June 7, 2001

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

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

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

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

Madame President, I would like to take a moment to read what Attorney General Reno said that day in September: ​“There are impor­tant lim­i­ta­tions on the scope of our sur­vey. The sur­vey only cap­tures data cur­rent­ly avail­able begin­ning when a U.S. attor­ney sub­mits a cap­i­tal eli­gi­ble case to the review com­mit­tee and to me for fur­ther review. This sur­vey, there­fore, does not address a num­ber of impor­tant issues that arise before the U.S. attor­ney sub­mits a case: Why did the defen­dant com­mit the mur­der? Why did the defen­dant get arrest­ed and pros­e­cut­ed by fed­er­al author­i­ties rather than by state author­i­ties? Why did the U.S. attor­ney sub­mit the case for review rather than enter a plea bar­gain? … More infor­ma­tion is need­ed to bet­ter under­stand the many fac­tors that effect how homi­cide cas­es make their way into the fed­er­al sys­tem, and once in the fed­er­al sys­tem, why they fol­low dif­fer­ent paths. An even broad­er analy­sis must there­fore be under­tak­en to deter­mine if bias does, in fact, play any role in the fed­er­al death penalty system.

I’ve asked the National Institute of Justice to solic­it research pro­pos­als from out­side experts, to study the rea­sons why, under exist­ing stan­dards, homi­cide cas­es are direct­ed to the state or fed­er­al sys­tems, and charged either as cap­i­tal cas­es or non-cap­i­tal cas­es, as well as the fac­tors account­ing for the present geo­graph­ic pat­tern of sub­mis­sions by the U.S. Attorney’s Offices. The depart­ment will also wel­come relat­ed research pro­pos­als that out­side experts may sug­gest.” Madame President, in December, President Clinton, cit­ing this ongo­ing review by the Justice Department, then took the impor­tant step of delay­ing the exe­cu­tion of Mr. Garza until June 19th of this year to allow the Justice Department time to com­plete its review. President Clinton also ordered the Justice Department to report to the President by April of this year on the results of its fur­ther review. President Clinton antic­i­pat­ed that this would have been suf­fi­cient time for the President to review the results of the review before decid­ing whether to pro­ceed with Mr. Garza’s exe­cu­tion on June 19th.

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

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

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

Attorney General Ashcroft said, unequiv­o­cal­ly and emphat­i­cal­ly, ​“yes.”

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

Attorney General Ashcroft said, “… the stud­ies that are under way, I’m grate­ful for them. When the mate­r­i­al from those stud­ies comes, I will exam­ine them care­ful­ly and eager­ly to see if there are ways for us to improve the admin­is­tra­tion of justice.”

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

Attorney General Ashcroft respond­ed: ​“I have no inten­tion of ter­mi­nat­ing those studies.”

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

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

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

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

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

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

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

I was pleased to hear Attorney General Ashcroft say, as recent­ly as, Friday, May 11: ​“Our sys­tem of jus­tice requires basic fair­ness, even­hand­ed­ness and dis­pas­sion­ate eval­u­a­tion of the evi­dence and the facts. These fun­da­men­tal require­ments are essen­tial to pro­tect­ing the con­sti­tu­tion­al rights of every cit­i­zen and to sus­tain­ing pub­lic con­fi­dence in the admin­is­tra­tion of jus­tice.… It is my respon­si­bil­i­ty to pro­mote the sanc­ti­ty of the rule of law and jus­tice. It is my respon­si­bil­i­ty and duty to pro­tect the integri­ty of our sys­tem of jus­tice.” Madame President, the basic fair­ness, even­hand­ed­ness and dis­pas­sion­ate eval­u­a­tion of the evi­dence and facts, about which he spoke, of course, extend to the trou­bling racial and region­al dis­par­i­ties in the fed­er­al sys­tem, as doc­u­ment­ed by the Department of Justice September 2000 report.

Madame President, as my col­leagues are aware, I oppose the death penal­ty. I have nev­er made any bones about that. But this is not about oppo­si­tion to the death penal­ty. This is about bias-free jus­tice in America. I am cer­tain that not one of my col­leagues here in the Senate, not a sin­gle one, no mat­ter how strong a pro­po­nent of the death penal­ty, would defend racial dis­crim­i­na­tion in the admin­is­tra­tion of that ulti­mate pun­ish­ment. The most fun­da­men­tal guar­an­tee of our Constitution is equal jus­tice under law, equal pro­tec­tion of the laws.

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

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

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

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

Thank you, Madame President. I yield the floor.