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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