Let Saddam Live Washington Post
By Richard Cohen
Thursday, December 18, 2003


This column may be the most futile of my long career. I am about to plead for Saddam Hussein's life. I do so not because I have the slightest doubt that he is a killer, responsible for taking the lives of many thousands, but because sparing his life would send a message to the world that judicial death -- so often abused -- is no longer acceptable.

Such a day will come, no doubt about it. The death penalty is already illegal in most of Europe, and renunciation of it is required for admission to the European Union. Many other countries keep the death penalty on their books but have not had an execution in so long that the prospect of one is remote.

This, of course, is not the case in the United States. Here, the death penalty not only remains on the books but executions are common. Along with such pariah nations as Sudan, the United States still executes children (under 18) and the mentally feeble -- and, inevitably, the innocent.

President Bush has already endorsed the death penalty for Hussein. "I think he ought to get the ultimate penalty," he told ABC's Diane Sawyer. But Bush, a primitive in such matters, was somehow not the first to call for Hussein's death. That honor may belong to Joe Lieberman, who, in the manner of John Ashcroft with the Washington snipers, said the United States ought to shop for a jurisdiction that permits the death penalty. For some reason -- probably an oversight -- he did not suggest Virginia or Texas.

Instead Lieberman merely ruled out the International Criminal Court in The Hague, because it is not empowered to impose the death penalty. The court is now trying the former Serbian leader Slobodan Milosevic -- and has already convicted others from the wars in the former Yugoslavia -- but it sorely lacks a gallows, and for that matter a torture chamber.

"So my first question about where he's going to be tried will be answered by whether the tribunal can execute him," Lieberman said in response to a question from Tim Russert on "Meet The Press." Calling Hussein evil, the Connecticut senator said, "This man . . . has to face the death penalty."

Probably most of the Democratic presidential candidates agree. In the United States the right of the government to take life is almost universally accepted -- if not applauded. In Europe there is no such consensus. That's because in the past century, much of the continent suffered under fascist or communist governments that routinely murdered their own citizens, often "legally." It's true, of course, that these governments also jailed and tortured people without killing them, but only death is irrevocable. Life in prison is a lifetime of punishment.

In many ways Iraq was the equivalent of a European totalitarian country. Call it Baathist if you will, but Iraq under Saddam Hussein was essentially fascist, with the death penalty meted out willy-nilly, sometimes for serious crimes, sometimes for trivial infractions such as possession of a cell phone. The Iraqis no doubt expect to treat Hussein as he treated them. It would be marvelous if they were disappointed. We can do better than an eye for an eye. We can establish the principle of limited government that should be so dear to American conservatives such as Bush: Among the things government should not do is take a life.

Except for the principle, I don't care about Saddam Hussein's life. I care about him the same way I care about your more prosaic murderer -- not at all. But the principle is important. The death penalty vindicates the killer's mentality: Life can be taken. When a California killer named Hung Thanh Mai, who had murdered a cop at a routine traffic stop, faced the jury during the penalty phase of his trial, he said he was prepared to die.

"Personally, I believe in an eye for an eye," he said. "I believe in two eyes for an eye. If you take down one of my fellows, I'd do everything to take down two of yours."

President Bush, Joe Lieberman and much of America will probably have it their way. Saddam Hussein will be tried -- probably in Iraq -- found guilty and executed. In his reptilian brain, he will understand. He would have done the same thing himself.

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The Silencing of Gideon's Trumpet NEW YORK TIMES MAGAZINE

April 20, 2003

The Silencing of Gideon's Trumpet

Forty-one years ago, a poor, isolated prisoner in Florida, the least influential of Americans, wrote a letter to the Supreme Court -- a letter in pencil, on lined prison paper -- claiming that he had been wrongly denied the right to a lawyer when he was convicted. The Supreme Court agreed to hear his case and found that the Constitution required counsel to be provided in all serious criminal cases for defendants too poor to hire their own. ClarenceEarl Gideon would have a new trial, this time with a lawyer.

The new jury found him not guilty: a happy ending not only for him but also for the principle that a lawyer's help is crucial for criminal defendants.

After the Supreme Court decision, I recognized that it would be, as I wrote then, ''an enormous social task to bring to life the dream of Gideon v. Wainwright -- the dream of a vast, diverse country in which every man charged with crime will be capably defended . . . sure of the support needed to make an adequate defense.''

On this 40th anniversary, how have we done? I take my answer from a recent paper by Bruce Jacob, the lawyer who represented the State of Florida in the Supreme Court, arguing against Gideon's claim of a right to counsel. ''I hoped that legislatures would meet the challenge,'' Jacob wrote. ''That was at a time in my life when I still believed that legislators want to do the right thing. . . . The record of the courts in fulfilling the hopes represented by Gideon is a dismal one.''

I was covering the Supreme Court when it decided Gideon v. Wainright, and the case has always had special meaning for me. It is painful to hear Bruce Jacob express disappointment at today's courtroom inadequacies. Even more alarming is the assertion by the Bush administration that in a whole new class of cases it can deny the right to counsel altogether. Those are the cases of American citizens designated by Bush as ''enemy combatants.''

One of them is Jose Padilla, born in Brooklyn in 1970 and arrested by federal agents last May at O'Hare International Airport in Chicago. The administration claims that it can hold Padilla in solitary confinement indefinitely, without trial and without access to a lawyer.

Bruce Jacob's judgment rests on endless failures to bring the promise of Gideon to life. Many states and localities offer not even the minimal level of financial support needed for an adequate defense.

And far too often the lawyers provided for indigent defendants have not met the barest standards of competence. Take the case of the sleeping lawyer. Calvin Burdine was on trial for his life in Texas when his appointed counsel, Joe Frank Cannon, fell asleep several times during the trial. The Texas Court of Criminal Appeals held that that was no reason to set aside Burdine's conviction. The United States Court of Appeals, considering the issue on habeas corpus, disagreed, but only by a vote of 9 to 5. That is, five of those distinguished federal judges thought a lawyer who fell asleep during a capital trial did not do enough harm to matter.

The truth of the proposition that a lawyer is essential was vividly demonstrated to me by something that happened in Gideon's second trial. Gideon had been charged with breaking and entering the Bay Harbor Poolroom in Panama City, Fla., in the early morning hours and taking some coins and wine. At his first trial, a taxi driver, Preston Bray, testified that Gideon had telephoned him and that he had gone to the poolroom and picked him up. When he got into the cab, Bray said, Gideon told him not to tell anyone about it. That was damaging testimony. And Gideon, without a lawyer, let it stand without any cross-examination.

In the second trial, Gideon had a lawyer: Fred Turner. After Preston Bray testified again that Gideon had told him not to say anything about picking him up that morning, Turner asked whether Gideon had ever said that to him before. The taxi driver answered, yes, Gideon said that every time he called a cab. ''Why?'' ''I understand it was his wife -- he had trouble with his wife.''

Nothing could demonstrate more clearly the value of having a lawyer. But we know now that it has to be a competent lawyer. Fred Turner was competent, and then some. He not only destroyed the taxi driver's evidence against Gideon. He destroyed the chief prosecution witness, one Henry Cook, who said he had seen Gideon near the time of the break-in. Turner suggested to the jury that it was really Cook himself who had committed the crime. He was in a good position to speak about Cook because he had represented Cook in two other cases.

Lawyers themselves bear some of the responsibility for the failures since the Gideon decision. Of the 13 people on death row in Illinois released between 1987 and 2000 after they were found innocent, four had been represented by lawyers who were later disbarred or suspended from practice. But so do the authorities who pick indifferent, sleepy, incompetent lawyers to defend men and women on matters as serious as life and death. Calvin Burdine's lawyer, Joe Frank Cannon, was appointed by judges in Houston to other cases after he slept through Burdine's trial. In Texas and other places, some appointments of counsel are regarded as sinecures to be given to friends and supporters.

Then there is the question of resources. Even a competent lawyer may not be able to mount an adequate defense against the state, with all its resources, if he has next to nothing for investigation and effectively works for starvation wages.

Bobby Houston spent 19 months in jail in Indianapolis without ever being tried, four of them after the charge against him, child molesting, had been dismissed. The public defender handling his case never told him, or told the prison authorities, about the dismissal.

We can surely say that Houston's lawyer lacked due diligence. But politics and money were also involved. At the time of the case, public defenders in Marion County, Ind. -- working part time or more than part time -- were paid $20,800 a year, plus $60 a month for all office expenses. They were so grossly underpaid and overworked that many could not even accept collect calls.

Why does the dream of the Gideon decision -- the dream of a country in which every person charged with crime will be capably defended -- remain just that, a dream? Why do judges countenance mockeries of legal representation? Why do we, the citizens, tolerate such unfairness? These are profound questions, and I can do no more than speculate on possible explanations.

One answer is plain. Criminal defendants and prisoners have little or no political power. Legislators see no votes in assigning competent lawyers for poor defendants or giving lawyers the resources to do their job properly. The Clarence Earl Gideons of this world are constituents who can safely be ignored. Many are barred from voting, and the rest seldom bother.

There is more to it than defendants' and prisoners' lack of political power. This country differs from all other Western countries in its attitude toward crime and criminals. We are tough on crime, as the advocates of harsh measures put it. Critics might use a stronger term, like ''brutal.'' American prisons tend to be more unpleasant than they are elsewhere; sentences, much longer.

And of course we impose the death penalty, which has been abandoned everywhere else in the trans-Atlantic world as a savage relic.

Why the United States takes so different a view of how to treat criminals is a question too deep for exploration here. But there is no doubt that the harsh view exists, exacerbated by politicians, starting with Richard Nixon and his ''war on crime.''

Manifestations of this harshness are widespread. The United States Court of Appeals for the Eighth Circuit recently approved the involuntary administration of antipsychotic drugs to a death-row inmate so he could be made sane enough to be executed. Then there was the prosecutor who argued that an execution should proceed even if the prisoner were to offer last-minute DNA evidence of his innocence.

DNA is at the center of an extraordinary recent development that sheds some light on attitudes toward criminal justice. The discovery of incompetence -- or worse -- at the Houston Police crime laboratory in recent months may affect hundreds of prosecutions in Harris County, where Houston is located, including many capital cases. More defendants from Harris County have been executed than from any other county in the United States. Now it turns out that the work of the laboratory is suspect.

What about the defense lawyers? Many simply did not have the resources to check the authenticity of the evidence that sent their clients to jail -- or to death.

Among them were the lawyers for Josiah Sutton, convicted of rape four years ago and prosecuted in part on the basis of a DNA report from the Houston lab. After a Houston television station raised questions about the laboratory last fall, the sample used to help convict Sutton was retested by an independent laboratory in Houston, which found that it did not match Sutton's DNA.

The case of Josiah Sutton and the Houston crime lab is one more proof of what Justice Black told us in Gideon: when the state brings its weight down on an individual, he or she cannot get justice without the help -- the effective help -- of a lawyer. That is a fundamental truth, an obvious truth, as Black said. But on the anniversary of the decision in Gideon v. Wainwright, that truth is being challenged in a way that I did not believe was possible in our country.

In two cases now before the courts, Attorney General John Ashcroft is asserting that President Bush has the power to detain any American citizen indefinitely, in solitary confinement, without access to a lawyer, if he, the president, designates the detainee an ''enemy combatant.'' The detainee cannot effectively challenge that designation. A court may hold a habeas corpus proceeding, but the government need produce only its own assertions of evidence, not subject to cross-examination. ''Some evidence'' will suffice -- that is, any evidence, however unchecked and second-hand. That is the claim being made by the law officers of the United States.

I would not have believed that an attorney general would argue that an American could be held indefinitely without being able to speak to a lawyer. I seriously doubt that any attorney general in the years since Gideon, except the present occupant of the office, would have made that claim.

One of the pending cases concerns Jose Padilla, who became a gang member, was arrested half a dozen times and served several jail sentences. He became a Muslim. After traveling, in Pakistan among other places, Padilla flew into O'Hare Airport last May 8 and was arrested by federal agents. He was first detained as a material witness before a New York federal grand jury investigating the Sept. 11 terrorist attack on the World Trade Center. A judge appointed a lawyer for him and set a hearing for June 11. But on June 10 Ashcroft, who happened to be in Moscow, made a televised statement about Padilla. ''We have captured a known terrorist,'' Ashcroft said. His arrest ''disrupted an unfolding terrorist plot to attack the United States by exploding a radioactive 'dirty bomb.''' There has been no way for Padilla, or his lawyer, to challenge that statement, or for the news media to test its truth. It was a conviction by government announcement.

Padilla is confined in a Navy brig in South Carolina. The lawyer originally appointed to represent him in the material witness proceeding, Donna R. Newman, has been trying to see him -- without success. A federal judge, Michael Mukasey, decided that she should have a chance to talk with him for the limited purpose of examining the evidence produced by the government in support of his designation as an ''enemy combatant.'' But that decision was challenged anew by government lawyers.

They offered an affidavit by the director of the Defense Intelligence Agency, Vice Adm. Lowell E. Jacoby. He said successful interrogation of a prisoner depends largely on ''creating an atmosphere of dependency and trust between the subject and interrogator. Developing the kind of relationship . . . necessary for effective interrogations . . . can take a significant amount of time. There are numerous examples of situations where interrogators have been unable to obtain valuable intelligence from a subject until months, or even years, after the interrogation process began.'' Admiral Jacoby said any access to counsel, however brief, ''can undo months of work and may permanently shut down the interrogation process.''

There is a certain paradox in Admiral Jacoby's affidavit. The very fact that extended interrogation in the absence of counsel may break a subject's will is one reason that the right to counsel is guaranteed in the criminal law. It is the basis of the Miranda rule.

The government argues, and in the other ''enemy combatant'' case the United States Court of Appeals for the Fourth Circuit agreed, that the Sixth Amendment's guarantee of the right to counsel ''in all criminal prosecutions'' does not apply because Padilla is not being prosecuted. In other words, the government can hold an American in prison for life without letting him see a lawyer if it takes care not to charge him with a crime and try him. James Madison and the others who added the Sixth Amendment and the rest of the Bill of Rights to the Constitution in 1791 would surely have regarded that argument as sophistry.

Bruce Jacob has served on both the defense and the prosecution side of criminal justice. Forty years after Gideon v. Wainwright was decided, he takes a broad view of the constitutional right to counsel. It should include civil as well as criminal proceedings, he says in his paper: ''The due process and equal protection clauses do not differentiate between criminal and civil cases.'' Paraphrasing Black's opinion, Jacob concludes: ''Certainly any person haled into court or brought before any tribunal, whether criminal, civil or administrative. . . should, if indigent, be afforded counsel at public expense.'' With an eye on the enemy combatant cases, I would amend that statement to include any person deprived of his liberty by the state.

Clarence Earl Gideon was not a clear thinker, a man of the world or, least of all, an easy person to deal with. He was a petty criminal, a habitual one, worn out beyond his years by a difficult life. But he knew what he wanted. He turned down the first two lawyers offered him, when it came time for his second trial. He wanted Fred Turner, and that was a wise choice.

Fred Turner told Bruce Jacob that Gideon came to him with ''a valise full of motions.'' Among other things, he wanted to move for a change of venue, to Tallahassee. Turner pointed out that he knew people in Panama City -- in fact, he knew most of the jurors -- but none in Tallahassee. Gideon agreed to drop the idea of a change of venue. Then Turner told him, ''I'll only represent you if you will stop trying to be the lawyer and let me handle the case.'' Gideon agreed.

Clarence Gideon, who died in 1972, would be disappointed today at the imperfect realization of his dream. He would regret especially, I think, the failure of the Supreme Court to hold that the Constitution requires a meaningfully competent lawyer for the poor defendant -- the court's countenancing, even in capital cases, of lawyers who scarcely go through the motions while their clients are convicted.

On the other hand, the Supreme Court has held fast to the principle that the right to consult a lawyer is, as Justice Black said, ''fundamental.'' It is a far more conservative court than the one that decided the Gideon case, with William Rehnquist as chief justice instead of Earl Warren. It has overruled or narrowed many precedents. But it has repeatedly reaffirmed its holding in Gideon v. Wainwright.

That is what makes the Bush administration's claim in the ''enemy combatant'' cases so extraordinary. Of course, Jose Padilla and the other man being held, Yasser Esam Hamdi, are not in precisely Gideon's position. They are not being prosecuted; they are being held indefinitely, without charges, in solitary confinement. They are not looking for counsel; they both already have lawyers, highly competent ones appointed by federal judges. But they are not allowed to talk to them. Those differences from Gideon's situation seem to make their need to consult the lawyers they have, if anything, more compelling.

The constitutional argument made by Ashcroft and his aides also seems imperfect. Perhaps the Sixth Amendment guarantee of counsel ''in all criminal prosecutions'' can be reasoned away as inapplicable to indefinite detention without charge, though I think the framers would have been astonished at the invention of a severe penalty for a suspect with fewer rights than he would have as a criminal defendant.

But the Constitution also includes the Fifth Amendment. It provides that ''no person shall . . . be deprived of life, liberty or property, without due process of law.'' Jose Padilla has been deprived of his liberty -- forever, for all he knows. Has he had due process of law?

The Bush administration's answer to that question is essentially this: in a war against terrorism, any process that the president says is essential to the war is due process. Government lawyers argue that in wartime, courts must defer to the president's judgment.

The denial of counsel to Jose Padilla, then, is an aspect of something larger. About the time the Gideon case was decided, we began to hear about the imperial presidency. The terrorist attacks of Sept. 11, 2001, and now the war on Iraq have renewed that concept in even more extreme form. Bush has little trouble with a supine Congress. He wants the Constitution, too, as our judges enforce it, to yield to the supremacy of the president.

Anthony Lewis is a former New York Times columnist and the author of ''Gideon's Trumpet.''

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    U.S. Plans Death Camp

    May 26, 2003

    THE US has floated plans to turn Guantanamo Bay into a death camp, with its own death row and execution chamber.

    Prisoners would be tried, convicted and executed without leaving its boundaries, without a jury and without right of appeal, The Mail on Sunday newspaper reported yesterday.

    The plans were revealed by Major-General Geoffrey Miller, who is in charge of 680 suspects from 43 countries, including two Australians.

    The suspects have been held at Camp Delta on Cuba without charge for 18 months.

    General Miller said building a death row was one plan. Another was to have a permanent jail, with possibly an execution chamber.

    The Mail on Sunday reported the move is seen as logical by the US, which has been attacked worldwide for breaching the Geneva Convention on prisoners of war since it established the camp at a naval base to hold alleged terrorists from Afghanistan.

    But it has horrified human rights groups and lawyers representing detainees.

    They see it as the clearest indication America has no intention of falling in line with internationally recognised justice.

    The US has already said detainees would be tried by tribunals, without juries or appeals to a higher court. Detainees will be allowed only US lawyers.

    British activist Stephen Jakobi, of Fair Trials Abroad, said: "The US is kicking and screaming against any pressure to conform with British or any other kind of international justice."

    American law professor Jonathan Turley, who has led US civil rights group protests against the military tribunals planned to hear cases at Guantanamo Bay, said: "It is not surprising the authorities are building a death row because they have said they plan to try capital cases before these tribunals.

    "This camp was created to execute people. The administration has no interest in long-term prison sentences for people it regards as hard-core terrorists."

    Britain admitted it had been kept in the dark about the plans.

    A Downing St spokesman said: "The US Government is well aware of the British Government's position on the death penalty."




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    September 11, 2001: A Forum of Information and News, Especially Related to Capital Punishment

    General News Articles

    Law Review Articles

    Zacarias Moussaoui Case

    International News

    Principal Treaties

    General News Articles

    Guantanamo Detainees:

    A look at the Guantanamo military commission
    By The Associated Press – May 4, 2012

    Here is a look at the military commission system that will be used to prosecute five Guantanamo Bay prisoners charged in the Sept. 11 attacks:

    WHAT IT IS: A military commission is a form of military tribunal convened to try people accused of unlawful conduct associated with war. They were commonly used for the first time during the 19th century Mexican-American War and have been modified over time by Congress and U.S. Supreme Court precedents. President George W. Bush and Congress authorized a military commission to try prisoners accused of terrorism and war crimes and held as prisoners at the U.S. Navy base in Guantanamo Bay, Cuba. President Barack Obama and Congress convened a new military commission, with several reforms aimed at addressing concerns of human rights groups and others, in October 2009.

    HOW IT WORKS: A military commission trial is similar to a court martial in that the jurors are military officers, as is the judge. Many of the principles are the same as in both a U.S. civilian or military court: Defendants are innocent until proven guilty; the prosecution has the burden of proof; guilt must be proved beyond a reasonable doubt. As in a court martial, a conviction requires agreement by 2/3 of the jurors instead of the unanimous agreement required for a jury in civilian court. A military jury must be unanimous to impose a death sentence.

    WHO HAS BEEN CONVICTED SO FAR: The Guantanamo commissions under Presidents Bush and Obama have resulted in seven convictions, two at trial and five through plea bargains.

    WHY HUMAN RIGHTS GROUPS DON'T LIKE IT: Obama and Congress adopted several reforms in October 2009, including a prohibition on statements obtained by torture or cruel, inhuman or degrading treatment. But critics say the reforms don't go far enough, that the prosecution can still use statements and evidence from witnesses tainted by harsh treatment. Opponents of the military commissions also say that rules governing secrecy and the use of some forms of hearsay evidence will allow the U.S. to avoid a full accounting of the treatment of prisoners such as Khalid Sheikh Mohammed at secret CIA detention sites.

    WHAT COULD HAPPEN: Mohammed and his four co-defendants all face charges that include murder, conspiracy and terrorism and could get the death penalty if convicted. They are scheduled to be arraigned Saturday but are not expected to enter pleas and the trial itself is likely at least a year away.

    Summary on Guantanamo, Miami Herald, July 17, 2011:

    "6 Guantánamo captives have been tried by military commission since the Pentagon began moving men and boys there in January 2002. None faced death penalty charges.

    4 pleaded guilty in exchange for short sentences:

    • So-called Australian Taliban David Hicks pleaded guilty in 2007 to providing material support for terror as a Taliban foot soldier. He was repatriated that same year.

    • Sudanese-born al Qaeda cook Ibrahim al Qosi pleaded guilty in July 2010 to providing material support terror and conspiracy. He is slated for release in 2012.

    • Canadian Omar Khadr pleaded guilty in October to conspiring with al Qaeda, murdering a U.S. soldier at age 15 by throwing a grenade in a firefight, spying and providing material support for terror. He is slated for return to Canada by November to serve out at most 6 more years in jail.

    • Sudanese-born paramilitary camp trainer Noor Mohammed pleaded guilty in February to conspiring with al Qaeda in Afghanistan in the ’90s. Under the plea bargain, he could be released in 2014 in exchange for testimony at future trials.

    2 were convicted at trials:

    • Yemeni Salim Hamdan of Yemen was convicted in August 2008 of providing material support for terror for working as Osama bin Laden’s driver in Afghanistan, but cleared of a conspiracy charge. He was sent home the same year.

    • Bin Laden’s media secretary, Ali Hamza al Bahlul of Yemen, was found guilty in November 2008 of providing material support for terror and conspiracy after offering no defense. He is serving life at Guantánamo."

    (Miami Herald, July 17, 2011)

    Earlier Proposal for Federal Trials

    U.S. Attorney General Eric Holder had announced that five men being held in Guantanamo prison in connection with the September 11, 2001 attack on the World Trade Center will face trial in federal court in New York City: Khalid Shaikh Mohammed, Ali Abd al-Aziz Ali, Walid bin Attash, Mustafa Ahmed al-Hawsawi and Ramzi bin al-Shibh.  These defendants could face the federal death penalty.  (C. Savage, "U.S. To Try Avowed 9/11 Mastermind Before Civilian Court in New York," New York Times, November 14, 2009.) 

    However, in 2011, Holder announced that these detainees would be tried before military commissions in Guantanamo, rather than under the federal death penalty.

    Five other detainees held in connection with other acts of terrorism will face trials before military commissions: Abd al-Rahim al-Nashiri, Ahmed Mohammed Ahmed Haza al-Darbi, Ibrahim Ahmed Mahmoud al-Qosi, Oma Ahmed Khadr, and Noor Uthman Muhammed.

    See also:

    "Defense Lawyers in 9/11 Case Face Huge Hurdles" by Daphne Eviatar, Huffington Post, August 21, 2013

    Empty Chairs” by Daphne Eviatar, The American Lawyer, April 1, 2008 (difficulty in finding qualified counsel and other due process problems in Military Commission capital trials) (subscription required to view)

    "Is The Bush Administration Right to Seek the Death Penalty for 9/11 Captives?" by Michael Dorf for FindLaw's Write on February 13, 2008

    "The Military Commissions Act of 2006" This two-part series explains and critques the Military Commissions Act of 2006 (FindLaw, October 9, 2006).

    "US Plans Death Camp" - This article reveals that the U.S. has possible plans to turn Guantanamo Bay into a death camp, with its own death row and execution chamber. (Courier-Mail, May 26, 2003).

    "Government Sets Rules for Military on War Tribunals" - This New York Times article explains the rules set by the Bush administration for conducting military tribunals. See also, "Rules for Military Tribunals" a chart comparing the some of the rules for military tribunals for terrorism suspects with courts-martial and civilian courts.

    Administration May Be Willing to Forgo Death Penalty in Extradition Cases - U.S officials have indicated that, in order to gain custody of suspected terrorists in Europe, they maybe willing to make concessions on both the death penalty and the use of military tribunals. Currently, England, Italy, and Spain hold suspected terrorists, but are among the over 40 nations that have signed the European Convention on Human Rights, which condemns the use of the death penalty and possibly the use of military tribunals. Spain has already said that it will not extradite the eight suspected terrorists in its custody without assurances that the death penalty will not be sought (see below). In the past, the U.S. has given such guarantees as a condition of extradition. (Associated Press, 12/1/01). See also, international death penalty.

    "No return to execution - The US death penalty as a barrier to extradition" - This new report by Amnesty International examines the practice of foreign governments which refuse to extradite suspects to the U.S. without first obtaining assurances that the death penalty will not be sought or imposed. (Amnesty International, AMR 51/171/2001)

    Federal Legislation Related to the Attack of September 11, 2001 - View Congress's Web site featuring Bills & Joint Resolutions signed into law, approved resolutions, legislation with floor action, and legislation without floor action.

    On November 13th, President Bush signed a military order authorizing the Secretary of Defense to detain and prosecute, by military commissions, non-U.S. citizens who are or were members of al Qaeda and who have engaged in, aided or abetted, or conspired to commit acts of international terrorism. These military commissions would be empowered to render sentences extending to life imprisonment or death upon conviction. Read the "MILITARY ORDER: Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism" (11/13/01)

    The Terrorist Bombings Convention Implementation Act of 2001 - Title I of the Act authorizes the imposition of the death penalty for the offenses set forth in Section 102 of the bill. While the proposed legislation was in the House Judiciary Committee, Congressman William D. Delahunt of Massachusetts offered an amendment to delete the language providing for the death penalty. The amendment, however, was not incorporated. Read Congressman Delahunt's statements regarding the amendment.

    Zacarias Moussaoui Case

    Read "Terrorism Trial's Strategies Revealed," Washington Post, Nov. 14, 2005, regarding the penalty phase of Moussaoui's capital trial.

    Read the United States' "Notice of Intent ot Seek a Sentence of Death" for suspected terrorist Zacarias Moussaoui, filed in the U.S. District court for the Eastern District of Virginia in March 2002. Read the 6 count indictment against Moussaoui, filed in in December 2001.

    Federal Jury Gives Moussaoui Life in Prison Without Parole - A federal jury voted today that Zacarias Moussaoui should serve a sentence of life in prison without parole despite the government's assertion that his lies to FBI officials contributed to the terrorist attacks of September 11, 2001. Earlier the jury had found that Moussaoui was responsible for some of the deaths that took place on September 11, and that he was eligible for the death penalty. After weeks of testimony during the sentencing phase of the trial, the jury took 7 days to recommend a sentence of life without parole. In their verdict, the jury unanimously agreed that Moussaoui "knowingly created a grave risk of death" for more than the intended victims of September 11th, and that he committed his acts with "substantial planning," two of the aggravating factors listed in the death penalty statute.

    Moussaoui's defense team, with whom he did not cooperate, argued that he is a delusional schizophrenic. They maintained that Moussaoui took the witness stand to confess his role in the September 11 attacks because he wanted to achieve martyrdom through execution. During the sentencing phase, jurors heard testimony from victims' family members, some of whom supported and some who opposed the death penalty for Moussaoui, from mental health experts, and others who were directly impacted by the events of 9/11.

    Following the verdict, Terry Rockefeller, whose sister was killed in the World Trade Center attacks, noted, "Had the jury sentenced Zacarias Moussaoui to death we would have turned a man with long-term mental health problems, whose direct responsibility for the 9/11 attacks are tenuous, into a martyr. Evidence introduced during the trial cast significant doubt on Moussaoui’s importance within al Qaeda. . . . [M]ost fundamentally, I oppose the death penalty because I do not want to be the citizen of a state that kills. I do not want to be a party to more violence and killing."

    The attacks took the lives of nearly 3,000 people and were the deadliest terrorist attack in U.S. history. The Alexandria courthouse where the trial was held is just miles away from the Pentagon, where one of the 9/11 attacks occured. Federal judge Leonie Brinkema is expected to impose the life sentence on Thursday, May 4. (CNN & Associated Press, May 3, 2006, and Statement issued by Terry Rockefeller, May 3, 2006). Read the Jury's Verdict Form. See Federal Death Penalty and Arbitrariness.

    • NEW VOICES: Senior Counsel to 9/11 Commission Questions Death Penalty for Moussaoui - In a recent New York Times op-ed, John Farmer, senior counsel to the 9/11 commission and a former New Jersery attorney general, states that seeking the death penalty for Zacarias Moussaoui detracts from U.S. efforts to seek justice against senior Al Qaeda officials who plotted and carried out the 9/11 attacks. Farmer claims Moussauoi, who was in jail as terrorists plotted and carried out the events of 9/11, was not the "20th hijacker" and is a "poor stand in" for more senior level Al Qaeda leaders who are also in U.S. custody:

    Through a perverse confluence, Mr. Moussaoui's interest in becoming something in death that he never was in life — important — has combined with the government's interest in executing someone for the 9/11 attacks. The likely result is an odd form of assisted suicide, in which Mr. Moussaoui will claim martyrdom as he is executed, and the United States will claim that the rule of law has been vindicated by bringing a terrorist to justice for 9/11.

    Neither claim will be justified. . . .

    Zacarias Moussaoui is evil, and there is no doubt that he arrived here determined to kill Americans, but he was not a leader of Al Qaeda. He was not even, as initially reported, the "20th hijacker." He was not in contact with the 9/11 hijackers in the United States. His apprehension in late August 2001 did nothing to disrupt the plot's timing. He sat in jail while the attacks unfolded.

    Based on his conduct, he should sit in jail some more. Six floors underground, with one hour outside his cell per week. For, oh, 50 more years or so. He should die there, frustrated and forgotten, embittered and anonymous. This could have been achieved without the catharsis of the penalty hearing. (New York Times, April 11, 2006). See Federal Death Penalty.

    • NEW VOICES: Mother of September 11 Victim Opposes Death Penalty for Moussaoui - Alice Hoagland's son, Mark Bingham (pictured), was killed on September 11 as he joined with fellow United Airlines passengers to ground a plane that may have been headed toward the White House. Hoagland is urging a life sentence for Zacarias Moussaoui, who faces the death penalty for his role in the terrorist events of that day. In an interview with The Advocate, Hoagland noted that sparing Moussaoui's life would honor "a reverence for all life" and that it would prevent some from viewing him as a martyr. Hoagland, a former flight attendant who is now active in transportation safety issues, stated:
    We Americans have the opportunity to keep him from becoming glorified as a martyr. . . . Al Qaida, other fundamentalist Muslim groups - even mainstream Muslims - would be tempted to view Moussaoui's death as a martyrdom. This man does not deserve that honor.
    . . .
    We Americans have the opportunity to demonstrate our compassion toward a man who has shown no compassion for America. We are a nation of laws, of justice, and of mercy. By sparing his life, we can demonstrate our humanity by acknowledging the humanity of a human being who badly needs compassion. By sparing his life, we will have overcome the sort of hatred that he displays toward us.
    . . .
    It is difficult to imagine a more despicable human than Zacarias Moussaoui has shown himself to be. But he, like all of us, is a bundle of traits and attitudes. His lower self has dictated his present low behavior. I hope we as a nation can demonstrate our higher impulses by sparing his life - while keeping him safely behind bars for the remainder of his life. If we can do that, we will honor our own high standard of reverence for all life, and we will model a better standard of behavior for Zacarias Moussaoui to take to heart. (, April 8, 2006. Hoagland's comments will appear in the May 9, 2006, edition of The Advocate (Calif.)). See New Voices, Victims, and Federal Death Penalty.

    International News

    • Germany Hesitates to Supply Evidence that Would Aid in Prosecution of Moussaoui - German authorities are reluctant to turn over evidence in their possession that could demonstrate a relationship between suspected terrorist Zacarious Moussaoui and the perpetrators of the September 11th attacks on the U.S. Moussaoui is charged with 6 counts of conspiracy in connection to the attacks and faces the death penalty if convicted. German officials, who do not want to contribute to the case as long as it could potentially result in the execution of Moussaoui, are currently negotiating with American officials in an attempt to find a satisfactory compromise. (Washington Post, 6/11/02)
    • British Authorities Oppose Capital Punishment for Detainees - Chris Patten, the European Commissioner for External Affairs, said that it was inconceivable that the three British citizens being held at the U.S. naval base at Guantanamo Bay could be subject to capital punishment after being tried in a military tribunal. "I just think that would be a way of losing international support and losing the moral high ground that the international coalition has," said Patten.
      Foreign Office Minister Ben Bradshaw added: "The British Government regularly, in cases where the death penalty may be imposed on British citizens, makes our views on the death penalty very plain to the American authorities. We are opposed to the death penalty." (BBC News, 1/22/02)
    • Spain Will Refuse to Extradite Terrorists If U.S. Seeks Death Penalty - A Spanish Foreign Ministry spokesman said that Spain will not extradite terrorist suspects to the U.S. without assurances that they will not be subject to capital punishment. The spokesman cited European Union agreements that prevent members from extraditing suspects to countries where judicial norms are seen as falling below those in the Union. (Associated Press, 11/23/01)
    • U.S. Differences with Europe on Death Penalty Could Impede Progress on Terrorism - The U.S. may have to agree that it will not pursue the death penalty against suspected terrorists in order to have them extradited from Europe. In the next few weeks, European Union leaders will meet with U.S. officials to decide on extradition procedures for those suspected of the U.S. terrorist attacks on September 11. In the past, European countries, which oppose capital punishment, have refused to extradite criminals to the U.S. unless U.S. officials stipulate that the death penalty will not be sought. Several European Union ministers have asked for a new comprehensive agreement that would address the issue of capital punishment. (USA Today, 10/3/01) See also, International Death Penalty.


    Principal Treaties

    International Covenant on Civil and Political Rights
    The U.S. ratified the treaty.

    Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
    The U.S. ratified the treaty in 1994.

    International Convention on the Rights of the Child
    The U.S. has signed but not ratified this document.

    Vienna Convention on Consular Relations
    The U.S. ratified the Vienna Convention in 1969.

    Law Review Articles

    Ostrom, Brian J., et at. "The Prosecution and Punishment of Intentional Terrorists in Federal Courts: 1980-1998" 3 Criminology and Public Policy 311 (2002).

    Donohue, Laura K.,"Bias, National Security and Military Tribunals" (reaction essay) 3 Criminology and Public Policy 339 (2002).

    Turk, Austin T., "Confronting Enemies Foreign and Domestic: An American Dilemma?" (reaction essay) 3 Criminology and Public Policy 345 (2002).

    Symposium, "Capital Punishment in the Age of Terrorism" 41 The Catholic Lawyer 187 (2001). The text from a symposium sponsored by the Association of the Bar of the City of New York features leading death penalty experts closely examining how governments respond to national crimes, such as the terrorist attacks on the World Trade Center and the Pentagon, that trigger factors that are not present in ordinary first-degree murder cases.

    See also Federal Death Penalty

    Read More 26,219 reads
    Racial Disparities in Federal Death Penalty Prosecutions 1988-1994
    Staff Report by the Subcommittee on Civil and Constitutional Rights
    Committee on the Judiciary
    One Hundred Third Congress, Second Session
    March 1994
    prepared with the assistance of the Death Penalty Information Center

    The Federal Death Penalty
    Pace of Prosecutions Increasing
    Background on Race and the Death Penalty
    Appendix: Federal Death Penalty Prosecutions, 1988-94



    "Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, and, despite the effort of the states and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake."

    --Justice Harry A. Blackmun, Feb. 22, 1994 [1]



    Racial minorities are being prosecuted under federal death penalty law far beyond their proportion in the general population or the population of criminal offenders. Analysis of prosecutions under the federal death penalty provisions of the Anti-Drug Abuse Act of 1988 [2] reveals that 89% of the defendants selected for capital prosecution have been either African-American or Mexican-American. Moreover, the number of prosecutions under this Act has been increasing over the past two years with no decline in the racial disparities. All ten of the recently approved federal capital prosecutions have been against black defendants. This pattern of inequality adds to the mounting evidence that race continues to play an unacceptable part in the application of capital punishment in America today. It confirms Justice Blackmun's recent conclusion that "the death penalty experiment has failed."

    The Federal Death Penalty

    Since the Supreme Court's 1972 decision in Furman v. Georgia,[3] the death penalty has been almost exclusively a state prerogative. Congress has so far not adopted the general sentencing procedures that would reinstate the federal death penalty. No federal executions have been carried out since 1963 and, until very recently, prosecutions under federal death penalty law were rare. But that began to change over the past few years, and can be expected to change dramatically if the House adopts pending legislation to restore generally -- and expand -- the federal death penalty.

    In 1988, President Reagan signed the Anti-Drug Abuse Act. This legislation included a provision, sometimes referred to as the "drug kingpin" death penalty, which created an enforceable federal death penalty for murders committed by those involved in certain drug trafficking activities. The death penalty provisions were added to the "continuing criminal enterprise" statute first enacted in 1984, 21 U.S.C. SS 848. The drug trafficking "enterprise" can consist of as few as five individuals, and even a low-ranking "foot soldier" in the organization can be charged with the death penalty if involved in a killing.

    As the first enforceable federal death penalty adopted after Furman, SS 848 offers a forewarning as to how a general federal death penalty might be applied. This report, prepared with the assistance of the Death Penalty Information Center in Washington, D.C. and with case data from the Federal Death Penalty Resource Counsel Project, examines the application of SS 848.

    Three-quarters of those convicted of participating in a drug enterprise under the general provisions of SS 848 have been white and only about 24% of the defendants have been black. [4] However, of those chosen for death penalty prosecutions under this section, just the opposite is true: 78% of the defendants have been black and only 11% of the defendants have been white. (See Fig. 1). Although the number of homicide cases in the pool that the U.S. Attorneys are choosing from is not known (the Justice Department has not responded to Congressional inquiries for that data), the almost exclusive selection of minority defendants for the death penalty, and the sharp contrast between capital and non-capital prosecutions under SS 848, indicate a degree of racial bias in the imposition of the federal death penalty that exceeds even pre-Furman patterns.

    Federal regulations require that local U.S. Attorneys obtain the personal written authorization of the Attorney General of the United States before proceeding with a capital prosecution. So far, former Attorneys General Thornburgh and Barr, and present Attorney General Reno have approved capital prosecutions against a total of 37 defendants under the 1988 "kingpin" law. Twenty-nine of the defendants have been black and 4 have been Hispanic. All ten of the defendants approved by Attorney General Reno for capital prosecution have been black. Judging by the death row populations of the states, no other jurisdiction comes close to this nearly 90% minority prosecution rate.[5]

    Pace of Prosecutions Increasing

    The pace of these prosecutions has been substantially increasing over the past two years. Although widely touted during the 1988 election year as a "tough" response to drug crime, there were only seven defendants prosecuted under this Act in the first three years after its passage and only one death sentence handed down. However, in 1992 alone, capital prosecutions against fourteen defendants were announced and another five death sentences resulted from these cases. Since January, 1993, sixteen more prosecutions have been announced. [6] (See Fig. 2).

    The underlying crimes for which these defendants are being prosecuted are not excusable because the offenders are members of minorities. But the statistics raise the question of why these cases were chosen out of the large number of drug-related homicides over the past five years. By way of comparison, the proportion of African-Americans admitted to federal prison for all crimes has remained fairly constant between 21% and 27% during the 1980s, while whites accounted for approximately 75% of new federal prisoners. [7] Yet, when it comes to the federal death penalty, the scales dramatically tip the other way.

    The federal government employed the death penalty for a variety of crimes prior to the 1972 Furman decision. But the racial breakdown was also just the opposite from current death penalty prosecutions. Between 1930 and 1972, 85% of those executed under federal law were white and 9% were black. The dramatic racial turnaround under the drug kingpin law clearly requires remedial action.

    Although challenged at a Congressional hearing to provide an explanation for such racial disparities, and asked by the Chairman of this Subcommittee for data on potentially capital cases referred to Washington for approval by federal prosecutors, the Justice Department has offered no response.[8]

    It is worth noting that some of the death penalty prosecutions under SS 848 have been against defendants who do not seem to fit the expected "drug kingpin" profile. In a number of cases, the U.S. Attorneys have sought the death penalty against young inner-city drug gang members and relatively small-time drug traffickers. [9] In other cases, the death penalty was returned against those directly involved in a murder, while the bosses who ordered the killings were given lesser sentences. [10]

    Background on Race and the Death Penalty

    Throughout American history, the death penalty has fallen disproportionately on racial minorities. For example, since 1930 nearly 90% of those executed for the crime of rape in this country were African-Americans.[11] Currently, about 50% of those on the nation's death rows are from minority populations representing 20% of the country's population.

    In 1972, the United States Supreme Court overturned existing death penalty statutes in part because of the danger that those being selected to die were chosen out of racial prejudice. As the late Justice Douglas said in his concurrence overturning the death penalty:

    [T]he discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect and unpopular minority, and saving those who, by social position, may be in a more protected position. [12]

    Following the Furman decision, legislatures adopted death sentencing procedures that were supposed to eliminate the influence of race from the death sentencing process. However, evidence of racial discrimination in the application of capital punishment continues. Nearly 40% of those executed since 1976 have been black, even though blacks constitute only 12% of the population. And in almost every death penalty case, the race of the victim is white. (See Fig. 3). Last year alone, 89% of the death sentences carried out involved white victims, even though 50% of the homicides in this country have black victims.[13] Of the 229 executions that have occurred since the death penalty was reinstated, only one has involved a white defendant for the murder of a black person.

    Race of the victim discrimination was singled out by the U.S. General Accounting Office in its report "Death Penalty Sentencing" which concluded that studies showed:

    [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 who murdered blacks. [14]

    This record of racial injustice played a significant part in Justice Harry Blackmun's recent decision to oppose the death penalty in every case. "Even under the most sophisticated death penalty statutes," said Blackmun, "race continues to play a major role in determining who shall live and who shall die." [15]


    Race continues to plague the application of the death penalty in the United States. On the state level, racial disparities are most obvious in the predominant selection of cases involving white victims. On the federal level, cases selected have almost exclusively involved minority defendants.

    Under our system, the federal government has long assumed the role of protecting against racially biased application of the law. But under the only active federal death penalty statute, the federal record of racial disparity has been even worse than that of the states. So far, the number of cases is relatively small compared to state capital prosecutions. However, the numbers are increasing, and under legislation currently being considered in Congress, the federal government would play a much wider role in death penalty prosecutions.




    Following enactment of the first modern federal death penalty statute on November 18, 1988, 21 U.S.C. SS848(e)-(q) (the so-called "drug kingpin" murder provision), the Bush and Clinton Administrations have approved death penalty prosecutions under SS 848 against 37 defendants. Of these, four defendants were white, four were Hispanic, and twenty-nine were black. All 10 of the defendants approved for capital prosecution by Attorney General Reno, and all 15 defendants now awaiting federal death penalty trials or currently on trial, are African-American.

    Federal Capital Cases Tried to Date

    The federal death penalty cases brought to trial during 1989 -1994 by the Bush and Clinton Administrations are listed below:

    • A white Alabama marijuana grower named Ronald Chandler, was sentenced to death for the murder for hire of a subordinate in his drug ring. Chandler's convictions and death sentence were affirmed by a panel of the Eleventh Circuit July 19, 1993; a petition for writ of certiorari is now pending before the United States Supreme Court. Claiming innocence, Chandler refused a pretrial plea bargain offer for life without possibility of parole. United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993).
    • Three of four young black inner-city gang members in Richmond, Virginia, were sentenced to death on February 16, 1993, for their roles in eleven crack-related murders. United States v. Tipton et al., 3-92-CR68 (E.D. Va.). The trial of a fourth defendant, Vernon Thomas, was severed. On April 23, 1993, moments before a scheduled hearing on Mr. Thomas's motion to bar the death penalty due to his mental retardation, the government withdrew its request for the death penalty. Mr. Thomas was ultimately convicted and sentenced to life imprisonment.
    • A Hispanic drug distributor was sentenced to death by a jury on August 2, 1993 in Brownsville, Texas, in connection with the murders of three other drug traffickers in the Brownsville area. United States v. Juan Raul Garza, No. CR 93-0009 (S.D. Tex.). Attorney General Barr authorized the prosecution to seek the death penalty in December, 1992. Mr. Garza's appeal is pending before the U.S. Court of Appeals for the 5th Circuit.
    • Two Hispanic defendants in Texas were sentenced to life imprisonment and forty years, respectively, for the marijuana-related murder of a state police officer after a joint trial. The sentencing jury found no facts legally warranting the death penalty. United States v. Reynaldo & Baldemar Villarreal No. 9:91CR4 (E.D. Tex. 1991), aff'd, 963 F.2d 725 (5th Cir.), cert. denied, 113 S.Ct. 353 (1992).
    • Two black Chicago gang members received life sentences for cocaine-related murders after separate trials. The Government had offered one defendant, but not the other, a plea bargain prior to trial. United States v. Alexander Cooper & Anthony Davis, No. 89-CR-0580 (N.D. ILL. 1991).
    • A white Mafia contract killer received a life sentence from a Brooklyn, New York jury after being convicted of eight murders, three of which qualified as capital crimes under 21 U.S.C. SS 848. United States v. Pitera, 5 F.3d 624 (2d Cir. 1993).
    • A young black New Jersey gang member committed suicide during his federal capital trial. United States v. Bilal Pretlow, No. 90-CR-238 (D.N.J.).
    • One Hispanic and two white defendants were tried jointly in connection with the drug-related kidnap/murder of a Muskogee, Oklahoma auto dealership employee. United States v. Hutching et al., No. CR-032-S (E.D. Okl.). The two capitally-charged "managers" of the drug enterprise received life sentences from the jury, while the lowest-level defendant, John McCullah (who, unlike the bosses, had been present at the killing) was sentenced to death on March 23, 1993.

    Federal Capital Prosecutions Not Yet Tried:

    Capital prosecutions initiated since early 1992 which are still pending (either as capital or noncapital cases) in federal district courts involve indictments charging:

    The Federal Death Penalty Resource Counsel Project is aware of 7 cases, involving 16 defendants, in which the death penalty is reported to have been authorized by Attorney General Reno or announced since she took office. All 16 defendants are African-American. Three of the cases have been brought in jurisdictions (New York, Michigan, and the District of Columbia) which do not have capital punishment statutes. The cases are:

    • Two black New Orleans inner-city gang members, in connection with an allegedly drug-related murder. United States v. Green & Brown, E.D. La. No. 92-46. On November 24, 1992, the Government dropped its request for the death penalty in this case.
    • One black Tampa, Florida drug distributor, for having allegedly ordered a murder in retaliation for the theft of drugs. United States v. Mathias, (M.D. Fla. No. 91-301-CR-T-17(A)). Trial is set in this case for February 2, 1994.
    • One black Atlanta drug distributor in connection with three murders. United States v. Williams, No. 1:92-CR-142 (N.D.Ga.). No trial date is set as yet.
    • Two black crack cocaine dealers in Macon, Georgia, in connection with the murders of two other crack dealers. United States v. Tony Chatfield and Arleigh Carrington, (M.D. Ga. No. 92-82MAC-WDC). Attorney General Barr authorized this death prosecution in his last week in office. On December 6, 1993, the government dropped its request for the death penalty against these two defendants.
    • United States v. Reginald Brown et al., (E.D.Mich.Cr. No. 92-81127). This case reportedly involved six death authorizations against members of a cocaine distribution organization alleged to be responsible for a total of twelve murders over a 4-year period. The initial authorization occurred during the Bush Administration, but the authorizations were not announced until June, 1993. Only three of the six defendants against whom the death penalty has been authorized are currently in custody. One defendant, Terrance Brown, has been found dead, apparently a homicide victim.
    • United States v. Darryl Johnson, (W.D.N.Y. Cr. No. 92-159-C-S), involving two alleged cocaine-related killings by a Buffalo, New York group. Trial is not anticipated before the fall of 1994.
    • United States v. Wayne Anthony Perry (D.C.D.C. No. 92-CR-474), an alleged hitman for a D.C. cocaine distribution ring; eight homicide counts. Trial is set for February 8, 1994.
    • United States v. Michael Murray, (M.D.Pa. Cr. No. 1:CR-92-200), involves the killing of a Harrisburg, Pennsylvania drug dealer by a gang headed by one Jonathan Bradley. DOJ reportedly declined to approve the U.S. Attorney's request to authorize the death penalty against Bradley, who allegedly ordered the killing, and against another participant in the shooting, Emmanuel S. Harrison.
    • United States v. Edward Alexander Mack et al., (S.D. Fla. 93-0252-CR-Ungaro-Benages), involves two drug-related murders in the course of a Miami drug trafficking operation. Three defendants are facing the death penalty in this case; trial is not anticipated until the latter part of 1994. Attorney General Reno authorized this capital prosecution in early January 1994.
    • United States v. Jean Claude Oscar et al., (E.D.Va. 93 CR 131) involves three capitally charged defendants and two crack-related murders in Norfolk, Va. Attorney General Reno authorized this capital prosecution in November 1993.
    • United States v. Todd Moore, (E.D. Va. 1994), the prosecution of this black defendant in Norfolk, Va. was announced March 8, 1994.


    [1] Callins v. Collins, No. 93-7054 (1994) (Blackmun, J., dissenting) (Supreme Court denial of review).

    [2] 21 U.S.C. 848(e)-(q).

    [3] 408 U.S. 238 (1972).

    [4] U.S. Dept. of Justice, Bureau of Justice Statistics, Special Report: Prosecuting Criminal Enterprises, , at 6, Table 10 (convictions 1987-90) (1993).

    [5] See NAACP Legal Defense Fund, Death Row, U.S.A., January 1994 (death rows by state with racial breakdowns).

    [6] Prosecutions against 10 defendants were approved by Attorney General Reno, including at least one in 1994. Prosecutions against 6 other defendants were approved in the previous Administration, but were not announced until June, 1993.

    [7] Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 1991, at table 6.78, p. 644 (1992).

    [8] On October 21, 1993, Rep. Melvin Watt (D-NC) asked then Deputy Attorney General Philip Heymann for an explanation of the racial disparities in capital prosecutions during the course of a House Judiciary Subcommittee hearing on the Administration's crime bill. Mr. Heymann promised a reply in two weeks. To date, Rep. Watt has received no response to his inquiry. Death Penalty Information Center phone conversation with Rep. Watt's office, Feb. 28, 1994.

    During the same hearing, Rep. Craig Washington (D-Tex.) remarked to Mr. Heymann that "if some redneck county in Texas had come up with figures like that, you'd been down there wanting to know why." See Federal Death Penalty Update, Newsletter of Federal Death Penalty Resource Counsel Project, January, 1994.

    [9] See, e.g., United States v. Tipton et al., 3-92-CR68 (E.D. Va.) (prosecution of four young black inner-city gang members in Richmond, Va.); United States v. Bilal Pretlow, No. 90-CR-238 (D.N.J.) (a young black New Jersey gang member who committed suicide during his trial); United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993) (prosecution of rural Alabama marijuana grower in murder-for-hire scheme).

    [10] See, e.g., United States v. Hutching et al., No. CR-032-S (E.D. Okl.) (two "managers" of the drug enterprise received life sentences for murder while lower level defendant who was present at the murder was sentenced to death); United States v. Michael Murray, Cr. No. 1: CR-92-200 (M.D. Pa.) (Dept. of Justice reportedly declined to approve the U.S. Attorney's request to authorize the death penalty against the gang leader, Jonathan Bradley, whom the indictment alleges ordered the killing. A death sentence is being sought against Murray who was 19 years old at the time of the incident.). Information obtained from the Federal Death Penalty Resource Counsel Project report, Feb. 15, 1994.

    [11] U.S. Dept. of Justice, Bureau of Justice Statistics, Capital Punishment, 1981 (1982).

    [12] Furman v. Georgia, 92 S. Ct. 2726, 2735 (1972) (Douglas, J., concurring).

    [13] See, e.g., S. LaFraniere, FBI Finds Major Increase in Juvenile Violence in Past Decade, Washington Post, Aug. 30, 1992, at A13 (half of U.S. murder victims are black).

    [14] U.S. General Accounting Office, Death Penalty Sentencing 5 (Feb. 1990) (emphasis added).

    [15] Callins v. Collins, No. 93-7054 (1994) (Blackmun, J., dissenting).

    [*] Case data provided by the Federal Death Penalty Resource Counsel Project, Columbia, SC.


    Read More 60,113 reads
    CMFE's letter to President Bush urging an immediate moratorium on all federal executions Citizens for a Moratorium On Federal Executions
    Citizens for a Moratorium On Federal Executions, a Washington-based group of prominent death penalty opponents, sent President Bush a letter on June 4, 2001 urging him to impose an immediate moratorium on all federal executions.

    Here is the full text of the letter:

    Dear President Bush:

    As you know from our previous correspondence to you and to President Clinton, Citizens for a Moratorium on Federal Executions (CMFE) is a growing coalition of individuals with differing views on the authority of government to impose the death penalty. Some who have signed letters to you and to President Clinton agree that capital punishment is appropriate in principle, provided that it can be carried out fairly, equitably and reliably. However, all of us agree that current information about the administration of the federal death penalty calls for an immediate executive moratorium on federal executions.

    Citizens for a Moratorium on Federal Executions originally came together to urge President Clinton to declare a moratorium when Juan Raul Garza was scheduled to be the first individual executed by the federal government system since 1963. Results of the Department of Justice survey of the administration of the federal death penalty released in September of last year revealed disturbing evidence of geographic and racial disparities. The outcome of the DOJ review and concerns expressed by the former Attorney General and the former Deputy Attorney General were focal points of the CMFE's letters to President Clinton in November and January. In those letters, we urged that "no federal execution should be carried out at a time when the nation questions the reliability and fairness of capital punishment and no person should be executed until it is certain that the process does not discriminate. The very reason for a moratorium is to allow a period for careful study about the administration of the federal death penalty. Whatever one's views on the appropriateness of the death penalty, it is unconscionable to carry it out while questions remain about the fairness of its application."

    On December 7, 2000, President Clinton announced that he had granted a reprieve to Mr. Garza because of his conclusion that "the examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department's continuing study." The President called upon the Department of Justice to conclude a further examination of the federal death penalty system by the end of April of this year in advance of June 19, the execution date now scheduled for Juan Raul Garza. Then-Deputy Attorney General Holder followed up by expanding the internal Department of Justice inquiry to include gathering internal data that had been missing from the September 2000 survey.

    Ultimately, Attorney General Reno, Deputy Attorney General Holder, and Acting Director of the National Institute of Justice Julie Samuels concluded that April of this year was not a realistic deadline for completion of a thorough examination of the system. The Department determined that a credible evaluation of the federal death penalty could not be conducted without studies by independent experts. It recognized that a reliable study required that data be collected and analyzed that had not been maintained by the United States Attorneys in the 94 federal districts. The Department authorized the National Institute of Justice to commence this process. In January, representatives of the NIJ met with experts to begin discussions essential to designing and carrying out independent studies.

    Your Administration's early statements and actions indicated its concurrence with this course of action. Responding to questions during the confirmation process, the nation's new Attorney General, John Ashcroft, stated that evidence of racial disparities in the application of the federal death penalty "troubles me deeply." Acknowledging that he was "unsure" why more than half the federal capital prosecutions were initiated in less than one-third of the states, the Attorney General agreed that he was also "troubled" by this evidence. He expressed his approval of a "thorough study of the system," and also stated, "Nor should race play any role in determining whether someone is subject to capital punishment." While declaring that he "personally" did not believe a moratorium on federal executions was warranted, the Attorney General answered with an unequivocal "yes" when asked: "Do you agree with President Clinton that there is a need for 'continuing study' of 'possible racial and regional bias' because '[i]n this area there is no room for error?'"

    Unfortunately, the Attorney General's more recent actions and statements cast doubt on your Administration's commitment to the principles he set forth at his confirmation hearing. There has been no indication that the Department intends to continue the necessary independent investigation of racial and geographic bias in the death penalty, which was to have been administered by the National Institute of Justice. Moreover, Attorney General Ashcroft's statements to members of Congress, including his testimony before the House Appropriations Committee in early May, suggest that even the internal inquiry that the Department of Justice embarked upon will consist of little more than a re-analysis of the same data already examined and found to demonstrate "troubling" racial and geographic disparities. While Attorney General Ashcroft and Department of Justice press advisories indicated that the supplemental study would be made public before May 16, it was not. This sequence of events is far from the "thorough study of the system" that the Attorney General promised.

    Finally, revelations just days before May 16 that the FBI had failed to provide defense counsel for Timothy McVeigh with thousands of documents to which they were entitled have further shaken confidence in the reliability and fairness of the administration of the federal death penalty. In announcing a delay in Mr. McVeigh's execution, the Attorney General declared that "if any questions or doubts remain about this case, it would cast a permanent cloud over justice, diminishing its value and questioning its integrity." In expressing your support for the Attorney General's decision, Mr. President, you stated that '[t]oday is an example of the system being fair." You emphasized that the Attorney General's action was appropriate because "we live in a country that protects certain rights."

    Mr. President, the doubts and questions that were raised about the fairness and reliability of the federal death penalty system remain. In your own words, they call into question precisely whether the "system [is] fair" and whether "we live in a country that protects certain rights." We await action by this Administration which will assure the American public that if we are to have a federal death penalty, reliability, fairness and equality will be guaranteed. Those assurances cannot be given today because, as Attorney General Ashcroft has recognized, there is need for a "thorough study." We again urge you to declare an immediate moratorium on all federal executions.


    Barbara Arnwine
    Executive Director, Lawyers' Committee for Civil Rights Under Law

    Bishop Thomas J. Gumbleton
    Auxiliary Bishop, Archdiocese of Detroit

    Elizabeth Frawley Bagley
    Former U.S. Ambassador to Portugal

    Wade Henderson
    Executive Director, Leadership Conference on Civil Rights (LCCR)

    Dr. Mary Frances Berry
    Chair, U.S. Commission on Civil Rights

    Reverend Jesse Jackson
    Civic and Political Leader; President and Founder, Rainbow Coalition/PUSH

    Harry Belafonte

    Fred Korematsu
    Japanese American Civil Rights Leader

    Julian Bond
    Chairman of the Board, National Association for the Advancement of Colored People (NAACP)

    Dean Anthony Kronman
    Dean, Yale Law School

    Kerry Kennedy Cuomo
    Human Rights Activist; Founder and Former Executive Director, RFK Center for Human Rights

    Reverend James Lawson, Jr.
    Pastor Emeritus, Holman United Methodist Church, Los Angeles

    Norman Lear
    Director and Founding Member, People for the American Way; Chairman, ACT III Communications

    Michael S. Rosier
    President-Elect, National Bar Association

    Robert S. Litt
    Former Principal Associate Deputy Attorney General, U.S. Department of Justice

    Dr. Yvonne Scruggs-Leftwich
    Executive Director/Chief Operating Officer, Black Leadership Forum, Inc.

    Reverend Dr. Joseph E. Lowery
    Co-Founder and President Emeritus, Southern Christian Leadership Conference (SCLC)

    Stanley Sheinbaum
    Economist; Founding Publisher, New Perspectives Quarterly

    Cardinal Roger Mahony
    Archbishop, Roman Catholic Archdiocese of Los Angeles

    Sidney Sheinberg
    Former President and Chief Operating Officer, MCA, Inc./Universal Pictures

    Karen K. Narasaki
    President, National Asian Pacific American Legal Consortium

    Senator Paul Simon
    U. S. Senate, 1984-1997;U.S. House of Representatives, 1974-1984

    Mario G. Obledo
    President, National Coalition of Hispanic Organizations

    Tavis Smiley
    Commentator, Author, Civil Rights Leader

    Angela E. Oh
    Member, Advisory Board One America:The President's Initiative on Race

    R. Emmett Tyrrell, Jr.
    Editor in Chief, The American Spectator

    George M. Ong
    National President, Organization of Chinese Americans

    John Van de Kamp
    California Attorney General, 1983-1991

    Sister Helen Prejean
    Author, Dead Man Walking; Chair, The Moratorium Campaign

    Reverend C.T. Vivian
    Founder and Board Chair, Center for Democratic Renewal (formerly the National Anti-Klan
    Network); President, Black Action Strategies and Information Center (B.A.S.I.C.)

    Hugh B. Price
    President, National Urban League

    Bud Welch
    Board Member, Murder Victims' Families For Reconciliation

    Arturo S. Rodriguez
    President, United Farm Workers of America, AFL-CIO

    John W. Whitehead
    Founder and President, The Rutherford Institute

    cc: John D. Ashcroft, Attorney General
    Alberto Gonzalez, White House Counsel

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    Reno Troubled by Death Penalty Statistics Reno Troubled by Death Penalty Statistics NEW YORK TIMES

    September 12, 2000

    Reno Troubled by Death Penalty Statistics


    Saying she was "sorely troubled" by stark racial disparities in the federal death penalty, Attorney General Janet Reno today ordered United States attorneys to help explain why capital punishment is not applied uniformly across ethnic groups.

    "We must ensure that all defendants who come into our system are treated in a fair and just manner," Ms. Reno said in announcing the results of a survey that showed three-quarters of the defendants considered for the federal death penalty were members of minorities. "We must do all we can in the federal government to root out bias at every step."

    Ms. Reno said the data compiled by the Justice Department raised no questions about the innocence of defendants and therefore did not merit a moratorium on the death penalty. But critics seized on the data to buttress their calls for an immediate halt to federal executions, the last of which was in 1963.

    "Just as we feared, the same serious flaws in the administration of the death penalty that have plagued the states also afflict the federal death penalty," said Senator Russell D. Feingold, Democrat of Wisconsin. "Let's temporarily suspend federal executions and let a thoughtfully chosen commission examine the system. American ideals of justice demand that much."
    An aide to Mr. Feingold said the senator would introduce legislation this week calling for such a moratorium.

    "This is the worst sort of racial profiling with the worst result," said Julian Bond, the chairman of the National Association for the Advancement of Colored People. "This argues strongly for a federal moratorium until there can be assurances this can be applied fairly."

    A White House spokesman, Jake Siewert, said the study required followup.

    "We've seen the numbers," Mr. Siewert said. "At first glance, those numbers are troubling. We need to know more about exactly what's behind the numbers."

    The statistical survey examined the ethnicity of the defendants in 713 capital punishment cases since the federal death penalty was reinstated in 1988.

    Since 1995, when a formal review process was put in place, 80 percent of the 682 defendants who faced capital charges were members of minorities. United States attorneys recommended the death penalty for 183 defendants, 74 percent of whom were members of minorities.

    "I can't help but be both personally and professionally disturbed by the numbers that we discuss today," Deputy Attorney General Eric Holder said. "To be sure, many factors have led to the disproportionate representation of racial and ethnic minorities throughout the federal death penalty process. Nevertheless, no one reading this report can help but be disturbed, troubled, by this disparity."

    States executed 4,400 people from 1930 to 1999, according to the Justice Department, compared with 33 federal executions since 1930.

    As of the end of 1998, there were 3,433 people with death sentences in the states, compared with 19 people with pending federal executions, the study said.

    Legislation approved by Congress in 1994 and 1996 added more than 40 new offenses to the list of capital crimes.

    Ms. Reno imposed a tighter review of death cases in 1995, requiring United States attorneys to submit to the Justice Department's headquarters all cases for which the death penalty is an option. Capital punishment can be pursued only with the approval of Ms. Reno and a panel of senior officials. The data released today, however, showed that defendants from minorities make up the bulk of those cases that appear on Ms. Reno's desk.

    Ms. Reno said an even broader study was required to determine whether "bias" played a role in the system. She called for a study of the problem by outside experts, and said Mr. Holder would lead a review of homicide cases handled by states versus those handled by the federal government.

    The other findings in the study included these:

    • United States attorneys in 49 of the country's 94 judicial districts submitted cases that were eligible for the death penalty to the Justice Department since 1995. Ten of the 49 districts submitted recommendations in favor of the death penalty. About 40 percent of the 682 death-penalty cases submitted for review came from five of the United States attorney districts.

    • The victims of those who faced the prospect of the federal death penalty were more likely to be black than white. Of the 894 victims involved in cases where the death penalty was considered, 53 percent were black, 31 percent were white, 13 percent were Hispanic and 3 percent were other groups.

    • Blacks were more likely to face the death penalty for interracial homicides than whites. Of the 177 defendants who faced the death penalty for killing a victim of another race since 1955, 55 percent were black, 25 percent were Hispanic, 11 percent were white and 8 percent were other.
    David Bruck of the Federal Death Penalty Resource Counsel Project, a federally funded program to assist court-appointed lawyers in federal death penalty cases, praised Ms. Reno for collecting the facts but said the system was clearly flawed.
    "No state in America, not Mississippi, not Texas, not South Carolina, has produced such a racially lop-sided death sentencing record as has the federal government," Mr. Bruck said. "It's obvious that the time for a moratorium on the federal death penalty has arrived."

    GRAPHIC: Chart: "Disparities in Federal Death Penalty"
    A study by the Justice Department found wide racial and geographic disparities in the number of death penalty cases that U.S. attorneys submitted to the attorney general for review since 1995, and how often the U.S. attorney recommended the death penalty in those cases. [see DPIC's summary of the report]

    Map shows the number of death penalty cases submitted for review, by state.

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    McVeigh Errors Raise Doubts About Other Capital Cases McVeigh Errors Raise Doubts About Other Capital Cases USA TODAY

    Wednesday, May 16, 2001
    Page 14A

    McVeigh Errors Raise Doubts About Other Capital Cases
    Our view: FBI blunders spotlight how often death-penalty cases are flawed.


    Today, when most Americans expected to be contemplating the death of Timothy McVeigh, they will instead be forced to contemplate his continued existence. It will also be useful if they cast a similarly jaundiced eye on the process that produced today's colossal anti-climax.

    McVeigh's execution was delayed because the FBI failed to provide more than 3,000 documents to his defense attorneys before trial. The evidence may be irrelevant, but it may also contain information about whether McVeigh was part of a broader conspiracy, as his defense attorney believes.

    This is troubling twice over. First, it is possible, although not probable, that McVeigh's lawyers will use the mistake to win a new trial. This would drag out the prosecution of a confessed mass murderer by several more years and millions more dollars. Second, and of deeper significance, the error illustrates that the capital system is far more prone to error than its defenders admit. If the federal government can't prosecute a slam-dunk case without making potentially prejudicial mistakes, imagine what's happening in the states, where capital crimes are tried by less-skilled lawyers with fewer resources.

    What's happening is that errors occur at a rate few people realize. Between 270 and 300 people are condemned to die every year in state courts, but many aren't high-quality convictions. From 1973 to 1995, almost 70% were overturned by appeals courts due to serious flaws, according to a review of 4,600 capital convictions by Columbia University Law School Professor James Liebman. More than 80% of those reversed by state courts resulted in a sentence less than death in retrial; 7% of the suspects were totally exonerated.

    The leading cause for reversal in these cases was incompetent counsel. No such risk faced McVeigh, for whom taxpayers supplied a raft of legal talent.

    But the second-leading cause was the failure by the prosecuting team to disclose evidence to the defense team. That's exactly what happened in the McVeigh case. And it happened even though the case features top-ranked investigators, prosecutors and defense attorneys at a cost, by some estimates, that was upward of $80 million.

    Concern about errors is causing many states to re-examine the death penalty. Executions are on pace to fall for the third year in a row. Traditionally active states such as California are seeing fewer capital convictions. And after a close legislative debate, Texas, the nation's leading executioner, is considering a referendum on whether to enact a moratorium. Wyoming recently adopted a sentence of life without parole as an option to death.

    That's only prudent. If McVeigh can't be cleanly convicted and condemned with all of the resources of the federal government, it's certain that the states are also making errors and that not all of them are being discovered. A sentence of life without parole obviates the fear of killing an innocent person that can accompany the death penalty.

    It's hard to imagine the feelings of McVeigh's victims today as they anticipate another three weeks (and maybe many more) before his sentence is carried out. It's not hard, however, to endorse the delay itself.

    The death penalty requires infallibility, which relies on perfect jurisprudence. McVeigh may be as guilty as sin, but rushing an execution isn't the path to justice. It is the path to greater error.

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    It's Closure Mongering Time Execute Terrorists at Our Own Risk NEW YORK TIMES

    April 28, 2001
    Page A-23

    Journal: It's Closure Mongering Time


    Only in America could they throw an execution like this.

    On eBay, dozens of bidders have vied in auctions like the one inviting them to "commemorate the final days of America's worst terrorist" with a "colorful T-shirt." The folks at PETA, never content to leave well enough alone, have demanded that Timothy McVeigh's last meal be meat-free, prompting Mr. McVeigh to write them a letter suggesting that since his "time is short," they should proselytize Ted Kaczynski instead. Though an effort by the Internet pornographer who runs "Voyeur Dorm" to merchandise the execution as a live $1.95 Webcast was derailed in court, such video could yet proliferate on the Web anyway, not unlike the Tommy Lee-Pamela Anderson sex tape. By boasting about "the latest encryption technology" and "state-of-the-art video conferencing," Attorney General John Ashcroft has all but dared an international army of hackers to hijack the execution transmission he's sending over 500 miles of telephone lines from the death chamber in Terre Haute to the bombing's victims and survivors in Oklahoma City.

    Mr. Ashcroft has also set the inevitable theme of the weeks between now and May 16: closure, big time. He has said that he hopes his closed- circuit TV show can help Oklahoma City's bereaved "meet their need to close this chapter in their lives." He hopes the country can achieve closure, too, by ignoring Timothy McVeigh. To this end, the attorney general has attempted to manage news coverage by forbidding TV interviews with the murderer and by trying to strong-arm the press into minimizing any reportage whatsoever of his final weeks of utterances. Otherwise, Mr. Ashcroft says, the media could become "Timothy McVeigh's co-conspirator in his assault on America's public safety and upon America itself."

    Certainly all Americans hope that those who have suffered directly from this tragedy find a measure of peace in any way they can. But the notion that the country has something to gain by sweeping the murder of 168 innocent people and the execution of one guilty person under the rug is something only a platitudinous politician who's in over his head, like our new attorney general, could dream up. For some national wounds there is never any "closure" - witness the searing, conflicted emotions that rose up in many Americans, whatever their views about Vietnam, as they heard this week about the hidden past of Bob Kerrey. Only by learning from the blood bath in Oklahoma City, in which more Americans were killed than in our last war, in the Persian Gulf, can we grapple with its ghosts.

    Already the McVeigh execution has served to deepen our growing national debate about the death penalty. As Sara Rimer of The Times reported this week, even some Oklahoma City victims and survivors have become vocal opponents of capital punishment - despite the efforts of Mr. Ashcroft, a death penalty advocate, to misrepresent all these grieving families as single-minded in their desire for Mr. McVeigh's obliteration. On Monday, George Ryan, the once pro-capital punishment Republican governor of Illinois who declared a moratorium on executions after repeated exonerations of death row inmates, said he's now "struggling" over the issue and could not "throw the switch" on Mr. McVeigh.

    A parallel, and less predictable, debate has arisen over the issue of televising the execution. Ever since the author Thomas Lynch made an eloquent case on this page in February for the public's right to see the death being enacted by the state in its name, many anti-death penalty editorialists have seconded it. One common line of argument is that a public execution will cause Americans to question their own support for future executions - though a chilling counterargument has it that a televised execution might go down all too smoothly in a gladiatorial culture where the W.W.F. and "reality" programming like MTV's "Jackass" and UPN's "Chains of Love" are prime-time entertainment. It's worth asking if we can actually tell the difference between reality and "reality" programming anymore. Don Hewitt, whose "60 Minutes" once aired a Kevorkian euthanasia tape, told The Philadelphia Inquirer that broadcasting an execution by lethal injection would be ho-hum. "People watch that on `E.R' every week," he said. "What's the big deal?"

    But even as we debate the merits of holding or watching executions, there seems to be widespread support for Mr. Ashcroft's view that we avert our eyes from those of Mr. McVeigh himself. Charles Gibson of ABC News parroted the attorney general when he declared that he would anchor his network's execution coverage from Oklahoma City rather than Terre Haute because "the more important message is still with the survivors and the victims, and not with the message of this guy." (Since when is a network news anchor's job to send a message, let alone by his choice of urban backdrop?) Similarly, the country's largest retailer, Wal-Mart, has banned the selling of "American Terrorist," the journalistic account of the bombing written by the 2 Buffalo News reporters who covered the story, Lou Michel and Dan Herbeck. The Army and Air Force Exchange Service, I learned this week, has also elected not to sell the book on military bases - maintaining, according to Maj. Philip Smith, its public affairs officer, that the decision was based only on "sales potential."

    That explanation doesn't fly. The book is in fact a best seller - No. 2 on The Times's list - and deservedly so. The authors have woven 150 interviews, including 75 hours' worth with Mr. McVeigh, into what is likely to stand as the definitive record of the crime and the man who committed it. Though much publicity has attended the book's revelation of Mr. McVeigh's abhorrent lack of remorse, as exemplified by his description of the bombing's child casualties as "collateral damage," the Ashcroft head-in- the-sand attitude prevails in the relatively scant attention paid to the bulk of the book devoted to the ordinariness of its American terrorist. Mr. McVeigh was not your typical troubled loner who explodes on the nation's front pages. He was a Buffalo Bills fan, a junkie not for drugs but news, a Catholic of catholic cultural tastes ("Star Wars") whose unremarkable senior high school yearbook photo inscription read, "Take it as it comes, buy a Lamborghini, California girls."

    The "most disturbing thing about him," said Mr. Michel, the book's co- author, in a conversation this week, "is that he's a 3-dimensional person. Most people would love to dismiss him as a Charles Manson or Jeffrey Dahmer a flat-line monster with a swastika on his forehead. But he's a son of suburbia who had every advantage in life." If anything, Mr. McVeigh, who had a latchkey childhood marked by some bullying, offers "a through line to the school shooters of today," says Mr. Michel. "It's to our peril as a society not to try to understand how he went from fairly normal to terrorist. For us to turn our back, and say no, this is just too painful to look at, is to invite the possibility of it happening again."

    According to the psychiatrist hired by his defense attorney, Mr. McVeigh was sane. The rage that he brought home from the Persian Gulf war, in which he was a decorated soldier, was stoked by the insular, itinerant gun-show culture, which fed his Second Amendment absolutism and hatred of government (he considered assassinating Janet Reno). "There are millions of Americans who share his anti-government views," says Mr. Michel, some of the most extreme of whom are now writing fan letters to the condemned man in prison. Even Mr. McVeigh "calls them kooks and crazies," adds the writer, who remains in communication with his book's subject in his final weeks.

    Those weeks are going to be filled with the white noise of an all-American circus. Any profiteer or publicity hound that can find his way to Terre Haute will do so, and will soon be dutifully showcased on TV for our delectation. But the false pieties of supposed leaders like John Ashcroft and those in the media who mimic his closure mongering are more offensive than the clowns peddling their tacky T-shirts. The circumstances that produce a Timothy McVeigh are not going to be eradicated by shutting down his interviews, banning his words or, for that matter, ending his life. To promote the fiction that such closure is attainable is, as our attorney general would put it, to be a co- conspirator in Mr. McVeigh's assault on America's public safety and upon America itself.

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    Pervasive Disparities Found in the Federal Death Penalty Pervasive Disparities Found in the Federal Death Penalty NEW YORK TIMES

    Sept. 12, 2000

    Pervasive Disparities Found in the Federal Death Penalty


    WASHINGTON, Sept. 11 - In the first comprehensive review of the federal death penalty since it was reinstated in 1988,
    the Justice Department has found significant racial and geographical disparities, say officials who have seen the report.

    In 75 percent of the cases in which a federal prosecutor sought the death penalty in the last five years, the defendant has been a member of a minority group, and in more than half of the cases, an African-American, according to the report, which officials said the Justice Department would release on Tuesday.

    "It's troubling," said an administration official who has reviewed the data. "The president has expressed concern about the problem, and this backs that up." Another administration official described the report as "disturbing."

    They added that on Tuesday, Attorney General Janet Reno is to announce more studies of the administration of the death penalty.

    Reflecting a lack of geographic uniformity in the application of federal capital punishment, the Justice Department has found that a handful of the 93 United States attorneys account for about 40 percent of the cases sent to the Justice Department for review, according to officials.

    On the other hand, about 20 United States attorneys did not file a single death penalty case since 1995. Since there are more than 40 crimes for which the federal death penalty is a potential punishment, the lack of cases from those jurisdictions raised the question of the uniform application of death penalty prosecutions.

    Officials said that the report was a compilation of about 400 pages of data, and that it contained almost no analysis. Justice Department officials were still writing the report's introduction late this evening, officials said.

    The report is expected to increase calls for a moratorium on the federal death penalty. The American Bar Association, which does not take a position for or against the death penalty, sent a letter to President Clinton on May 2 asking him to impose an executive moratorium pending a thorough review of the federal capital punishment system. An association official said today that Mr. Clinton had not responded.

    In February, Senator Russell B. Feingold, Democrat of Wisconsin, called on President Clinton and Ms. Reno to suspend federal executions. In April, he and Representative Jesse L. Jackson Jr., Democrat of Illinois, introduced legislation calling for a national death-penalty moratorium.

    The bulk of the Justice Department report has been given to lawyers for Juan Raul Garza, who is scheduled to be executed on Dec. 12. Mr. Garza was convicted in 1993 in Brownsville, Tex., of three drug-related murders.

    He was originally scheduled to be executed on Aug. 5, but President Clinton granted him a reprieve so that his lawyers could use new clemency rules drafted by the Justice Department for capital cases. His lawyers expect to file that clemency request on Tuesday.

    While a death penalty for at least some federal crimes has been on the books since 1988, it has yet to be carried out. The last federal execution was 37 years ago, when Victor Feguer was hanged in Iowa for kidnapping and killing a doctor.

    After the Supreme Court declared in 1972 that the death penalty, as it was then being applied, was unconstitutional, states quickly adopted laws that the court upheld.

    In 1988, Congress adopted what became known as the "drug kingpin statute," which permitted a death penalty against an individual found guilty of committing murder as part of a larger drug-running enterprise.

    In 1994, Congress enacted the Federal Death Penalty Act, which greatly expanded the crimes for which a defendant could be executed. They range from murder of the president to large-scale drug trafficking even when no one is killed and include drive-by murders, sexual abuse resulting in death, murder during a bank robbery, carjacking and destruction of an airplane, train or motor vehicle resulting in death.

    Before federal prosecutors may seek the death penalty, they need the approval of the Justice Department. In January 1995, Attorney General Reno, wanting to insure uniformity in the application of the federal death penalty, adopted procedures that require United States Attorneys to file memoranda in cases where the death penalty is an option. They must also include their recommendation on whether or not to seek it.

    Ms. Reno also set up a special committee to review every case.

    There have been 682 submissions,, according to the report. About 40 percent of the submissions were filed by five jurisdictions: Puerto Rico; the Eastern District of Virginia; Maryland; and the Eastern and Southern districts of New York.

    Puerto Rico and Virginia recommended the death penalty most frequently, while the United States Attorneys in the two New York districts, which cover New York City and its outlying areas, recommended the penalty in only a few cases.

    Among the United States attorneys' office which have not submitted any cases is Alaska, which Justice Department officials found puzzling because the state has one of the nation's higher homicide rates.

    But Alaska does not have the death penalty, which suggested to some officials that United States attorneys were influenced by the local attitudes toward capital punishment.

    The report also shows that United States attorneys who have most frequently recommended seeking the death penalty are from states with a high number of executions, including Virginia, Texas and Missouri.

    In 80 percent of the cases submitted by United States attorneys for review, the defendant was an ethnic minority. But officials said that Ms. Reno's review process has reduced the apparent racial bias.

    In the 682 cases she reviewed in which the defendant was white, she authorized the death penalty 38 percent of the time; when the defendant was black, she authorized the death penalty 25 percent of the time. United States attorneys recommended the death penalty in 183 cases, and Ms. Reno authorized it in 159 cases.

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