)(b).

    18. See B. Masters, World Court Tells U.S. To Halt Va. Execution, Wash. Post, April 10, 1998, at C1.

    19. See Breard v. Greene, 140 L.Ed.2d 529, ___ (1998) (per curiam).

    20. Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America) No. 99 (International Court of Justice, April 9, 1998).

    21. Breard, 140 L.Ed. at ___.

    22. L. Greenhouse, Court Weighs Execution of Foreigner, N.Y. Times, April 14, 1998, at A14 (quoting the Solicitor General's brief).

    23. A. Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death 173, 200 (1961).

    24. See Bureau of Justice Statistics, Capital Punishment 1994 (1996)), at table 11 and Appendix table 1.

    25. See id., at Appendix table 1.

    26. 4 All E.R. 769, 783 (P.C. 1993) (also collecting decisions by other courts).

    27. See Lackey v. Texas, Slip opin. U.S. No. 94-8262 (Mar. 27, 1995) (Stevens, J., respecting the denial of certiorari).

    28. See M. Radelet, Post-Furman Botched Executions, (May 1995) (on file with the Death Penalty Information Center).

    29. See, e.g., S. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

    30. See Furman v. Georgia, 408 U.S. 238 (1972) (especially concurrences of Marshall, Brennan, and Douglas, JJ.).

    31. See Gregg v. Georgia, 428 U.S. 153 (1976).

    32. See Death Row U.S.A., NAACP Legal Def. & Educ. Fund, Inc. (Oct., 1998).

    33. Id.

    34. See Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics-1994 338, Table 3.114 (1995).

    35. See Facts About the Death Penalty, Death Penalty Information Center (April 22, 1996).

    36. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, N.Y. Times, Sept. 7, 1991.

    37. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities 5 (Feb. 1990) (emphasis added).

    38. Callins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun, J. dissenting from the denial of certiorari).

    39. See, e.g., Bright, supra note 5, at 435 n.15 (listing comparable studies).

    40. See, Editorial, Who Gets to Death Row, Kentucky Courier-Journal, Mar. 7, 1996 (citing Univ. of Louisville study).

    41. McCleskey v. Kemp, 481 U.S. 279 (1987).

    42. McCleskey, 481 U.S., at 319.

    43. See, e.g., H.R. 4017, 103rd Cong., 2d Sess. (1994) (Racial Justice Act).

    44. See S. Labaton, Bars on Death Row, N.Y. Times, April 19,1996 (calling the restrictions on habeas corpus "a monumental shift of power to the state courts from the Federal judiciary").

    45. Race Convention, Article 2(1).

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    Statement On The Federal Death Penalty System by Senator Feingold

    June 7, 2001

    Mr. FEINGOLD. Madame, President, I rise today to speak with grave concern about a report released by the Justice Department yesterday on our federal government's administration of the death penalty. In that report and in his testimony before the House Judiciary Committee yesterday, Attorney General John Ashcroft said that he now concludes that "there is no evidence of racial bias in the administration of the federal death penalty." Madame President, I am seriously, seriously concerned about and, frankly, disappointed by the Attorney General's statements. The report he released yesterday is not the in-depth analysis of the federal death penalty ordered by his predecessor, Attorney General Reno, and President Clinton.

    This is a very urgent matter because the federal government, in a matter of days, is about to resume executions for the first time in decades, including that of Juan Raul Garza. He is scheduled to be executed by the United States of America on June 19th. Mr. Garza's case has not received the level of intense scrutiny or legal representation that his more notorious death row colleague, Timothy McVeigh, has received. But Mr. Garza's case, and his possible execution, should cause the Attorney General and President Bush and our nation even deeper soul-searching than that which has begun with respect to the scheduled execution of Mr. McVeigh.

    A survey on the federal death penalty system was released by the U.S. Department of Justice in September 2000. That report showed racial and regional disparities in the federal government's administration of the death penalty. In other words, who lives and who dies in the federal system appears to relate to the color of the defendant's skin or the region of the country where the defendant is prosecuted. Attorney General Reno, Deputy Attorney General Holder and President Clinton all said they were "troubled" or "disturbed" by the results of that report.

    In fact, Attorney General Reno was so troubled by the report that she immediately ordered the collection of additional data from U.S. Attorney offices and, most importantly, the National Institute of Justice to conduct an in-depth examination in cooperation with outside experts.

    Madame President, I would like to take a moment to read what Attorney General Reno said that day 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." Madame President, in December, President Clinton, citing this ongoing review by the Justice Department, then took the important step of delaying the execution of Mr. Garza until June 19th of this year to allow the Justice Department time to complete its review. President Clinton also ordered the Justice Department to report to the President by April of this year on the results of its further review. President Clinton anticipated that this would have been sufficient time for the President to review the results of the review before deciding whether to proceed with Mr. Garza's execution on June 19th.

    Madame President, then, on January 10 of this year, before the new administration took office, the NIJ began its in-depth analysis by convening a meeting of outside experts, defense counsel and prosecutors to discuss the questions that should form the basis for the research proposals.

    Later in January, during his confirmation hearing, Attorney General Ashcroft promised to continue and not terminate the NIJ study.

    At that hearing, I asked him if he would support the effort of the National Institute of Justice already under way to undertake the study of racial and regional disparities in the federal death penalty system that President Clinton had deemed necessary.

    Attorney General Ashcroft said, unequivocally and emphatically, "yes."

    I then asked him whether he would continue and support all efforts initiated by Attorney General Reno's Justice Department to undertake a thorough review and analysis of the federal death penalty system.

    Attorney General Ashcroft said, ". . . the 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."

    I then followed up with yet a third question on this subject: "So those studies will not be terminated?"

    Attorney General Ashcroft responded: "I have no intention of terminating those studies."

    In response to written questions I provided to him following his live testimony, I asked the Attorney General a number of related questions about the need to eliminate racial or regional bias from our system of justice. He replied that he believed the Department of Justice should undertake "all reasonable and appropriate research necessary to understand the nature of the problem."

    Madame President, it is therefore clear that Attorney General Ashcroft said he would continue and not terminate the NIJ study initiated by the Reno administration. And I was pleased to hear him make that commitment.

    But, Madame President, since the new administration took office, no steps have been taken to move forward with the NIJ study. Rather, the Attorney General now believes apparently it would take much too long to conduct this in-depth analysis of disparities and that it would provide indefinite answers. To say that the NIJ research should not be undertaken because it may take more than a year and provide inconclusive answers is just baffling. I am absolutely confounded by the Attorney General's unwillingness to take such a simple step to ensure fairness and to promote public confidence in the federal system.

    Now, Attorney General Ashcroft did say yesterday that he would order the National Institute of Justice to study the effectiveness of federal, state and local law enforcement in the investigation and prosecution of murder in American and how death penalty cases are brought into the federal system. Now, while this review may provide some additional insight into the functioning of our criminal justice system, it clearly is not the NIJ review of racial and geographic disparities ordered by Attorney General Reno.

    The supplemental report released yesterday lacks credibility: It is a case of "we looked at ourselves and there's no evidence of bias." Instead of completing a thorough analysis of the racial and regional disparities with outside experts, as outlined by Attorney General Reno, Attorney General Ashcroft collected the additional data -- also ordered separately by Attorney General Reno -- threw in some statements that there is no evidence of bias and then simply released it as a supplemental report. This report does not dig behind the raw data in the way that an in-depth research and analysis could do.

    To her credit, Attorney General Reno recognized the need for input from outside experts. That is why she ordered the National Institute of Justice to undertake the review of racial and regional disparities. While I commended Attorney General Reno for her action in ordering further studies, I thought she should have gone one step further and establish an independent, blue ribbon commission to review the federal system. That's what Governor George Ryan did in Illinois, and the independent panel there has been doing some good work. I've introduced a bill that applies Governor Ryan's example to the federal government, the National Death Penalty Moratorium Act. We should demand the highest standards of fairness and credibility in our nation's administration of the ultimate punishment.

    Madame President, Attorney General Ashcroft's actions are wholly unsatisfactory and inconsistent with the promises he made to the Senate and the nation during his confirmation hearing.

    I was pleased to hear Attorney General Ashcroft say, as recently as, Friday, May 11: "Our system of justice requires basic fairness, evenhandedness 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. It is my responsibility and duty to protect the integrity of our system of justice." Madame President, the basic fairness, evenhandedness and dispassionate evaluation of the evidence and facts, about which he spoke, of course, extend to the troubling racial and regional disparities in the federal system, as documented by the Department of Justice September 2000 report.

    Madame President, as my colleagues are aware, I oppose the death penalty. I have never made any bones about that. But this is not about opposition to the death penalty. This is about bias-free justice in America. I am certain that not one of my colleagues here 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.

    To be true to that central precept of our national identify Mr. President, we have to take extremely seriously allegations that the death penalty is being administered in a discriminatory fashion.

    So, I urge the Attorney General, in the strongest possible terms, to reconsider his actions and direct the National Institute of Justice to continue its study, with outside experts, of the racial and regional disparities in the federal death penalty system. I also urge him to provide the NIJ whatever resources may be needed to complete this study. This is the only course consistent with the promises he made during his confirmation hearing.

    Furthermore, with Mr. Garza's execution still scheduled to take place and the NIJ study at a standstill, I urge the Attorney General to postpone Mr. Garza's execution until these questions of fairness are fully answered. The case of Mr. Garza -- a Hispanic convicted in federal court in Texas -- implicates the very issues at the center of the unfairness reflected in the DOJ report. It would be wholly illogical and unjust to go forward with plans for the execution of Mr. Garza and subsequent executions until the NIJ's study is completed and fully reviewed. It would be a great travesty of justice, as well as a great diminution in the public's trust in the federal criminal justice system, if the federal government executed Mr. Garza and the NIJ later completed its study, which corroborated racial or regional bias in the administration of the federal death penalty.

    Madame President, I think the integrity of our system of justice demands no less.

    Thank you, Madame President. I yield the floor.

     

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    Statement of David C. Baldus Prof. Baldus Statement Date: June 11, 2001 To: The Honorable Russell D. Feingold
    Committee on the Judiciary, U. S. Senate
    716 Hart Senate Office Building
    Washington D.C. 20510-4904 From:

    David C. Baldus
    Joseph B. Tye Distinguished Professor of Law
    College of Law, University of Iowa Re: DOJ report on the Federal Death Penalty System (June 6, 2001)

    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 whites1 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 white-victim 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.

    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

    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.

    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 post-authorization 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

    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 post-authorization pleas bargaining decisions, one has no idea the extent to which similarly situated defendants were in fact treated comparably.

    4. The report provides no compelling 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) I 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.

    Endnotes:
    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.

    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 .01 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 defendant/minority victim cases, the rate was .07 (7/95), a 17 percentage-point difference significant at the .02 level.

    3. 481 U.S. 279 (1987).

    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.


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