[Senate Hearing 107-396]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 107-396

 RACIAL AND GEOGRAPHIC DISPARITIES IN THE FEDERAL DEATH PENALTY SYSTEM

=======================================================================

                                HEARING

                               before the

   SUBCOMMITTEE ON THE CONSTITUTION, FEDERALISM, AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 13, 2001

                               __________

                          Serial No. J-107-26

                               __________

         Printed for the use of the Committee on the Judiciary


78-760              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
                                     MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director
                                 ------                                

                    Subcommittee on the Constitution

                RUSSELL D. FEINGOLD, Wisconsin, Chairman
PATRICK J. LEAHY, Vermont            STROM THURMOND, South Carolina
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
RICHARD J. DURBIN, Illinois          JON KYL, Arizona
                                     MITCH McCONNELL, Kentucky
                 Robert Schiff, Majority Chief Counsel
                 Garry Malphrus, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    76
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     8
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     6
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....   104
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina.......................................................     4

                               WITNESSES

Bond, Julian, Chairman, NAACP National Board of Directors, 
  National Association for the Advancement of Colored People, and 
  Member, Citizens for a Moratorium on Federal Executions, 
  Washington, D.C................................................    31
Bruck, David I., Federal Death Penalty Resource Counsel, 
  Columbia, South Carolina.......................................    61
Fotis, James J., Executive Director, Law Enforcement Alliance of 
  America, Falls Church, Virginia................................    57
Gross, Samuel R., Visiting Professor, Columbia University Law 
  School, New York, New York.....................................    50
McBride, Andrew G., former Assistant United States Attorney for 
  the Eastern District of Virginia and Partner, Wiley, Rein and 
  Fielding, Washington, D.C......................................    46
Thompson, Hon. Larry, Deputy Attorney General, Department of 
  Justice, Washington, D.C.......................................    10

                         QUESTIONS AND ANSWERS

Responses of David Bruck to questions submitted by Senators 
  Leahy, Feingold, Sessions and Thurmond.........................    77
Responses of Andrew G. McBride to questions submitted by Senators 
  Thurmond and Sessions..........................................    79
Responses of Samuel R. Gross to questions submitted by Senators 
  Sessions, Thurmond and Feingold................................    80

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union, Washington, DC...................    82
Associated Press, news article, June 14, 2001....................    82
Atlanta Journal-Constitution:
    editorial, June 8, 2001......................................    83
    Thomas Sowell, editorial, June 15, 2001......................    84
Baldus, David C., Joseph B. Tye Distinguished Professor of Law, 
  College of Law, University of Iowa.............................    85
Boston Globe, Jeff Jacoby, editorial, June 18, 2001..............    88
Boston Herald, Don Feder, article, June 20, 2001.................    89
Dallas Morning News, Michelle Mittelstadt, article, June 14, 2001    90
Drug Enforcement Administration, Donnie R. Marshall, 
  Administrator, Washington, DC:
    letter.......................................................    91
    memorandum...................................................    92
Federal Bureau of Investigation, Ruben Garcia, Jr., Assistant 
  Director, Criminal Investigative Division, Washington, DC, 
  letter.........................................................    93
Federal Law Enforcement Officers Association, Richard J. Gallo, 
  National President, Lewisberry, PA:
    letter, June 12, 2001........................................    94
    letter, June 13, 2001........................................    95
Fraternal Order of Police, Gilbert G. Gallegos, National 
  President, Albuquerque, NM, letter, June 13, 2001..............    96
Hubbard, Joseph D., District Attorney, Calhoun County Courthouse, 
  Anniston, AL, statement........................................    96
Jackson, Lucy, Birmingham, AL, letter, June 11, 2001.............    97
Law Enforcement Alliance of America, Kenneth V.F. Blanchard, 
  Director, Falls Church, VA, letter, June 13, 2001..............    98
National Association for the Advancement of Colored People, 
  Julian Bond, Chairman, NAACP National Board of Directors, 
  Baltimore, MD, letter, July 16, 2001...........................    98
National Troopers Coalition, Johnny L. Hughes, Director of 
  Government Relations, Albany, NY, letter, June 19, 2001........    99
Newsday, Tom Brune, Washington Bureau, article, June 13, 2001....    99
Offem, Monday and Elizabeth, members of Victims of Crime and 
  Leniency, Montgomery, AL, letter, June 11, 2001................   103
Rankins, Nell, Montgomery, AL, letter............................   103
Reuters, Sue Pleming, article, June 13, 2001.....................   103
Strauss, Hon. Paul, a U.S. Senator from the District of Columbia 
  (Shadow), Washington, DC, statement............................   108
Victims of Crime and Leniency, Miriam Shehane, Executive 
  Director, Montgomery, AL, letter, June 11, 2001................   109
Washington, Mr. and Mrs. F.N., Columbia, SC, letter, June 13, 
  2001...........................................................   110
Watley, Viola, Montgomery, AL, letter, June 11, 2001.............   110

 
 RACIAL AND GEOGRAPHIC DISPARITIES IN THE FEDERAL DEATH PENALTY SYSTEM

                              ----------                              


                        WEDNESDAY, JUNE 13, 2001

                               U.S. Senate,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, Chairman of the Subcommittee, presiding.
    Present: Senators Feingold, Leahy, Durbin, Thurmond, Hatch, 
and Sessions.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Chairman Feingold. The hearing will come to order, and good 
morning. Welcome to this hearing of the Senate Judiciary 
Committee's Subcommittee on the Constitution.
    I want to thank everybody for their patience. We had a 
couple of votes already, and there could be more, but if we 
will have to, we will try to have just the shortest of breaks 
in the hearing if that happens.
    The subject of the hearing is racial and geographic 
disparities in the Federal death penalty system. This is not 
the hearing that I would have preferred to call as my first 
hearing as Chairman of the subcommittee. But as often happens, 
external circumstances and events made it imperative that we 
schedule this hearing quickly today.
    I sincerely thank all the witnesses for making themselves 
available to testify today on short notice and for their 
efforts to prepare written testimony. I also thank my 
colleagues for understanding the urgency of the hearing and 
cooperating with us. I hope that they agree that we have been 
fair in accommodating their requests for witnesses and in 
sharing information on our plans as soon as was possible.
    I am pleased to see Senator Hatch arrive, who, in the 6 
years that he was Chairman of the committee, could not have 
been easier to work with and could not have been more fair in 
terms of the procedure, and I thank him for all of that.
    Senator Hatch. Thank you. I appreciate that.
    Chairman Feingold. Last fall, the Department of Justice 
released a preliminary report showing racial and regional 
disparities in the Federal Government's administration of the 
death penalty. The numbers are stark. After the execution of 
Timothy McVeigh on Monday, there are now 19 individuals on 
Federal death row; 17 of them are racial or ethnic minorities. 
That is an extraordinary number.
    There were a number of similarly disturbing findings in the 
initial report by the Justice Department. Attorney General 
Reno, Deputy Attorney General Holder, and President Clinton all 
said they were troubled by the results of the report.
    Because the cases studied by the initial study included 
only those cases submitted to Main Justice for authorization to 
seek the death penalty, Attorney General Reno immediately 
ordered the collection of additional data from U.S. Attorneys' 
offices. She also directed that the National Institute of 
Justice conduct an in-depth examination of the issues raised in 
the preliminary study in cooperation with outside experts.
    Let me take a moment to read exactly what Attorney General 
Reno said in September. She said, ``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 affect 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.''
    She continued: ``I have 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. Attorneys' offices. The Department will 
also welcome related research proposals that outside experts 
may suggest.''
    In December, citing this ongoing review by the Justice 
Department, President Clinton took the step of delaying the 
execution of Juan Raul Garza until June 19 of this year, next 
Tuesday. President Clinton ordered the Justice Department to 
report to the President by April of this year on the results of 
its further review.
    Now, there is some debate over precisely what President 
Clinton expected could be done by April, but he seemed to 
contemplate that the next President, whoever that might be, 
should have time to review additional, more conclusive 
information before deciding whether to proceed with Mr. Garza's 
execution on June 19.
    Significantly, in answer to my questions at his 
confirmation hearing, Attorney General Ashcroft said that he 
would continue the studies ordered by former Attorney General 
Reno. He said, ``[T]he studies that are underway, I am 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.'' He was asked if 
the studies would be terminated and he answered, ``I have no 
intention of terminating those studies.''
    Last week, the Attorney General revealed that the Justice 
Department did not proceed with a study by the NIJ, as directed 
by former Attorney General Reno, and as he pledged it would in 
his confirmation hearing. Indeed, it appears that really 
nothing has been done on the NIJ study since a January 10 
meeting with outside experts convened by Attorney General Reno.
    The Department of Justice did release its own supplemental 
study based on additional information collected in response to 
Attorney General Reno's request. The Department concludes in 
the report that there is ``no evidence of bias against racial 
or ethnic minorities.'' It even suggests that white defendants 
are treated more harshly than minority defendants.
    The Attorney General did announce in testimony to the House 
Judiciary Committee last week that he was directing the NIJ to 
undertake a study of how death penalty cases are brought into 
the Federal system. His staff indicated in a meeting with my 
staff last Friday that, in fact, the study ordered by the 
Attorney General is the same in many respects as that ordered 
by Attorney General Reno.
    I have asked the Attorney General to put in writing the 
purpose and parameters of the study so there will be no further 
misunderstanding. We have not yet received that in writing, but 
I am pleased that Mr. Thompson's prepared testimony this 
morning confirms that. It says, in part, in Mr. Thompson's 
testimony, ``The primary purpose of this study is the same as 
that which was contemplated by the Clinton administration but 
which did not progress beyond the planning process.''
    I look forward to discussing the Department's plans with 
the Deputy Attorney General this morning. Notwithstanding the 
decision finally to allow the NIJ study to proceed, after a 
nearly 5-month delay, it appears that based on the Department's 
own internal analysis, the Attorney General will allow the 
execution of Juan Garza to proceed next Tuesday. Presumably, he 
will schedule the execution of other minority defendants when 
their appeals are exhausted.
    So we have three issues to explore with our witnesses 
today. First, what happened to the NIJ study that was ordered 
by and begun under the previous administration? The Deputy 
Attorney General, I am sure, is prepared to address that 
question, as will two of our witnesses who participated in the 
initial meeting to plan that study convened on January 10.
    Second, we will examine the Department's recent 
supplemental study and discuss whether it sufficiently answers 
questions about racial and geographic disparities to make it 
unnecessary to further delay the execution of Juan Garza and 
other minority defendants. I believe all of our witnesses will 
have comments on that question.
    Finally, we will discuss the overall issue of racial and 
geographic bias in the administration of the Federal death 
penalty based on the evidence now available to us.
    As we consider these questions, we must realize that this 
is not an academic discussion. The Federal Government is 
scheduled to execute an Hispanic man from Texas in under a 
week's time. I am not satisfied that we adequately understand 
the reasons for the racial and geographic disparities in the 
number of people now on death row to be able to go forward with 
further executions.
    We cannot in good conscience put people to death until we 
are confident in the fairness of the system that leads to those 
decisions. I do not yet have that confidence, and many in the 
country share my concerns. I believe that the execution of Juan 
Garza should again be postponed, and indeed there should be a 
moratorium on all Federal executions until a thorough and 
independent study by NIJ is completed and considered.
    By the way, in fairness, I mentioned the fact that Mr. 
Garza is from Texas not because that is the President's home 
State, as was suggested in one news story this week. Obviously, 
President Bush had nothing to do with the cases of the inmates 
now on Federal death row.
    It is because 6 of the 17 people awaiting execution on 
Federal death row are from that State. Another four are from 
Missouri. The concentration of death row inmates from 
particular regions of the country is troubling, and I don't 
think this issue has yet been adequately addressed by the 
Justice Department.
    I do oppose the death penalty, but this is not about 
opposition to the death penalty. This is about equal and bias-
free justice in America. I am certain that not one of my 
colleagues on the Committee or 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. We must ensure that those protections are observed, 
particularly in the administration of the death penalty.
    With that, I will now turn to our distinguished ranking 
member, Senator Thurmond, for his remarks. I understand that 
the Chairman of the committee, as well as the ranking member, 
would like to make statements as well.
    Senator Thurmond?

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE 
                       OF SOUTH CAROLINA

    Senator Thurmond. Thank you, Mr. Chairman.
    Last week, the Attorney General issued a report finding no 
racial bias in the Federal death penalty. This is consistent 
with what Attorney General Reno found in her report last fall, 
when she refused to issue a moratorium on capital punishment.
    There is absolutely no basis for ending the Federal death 
penalty. By ordering the death penalty in appropriate cases, 
the Attorney General is simply enforcing the laws he has the 
duty to uphold. The Federal criminals who are currently on 
death row are unquestionably guilty. It is clear that the death 
penalty was warranted against Mr. McVeigh, a man who ruthlessly 
killed 168 innocent men, women and children in Oklahoma City. 
It is equally clear that we should follow through next week 
with the death penalty against Mr. Garza, a vicious drug 
kingpin who brutally murdered three people and was involved in 
other drug-related deaths.
    The men and women who prosecute the most dangerous, violent 
criminals in Federal court are dedicated public servants. I do 
not agree with those who question their motives and integrity. 
This hearing today is really about an endless political effort 
to discredit the death penalty by any possible means.
    I welcome the Deputy Attorney General and appreciate his 
willingness to testify.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Thurmond follows:]

  Statement of Hon. Strom Thurmond, a U.S. Senator from the State of 
                             South Carolina

    Mr. Chairman:
    Last week, the Attorney General issued a report finding no racial 
bias in the federal death penalty. This is consistent with what 
Attorney General Reno found in her report last fall when she refused to 
issue a moratorium on capital punishment.
    Defendants in the federal death penalty system must be and are 
treated fairly regardless of race. This is true both in the 
Department's capital review process and in the capital trial process.
    The men and women who prosecute the most dangerous violent 
criminals in federal court are dedicated public servants. I do not 
agree with those who question their motives and integrity.
    There are certain cases where it is only fair, it is only right, 
that the government seek the ultimate punishment. The death penalty can 
provide justice not only for society, but also for the family members 
of victims who have been murdered. Moreover, some studies, including an 
Emory University study from earlier this year, show that the death 
penalty may have a deterrent effect and actually save lives.
    In the past few years, there has been a renewed attack on the death 
penalty from long-standing opponents in liberal activist groups, the 
criminal defense bar, academia, and the national media. Studies trying 
to find systemic flaws in the application of the death penalty, such as 
the well-publicized Columbia University study last year, have turned 
out to be misleading.
    There is no proof that any innocent person has been put to death 
under the modern capital punishment system. We must make certain that 
this does not occur. Therefore, it is important for states to continue 
to expand the availability of DNA testing for certain defendants who 
were convicted before the mid-1990s when DNA evidence became a routine 
part of criminal investigations. In this regard, I was an original 
cosponsor of the Coverdell legislation that we passed last year to 
provide more federal funding for state and local crime labs that are on 
the front lines in using DNA and other scientific evidence to combat 
the most violent crime. Promoting absolute certainty of guilt makes the 
case for the death penalty stronger, not weaker.
    There is no death penalty crisis, and there is absolutely no basis 
for ending the federal death penalty.
    Starting in 1988, the Congress renewed the death penalty for 
certain drug-related and later other heinous crimes. By ordering the 
death penalty in appropriate cases, the Attorney General is simply 
enforcing the laws he has a duty to uphold. Monday was the first time 
it was carried out in 38 years.
    The federal criminals who are currently on death row are 
unquestionably guilty. It is clear that the death penalty was warranted 
against Mr. McVeigh, a man who ruthlessly killed 168 innocent men, 
women and children in Oklahoma City. It is equally clear that we should 
follow through next week with the death penalty against Mr. Garza, a 
vicious drug kingpin who brutally murdered three people and was 
involved in other drugrelated deaths. In fact, when President Clinton 
first delayed Mr. Garza's execution last fall to give Mr. Garza more 
time to apply for clemency, the federal judge in the case called his 
decision ``totally irresponsible.''
    This hearing in the Constitution Subcommittee is really not about 
the Eight Amendment, the Fourteen Amendment, or other Constitutional 
provisions. Those are legal questions for the courts that have been 
answered in the negative. This hearing today is really about an endless 
political effort to discredit the death penalty by any possible means.
    I welcome the Deputy Attorney General and appreciate his 
willingness to testify. Thank you.

    Chairman Feingold. I thank the Senator for his comments, 
and also look forward to working with him in the future on the 
subcommittee.
    Now, I would like to turn to the Chairman of the committee, 
whom I am grateful to for allowing this hearing and for his 
leadership.
    Senator Leahy?

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. Thank you, Mr. Chairman, and I appreciate 
you being here. You have obviously moved on a very important 
issue. I think that the hearing itself is one of the most 
important ones that we will see conducted in this committee. I 
am glad you were able to take the time to do this now.
    As I have told Senator Hatch, as soon as reorganization is 
completed, we will then begin to hold a series of confirmation 
hearings on Federal judges and other nominees, something that 
we will be unable to do until we know just who is going to be 
on the committee.
    But today's heairng is the type we can hold now, and I 
think it is timely. Last September the Justice Department 
released a report on the administration of the Federal death 
penalty. The report revealed very dramatic racial and 
geographic disparities in the Federal death penalty system.
    There were 682 cases submitted to the Justice Department 
over the previous 5 years for approval to seek the death 
penalty. Eighty percent involved defendants who were black, 
Hispanic, or another racial minority. Five jurisdictions, out 
of 94 total, accounted for about 40 percent of the submissions.
    Now, these raw figures do not prove whether implementation 
of the Federal death penalty is or is not racially biased, but 
they do raise very serious questions whether discrimination 
exists at early stages of the prosecutorial process.
    We all know that in many ways the prosecutor has the most 
influence in the justice system. He or she can determine not 
only whether to go forward with a prosecution, but can decide 
at what level he will prosecute and even at what level he will 
seek penalties.
    These figures also fueled concerns that our National laws 
are not being applied with nationwide uniformity. In some 
jurisdictions, the United States Attorney seeks the death 
penalty frequently; in others, hardly ever.
    Those of us who closely follow and care about our criminal 
justice system were deeply troubled by the September report. 
The American people should have absolute confidence in the 
fairness of the criminal justice system. It has to be unbiased, 
especially when it seeks to impose the ultimate sanction of 
death.
    I think Attorney General Ashcroft did the right thing a 
month ago when he delayed the execution of Timothy McVeigh 
because the FBI failed to follow a direct order to turn over 
all its material to McVeigh's counsel. I talked with Attorney 
General Ashcroft at that time. I know that he had no doubt 
about Mr. McVeigh's guilt, nor did I for that matter. But he 
felt that for the interests of the criminal justice system in 
all cases, he should take that extra step, and I commend him 
for that. It increases confidence in the system.
    I believe Attorney General Reno did the right thing last 
September on the day she released the report by initiating a 
broader analysis of the Federal death penalty system, to be 
conducted by outside experts. President Clinton also did the 
right thing by postponing the scheduled execution of Juan Raul 
Garza until the new, independent analysis was completed.
    When Attorney General Ashcroft came before this committee, 
a number of us, and especially Senator Feingold, questioned him 
closely about whether he would continue the analytical process 
that his predecessor initiated. I found his answers reassuring. 
He expressed concern about the findings in the September report 
and he agreed on the need for further study. More specifically, 
he promised to continue and to support all efforts initiated by 
Attorney General Reno to undertake a thorough review and 
analysis of the Federal death penalty system. He made this 
promise to Senator Feingold and the full Committee.
    So we are here today to check in on that promise. Last 
week, the Department of Justice issued an internal report that 
purports to complete the survey and assessment of the Federal 
death penalty begun by Attorney General Reno. I have read that 
report carefully and I regret to say that it falls far short of 
what this Committee was promised. More importantly, I believe 
it is far short of what the American people deserve, whether 
they are for the death penalty or opposed to the death penalty.
    We should have a thorough, objective, empirical analysis. 
Instead, we are given a superficial and one-sided set of legal 
arguments. Instead of answers, are given a lot more questions, 
and that bothers me. I don't know if there is bias or prejudice 
in the application of the Federal death penalty. But as an 
American, I would like to know. There may be innocent 
explanations for the disparities identified in the September 
report. The latest report makes little effort to determine the 
reasons for the racial disparities, however, and dismisses the 
geographic disparities as though they did not exist.
    Since the report issued last week, the Attorney General has 
indicated that he may yet follow through on his earlier 
commitment to this Committee by initiating a comprehensive 
study of fairness in the administration of the Federal death 
penalty. I hope that he does; I hope no more time is 
squandered.
    That is why I want to thank Senator Feingold for holding 
this hearing today. I commend him for his principled 
involvement in this debate. This is an issue that should 
concern all Senators, whether they are for or against the death 
penalty.
    I have certainly heard from a lot of my constituents, both 
those who strongly support the death penalty and those who 
oppose the death penalty, that they want to see the empirical 
results of these studies. I pass on their appreciation to you, 
Senator Feingold.
    Chairman Feingold. I thank the Committee chairman, and I 
certainly want to acknowledge his ground-breaking leadership on 
trying to make the death penalty, both at the Federal and State 
level, at least more fair. That leadership has been a critical 
part of this issue coming forward.
    I would now like to turn to the Ranking Member of the 
Committee who, again, I want to reiterate, during the 6 years 
that I had a chance to serve in the minority on this committee, 
has made it a great pleasure to be a member of this committee.
    Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I appreciate 
you allowing me to make some opening remarks and for convening 
this important hearing. This is an important hearing.
    We welcome you, General Thompson, and all the other 
witnesses here today. We appreciate having all of you here on 
both sides of this issue.
    The death penalty, of course, is on the minds of everybody 
since the Timothy McVeigh execution this week for the murder of 
168 innocent people in the worst incident of domestic terrorism 
in our Nation's history. As we all know, the death penalty is 
the ultimate punishment society can impose, and it is 
appropriate that we scrutinize its use in our Federal criminal 
justice system.
    While we may disagree about whether capital punishment 
should be permitted in our country, we all agree that it must 
be meted out fairly. In my view, the studies released by former 
Attorney General Reno and Attorney General Ashcroft show that 
there is no invidious racial discrimination in the application 
of the Federal death penalty.
    Indeed, if anything, these studies show that the Federal 
Government has sought the death penalty for proportionately 
fewer minorities than whites. Put another way, if you were 
being prosecuted by the Federal Government for conduct that 
could be charged as a capital offense, your chances of facing 
the death penalty at trial are greater if you were white than 
if you were black or Hispanic.
    In light of this evidence, as the editors of the Atlanta 
Constitution concluded, ``No objective and fair-minded person 
can seriously argue that the Federal system used to determine 
which Federal cases merit death penalty prosecution is 
biased.''
    Nevertheless, I think we all share Attorney General 
Ashcroft's concern and my colleagues' concern that nearly 80 
percent of defendants in Federal capital cases are minorities. 
We also must commit ourselves to identifying and solving the 
socio-economic factors that underlie these statistics.
    Doing something about this, however, requires that we first 
have the courage to acknowledge a painful but undeniable fact: 
the offenses that may lead to homicides and capital charges in 
the Federal system are not evenly distributed across all 
population groups.
    Moreover, while many complain about the racial disparity 
among death penalty defendants, there is hardly a mention of 
the disparity among murder victims. As former Deputy Attorney 
General Eric Holder pointed out last year, ``Although young 
African-American men are only 1 percent of our Nation's 
population, they are fully 18 percent of our Nation's homicide 
victims. Although black people make up 12 to 15 percent of the 
Nation's population, they are about 50 percent of the Nation's 
homicide victims.''
    Sounding the call of racism makes for good political 
theater, but it unjustly defames our Federal law enforcement 
professionals, and more importantly does nothing to address the 
socio-economic factors that may have caused the problems to 
begin with.
    In releasing this latest report, Attorney General Ashcroft 
continues to fulfill the commitments he made during his 
confirmation hearing. He has also completed one of the projects 
undertaken by former Attorney General Reno in the waning days 
of the Clinton administration. Given the deadlines imposed on 
this project by former President Clinton and the need to make 
as complete an analysis as possible prior to the previously 
scheduled executions, it was important for General Ashcroft to 
complete the internal review of the expanded data which was 
gathered for this supplemental report.
    This does not mean that other studies have been or will be 
terminated. In fact, to the contrary, Attorney General Ashcroft 
has informed the Committee that studies, including studies 
utilizing outside experts, are continuing, as called for by the 
previous administration. Attorney General Ashcroft promised to 
continue those efforts. He has done so and he will continue to 
do so.
    Predictably, some death penalty opponents still insist that 
there should be a moratorium on all pending executions until 
completion of these additional research projects. I 
respectfully submit that such action is simply not warranted on 
the facts before us. That was the conclusion of the prior 
administration, as made clear by the public statements of 
President Clinton, Attorney General Reno, and Deputy Attorney 
General Eric Holder. They agree with me on this. It is not 
surprising, therefore, that the current administration takes 
the same position as the prior administration.
    As stated last year by Attorney General Reno, there simply 
is no question of the guilt of the current defendants on death 
row. While we can, and will, continue to see to better 
understand and improve the current system, there is no 
justifiable reason to fail to carry out the sentences properly 
imposed in those cases.
    The case of Juan Garza, who is scheduled to be executed 
next week, illustrates why the call for a moratorium is 
misguided. No one seriously questions that he is guilty of 
murdering three members of his drug trafficking organization. 
The evidence also shows that he was responsible for five 
additional murders, and that while in custody pending trial 
Garza threatened prosecutors and jurors.
    In addition to his certain guilt, no one can seriously 
argue that Garza was the victim of a racist system. All but one 
of Garza's victims were Hispanic. The judge hearing his case is 
Hispanic, and the Assistant U.S. Attorney who prosecuted him is 
Hispanic. Furthermore, the majority of the jurors who convicted 
and sentenced him to death had Hispanic surnames.
    Nor is there any evidence that Mr. Garza was unfairly 
exposed to the death penalty because he is Hispanic. Statistics 
show that there was no large proportion of Federal capital 
cases involving Hispanic defendants in the period in which Mr. 
Garza's case arose. The Federal district in which he was 
prosecuted generated few cases involving charges of capital 
crimes at any time, and that particular district sought the 
death penalty in only one case, Garza's, in the overall 1988-
2000 period examined in the Department's study.
    Like all of the defendants on Federal death row, Mr. Garza 
faces execution not because of his race, ethnicity, or place of 
residence, but because he is guilty of committing these heinous 
crimes. Attorney General Ashcroft, like Attorney General Reno 
before him, is right to reject calls for a moratorium.
    I thank you again, Mr. Chairman, for your kindness and 
courtesy to us and to me, in particular, and I look forward to 
the rest of this hearing. I have to go to a meeting at Finance, 
but I will try and get back.
    Chairman Feingold. I thank the Ranking Member for his 
comments.
    We will now begin the testimony. Our first witness will be 
Deputy Attorney General Larry Thompson.
    Mr. Thompson, welcome. Thank you for being here today. I 
enjoyed getting to know you a bit and voting for you during the 
confirmation process. I would ask you to limit your remarks to 
5 minutes and your full written statement will be included in 
the record.

  STATEMENT OF HON. LARRY THOMPSON, DEPUTY ATTORNEY GENERAL, 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Thompson. Good morning, Mr. Chairman, Senator Leahy, 
Senator Thurmond. I thank you for the opportunity to appear 
here today to consider this important issue.
    In the brief time I have enjoyed serving as Deputy Attorney 
General, I have been involved in some matters involving the 
enforcement of the Federal death penalty, and I can assure you, 
Senator Feingold, that you and I fully appreciate the magnitude 
of the Department's responsibilities in this area.
    I also appreciate and respect the devotion you bring to 
this issue, Senator Feingold. Though we may disagree over the 
appropriateness of the death penalty in certain circumstances, 
I believe we both share a deep commitment to the fair and 
impartial enforcement of the law.
    As you know, Attorney General Ashcroft has set a clear 
direction for the Department. We intend to act in a manner 
consistent with the highest standards of integrity and with an 
abiding respect for the constitutional rights of all persons.
    Of course, the mission of the Department of Justice is to 
enforce vigorously the laws passed by Congress, including 
dozens of criminal prohibitions carrying the possibility of 
capital punishment. These death-eligible offenses, nearly all 
of which were included in the 1994 crime bill, are the duly 
established laws of the land and they define the interests of 
the Federal Government. They reflect the will of the American 
public, as expressed through their elected representatives.
    Just as former Attorney General Reno put aside her own 
views on capital punishment and approved all of the Federal 
capital cases we will be discussing here today, so too must the 
current administration fulfill its duty to enforce the law.
    This commitment is especially important to the victims of 
violent crime. When the lives of family members and friends are 
shattered by deadly violence, their one simple hope is that the 
perpetrators of the suffering might be caught and punished. We 
all witnessed the singular importance of this accountability 2 
days ago when the victims of Timothy McVeigh's terrorist attack 
repeatedly explained how his execution brought some degree of 
closure to their long nightmare.
    It is a fact that minorities are more likely to be victims 
of violent crime today than the majority. As Senator Hatch 
noted, my predecessor, former Deputy Attorney General Eric 
Holder, observed at the September press conference which you 
referred to, Senator Feingold, that African-Americans 
constitute about 50 percent of the Nation's homicide victims. I 
find that a horrific statistic. In fact, Senator Feingold, 63 
percent of the victims murdered by those individuals sitting on 
death row in the Federal system are African-American.
    All of America has been victimized by nearly two decades of 
drug trafficking violence. We have become accustomed to nightly 
news stories about drive-by shootings and execution-style 
killings by ruthless drug gangs. We have been worried by 
reports of stray bullets killing children who were simply 
standing in the wrong place at the wrong time.
    The criminal justice system itself has been threatened by 
violent intimidation and witness retaliation. Many law 
enforcement officials have sacrificed their lives to rescue 
communities from the ravages of violent drug trafficking. This 
why the Attorney General has pledged to reinvigorate the battle 
against drug trafficking and Congress has provided powerful 
tools to law enforcement, including the death penalty, to stop 
these violent criminals.
    But as I said, Mr. Chairman, the fulfillment of our law 
enforcement mission must strengthen and not weaken the public's 
confidence in the fair administration of justice. Even the 
appearance of ethnic or racial bias in the enforcement of 
capital punishment is a serious concern.
    To address this problem, last week Attorney General 
Ashcroft announced three important steps, and we will briefly 
discuss those this morning, with your permission.
    First, the Department released a report containing 
additional statistical data on potential capital cases 
prosecuted by the Department since 1995. The report also 
included an analysis of the Department's enforcement practices 
during the same period of time.
    Secondly, the Department announced that the protocols for 
reviewing death-eligible charges have been slightly revised to 
increase uniformity in the system and ensure greater scrutiny 
of cases in which a U.S. Attorney is recommending capital 
punishment.
    Third, the Attorney General announced that he is directing 
the National Institute of Justice to conduct a study of how 
capital cases are brought into the Federal system.
    Please allow me to briefly explain each of these three 
developments.
    With regard to the survey results and analysis, as you know 
last September Attorney General Reno released the results of a 
survey that included information on 700 capital cases since 
1995 that had been submitted to the Department for review 
pursuant to the capital case review protocol.
    I see that I have a yellow light, but I would like to 
proceed, if you will, a little bit longer.
    Chairman Feingold. Go ahead.
    Mr. Thompson. Attorney General Reno directed the Department 
to collect additional data on cases that had not been submitted 
for review over the same period of time. The cases in this 
category were not submitted because, for example, U.S. 
Attorneys entered into plea agreements with defendants before 
indictment on a capital offense charge. She took this action to 
ensure that this additional information did not undermine the 
findings reached on the basis of the original data. The new 
data consists of nearly 300 cases. It is similar to the 
original data of the Reno report, in that it provides no 
evidence of favoritism toward white defendants in comparison 
with minority defendants.
    All in all, the Reno study and our analysis found that the 
proportion of minority defendants in Federal capital cases did 
exceed the proportion of minority individuals in the general 
population. For example--and we need to discuss this statistic 
and that is the purpose of this hearing--in cases submitted to 
the Department's capital case review procedure, 20 percent of 
the defendants were white, 48 percent were African-American, 29 
percent were Hispanic, and 4 percent were other.
    Nevertheless, Mr. Chairman, our reports confirm that 
African-American and Hispanic defendants were less likely at 
each stage of the Department's review process to be subjected 
to the death penalty than white defendants. In other words, the 
United States Attorneys recommended the death penalty in 
smaller proportions of the submitted cases involving African-
Americans or Hispanic defendants than in those involving white 
defendants.
    The Attorney General's Capital Cases Review Committee 
likewise recommended the death penalty in smaller proportions 
of the submitted cases involving African-American or Hispanic 
defendants than in those involving white defendants. And when 
the Attorney General made a decision to seek the death penalty, 
it was made in smaller proportions of the cases submitted 
involving African-American or Hispanic defendants than in those 
involving white defendants.
    Our study found abundant evidence that the statistical 
disparities observed in Federal capital cases resulted from 
non-invidious factors rather than from racial or ethnic bias. A 
factor of particular importance was the focus of Federal law 
enforcement efforts on drug trafficking enterprises and related 
criminal violence.
    Senator Feingold, as Attorney General Reno noted in 
September, many of these cases resulted from the crack 
epidemic. During this crack epidemic, violence spread across 
our country as a result of the use of crack cocaine. This 
violence had a disparate impact on African-American 
neighborhoods, and African-American citizens called out to law 
enforcement, both State and Federal law enforcement authorities 
for help.
    The active role of Federal law enforcement in investigating 
and prosecuting these kinds of cases possibly resulted in a 
higher proportion of minority defendants. This is particularly 
true where State laws were inadequate for effectively combating 
such crimes. This is not the result of any form of bias, but 
reflects the normal factors that affect the division of labor, 
if you will, between Federal and State prosecutorial 
responsibility in both capital and non-capital cases.
    If you will allow, I will turn to the revised protocols and 
discuss that briefly, and then the NIJ study, if that is OK.
    Chairman Feingold. If we could begin with the questioning 
shortly, take a couple of more minutes.
    Mr. Thompson. Just briefly, sir, turning to the subject of 
the protocol revision, the Attorney General instituted a 
protocol, as you know, designed to ensure uniformity in the 
invocation of a capital crime. Attorney General Ashcroft and 
his Committee did slightly revise the capital crime protocol. 
That is detailed, I think, in detail in my prepared statement. 
If you have any further question on that, I will be happy to 
answer it.
    Then turning to the NIJ study, the Attorney General has 
directed that the National Institute of Justice continue to go 
forward with a study to study the relationship between State 
and Federal criminal justice systems and the policies and 
practices that result in a capital case being prosecuted by the 
Federal Government.
    Issues relating to the race and ethnicity of defendants and 
the location of prosecution will be included in the study. The 
National Institute of Justice will consider in the study the 
effectiveness of Federal, State and local law enforcement in 
the investigation and prosecution of murder in America. The 
primary purpose of this study, as you noted, Senator Feingold, 
is the same as that which was contemplated by the Clinton 
administration. We expect the solicitation for independent 
research to be released in the near future.
    We need to continue to examine these issues, Senator 
Feingold, to ensure to the fullest extent that we can public 
confidence in the administration of justice. That is important, 
and I know, Senator Feingold, that you have been patiently 
waiting for a response to the letter that you wrote to the 
Attorney General several days ago. The Attorney General is 
anxious to respond in writing to you and will do so very 
shortly. As you have noted in your opening statement, you 
indicate that you understand that we intend to go forward with 
this important study in the way that you requested in your 
letter.
    I am pleased to answer any questions that you may have.
    [The prepared statement of Mr. Thompson follows:]

  Statement of Larry Thompson, Deputy Attorney General, Department of 
                                Justice

    Mr. Chairman and Members of the Subcommittee, thank you for the 
opportunity to appear here today to consider this important issue. In 
the brief time I have enjoyed the privilege of serving as Deputy 
Attorney General, I have been involved in a number of matters involving 
the enforcement of the federal death penalty. I can assure you that I 
fully appreciate the magnitude of the Department's responsibility in 
this area.
    I also appreciate and respect the devotion you bring to this issue, 
Mr. Chairman. And though we may disagree over the appropriateness of 
the death penalty, we share a deep commitment to the fair and impartial 
enforcement of the law. As you know, Attorney General Ashcroft has set 
a clear direction for the Department. We intend to act in a manner 
consistent with the highest standards of integrity and with an abiding 
respect for the constitutional rights of all persons.
    Of course the mission of the Department of Justice is to enforce 
vigorously the laws passed by the Congress, including dozens of 
criminal prohibitions carrying the possibility of capital punishment. 
These death eligible offenses, nearly all of which were included in the 
1994 crime bill, are the duly established laws of the land and they 
define the interests of the Federal Government. They reflect the 
unmistakable will of the American public as expressed through their 
elected representatives. Just as former Attorney General Reno put aside 
her own views on capital punishment and approved all of the federal 
capital cases we will be discussing here today, so too must the current 
Administration fulfill its duty to enforce the law.
    This commitment is especially important to the victims of violent 
crime. When the lives of family members and friends are shattered by 
deadly violence, their one simple hope is that the perpetrators of 
their suffering might be caught and punished. We all witnessed the 
singular importance of such accountability two days ago when the 
victims of Timothy McVeigh's terrorist attack repeatedly explained how 
his execution brought closure to their long nightmare.
    It is a fact that minorities are more likely to be victims of 
violent crime than the majority. My predecessor former Deputy Attorney 
General Eric Holder observed at a September press conference that 
African Americans are about 50 percent of the nation's homicide 
victims. In particular, all of America has been victimized for nearly 
two decades by drug trafficking violence. We have become accustomed to 
nightly news stories about drive-by shootings and execution style 
killings by ruthless drug gangs. We have been horrified by reports of 
stray bullets killing children who were simply standing in the wrong 
place at the wrong time. The criminal justice system itself has been 
threatened by violent intimidation and witness retaliation. Hundreds of 
law enforcement officers have sacrificed their very lives to rescue 
communities from the ravages of violent drug trafficking. This is why 
the Attorney General has pledged to reinvigorate the battle against 
drug trafficking and Congress has provided powerful tools to law 
enforcement, including the death penalty, to stop these violent 
criminals.
    But as I said, Mr. Chairman, the fulfillment of our law enforcement 
mission must strengthen and not weaken the public's confidence in the 
fair administration of justice. Even the appearance of racial or ethnic 
bias in the enforcement of capital punishment is a serious concern.
    To address this problem, last week Attorney General Ashcroft 
announced three important steps. First, we released a report containing 
additional statistical data on potential capital cases prosecuted by 
the Department since 1995. The report also included analysis of the 
Department's enforcement practices during this same period of time. 
Second, the Department announced that the protocols for reviewing death 
eligible charges have been revised to increase uniformity in the system 
and ensure greater scrutiny of cases in which a U.S. Attorney is 
recommending capital punishment. And third, the Attorney General 
announced that he is directing the National Institute of Justice to 
conduct a study of how capital cases are brought into the federal 
system.
    Mr. Chairman, please allow me to briefly explain each of these 
three developments.

                      SURVEY RESULTS AND ANALYSIS

    With regard to the survey results and analysis, as you know last 
September Attorney General Reno released the results of a survey that 
included information on nearly 700 capital cases since 1995 that had 
been submitted to the Department for review pursuant to the capital 
case review protocol. (I will have more to say about this protocol in a 
moment.) Attorney General Reno directed the Department to collect 
additional data on cases that had not been submitted for review over 
the same period of time. The cases in this category were not submitted 
because, for example, U.S. Attorneys entered into plea agreements with 
defendants before indictment on a capital offense charge. She took this 
action in order to ensure that this additional information did not 
undermine the findings reached on the basis of the original data.
    The new data consists of nearly 300 cases. It is similar to the 
original data of the Reno report in that it provides no evidence of 
favoritism towards White defendants in comparison with minority 
defendants. Rather, potential capital cases involving African American 
or Hispanic defendants were less likely to result in capital charges 
and submission of the case to the review procedure. The new data, in 
combination with the previously available data on submitted cases, 
shows specifically that capital charges were brought and the cases were 
submitted for review for 81% of the White defendants, 79% of the 
African American defendants, and 56% of the Hispanic defendants, in 
potential capital cases. A further specific finding was that the 
various actions taken by the U.S. Attorney offices resulted in non-
capital treatment for 74% of the White defendants, 81% of the African 
American defendants, and 86% of the Hispanic defendants.
    All in all, the Reno study and our analysis found that the 
proportion of minority defendants in federal capital cases exceeded the 
proportion of minority individuals in the general population. For 
example, in cases submitted to the Department's capital case review 
procedure, 20% of the defendants were White, 48% were African American, 
29% were Hispanic, and 4% were ``Other.'' Nevertheless, our reports 
confirmed that African American and Hispanic defendants were less 
likely at each stage of the Department's review process to be subjected 
to the death penalty than White defendants. In other words, United 
States Attorneys recommended the death penalty in smaller proportions 
of the submitted cases involving African American or Hispanic 
defendants than in those involving White defendants; the Attorney 
General's capital case review committee likewise recommended the death 
penalty in smaller proportions of the submitted cases involving African 
American or Hispanic defendants than in those involving White 
defendants; and the Attorney General made a decision to seek the death 
penalty in smaller proportions of the submitted cases involving African 
American or Hispanic defendants than in those involving White 
defendants.
    In the cases considered by Attorney General Reno, she decided to 
seek the death penalty for 38% of the White defendants, 25% of the 
African American defendants, and 20% of the Hispanic defendants. The 
finding that the death penalty was sought at lower rates for African 
American and Hispanic defendants than for White defendants held true 
both in ``intraracial'' cases, involving defendants and victims of the 
same race and ethnicity, and in ``interracial'' cases, involving 
defendants and victims of different races or ethnicities.
    Our study found abundant evidence that the statistical disparities 
observed in federal capital cases resulted from non-invidious factors 
rather than from racial or ethnic bias. A factor of particular 
importance was the focus of federal law enforcement efforts on drug 
trafficking enterprises and related criminal violence. In areas where 
large-scale, organized drug trafficking is largely carried out by gangs 
whose membership is drawn from minority groups, the active federal role 
in investigating and prosecuting these crimes results in a high 
proportion of minority defendants. This is particularly true where 
state laws are inadequate for effectively combating such crimes. This 
is not the result of any form of bias, but reflects the normal factors 
that affect the division of federal and state prosecutorial 
responsibility in both capital and non-capital cases.
    In this connection, our analysis examines in detail several of the 
districts which generated the largest numbers of capital offense 
charges, accounting collectively for about half of the cases submitted 
to the Department's review procedure. For example, the Eastern District 
of Virginia submitted 66 cases, mostly involving African American 
defendants. The large number of cases involving charges of capital 
crimes, and the racial proportion in these cases, resulted mainly from 
the district's involvement in the investigation and prosecution of drug 
gangs carrying on large-scale trafficking activities in its geographic 
area, and from the district's jurisdiction over killings committed by 
inmates in the District of Columbia's prison in Lorton, Virginia. The 
district of Puerto Rico submitted 72 cases, all involving Hispanic 
defendants. This district had an unusually large number of homicide 
cases because of an agreement by the U.S. Attorney with local 
authorities to prosecute fatal carjacking cases, and the defendants in 
these cases were Hispanic because the population of Puerto Rico is 
generally Hispanic. The U.S. Attorney office in the District of 
Columbia submitted 23 cases, most involving drug-related killings by 
African American defendants. The racial composition of these cases 
reflected D.C.'s demographics and the decision to pursue federal 
charges (as opposed to charges under local D.C. law) reflected 
advantages of federal prosecution that were unrelated to the race of 
the defendants. Other districts with high numbers of capital case 
submissions were the District of Maryland (41 cases), the Eastern 
District of New York (58 cases), and the Southern District of New York 
(50 cases). These districts recommended against seeking the death 
penalty in the vast majority of their submitted cases involving 
minority defendants, contravening any notion that their exercise of 
federal jurisdiction in a large number of potential capital cases 
reflected an invidious desire to secure capital sentences against 
minority defendants.

                         THE REVISED PROTOCOLS

    Turning to the subject of protocol revision, Attorney General Reno 
instituted a protocol designed to ensure consistency in decisions 
concerning capital punishment. Under this protocol, in all cases 
involving charges of crimes legally punishable by death, the 
responsible United States Attorney submits the case and makes a 
recommendation about whether to seek the death penalty to the 
Department. The case is then reviewed by a committee of senior 
attorneys, who receive input from both the U.S. Attorney and defense 
counsel. The Committee evaluates the facts of the case, the federal 
interest in the case, the likelihood of success, and the aggravating 
and mitigating factors that Congress has identified as relevant in such 
cases. The Committee then makes a recommendation to the Attorney 
General. The case is then reviewed by attorneys in my office, the 
Attorney General's office, and finally by the Attorney General. The 
advantage of this approach is that a uniform, equal process governs, 
and ultimately one person reviews all of the cases to ensure a 
consistent treatment based on the alleged conduct of the defendants.
    Even though Ms. Reno's study and ours have found no evidence of 
racial or ethnic bias in the Department's treatment of minorities in 
the system, we did note some statistical disparity in the treatment of 
plea agreements following a decision by the Attorney General to seek 
the death penalty. This is the one component of the process that is not 
subject to subsequent review under the current protocols.
    In order to have greater consistency in all aspects of the 
application of the federal death penalty, we are changing the protocol 
to require prior approval by the Attorney General before a death 
penalty prosecution may be dropped in the context of a plea agreement. 
Another requirement of the revised protocol is that U.S. Attorneys must 
report all potential capital cases to the Department so that our data 
will be more complete.

                THE NATIONAL INSTITUTE OF JUSTICE STUDY

    Finally, Mr. Chairman, the Attorney General has directed the 
National Institute of Justice to go forward with a study of the 
relationship between the state and federal criminal justice systems and 
the policies and practices that result in a capital case being 
prosecuted by the Federal Government. Issues relating to the race and 
ethnicity of defendants and the location of prosecution will be 
included in the study. NIJ will also consider in the study the 
effectiveness of federal, state and local law enforcement in the 
investigation and prosecution of murder in America. The primary purpose 
of this study is the same as that which was contemplated by the Clinton 
Administration but which did not progress beyond the planning process. 
We expect the solicitation for independent research to be released in 
the near future.

                               CONCLUSION

    In conclusion, Mr. Chairman, while the Justice Department continues 
forward with vigorous enforcement of the law we will do so with an 
equally vigorous commitment to fairness and impartiality. We look 
forward to working with you to achieve these critical goals.

    Senator Thurmond. Mr. Chairman?
    Chairman Feingold. Senator Thurmond?
    Senator Thurmond. I would like to place into the record 
letters from the Fraternal Order of Police and the Federal Law 
Enforcement Officers Association in support of the death 
penalty and in opposition to a Federal moratorium.
    Chairman Feingold. Without objection.
    I thank the witness for his testimony. I look forward to 
the written response, as well, with regard to the NIJ study.
    I just want to remind everyone here that what we are trying 
to get at is a reality, which is that 90 percent of the people 
on Federal death row now are either black or Hispanic.
    All the different statistics you suggested relate to 
certain aspects of the system and are part of the story. But I 
think we need to remember at some point there is a decision 
whether to defer to the State or to send it to the Federal 
level by a prosecutor. Then there is a decision whether to make 
it a capital case or a non-capital case. Then there is a review 
process by the Attorney General whether to do the death penalty 
or not. Then a jury takes up the matter whether to sentence to 
death or not to sentence to death.
    All of these junctures are relevant to the question of how 
did we end up with 90 percent of the people on death row being 
minorities in this country. Perhaps it is a legitimate, just 
result. But given the fact that I don't think we have carefully 
analyzed all those elements, I think there is a very serious 
question. I appreciate your respect for that concern.
    We will do 5-minute rounds, and I will start off by asking 
you to explain what happened to the NIJ study that Attorney 
General Reno ordered and to say a little bit more about what 
your current plans are.
    You did hear me say in the opening remarks that Attorney 
General Ashcroft pledged to me that he would not terminate the 
NIJ study. I understand that the Department convened a meeting 
on January 10 that we are all aware of. I understand, based on 
conversations between our staffs, that the Department actually 
did not take any further action on this study after President 
Bush was inaugurated until perhaps recent days.
    In fact, a specific decision was made within a few weeks 
after the Attorney General was sworn in to put this study and a 
number of other Clinton administration initiatives on hold. Is 
that correct?
    Mr. Thompson. It is not my understanding that a decision 
was made to put the study on hold, and I will qualify my 
comments as to my understanding of what happened.
    As you know, Senator Feingold, I was just recently 
confirmed less than a month ago, but what I understand happened 
was that in January there was a meeting involving various 
individuals who would have input into the formulation of the 
study. There were minutes, if you will, or a report summarizing 
what was discussed. I have reviewed that report.
    One of the things that was discussed, and it was a concern 
of all the participants, apparently, no matter which side of 
the issue they were on, was that the contemplated study would 
really not bring to bear a definitive answer as to the issues 
that we are discussing today, the issues that are the purpose 
of your hearing.
    Given the other factors that you had a transition between 
administrations, there was not Presidentially appointed 
leadership in the Department except for Attorney General 
Ashcroft, and the concern that I just mentioned, there was a 
delay, if you will, in moving forward on the parameters of the 
study. But it was not an unreasonable delay, in my estimation.
    One of the things that was done was to try to bring more 
focus on the answer as to the genesis, if you will, of some of 
the issues that we were hoping to get answered in the study. 
The Department asked a number of the prosecutors who were 
actually involved in these case submissions to come to the 
Department and discuss what happened, get anecdotal information 
as to what happened, so that could be transmitted, if you will, 
and brought to bear with respect to the work of the NIJ in 
formulating the study. That was done in April of this year.
    Of course, on June 6, I think it was, Attorney General 
Ashcroft directed the Department to go forward with the study. 
The solicitation, as I understand it, is ready to go out. The 
study's parameters will be instituted by independent social 
scientists and criminologists. It will be reviewed by career 
people in the Department of Justice, and we are looking forward 
to the results of the study.
    I do not believe there was any conscious decision, based 
upon what I have examined, to stop the study. It was more or 
less a decision to try to get at the answer to some of the 
problems. At the January meeting, there was sort of a 
consensus, as I understand it, that perhaps the study as 
contemplated would not give a definitive answer to the problem 
of these disparities.
    Chairman Feingold. Well, in my mind it is sort of a bad 
news/good news situation. The bad news is that it is certainly 
my sense that the study was going nowhere and that the delay 
was really a result of a decision not to move forward with it. 
That is my genuine interpretation of the events.
    But on the good news side, that is not what I am hearing 
today. What I am hearing today is that there is an intention to 
move forward and we are going to explore that. The only 
regrettable part, of course, is that this was a time period 
prior to Mr. Garza's scheduled execution where perhaps this 
information could have had some bearing on the events that are 
likely to occur next Tuesday, and I find that regrettable.
    Mr. Thompson. Senator, may I just make a point of 
clarification?
    Chairman Feingold. Please.
    Mr. Thompson. As I understand it, the solicitation is not 
yet fully developed, but we anticipate that it will go out 
shortly.
    Chairman Feingold. Thank you for that and I am pleased to 
hear it.
    Well, let us move on to your study. How does the study 
differ from that which the Attorney General ordered last year?
    Mr. Thompson. Well, as you know, the study that the 
Department of Justice just recently instituted was really a 
supplement to the study that Attorney General Reno announced in 
September.
    Senator, with respect to the questions that you raised in 
your opening statement and your questions to me, I have looked 
carefully at Attorney General Reno's analysis of this and, as 
you know--and this has been very important to me in my 
examination of where we are on this important issue based upon 
the numbers and the statistics--Attorney General Reno was 
absolutely confident that with respect to those individuals who 
are on death row now, there was no doubt in her mind, there was 
no question in her mind as to the guilt or innocence of those 
individuals. I think that is very important. Further, she was 
convinced, as was the Deputy Attorney General, my predecessor, 
Deputy Attorney General Holder, that the evidence in law with 
respect to those cases warranted the invocation of the death 
penalty.
    Finally, the important statistic that I have asked for in 
terms of my staff is to further look at who is on death row 
now. Sixty-three percent of those individuals' victims were 
minorities, and I find that an equally troubling statistic.
    Chairman Feingold. Well, I think it is only fair to point 
out that Attorney General Reno and President Clinton chose to 
delay the execution of Mr. Garza for the reason that the 
studies suggested racial and geographic disparities in the 
death penalty. While the other statements may be true, there 
was a reason why that execution was delayed. Because of the 
need for further study, that is why the June 19th date was 
chosen.
    Let me ask you directly, then; you have talked about it, 
but let me just put it on the record. Will a purpose of the 
study that is now ordered by Attorney General Ashcroft be to 
address and analyze the questions of racial and geographic 
disparities, as Attorney General Reno's directive contemplated?
    Mr. Thompson. I certainly hope so, Senator. Public 
confidence in the administration of the criminal justice system 
is very important, and we have to have as full an understanding 
as possible. I don't know if we can get to a total and complete 
understanding, but we have to have as full an understanding as 
possible of these disparities.
    Chairman Feingold. Well, all I asked is will the purpose of 
the study be to study these issues?
    Mr. Thompson. That will be one of the purposes, to study 
those issues.
    Chairman Feingold. As you know, in order for the NIJ to 
carry out a complex and extensive review like this, the AG must 
ensure that it has the resources to do it. Does the Justice 
Department commit to providing the NIJ with the resources and 
support it needs to conduct this study?
    Mr. Thompson. I understand that sufficient resources are 
available, Senator. And with respect to support, I understand 
that that will be made available, including access to 
information that the scientists need to conduct the study; of 
course, reasonable access consistent with privacy issues, 
handling sensitive law enforcement issues, and grand jury 
secrecy.
    Chairman Feingold. Mr. Thompson, did you agree with 
President Clinton's decision to postpone the execution of Juan 
Garza because of the issues raised by the September 2000 
survey?
    Mr. Thompson. No, I didn't, Senator. As I have looked at 
the issue and have examined the issue, I was more persuaded by 
the response to Attorney General Reno and Deputy Attorney 
General Holder with respect to the individuals who are on 
Federal death row now, and that is that there really are no 
issues of guilt or innocence and that the evidence and the law 
in those cases warranted the invocation of the death penalty.
    Chairman Feingold. Thank you. I will conclude my round at 
this point and turn to the Senator from Alabama, Senator 
Sessions, and then return for more questions.
    Mr. Thompson. Thank you, Senator.
    Senator Sessions. Thank you, Mr. Chairman. It is an 
important issue.
    Mr. Thompson, I think you are correct. Being open and 
making sure the public has confidence in the system is 
important.
    With regard to how this death penalty is carried out, I 
think it would be instructive for the American people to 
understand just how serious the Department of Justice takes it. 
It is not handled like a routine case, is it?
    Mr. Thompson. No, it isn't.
    Senator Sessions. Former Attorney General Janet Reno, who, 
by the way, as I understand it, personally felt strongly that 
the death penalty was not appropriate, promised to enforce it 
as Attorney General.
    She set up within the Department of Justice in the early 
1990's, did she not, a comprehensive and detailed review 
process before any United States Attorney could charge a 
defendant with a capital crime or ask for the death penalty? 
Isn't that correct?
    Mr. Thompson. That is correct, Senator.
    Senator Sessions. In fact, she had a team that reviewed 
those cases and she personally had to sign off before any of 
the 94 United States Attorneys around the country could charge 
a defendant and ask for the death penalty?
    Mr. Thompson. Correct.
    Senator Sessions. And part of that was to deal with this 
very problem of disparity and equal rights and uniformity of 
punishment, right?
    Mr. Thompson. And to deal with issues of fairness and guilt 
or innocence as well.
    Senator Sessions. Yes, so they reviewed guilt or innocence. 
They reviewed all kinds of issues.
    Mr. Thompson. That is correct.
    Senator Sessions. And that remains in effect under this 
administration, is that correct?
    Mr. Thompson. That is correct.
    Senator Sessions. In fact, over the years I think it has 
been strengthened.
    Now, during the appellate process, the trial prosecutors, 
the United States Attorneys--and you and I were both United 
States Attorneys in another life--The United States Attorney 
tries the case, but is the Department of Justice involved in 
the appellate work on the case, the Washington-based Department 
of Justice?
    Mr. Thompson. Yes, it is.
    Senator Sessions. And doesn't that give an additional 
protection that even if a United States Attorney acted wrongly 
or made some error? Like Attorney General Ashcroft did on this 
McVeigh case, the Department of Justice could step in and make 
changes or ask for a delay or stay of an execution?
    Mr. Thompson. Absolutely.
    Senator Sessions. And that would be an additional 
protection for a criminal defendant.
    Mr. Thompson. That is right, Senator Sessions.
    Senator Sessions. Well, I think that is important for us to 
understand. It is also important to remember that Attorney 
General Ashcroft in his testimony, to my knowledge, never said 
he would agree to a delay in the implementation of the death 
penalty beyond the delay that had been issued in the Garza 
case. Is that correct?
    Mr. Thompson. That is my understanding.
    Senator Sessions. He swore to us repeatedly that he would 
enforce the law. Mr. Thompson, whether or not you personally 
believe in the death penalty, does not Attorney General 
Ashcroft have a duty to enforce the law passed by this Senate 
and this Congress?
    Mr. Thompson. Absolutely. That is my view of our 
responsibility.
    Senator Sessions. To the best of his ability, and if the 
facts and the law call for the implementation of the death 
penalty, whether he believes in it or not, just like Janet Reno 
didn't believe in it--she carried it out and a number of 
individuals are on death row at this time.
    Mr. Thompson. That is correct.
    Senator Sessions. I think that is important because we are 
a Nation of laws. One of the greatest errors that could occur 
would be for governmental officials who have sworn to enforce 
the law somehow to receive political pressure and feel that 
they shouldn't carry out the law that we have passed, which as 
I recall was passed in 1988 before I became a Senator, but was 
a Federal prosecutor at that time. Congress voted 
overwhelmingly for it. I know President Clinton was in favor of 
the death penalty.
    Mr. Thompson. And, Senator, you were asking me a question 
about the protocol and the procedures, and Senator Feingold 
mentioned that in his opening statement. Our study was really 
not designed to show whether or not whites were treated 
harshly. What we were really trying to do was to see whether or 
not there were any invidious factors, whether or not there was 
any bias and whether or not the statistics went to that.
    One of the changes we have made in the protocol procedures 
is that--at every step of this protocol review process, our 
statistical analysis indicated that blacks were treated 
slightly more favorably than whites, in fact. However, one step 
in which whites did have a better treatment from the 
statistical analysis was whether or not after the death penalty 
had been warranted a plea was subsequently negotiated, and 
there was a little bit more favorable statistical analysis on 
that part. The procedures were revised so as to require a U.S. 
Attorney to obtain the approval of the Attorney General before 
a plea is entered into.
    Senator Sessions. That was an Ashcroft-initiated decision?
    Mr. Thompson. Yes, sir.
    Senator Sessions. So the concern might be that a prosecutor 
would be more favorable in a plea bargain to a defendant based 
on race, and the Attorney General now has established a 
procedure by which if he or she is charged with a death 
penalty, before he can recommend something less than a death 
penalty under a plea bargain, that would also have to be 
reviewed by the Department of Justice?
    Mr. Thompson. That is right, so as to assure greater 
uniformity in our review process.
    Senator Sessions. And one more question. I guess my time is 
out. These prosecutorial memoranda from the field to the 
Department of Justice are not pro forma documents, are they? 
They typically are very detailed, including legal research and 
a large amount of facts and documents before the Department of 
Justice makes a decision on it?
    Mr. Thompson. Yes, they are very detailed and are reviewed 
by a number of experienced prosecutors in the Department of 
Justice, including career prosecutors.
    Senator Sessions. Thank you, Mr. Chairman. I want to thank 
you for your concern for justice in America and your high 
ideals in making sure that the law is carried out faithfully 
and that we have good laws.
    Thank you.
    Chairman Feingold. Thank you, Senator Sessions.
    Just on one point the Senator from Alabama raised, he 
indicated that the Attorney General has an obligation, of 
course, to follow through with the law. That is a fair point, 
but I want to read what the Attorney General said on the day 
that he delayed the execution of Tim McVeigh, of all people.
    He said, ``Our system of justice requires basic fairness, 
even-handedness, 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, and it is my responsibility and duty to 
protect the integrity of our system of justice.''
    So I would suggest that just as it is possible and, in 
fact, occurred in the McVeigh case that a delay was 
appropriate, it is certainly possible, given the evidence 
before us, that the Attorney General could still be executing 
his responsibility of following the law if he were to take into 
account these factors.
    One quick follow-up, Mr. Thompson, to our earlier 
discussion with regard to the supplemental report. When it was 
submitted it stated, ``This report completes a survey and 
assessment of the Federal death penalty system.'' That is not 
what I am hearing today, and I am pleased about that.
    What I am hearing today is that, in fact, the NIJ study has 
been ongoing and will continue. Is that right?
    Mr. Thompson. That is correct.
    Chairman Feingold. So it would not be correct to say that 
the DOJ's assessment of the Federal death penalty system is 
complete?
    Mr. Thompson. As I understand that phrase in the report, it 
was the completion of the statistical analysis of the available 
data that we had. Obviously, we need to examine the issues 
regarding the disparity, racial and geographic, further.
    And I hope you understand, Senator, that I am in no way 
suggesting that we shouldn't do that. I don't know if we will 
ever have a full and complete understanding, but we certainly 
need to try to have as complete an understanding as possible 
for the public confidence that I think we all want in our 
criminal justice system.
    Chairman Feingold. Thank you for that statement.
    Senator Hatch?
    Senator Hatch. Thank you, Mr. Chairman.
    Let me just put in the record, if I can, a letter from 
Ruben Garcia, Jr., the Assistant Director of the Criminal 
Investigative Division, written to you. I will just read a 
couple of paragraphs.
    ``We understand the deep concern that you and your 
colleagues have that the criminal justice system be 
administered without consideration of race. This principle is 
fundamental to the fairness of our system and one to which the 
FBI constantly dedicates itself in every aspect of enforcing 
the laws.''
    ``Submitted for your hearing today is testimony of 
Professor Goss of Columbia University suggesting that the FBI 
and DEA determine which Federal drug investigations to 
undertake based upon the race of the drug dealers involved. 
While examination of the issue can be a healthy exercise to 
help address this postulation, reaching such a conclusion 
ignores the laws, guidelines, and Congressional and judicial 
scrutiny under which we operate. Just as in every type of 
violation addressed by the FBI, race is not and cannot be a 
factor, let alone the dominant factor, in determining whether 
the threshold guidelines predicate has been reached for 
conducting an investigation.''
    I think that is important.
    Mr. Thompson, Senator Sessions mentioned the extensive 
internal review process at DOJ prior to charging anyone with 
the death penalty. If you would, could you tell us a little bit 
about that process or describe that protocol for us?
    Mr. Thompson. Well, as you noted, it is an extensive 
process. If a capital-eligible crime is contemplated by the 
U.S. Attorney, that is submitted to the Department of Justice 
for review. It is reviewed by a capital case review team which 
is comprised of senior Department lawyers, many career 
attorneys. They review the submission of information from the 
U.S. Attorney's office. Then attorneys in my office review the 
results of those findings, and then I personally review those 
findings and then they are submitted to the Attorney General 
for review.
    Senator Hatch. So it isn't just the prosecutor making that 
decision by himself or herself?
    Mr. Thompson. No, sir.
    Senator Hatch. Why are drug trafficking cases such a large 
percentage of Federal death penalty cases?
    Mr. Thompson. That is an interesting and complex question, 
Senator Hatch. As you know, the Federal interest in the 94 
Federal judicial districts is operated, if you will, in a 
complementary and supplemental manner with respect to local law 
enforcement.
    In many districts in which there is a great deal of drug 
trafficking activity, local law enforcement has the resources 
and the available legal tools to sufficiently and vigorously 
prosecute those crimes. In a number of districts, that is not 
available, and when that happens, especially in a situation 
involving the crack cocaine epidemic--for example, in the 
Eastern District of Virginia, which is a district that had a 
high number of case submissions, State prosecutors at some 
point in time in this process did not have available to them 
investigative grand juries. The Federal system did. State 
prosecutors, in the way that Federal prosecutors do, did not 
have the use of statutes like continuing criminal enterprise, 
RICO, and conspiracy statutes. The Federal system did.
    So this disparity is the result of the complementary nature 
or the supplementary nature of the invocation of Federal law 
enforcement in those districts where the Federal Government 
needed to exercise the Federal interest. It is a complex 
question, but I think that is the way Federal law enforcement 
has operated for a number of years. And there is certainly 
nothing wrong with that; that is what Federal law enforcement 
is for.
    Senator Hatch. In your judgment, is there any reason or 
justification for a moratorium on Federal executions at this 
time?
    Mr. Thompson. No, sir, and I agree with the conclusion on 
that issue reached by Attorney General Reno and my predecessor, 
Deputy Attorney General Holder.
    Senator Hatch. Is there any doubt in your mind that it is 
appropriate to go forward with the execution of Juan Raul Garza 
on June 18?
    Mr. Thompson. The Department has received a petition for 
clemency in that case, Senator Hatch. I would feel 
uncomfortable, given the nature of where that is, commenting 
any further on that.
    Senator Hatch. That is fine.
    Thank you, Mr. Chairman. That is all I need to ask.
    Chairman Feingold. Thank you.
    I will start another round at this point of 5 minutes. I 
would just make a quick comment within that time that given the 
fact that the Deputy Attorney General has indicated that the 
study with regard to racial and geographic potential bias is 
not completed, and the statement that was made earlier that 
there simply was no bias in the system, in the supplemental 
report, I think it really does raise a question of whether 
things should proceed with this execution.
    You admit it. Your analysis is not done, and the execution, 
of course, would be irreversible if it suggests that there was 
a bias in the system. We don't know yet, but let me get into a 
little more of the detail at this point.
    As I understand it, except for five espionage cases, which 
are almost always brought in the Eastern District of Virginia 
because it is home to the Pentagon and the CIA, each of the 
remaining 61 cases submitted for death penalty authorization in 
the Eastern District of Virginia involve black or Hispanic 
defendants.
    In the supplemental report, most of the death penalty 
prosecutions in the Eastern District, as you suggested, are 
attributed to drug-related killings. The report concludes, and 
I am quoting here, ``The defendants in these cases are not 
white because the members of the drug gangs that engage in 
large-scale trafficking in the Eastern District of Virginia are 
not white.'' It definitely states that. Now, that is a stunning 
statement.
    How did you reach this conclusion that whites are not 
members of drug gangs or otherwise engaged in large-scale drug 
trafficking in Virginia?
    Mr. Thompson. I don't think the statement could be read, 
Senator, to conclude that whites are not members of drug gangs. 
What I stated and what Attorney General Reno stated in her 
September testimony is that in districts like the Eastern 
District of Virginia where Federal law enforcement is focusing 
on violent drug trafficking gangs, many of which result from 
the crack cocaine epidemic, the violence associated with that 
activity has a disparate impact on minority communities. That 
is something that Federal law enforcement needed to address.
    As I mentioned in my opening statement, and as Attorney 
General Reno stated, many African-American citizens were 
calling out to the Federal Government, and to State government 
as well, to assist the communities in checking the violence 
associated with these violent gangs.
    I don't think the statement was meant in any way to mean 
that whites are not members of violent drug trafficking gangs. 
But in many of these drug trafficking gangs that involve the 
crack cocaine epidemic, these gangs had a disparate impact upon 
minority communities, and the Federal Government had an 
obligation to address this crime problem for its African-
American citizens.
    Chairman Feingold. Well, I appreciate your attempt to 
moderate the actual words, but the words were pretty clear, and 
the words were quite stunning in light of the, I believe, lack 
of evidence that this is so exclusively the province of one 
group of people.
    What I would like to do is ask you if you are familiar with 
a Virginia law enforcement operation called the Brotherhood.
    Mr. Thompson. I am not familiar with it.
    Chairman Feingold. Let me go into some detail on it with 
you. I have a February 26, 1999, press release from the U.S. 
Attorney's office in Norfolk announcing the arrest of 29 
individuals with the Renegades Motorcycle Club on charges of 
conspiracy to distribute methamphetamine. The indictment 
charges them with money laundering, possession with intent to 
distribute cocaine and marijuana, and various firearms 
violations.
    All of the individuals named in the indictment are white, 
and this was a huge investigation. It shows that the statement 
in the supplemental report that ``members of the drug gangs 
that engage in large-scale trafficking in the Eastern District 
of Virginia are not white'' is false.
    Do you agree that the supplemental report is inaccurate on 
that point?
    Mr. Thompson. Well, as I said, I don't think a fair reading 
of the report was that white citizens are not members of drug 
gangs or violent gangs. We know about the bike gangs that seem 
to comprise white citizens who are members of those gangs.
    As I indicated, as I understood what was going on in the 
Eastern District of Virginia, many of these drug trafficking 
gangs that were prosecuted by the Federal Government there--and 
this is what Attorney General Reno indicated--were a result of 
the crack cocaine epidemic, and certainly that was something 
that Federal law enforcement should address. But I don't think 
the report in any way meant to suggest, and I certainly don't 
suggest, Senator, that whites are not members of violent gangs 
or that we shouldn't go after them.
    Chairman Feingold. Do you happen to know how many murders 
have been committed by members of these meth gangs?
    Mr. Thompson. No, sir, I do not.
    Chairman Feingold. Did the Department do any investigation 
to find out?
    Mr. Thompson. I am sure it did. I am just not aware of the 
results of--
    Chairman Feingold. Well, the reason I ask it is the report 
we were given last week says that it was based on common 
experience that they came to the conclusions they did about who 
is doing the drug trafficking. It almost smacks a little bit, 
in the language of it, of the type of profiling that we are so 
very concerned about in this Congress. So if you do have any 
information on it, I would appreciate receiving it 
subsequently.
    Mr. Thompson. I can look at that and get back to you. As I 
understand it, the reference to the Eastern District of 
Virginia was the reference because of the number of case 
submissions that involved minority defendants. It wasn't a 
representation that there are no violent gangs in the Eastern 
District of Virginia that are not comprised of white 
individuals. It was a reference to the number of minority 
defendants whose criminal conduct was submitted to the 
Department of Justice for capital case review.
    Chairman Feingold. Well, the report attempts to justify the 
absence of white death penalty defendants by saying that whites 
aren't part of these gangs. And that is false, and that gets to 
my fundamental point. How do we end up with 90 percent of the 
people on death row being black or Hispanic? This might be part 
of the answer, but you may respond.
    Mr. Thompson. Senator, we do not disagree with that, but I 
think from my standpoint my own personal viewpoint is to look 
at the nature of the individuals who are on death row now. I 
agree with Attorney General Reno and Deputy Attorney General 
Holder, and that is--and I have looked at a number of these 
cases--there is no evidence of the guilt or innocence of these 
individuals, and that in each of these cases the law and the 
evidence warranted the invocation of the death penalty. Again, 
getting back to my statistic on the victims, 63 percent of the 
victims were minorities. I think that is important.
    Chairman Feingold. Thank you. My time on this round is 
over, and I will turn to Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    I thank you, Mr. Thompson, and I am glad we have someone of 
your decency and broad experience both as a prosecutor and most 
of your career as a top-flight litigator with one of America's 
great law firms. So I think the perspective you bring there and 
the commitment you have to equal justice under law is important 
for all of us.
    You mentioned that former Deputy Attorney General Eric 
Holder supported the conclusion that there was no racial bias 
here. I think it would be important also to note that he is an 
African-American, a former Federal judge here in Washington.
    Let me ask you briefly a couple of things. The review by 
Reno and Ashcroft, those studies that were done, the 
prosecutors who carried out those cases, who employed them? Who 
was the person who employed and was responsible for those 
prosecutors?
    Mr. Thompson. It was the Department of Justice.
    Senator Sessions. It would be Janet Reno during her term in 
office?
    Mr. Thompson. Oh, certainly.
    Senator Sessions. And who appointed the United States 
Attorneys who were making decisions to prosecute these cases 
that you have been reviewing?
    Mr. Thompson. They were appointed by President Clinton.
    Senator Sessions. So I guess you have only been in office a 
few months, and the same for Attorney General Ashcroft.
    Mr. Thompson. It seems like 2 years sometimes.
    Senator Sessions. You are being asked to answer for a 
policy that took place under a previous administration. 
Frankly, from what I have seen, your analysis and the Reno 
analysis are fair and just.
    You know, Mr. Chairman, there are tendencies in life, and 
it is an important matter. For some reason, crack cocaine has 
been a more serious problem in the African-American community.
    Would you not agree, Mr. Thompson?
    Mr. Thompson. Yes, that is my understanding.
    Senator Sessions. Indeed, our Sentencing Guidelines that 
are so tough on crack have been criticized as in a way 
targeting the African-American community. And I think I have 
told you, Mr. Thompson, that I am a little bit troubled by 
that. I think maybe there is too much disparity between the 
crack sentences for crack cocaine and the powder cocaine, which 
is more typical of a white community as opposed to the African-
American community. That is a fact.
    There has been a good bit of violence, in my experience, 
within the crack cocaine gangs. You were United States Attorney 
in Atlanta and you were there, I guess, during at least part of 
the crack epidemic. It unfortunately did have an unusual amount 
of violence connected with it, did it not?
    Mr. Thompson. That is correct, and that was Attorney 
General Reno's read on some of the data and statistics, 
Senator.
    Senator Sessions. I think about the United States 
Attorney's burden, and you have an organized crime drug 
enforcement task force that you were the first head of for the 
Southeast Region. That focused on large cocaine rings for the 
most part, did it not?
    Mr. Thompson. That is correct.
    Senator Sessions. Many of those were Colombians, and those 
would qualify as Hispanics and there was a lot of violence 
among those cocaine gangs and rings, was there not?
    Mr. Thompson. That is correct.
    Senator Sessions. And so the Federal Congress decided that 
under certain circumstances major drug dealers of that kind 
would be subjected to the death penalty if they murdered people 
in the course of their activities and those would be prosecuted 
in Federal court.
    Mr. Thompson. That is correct.
    Senator Sessions. You remember the terrible violence that 
happened, the cocaine wars in Miami, and people were afraid 
that would spread around the country. Those had a lot of 
involvement with Colombians, did they not?
    Mr. Thompson. That is right, Senator.
    Senator Sessions. Mr. Chairman, I don't know how these 
numbers come out the way they do. I would say only 21 
defendants now facing execution in the Federal system is a 
rather small number to get a statistical trend from, No. 1.
    And with regard to the Garza case, he allegedly murdered 
three individuals personally and ordered the execution of three 
more.
    Mr. Thompson. I believe five more.
    Senator Sessions. Do you know the racial identity of those 
who were murdered by Mr. Garza?
    Mr. Thompson. I believe they all were Hispanic, with the 
exception of one.
    Senator Sessions. So I think that is a factor here that we 
ought to consider.
    I would offer for the record a series of letters from 
African-American women in Alabama who have had loved ones lost, 
children particularly, by murder who do believe the death 
penalty is an appropriate penalty.
    Thank you, Mr. Chairman, and I would like to offer those.
    Chairman Feingold. Without objection.
    I am going to start another round, and perhaps I won't use 
the whole time here because I do want to go to the next panel.
    Let me just briefly comment and say that the very comments 
that Senator Sessions was making about the emphasis on crack 
cocaine and connecting it to African-Americans is exactly the 
reason why we are concerned and need this study.
    And then to suggest that there is no reason not to have a 
moratorium on the death penalty when we don't have these 
answers, to me, really does get into the direction of what it 
says over the United States Supreme Court, ``Equal Justice 
Under Law.''
    Just because somebody may be guilty and many people would 
feel they should be executed, if one person is executed for 
essentially the same crime and another person isn't, that does 
raise questions of equal justice under law. So I would suggest 
that is a reason.
    And I want to take another angle on this because we have 
been talking about the drug aspect. It appears that there is 
some undercurrent to the supplemental report, and I know you 
have indicated that you did not want it read that way, that 
minorities are more likely to commit these death-eligible 
crimes.
    But I think we need to look not only at who is committing 
the crime, but also how crimes are prosecuted at the Federal 
level. I would like to turn your attention to an article by Tom 
Brune that appeared in Newsday today.
    I will submit a copy of it for the record, without 
objection.
    It is intriguing and it presents another perspective on the 
issue of racial and geographic disparities in the Federal 
Government's administration of the death penalty.
    Brune compares Federal prosecution of street gangs to 
Federal prosecution of the Mafia. He found that the Federal 
Government is more likely to seek the death penalty against 
members of street drug gangs than members of the Mafia.
    Now, one reason for this disparate treatment is the focus 
of Federal law enforcement. Individuals who might be involved 
with the Mafia are investigated through the FBI's Organized 
Crime Unit, which was created after the enactment of the RICO 
statute in 1970. It follows the so-called enterprise theory of 
investigation. In other words, the Federal Government is more 
interested in wrecking a criminal organization than just 
focusing on individuals.
    In contrast, in 1992, the Federal Government for the first 
time took on investigation and prosecution of street drug 
gangs, as Senator Sessions indicated. Through enactment of the 
drug kingpin statute in 1988, Congress equipped Federal law 
enforcement with the death penalty as a tool. Now, rather than 
focusing on the gang organization, law enforcement is focused 
on the individual.
    Introduction of the death penalty as a tool, combined with 
our Nation's war on drugs, appears to have influenced who does 
and does not get charged with a death-eligible offense at the 
Federal level. I believe the article illustrates that the 
Justice Department cannot robotically, in your words, enforce 
vigorously the laws passed by Congress, but must also look at 
how the laws are applied.
    Since 1996, according to Brune, an FBI crackdown has led to 
the conviction of 1,500 organized crime defendants, but not a 
single death penalty case, not a single one. I am concerned 
that these two starkly different approaches to prosecuting 
criminal organizations by Federal law enforcement could be a 
reflection of our societal attitudes. Does our society somehow 
view mob figures as more sympathetic than black or Hispanic 
drug kingpins?
    Wouldn't you agree that this street drug gang versus 
mobster prosecution comparison deserves exploration and perhaps 
even some empirical research?
    Mr. Thompson. Well, Senator, I would agree that we need to 
understand fully and, as I said, to the fullest extent that we 
can the issue of the racial disparity of the number of 
individuals who are on Federal death row. As an African-
American, that is something I am concerned about and I don't 
think we should ignore it.
    I do not think we should turn a blind eye toward this 
issue. I think sometimes that is perhaps some of the problem 
that we have in our country with respect to racial issues that 
we do not want to discuss them, we do not want to look at them. 
So I am in favor of us examining this important issue.
    But with respect to the question that you posed to me with 
respect to violent crime, I would submit, Senator, that it is 
very important for the Federal Government to be involved in 
those kinds of cases. As I indicated and as Deputy Attorney 
General Holder indicated, African-Americans constitute 50 
percent of the homicide victims in our country. And it is even 
worse; it affects the quality of life of the individuals who 
live in some of these communities who are ravaged by these 
crack cocaine gangs. People are afraid to go out of their 
homes. They are locked up in their homes as prisoners.
    If the local law enforcement authorities do not have 
sufficient tools or resources to address this issue, I think it 
is very important for the Federal Government to be involved in 
this so as to bring these individuals to justice and to protect 
the vast majority of law-abiding citizens who live in these 
communities.
    Chairman Feingold. Well, I appreciate the tone of those 
remarks, and I hope in the letter that I will receive 
concerning the NIJ study that you are going to do that there 
will be some assurance that the study will include not only the 
general matters we have talked about on racial and geographic 
disparity, but also some of these issues relating to drug gangs 
and the difference in treatment between the organized crime 
type of cases involving, say, mob type issues versus the street 
gangs are included in the analysis.
    Mr. Thompson. Yes, sir, and I will get back to you on the 
question that you posed.
    Chairman Feingold. I thank you.
    Let's see if Senator Sessions has anything further of this 
witness.
    Senator Sessions. Mr. Chairman, I would just note, as we 
talk about the statistical numbers being small, I have a report 
here that 29 out of 35 Federal executions since 1927 have been 
white. I think you are correct to look at the numbers we are 
looking at today, but in the long run those numbers are 
somewhat comforting, I think, in terms of racial bias.
    I would also note that I think you raised a good question 
about meth cases, which tend to be more white. Sometimes, 
motorcycle members are violent. Ecstasy is a growing problem, 
and I think the Department of Justice will need to monitor 
those gangs and criminal enterprises and ensure that it is as 
vigorous in prosecuting murders that may occur during those 
enterprises as they are in the ones that are ongoing now.
    And the Mafia question is a good one. I know it is often 
very difficult to penetrate their code of silence and maybe the 
proof is difficult. But it has appeared that a number of Mafia 
people have been convicted involving murders. Of course, if 
those murders occurred before 1988, they wouldn't be subject to 
the death penalty.
    Is that correct?
    Mr. Thompson. That is correct.
    Senator Sessions. But if they have occurred since then, 
then I think the Department has a high burden to make sure that 
death penalties are sought in appropriate cases there.
    Thank you, Mr. Chairman.
    Chairman Feingold. Well, I thank the Senator, and I must 
say I appreciate working with him. He is a great ally and a 
very formidable opponent on many issues. But I just have to say 
that not only did I take no comfort from the statistics you 
gave, they appall me because what they are are based on is the 
Federal death penalty that stopped basically in 1963.
    The modern death penalty, a statistic that you call not 
significant, involves, out of 19 people, 17 minorities; 14 are 
black. That is the face of the modern death penalty at the 
Federal level, something that I believe never was true in 
American history. So I would take a different read, rather than 
comfort, on those numbers.
    Senator Sessions. Maybe it is just a short-term statistical 
anomaly.
    Chairman Feingold. Let us hope.
    Senator Sessions. Let us hope.
    Chairman Feingold. Thank you, Senator Sessions.
    If there are no further questions for this witness, we will 
ask the second panel to come forward. But before you go, Mr. 
Thompson, I thank you. Let me state that the record for this 
hearing will remain open for a week's time. So if there is 
anything further you would like to submit for the record, you 
may do so.
    In addition, I will ask that members of the Committee 
submit any written follow-up questions by the close of business 
on Friday, and I am sure you will answer those promptly.
    I thank you for all the time you have spent with us here 
today.
    Mr. Thompson. Thank you for your courtesy, Senator.
    Chairman Feingold. I will ask the next panel to come 
forward.
    Our next panel consists of Julian Bond, Andrew McBride, Sam 
Gross, James Fotis, and David Bruck. We will start with Mr. 
Bond and then move down the table. I will ask again, if you 
please could, given the hour, limit your opening statements to 
5 minutes so that we will have time to ask questions. Your 
entire written statements will, of course, be included in the 
record.
    Let me begin with Mr. Bond. Julian Bond is Chairman of the 
Board of the NAACP. He is frankly somebody whom I have admired 
and followed throughout my entire life. He is a former State 
legislator in Georgia and one of our country's greatest civil 
rights activists. He is also currently a professor of history 
at the University of Virginia.
    Mr. Bond, it is an honor to have you here and you may 
proceed.

 STATEMENT OF JULIAN BOND, CHAIRMAN, NATIONAL ASSOCIATION FOR 
 THE ADVANCEMENT OF COLORED PEOPLE, AND MEMBER, CITIZENS FOR A 
       MORATORIUM ON FEDERAL EXECUTIONS, WASHINGTON, D.C.

    Mr. Bond. Thank you, Mr. Chairman. Thank you for inviting 
me to offer my perspective as Chair of the Board of the NAACP 
and a member of Citizens for a Moratorium on Federal 
Executions.
    The NAACP is the Nation's oldest and largest civil rights 
organization. We have long been opposed to the death penalty. 
We are horrified by its all too frequent and easily documented 
racially discriminatory application. We do not believe it 
deters crime. It targets and victimizes those who cannot afford 
decent legal representation. It is used against the mentally 
incompetent. It tragically sends the innocent to death.
    It serves as a shield for attitudes on race. It is used 
most often in States with the largest African-American 
populations, and disproportionately used when the accused is 
black and the victim is white. In addition to being bad 
domestic policy, it increasingly alienates the United States 
from our allies and lessens our voice in the international 
human rights arena.
    I am also here as a member of Citizens for a Moratorium on 
Federal Executions. We are a coalition of dozens of American 
public figures who joined together last fall when Juan Garza 
was scheduled to be the first individual executed by the United 
States in nearly 40 years. Some members of this group support 
the death penalty in specific circumstances; others are 
inalterably opposed. Nonetheless, we spoke with one voice in 
urging President Clinton to declare a moratorium on Federal 
executions.
    There can be no question that we were able to assemble a 
broad cross-section of prominent U.S. citizens to call for a 
moratorium because the public is prepared to carefully 
reexamine the use of capital punishment in this Nation. At no 
time since the death penalty was reinstated by the Supreme 
Court in 1976 have Americans voiced such grave doubts about the 
fairness and reliability of capital punishment.
    At the State level, those doubts are reflected in the 
unprecedented moratorium put in place by Governor Ryan of 
Illinois and death penalty moratorium bills introduced in State 
legislatures and in studies commissioned by Governors in other 
States.
    At the national level, Mr. Chairman, you have introduced a 
bill calling for a moratorium, and Senator Leahy has introduced 
legislation that would require greater protections for those 
prosecuted for capital crimes at the State and Federal levels.
    Professional community and civil rights organizations, 
including the League of United Latin American Citizens, the 
National Urban League, the NAACP, the Black Leadership Forum, 
the Leadership Conference on Civil Rights, and the American Bar 
Association all have called on the executive branch to suspend 
Federal executions. And religious organizations have 
intensified their longstanding calls for a death penalty 
moratorium.
    When CMFE addressed President Clinton on November 20, we 
were responding to the September 12 release of the DOJ survey 
that documented racial, ethnic, and geographical disparities in 
the charging of Federal capital cases. We wrote to the 
President, ``Unless you take action, executions will begin at a 
time when your own Attorney General has expressed concern about 
racial and other disparities in the Federal death penalty 
process. Such a result would be an intolerable affront to the 
goals of justice and equality for which you have worked during 
your presidency. Consequently, we urge you to put in place a 
moratorium until the Department completes its review of the 
Federal death penalty process.''
    As I speak to you today, of course, the first Federal 
execution in almost 40 years has been carried out. The man put 
to death was not Mr. Garza, who now faces execution in less 
than a week's time, on June 19. He did not precede Timothy 
McVeigh to the death chamber in Terre Haute because on December 
7, 2000, President Clinton stayed his execution for 6 months.
    While the President announced he was not prepared to halt 
all Federal executions, he nonetheless told the Nation that 
further examination of possible bias in the Federal death 
penalty system ``...should be completed before the United 
States goes forward with an execution in a case that may 
implicate the very questions raised by the Department's 
continuing study.'' ``In this area,'' he said, ``there is no 
room for error.''
    Nothing has transpired since President Clinton's December 7 
statement and grant of reprieve that warrants going forward 
with Mr. Garza's execution, nor with carrying out the death 
sentence of any of the other 19 individuals on Federal death 
row.
    We reject any suggestion that the report released by Mr. 
Ashcroft on June 6 constitutes a reliable or thorough study of 
possible racial and regional bias in the Federal death penalty 
system. Nor does it answer the troubling questions raised by 
the Department's September 12 survey.
    On December 8, the day following the President's decision 
to stay Mr. Garza's execution, I was one of several CMFE 
representatives who, with Congressman John Conyers, met with 
former Attorney General Reno, former Deputy Attorney General 
Holder, and other Justice Department attorneys to discuss the 
President's announcement and plans for a more comprehensive 
investigation of the death penalty, which would include the 
participation of outside experts.
    Members of the Department acknowledged this critical task 
could not be accomplished by the end of April of this year, the 
timetable set by the President when he announced the December 
reprieve for Mr. Garza. The result of that discussion with 
Attorney General Reno and Deputy Holder was memorialized in our 
letter to President Clinton dated January 4 of this year.
    We next learned that on January 10 the National Institute 
of Justice assembled a group of experts from within and without 
the Department of Justice to discuss the parameters of the 
investigation that the Attorney General, Deputy, and President 
had announced was needed.
    At his confirmation hearing, then Attorney General-
designate John Ashcroft stated that evidence of racial 
disparities in the application of the death penalty ``troubles 
me deeply.'' Acknowledging he was unsure why more than half the 
Federal capital prosecutions were initiated in less than one-
third of the States, he said he was also ``troubled'' by this 
evidence. He expressed his approval of a ``thorough study of 
the system,'' and proclaimed, ``Nor should race play any role 
in determining whether someone is subject to capital 
punishment.''
    On June 4, CMFE wrote to President Bush, repeating our call 
for a moratorium. We raised the concerns that the Attorney 
General's actions and statements subsequent to his confirmation 
hearing ``cast doubt'' on ``the administration's commitment to 
the principles he set forth at his confirmation hearing.''
    We noted, ``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, 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 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.''
    Just 2 days later, on June 6, the Department released a 
flawed study purporting to demonstrate that Federal 
administration of the death penalty was bias-free. Now, General 
Ashcroft claims ``there is no evidence of favoritism toward 
white defendants in comparison with minority defendants.'' But 
such evidence does exist, and its existence raises serious 
doubts about fairness in our criminal justice system.
    Without guarantees of fairness, there can be no public 
confidence in the administration of justice. That lack of 
confidence is heightened and the guarantees of fairness are 
lessened by the Department's recent report on the Federal death 
penalty system.
    Evidence of race-of-victim discrimination was ignored. 
Differences among geographical regions in which the penalty is 
sought by United States Attorneys, approved by the Attorney 
General, and imposed by juries were ignored. Stark racial 
differences in death penalty avoidance by whites and minorities 
who enter a plea to a non-capital charge were not fully 
examined or explained. The entrance of racial disparities that 
discreet stages in decisionmaking was evaded. Arguments for 
further study by researchers assembled by the Department of 
Justice were ignored.
    Before Tuesday, the United States had not executed anyone 
for nearly 40 years. What is the hurry, when life and liberty 
are at stake?
    When asked at his confirmation hearing, ``Do you agree with 
President Clinton that there is a need for `continuing study' 
of `possible racial and regional bias' because `in this area 
there is no room for error,''' the Attorney General 
unequivocally answered, ``Yes.''
    Attorney General Ashcroft has broken his pledge to the U.S. 
Senate. There has been no thorough study of this system. It has 
fallen to you to assure Americans that at least when it comes 
to the ultimate penalty in our Federal system, justice is blind 
to race and ethnicity. You cannot fix everything that is wrong 
in our system, but you can fix this.
    Thank you, Mr. Chairman.
    [The prepared statement and attachments of Mr. Bond 
follow:]

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

    Chairman Feingold, as this Subcommittee examines the administration 
of the federal death penalty, thank you for inviting me to offer my 
perspective as Chairman of the Board of the National Association for 
the Advancement of Colored People (NAACP) and as a member of Citizens 
for a Moratorium on Federal Executions (CMFE).
---------------------------------------------------------------------------
    * Julian Bond has been an active participant in the movements for 
civil rights, economic justice, and peace for more than three decades. 
He was a founder, in 1960, while a student at Morehouse College, of the 
Atlanta student sit-in and anti-segregation organization, and of the 
Student Nonviolent Coordinating Committee (SNCC). Mr. Bond is a veteran 
of more than 20 years of service in the Georgia state legislature. He 
is currently a Professor of History at the University of Virginia and a 
Distinguished Professor-in-Residence at the American University in 
Washington, D.C.
---------------------------------------------------------------------------
    The NAACP is the nation's oldest and largest civil rights 
organization. We have long been opposed to the death penalty and are 
horrified by its all too frequent and easily documented racially 
discriminatory application.
    We do not believe it deters crime. It targets and victimizes those 
who cannot afford decent legal representation. It is used against the 
mentally incompetent. It tragically sends the innocent to death.
    The death penalty serves as a shield for attitudes on race. It is 
used most often in states with the largest African-American populations 
and disproportionately used when the accused is black and the victim is 
white.
    In addition to being bad domestic policy, it increasingly alienates 
the United States from our allies and lessens our voice in the 
international human rights arena.
    I am also a member of Citizens for a Moratorium on Federal 
Executions (CMFE). CMFE is a coalition of dozens of American public 
figures who joined together last fall when Juan Raul Garza was 
scheduled to be the first individual executed by the United States 
Government in nearly 40 years. Some members of CMFE support the death 
penalty in specific circumstances; others are unalterably opposed. 
Nonetheless, we spoke with one voice in urging President Clinton to 
declare a moratorium on federal executions.
    Among the 40 people who signed CMFE's first letter to President 
Clinton, delivered on November 20, 2000, were former high-ranking 
members of the Justice Department, former Clinton administration 
officials, the Dean of the Yale Law School, a Nobel Laureate, 
Congressional Gold Medal and Presidential Medal of Freedom recipients, 
civil rights, religious and civic leaders, former U.S. Senators, and 
prominent individuals in the world of arts and entertainment.\1\ Since 
last November, CMFE's roster has expanded to include an even broader 
spectrum of civil rights and religious leaders, the Founder and 
President of the Rutherford Institute, the Editor of the American 
Spectator, and a former United States Ambassador.\2\
---------------------------------------------------------------------------
    \1\ Letter of Citizens for a Moratorium on Federal Executions 
(CMFE), November 20, 2000, attached hereto as Exhibit A. Information 
about CMFE is available at http:ll www.federalmoratorium.org. The 
website also posts the written statements of other organizations that 
joined with CMFE in calling for a moratorium on federal executions.
    \2\ Letters of CMFE, January 4, 2001 and June 4, 2001, attached 
hereto as Exhibits B and C.
---------------------------------------------------------------------------
    There can be no question that CMFE was able to assemble this cross-
section of prominent U.S. citizens to call for a moratorium on federal 
executions because the public is prepared to carefully re-examine the 
use of capital punishment in this nation. At no time since the death 
penalty was reinstated by the Supreme Court in 1976 have Americans 
voiced such grave doubts about the fairness and reliability of capital 
punishment. At the state level, those doubts are reflected in the 
unprecedented moratorium on executions put into place by Governor Ryan 
of Illinois, in death penalty moratorium bills introduced and enacted 
in state legislatures, and in studies commissioned by Governors in 
other states. At the national level, Senator Feingold has introduced a 
bill calling for a moratorium on federal executions and Senator Leahy 
has introduced legislation that would require greater protections for 
those prosecuted for capital crimes at the state and federal levels. 
Professional, community and civil rights organizations, including the 
League of United Latin American Citizens (LULAC), the National Urban 
League, the NAACP, the Black Leadership Forum, the Leadership 
Conference on Civil Rights and the American Bar Association, have 
called on the Executive Branch to suspend federal executions, and 
religious organizations have intensified their long-standing calls for 
a death penalty moratorium.
    When CMFE addressed President Clinton on November 20, we were 
responding to the September 12 release of the Department of Justice 
survey that documented racial, ethnic and geographic disparities in the 
charging of federal capital cases. The CMFE wrote: ``Unless you take 
action, executions will begin at a time when your own Attorney General 
has expressed concern about racial and other disparities in the federal 
death penalty process. Such a result would be an intolerable affront to 
the goals of justice and equality for which you have worked during your 
Presidency. Consequently, we urge you to put in place a moratorium 
until the Department of Justice completes its review of the federal 
death penalty process.'' \3\
---------------------------------------------------------------------------
    \3\ Citizens for a Moratorium on Federal Executions, Letter to 
President Clinton, November 20, 2000, Exhibit A.
---------------------------------------------------------------------------
    As I speak to you today, of course, the first federal execution in 
almost 40 years has been carried out. The man put to death was not Mr. 
Garza, who now faces execution in less than a week's time, on June 19.
    Mr. Garza did not precede Timothy McVeigh to the death chamber in 
Terre Haute because, on December 7, 2000, President Clinton stayed Mr. 
Garza's execution for six months. While the President announced that he 
was not prepared to halt all federal executions, he nonetheless told 
the nation that further examination of possible racial and regional 
bias in the federal death penalty system ``. . . 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. In this area there is no room for error.'' \4\
---------------------------------------------------------------------------
    \4\ The White House, Office of the Press Secretary, Statement by 
the President, December 7, 2000.
---------------------------------------------------------------------------
    Nothing has transpired since President Clinton's December 7 
statement and grant of reprieve that warrants going forward with Mr. 
Garza's execution nor with carrying out the death sentence of any of 
the other 19 individuals on federal death row. We reject any suggestion 
that the report released by Mr. Ashcroft on June 6 constitutes a 
reliable or thorough study of possible racial and regional bias in the 
federal death penalty system. Nor does it answer the troubling 
questions raised by the Justice Department's September 12 survey.
    On December 8, the day following the President's decision to stay 
Mr. Garza's execution, I was one of a several CMFE representatives, 
who, along with Congressman John Conyers, met with former Attorney 
General Reno, former Deputy Attorney General Holder and other Justice 
Department attorneys to discuss President Clinton's announcement and 
plans for a more comprehensive investigation of the federal death 
penalty, which would include the participation of outside experts. 
Members of the Department of Justice acknowledged that this critical 
task could not be accomplished by the end of April of this year, the 
timetable set by President Clinton when he announced the December 
reprieve for Mr. Garza.
    The result of that discussion with Attorney General Reno and Deputy 
Attorney General Holder was memorialized in the CMFE's letter to 
President Clinton, dated January 4, 2001.'' \5\
---------------------------------------------------------------------------
    \5\ CMFE letter to President Clinton, January 4, 2001, Exhibit B.
---------------------------------------------------------------------------
    We next learned that on January 10, 2001, the National Institute of 
Justice assembled a group of experts from within and without the 
Department of Justice to discuss the parameters of the comprehensive 
investigation that the Attorney General, Deputy Attorney General and 
the President had announced was needed.
    At his confirmation hearing, then-Attorney General-designate John 
Ashcroft stated that evidence of racial disparities in the application 
of the federal death penalty ``troubles me deeply.'' Acknowledging he 
was ``unsure'' why more than half the federal capital prosecutions were 
initiated in less than one-third of the states, the Attorney General 
asserted that he was also ``troubled'' by this evidence.
    He expressed his approval of a ``thorough study of the system,'' 
and proclaimed, ``Nor should race play any role in determining whether 
someone is subject to capital punishment.''
    On June 4, 2001, CMFE wrote to President Bush, reiterating our call 
for a moratorium on federal executions. We raised the concern that the 
Attorney General's actions and statements subsequent to his 
confirmation hearing ``cast doubt'' on ``the Administration's 
commitment to the principles he set forth at his confirmation 
hearing.'' We noted that ``[t]here 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.'' \6\
---------------------------------------------------------------------------
    \6\ CMFE letter to President Bush, June 4, 2001, Exhibit C.
---------------------------------------------------------------------------
    Just two days later, on June 6 2001, the Department of Justice 
released a flawed study purporting to demonstrate that federal 
administration of the death penalty was bias-free.
    Now, Attorney General Ashcroft claims that ``there is no evidence 
of favoritism towards white defendants in comparison with minority 
defendants.'' But such evidence does exist, and its existence raises 
serious doubts about fairness in our criminal justice system.
    Without guarantees of fairness, there can be no public confidence 
in the administration of justice.
    That lack of confidence is heightened and the guarantees of 
fairness are lessened by the Department of Justice's recent report on 
the Federal Death Penalty System.
    Evidence of race-of-victim discrimination was ignored. Differences 
among geographical regions in which the penalty is sought by United 
States' Attorneys, approved by the Attorney General, and imposed by 
juries were ignored. Stark racial differences in death-penalty 
avoidance by whites and minorities who enter a plea to a non-capital 
charge were not fully examined or explained. The entrance of racial 
disparities at discrete stages in decision-making was evaded. Arguments 
for further study by researchers assembled by the Department of Justice 
were ignored.
    Before Tuesday, the United States had not executed anyone for 
nearly 40 years. What is the hurry, especially when life and liberty 
are at stake?
    When asked at his confirmation hearing, ``Do you agree with 
President Clinton that there is a need for `continuing study' of 
'possible racial and regional bias' because `in this area there is no 
room for error?"' the Attorney General unequivocally answered, ``Yes!''
    Attorney General Ashcroft has broken his pledge to the United 
States Senate.
    There has been no ``thorough study of the system.''
    It has fallen to you to assure Americans that, at least when it 
comes to the ultimate penalty in our federal system, justice is blind 
to race and ethnicity.
    You cannot fix everything that is wrong in our justice system, but 
you can do this.

                               EXHIBIT A

            CITIZENS FOR A MORATORIUM ON FEDERAL EXECUTIONS

Dear President Clinton:
    As you know, the federal government is preparing to carry out the 
first federal execution in nearly forty years. The first of twenty-one 
individuals on death row, Juan Garza, is scheduled for execution on 
December 12, 2000. Unless you take action, executions will begin at a 
time when your own Attorney General has expressed concern about racial 
and other disparities in the federal death penalty process. Such a 
result would be an intolerable affront to the goals of justice and 
equality for which you have worked during your Presidency. 
Consequently, we urge you to put in place a moratorium until the 
Department of Justice completes its review of the federal death penalty 
process.
    There is a compelling need for you to intervene: a recent 
Department of Justice survey documents racial, ethnic and geographic 
disparity in the charging of federal capital cases.
    The survey of the death penalty authorization process by the 
Department of Justice reveals that, among all the federal capital 
defendants against whom the Attorney General has authorized seeking the 
death penalty, 69% have been Hispanic and African American (18% and 51% 
respectively), while only 25% have been white. The Department of 
Justice has no data concerning the potential pool of persons against 
whom federal capital cases might be filed and authorized. However, 
analogous data does exist concerning state prisoners. Only 12% of all 
persons entering the state prisons after being convicted of homicide 
are Hispanic. Using similar data, 40% of all persons entering the state 
prisons after being convicted of homicide are white. As the Attorney 
General has recognized, these data indicate that minorities are over-
represented in the federal death penalty system.
    These disparities persist when the Department's data is examined 
from other perspectives. For example, 47% of all white defendants for 
whom the Attorney General authorized seeking the death penalty 
subsequently entered into a plea bargain in exchange for a non-death 
sentence, as compared to only 27% of Hispanic defendants whose cases 
were authorized for death. And on death row itself, as of the time of 
the Department's survey, 17 of the 21 persons on federal death row--81 
% were racial or ethnic minorities.
    The Justice Department survey also reveals inexplicable geographic 
disparities in the administration of the federal death penalty. In 16 
states, prosecutors seek and obtain death penalty authorization in at 
least 50 % of the federal capital cases that are submitted for review 
by the Attorney General. On the other hand, there are eight states in 
which that rate is much lower, ranging from 8--30 %. And there are 21 
states in which U.S. Attorneys have either never requested or never 
obtained authorization to seek the death penalty. These disparities in 
death penalty authorization rates are striking even among the states 
with the highest number of cases submitted for consideration. Among the 
eight states where U.S. Attorneys have submitted 20 or more cases for 
consideration, the death penalty authorization rate exceeds 50% in only 
one state--Texas--and ranges from 15--38% in the rest.
    When the survey was made public by the Department of Justice on 
September 12, 2000, the Attorney General acknowledged that the survey 
shows ``minorities are over-represented in the federal death penalty 
system.'' She also noted that the Department could not explain the 
disparities and because of this, ``[a]n even broader analysis must 
therefore be undertaken to determine if bias does in fact play any role 
in the federal death penalty system.''
    The Deputy Attorney General added at the press conference on 
September 12 that ``no one reading this report can help but be 
disturbed, troubled, by this disparity.'' He then urged that the 
problem of race bias in the criminal justice system be confronted 
openly:
    Ours is still a race-conscious society, and yet people are afraid 
to talk about race. At times, this issue seems to be one of the last 
remaining ... topics of conversation that is taboo, but it is 
imperative, moral and legally, that we confront this problem. Promoting 
an honest dialogue is essential to achieving a criminal justice system 
where race is never a factor.
    When asked whether, in light of the disparities revealed by the 
survey, the federal death penalty system was fair, the Deputy Attorney 
General acknowledged some uncertainty:
    I am a little surprised. I thought that, seven months ago, when we 
got to this point we would have substantially greater numbers of 
answers than we now have, and one of the things that I've been struck 
by is the number of questions that these numbers have raised in my 
mind, and I think that's one of the chief reasons why the attorney 
general has asked for further studies to be done. . . .
    The explanation for these extremely troubling disparities is 
unclear, but, as the Attorney General and the Deputy Attorney General 
recognized, the possibility of discrimination and bias cannot be ruled 
out. The Department of Justice is taking the responsible course and 
studying the matter further to see if the causes of disparity can be 
identified and, if appropriate, remedied. But, in the face of these 
unexplained findings, the Attorney General and the Deputy Attorney 
General have also suggested that the proper response, in relation to 
persons already sentenced to death, is to take this information into 
account in the clemency process. We fail to see how you as President 
can make an informed and just decision to deny clemency in a particular 
case without understanding the reasons for these extremely troubling 
disparities. When the Attorney General and the Deputy Attorney General 
cannot say with confidence that race and ethnic bias have not played a 
role in the application of the death penalty, and that they must have 
further studies to answer this question, there can be no question: No 
federal death sentence can be carried out until the studies and the 
``honest dialogue'' that must follow from them have been completed.
    Mr. Garza's case reflects precisely the concerns over racial, 
ethnic and geographic disparities in capital cases that the Justice 
Department itself has raised. Mr. Garza is Hispanic and from Texas--two 
factors that appear to increase substantially the chances that the 
government will seek the death penalty in a potential capital case. 
What if, after further study, the Department itself determines that 
race or the arbitrary factor of geography does in fact influence who is 
prosecuted for death and who is not? We cannot bring Mr. Garza or 
others back if we decide that they were the victims of a death penalty 
system distorted by bias and arbitrariness.
    We have heard voices from various quarters of society taking 
comfort from the lack of evidence that death row inmates are actually 
innocent. We recognize the moral difference between executing an 
innocent person and executing someone who is guilty of a horrible 
offense but is sentenced to death because of his racial or ethnic 
background or the happenstance of where he is tried. But we believe it 
would be wrong and unconscionable for society to make actual innocence 
the final test for who should live or die. This view would sanction the 
executions of defendants who, but for their race or ethnicity, might 
never have been sentenced to death, and it demeans human life by 
implying that, for defendants who cannot prove their innocence, there 
is no legal or moral distinction between executing them or imprisoning 
them. We reject that view.
    Our plea to you comes at an historic moment. At no time since the 
death penalty was reinstated by the Supreme Court in 1976 have 
Americans voiced such grave doubts about the fairness and reliability 
of capital punishment. At the state level, those doubts are reflected 
in the unprecedented moratorium on executions put into place by 
Governor Ryan of Illinois, in death penalty moratorium bills introduced 
and enacted in state legislatures, and in studies commissioned by 
Governors in other states. At the national level, several bills have 
been introduced in the United States Congress calling for a moratorium 
for state and federal executions, or for greater protections for those 
prosecuted for capital crimes; diverse community and civil rights 
organizations from the National Urban League, to the NAACP, to the 
American Bar Association, have called on the Executive Branch to 
suspend federal executions; and religious organizations have 
intensified their long-standing calls for a death penalty moratorium. 
The international community echoes these concerns, as does public 
opinion, with recent polls suggesting that a majority of the American 
public supports a moratorium on executions until issues of fairness in 
capital punishment can be resolved.
    The problems that we have highlighted here are problems that 
resonate profoundly with our nation's historic struggle to secure equal 
justice under law for all our citizens. These problems are like the 
ones that have rumbled beneath the surface of state death penalty 
systems for years, which have finally erupted into the public 
consciousness and conscience and fueled the growing call for a 
moratorium.
    Some of those who have signed this letter agree with you that 
capital punishment is appropriate in principle, provided that it is 
administered in a fair caseby-case manner. However, all of us agree 
that a moratorium should be adopted while these fairness issues are 
being resolved.
    We believe that the step we ask you to take is squarely consistent 
with the power to grant reprieves that is given to you by Article II of 
the Constitution. We are aware of your support for the death penalty 
under some circumstances and we are not asking that you change your 
long-held position. We are asking only that you prevent an 
unconscionable event in American history--executing individuals while 
the government is still determining whether gross unfairness has led to 
their death sentences. Granting this delay would not only avoid the 
specter of fundamental injustice in individual cases, it would address 
the legitimate reservations about capital punishment that burden the 
hearts and minds of so many citizens.
    Respectfully,

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

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

         Senator Alan Cranston
         U.S. Senate 1969-1993; President, Global Security
         Institute

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

         Lloyd Cutler
         Former Counsel to President Clinton and to
         President Carter

         Tom Eagleton
         U.S. Senate, 1968-1987

         Most Reverend Joseph A. Fiorenza
         Bishop of Galveston-Houston; President, National
         Conference of Catholic Bishops

         Dr. John Hope Franklin
         Chair, Advisory Board One America: The
         President's Initiative on Race

         Bishop Thomas Gumbleton
         Auxiliary Bishop, Archdiocese of Detroit

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

         Antonia Hernandez
         President and General Counsel, Mexican-America
         Legal Defense and Education Fund (1VIALDEF)

         Rev. Theodore M. Hesburgh, C.S.C.
         President Emeritus, University of Notre Dame

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

         Fred Korematsu
         Japanese American Civil Rights Leader

         Dean Anthony Kronman
         Dean of Yale Law School

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

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

         Jack Lemmon
         Actor; President, Jalem Productions, Inc.

         Robert Litt
         Former Principal Associate Deputy Attorney
         General in the U.S. Department of Justic
         (DOJ)

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

         Cardinal Roger Mahony
         Archbishop of the Roman Catholic Archdiocese of
         Los Angeles

         Irvin Nathan
         Former Principal Associate Deputy Attorney
         General in the U.S. Department of Justice (DOJ)

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

         Mario G. Obledo
         President, National Coalition of Hispanic
         Organizations

         Professor Robert Reich
         Former U.S. Secretary of Labor

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

         Michael Rosier
         President-elect,
         National Bar Association

         Rabbi David Saperstein
         Director, Religious Action Center of Reform
         Judaism

         The Honorable H. Lee Sarokin
         Retired Judge, U.S. Court of Appeals for the Third
         Circuit

         Stanley Sheinbaum
         Economist; Founding Publisher,
         New Perspectives Quarterly

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

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

         George Soros
         Philanthropist; President and Chairman
         of Soros Fund Management LLC.

         Barbra Streisand
         President, The Streisand Foundation

         John Van de Kamp
         California Attorney General, 1983-1991

         Arturo Vargas
         National Latino Leader

         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.)

         Reverend Jim Wallis
         Editor-in-Chief/Executiue Director,
         Sojourners magazine

         Bud Welch
         Board Member, Murder Victims Family for
         Reconciliation

         Professor Elie Wiesel
         Nobel Peace Laureate; Founder, The Elie Wiesel
         Foundation for Humanity

                               EXHIBIT B

            CITIZENS FOR A MORATORIUM ON FEDERAL EXECUTIONS

Dear President Clinton:
    We are writing to make an impassioned plea that you do all you can 
before you leave office to ensure that the federal death penalty will 
not become a civil rights disaster during the next four years.
    We are grateful for the first step you took in relation to this 
crisis: your intervention in the case of Juan Raul Garza on December 7, 
2000. The reprieve of Mr. Garza's execution until June 19, 2001, was 
particularly significant because of your acknowledgment of the 
unexplained racial and geographic disparities that beset the federal 
government's decisions to seek the death penalty. Your willingness to 
address the troubling direction that the federal death penalty has 
taken, and your recognition that executions would be intolerable until 
the disparities are better understood and necessary remedies 
considered, are predicates for the steps that must be taken before you 
leave office.
    On December 7, you stated that ``the gravity and finality of the 
[death] penalty demand that we be certain that when it is imposed, it 
is imposed fairly.'' You explained the need for ``continuing study'' of 
``possible racial and regional bias'' by declaring that ``[i]n this 
area there is no room for error.'' When you addressed the nation on 
December 7, the result of the presidential election was uncertain. The 
outcome is now final. Your immediate and decisive action will help 
assure that the leadership in the next Administration carries out your 
stated objective to thoroughly examine and address racial and 
geographic disparities in the federal death penalty system 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.'' To this end, we ask you to take several additional 
steps before January 20, 2001.
    First, a reliable, credible and comprehensive study of these 
disparities must be undertaken. Such a study cannot possibly be 
concluded by April, 2001. Attorney General Reno, Deputy Attorney 
General Holder, and Acting Director of the National Institute of 
Justice Julie Samuels agree that April is not a realistic deadline for 
completion of the thorough examination and evaluation to which you 
committed in your December 7 statement. The timetable for a reliable, 
credible and comprehensive investigation cannot be set arbitrarily. It 
is dependent upon the design of the study. A blueprint for such a study 
can and must be developed before you leave office. A realistic 
timetable will emerge from that blueprint and the date for completion 
can then be rescheduled. To assure its viability and integrity, the 
study must be undertaken under the supervision and authority of a 
citizens' advisory committee. This committee can be established and 
given appropriate responsibilities and authority under the Federal 
Advisory Committee Act before the end of your term in office.
    Second, the blueprint for the study, the timetable for its 
completion, and the citizens' advisory committee must be embodied in 
appropriate executive actions, to emphasize the importance of these 
matters to the nation and to help ensure that the next Administration 
completes these critical tasks. An executive order addressing these 
issues and directing the Attorney General to establish a citizens' 
advisory committee is imperative. Moreover, the citizens' advisory 
committee must be established before January 20, 2001, with the duty to 
report to Congress and the Library of Congress at the conclusion of its 
responsibilities.
    Third, a moratorium on federal executions must be ordered, with 
appropriate reprieves, before you leave office. Without this, there is 
no assurance that those who are affected by the disparities will not be 
executed before the necessary process of study and remediation has been 
completed.
    The substance of your remarks on December 7 led the nation to 
believe that you acted with full appreciation of the significance of 
the task that lies ahead. The steps that we have outlined will solidify 
this belief and strengthen the nation's commitment to equal justice 
under law. They will also help assure that any consideration of this 
issue in the new Administration takes place in the open, with full 
debate illuminating all sides of this important issue.
    Because time is of the essence, we reiterate our request for a 
meeting with you. Some of our representatives are already working with 
members of Deputy Attorney General Holder's staff to consider the DOJ 
study design and the need for a citizens' advisory committee. We 
believe that a discussion with you is essential if the three measures 
we have outlined are to be adopted before January 20.
    We look forward to meeting with you at the earliest opportunity.
    Respectfully,

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

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

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

         Most Reverend Joseph A. Fiorenza
         Bishop of Galveston-Houston; President, National
         Conference of Catholic Bishops

         Dr. John Hope Franklin
         Chair, Advisory Board One America: The
         President's Initiative on Race

         Bishop Thomas Gumbleton
         Auxiliary Bishop, Archdiocese of Detroit

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

         Antonia Hernandez
         President and General Counsel, Mexican-America
         Legal Defense and Education Fund (1VIALDEF)

         Rev. Theodore M. Hesburgh, C.S.C.
         President Emeritus, University of Notre Dame

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

         Fred Korematsu
         Japanese American Civil Rights Leader

         Dean Anthony Kronman
         Dean of Yale Law School

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

         Robert Litt
         Former Principal Associate Deputy Attorney
         General in the United States Department of Justic
         (DOJ)

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

         Cardinal Roger Mahony
         Archbishop of the Roman Catholic Archdiocese of
         Los Angeles

         Kweisi Mfume
         President and CEO, National Association for the
         Advancement of Colored People (NAACP)

         Irvin Nathan
         Former Principal Associate Deputy Attorney
         General in the U.S. Department of Justice (DOJ)

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

         Michael Rosier
         President-elect, National Bar Association


         Rabbi David Saperstein
         Director, Religious Action Center of Reform
         Judaism

         The Honorable H. Lee Sarokin
         Retired Judge, U.S. Court of Appeals for the Third
         Circuit

         Stanley Sheinbaum
         Economist; Founding Publisher, New Perspectives
         Quarterly

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

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

         Dr. Yvonne Scruggs-Leftwich
         Executive Director, Black Leadership Forum

         John Van de Kamp
         California Attorney General, 1983-1991

         Arturo Vargas
         National Latino Leader
         Ray Velarde
         National Legal Advisor, League of Latin American
         Citizens (LULAC)

         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.)

         Reverend Jim Wallis
         Editor-in-Chief/Executiue Director,
         Sojourners magazine

         Bud Welch
         Board Member, Murder Victims Family for
         Reconciliation

         Ambassador Andrew Young
         President, GoodWorks International;
         Former UN Ambassador

                               EXHIBIT C

            CITIZENS FOR A MORATORIUM ON FEDERAL EXECUTIONS

                                                       June 4, 2001
The Honorable George W. Bush
President of the United States
1600 Pennsylvania Avenue, NW
Washington, DC 20500

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 
reanalysis 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.

    Sincerely,

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

         Elizabeth Frawley Bagley
         Former US. Ambassador to Portugal

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

         Harry Belafonte
         Artist/Activist

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

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

         Bishop Thomas J. Gumbleton
         Auxiliary Bishop, Archdiocese of Detroit

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

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

         Fred Korematsu
         Japanese American Civil Rights Leader

         Dean Anthony Kronman
         Dean, Yale Law School

         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

         Robert S. Litt
         Former Principal Associate Deputy Attorney General,
         U.S. Department of Justice
         Reverend Dr. Joseph E. Lowery
         Co-Founder and President Emeritus, Southern
         Christian Leadership Conference (SCLC)

         Cardinal Roger Mahony
         Archbishop, Roman Catholic Archdiocese
         of Los Angeles

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

         Mario G. Obledo
         President, National Coalition of
         Hispanic Organizations

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

         George M. Ong
         National President, Organization of
         Chinese Americans

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

         Hugh B. Price
         President, National Urban League

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

         Michael S. Rosier
         President-Elect, National Bar Association

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

         Stanley Sheinbaum
         Economist; Founding Publisher,
         New Perspectives Quarterly

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

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

         Tavis Smiley
         Commentator, Author, Civil Rights Leader

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

         John Van de Kamp
         California Attorney General, 1983-1991

         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.LC)

         Bud Welch
         Board Member, Murder Victims' Families
         For Reconciliation

         John W. Whitehead
         Founder and President, The Rutherford Institute

    Chairman Feingold. Thank you, Mr. Bond.
    I would like to ask to place in the record statements from 
Professor David Baldus and the ACLU, without objection.
    Now, we will turn to Mr. McBride. He is a partner at the 
firm of Wiley, Rein and Fielding, here in Washington, D.C. He 
served as an Assistant U.S. Attorney in the Eastern District of 
Virginia from 1992 to 1999. He also served in the Department of 
Justice in a variety of posts from 1989 to 1992, and is a 
former law clerk to Supreme Court Justice Sandra Day O'Connor 
and to former D.C. Circuit Judge Robert Bork.
    Mr. McBride, I thank you for being here and you may 
proceed.
    Senator Sessions. Mr. Chairman, I would like to offer for 
the record on behalf of Senator Hatch a letter from the DEA on 
this subject dated June 13.
    Chairman Feingold. Without objection.
    Mr. McBride?

STATEMENT OF ANDREW G. MCBRIDE, FORMER ASSISTANT UNITED STATES 
  ATTORNEY FOR THE EASTERN DISTRICT OF VIRGINIA, AND PARTNER, 
           WILEY, REIN AND FIELDING, WASHINGTON, D.C.

    Mr. McBride. Chairman Feingold, thank you for having me 
here today. As a former Federal prosecutor who has charged 
death penalty offenses and tried death penalty cases, I commend 
the Chairman and the Committee for their oversight on this 
issue. I think it is critically important. I know the Committee 
is studying this issue very carefully and is deeply concerned 
about, and I think the changes in the protocol that were 
explained by the Deputy Attorney General today are positive 
changes and the Committee has played a role in that.
    I would like to make three points from my testimony that I 
hope the Committee will keep in mind. There has been 
discussion, of course, of cases in the Eastern District of 
Virginia. I would like to make myself available to the members 
of the Committee to discuss specifically the charging practices 
in the Eastern District of Virginia in which I played a role 
during those 7 years.
    The first point from my testimony that I would like to 
emphasize is that I would ask the Committee members to be 
particularly careful in using regression analysis or 
statistical analysis to draw conclusions about death penalty 
prosecutions.
    Regression analysis depends upon controlling for all the 
legitimate factors to expose the influence of illegitimate 
factors. In my opinion, there are too many variables that 
prosecutors, judges and juries correctly consider in assessing 
moral culpability to identify them and weigh them all in a 
computer model.
    Trying to statistically assess the deathworthiness of 
Timothy McVeigh or the embassy bombers who did not receive the 
death penalty, as we know, today and then compare them with the 
deathworthiness of other Federal offenders who may be eligible 
for the death penalty, in my view as a former prosecutor, is a 
fool's errand.
    The problem is particularly difficult at the Federal level, 
where any statistical model must account for the additional 
factors that affect State versus Federal prosecution. And 
statistical conclusions must be drawn, as Senator Sessions 
mentioned, from a very limited pool of unique Federal cases. We 
wouldn't want computers to make capital sentencing decisions 
and we shouldn't pretend that computers are capable of 
perfectly emulating them after the fact.
    Second, having found that the very limited numbers that we 
do have do not support any inference of discrimination against 
minorities within the procedures that the Attorney General has 
laid out--in other words, crimes that are submitted to the 
Department of Justice by the U.S. Attorneys' offices, there is 
no evidence of discrimination there. And as the Deputy Attorney 
General stated, in fact, white capital-eligible defendants are 
slightly more likely to actually be charged, noticed up with 
the death penalty and have the death penalty sought than are 
minority defendants.
    Opponents now make the claim that these same prosecutors 
must be motivated by racism when they make the initial decision 
to take the case to Federal court. I believe this charge is 
unfair, and it is leveled by individuals who do not have 
experience with our criminal justice system.
    The decision whether or not to take a case from the State 
to the Federal level is generally made at the supervisory level 
in the United States Attorney's office. It is not made by an 
individual Assistant United States Attorney, nor could it ever 
be made by an individual Federal law enforcement officer. The 
decision is often made where the U.S. Attorney's office will 
have certain protocols or guidelines already in place.
    For instance, in Prince William County, Virginia, they 
prosecute no armed bank robberies. They allow the FBI to 
investigate and prosecute all those cases. So if there is an 
armed bank robbery that results in a homicide, it will be a 
Federal case. It has nothing to do with the individual 
discretion of any particular person, Federal agent or 
prosecutor. That is a protocol we have in place. There are 
other similar protocols that result in cases becoming Federal 
cases.
    I believe that the charge that the Federalization of cases 
is infected with race, from my personal experience, is wrong. I 
also believe that it implies bad faith on the part of State 
officials in their decisions to seek Federal assistance. In 
fact, I think State officials, in my experience, seek the 
assistance of Federal authorities most often when crimes remain 
unsolved and they are multijurisdictional in nature. In my 
view, that is a proper role for the Federal U.S. Attorney's 
office when a State or local official comes to them and says, 
we have unsolved homicides, they appear to stretch outside our 
jurisdiction, we would like your intervention. My experience in 
the Eastern District of Virginia was we answered calls; we did 
not make calls.
    Finally, as has been discussed, and as the Chairman noted, 
we have in place a Federal system that I believe is designed to 
ensure fair and even-handed enforcement of the death penalty. 
The Attorney General's review process, which as a prosecutor I 
twice participated in, is a rigorous process. The documents 
that are filed by the Assistant U.S. Attorneys include a draft 
indictment and a long memo that discusses all the possibilities 
of the case.
    It is unique in the sense that defense attorneys are 
allowed to make a presentation at the charging stage before the 
committee. I think that is an important protection, and we know 
from the small number of statistics that we have that that 
process in and of itself is fair. And if that process is fair, 
I think the burden is then on those who would charge that the 
process of taking cases from State court to Federal court, 
which involves the same individuals, the same prosecutors, the 
same people at the Department of Justice, is how somehow 
radically unfair or infected with race. The burden is on those 
who would make that charge to prove it, and my personal 
experience suggests that it is not so.
    Again, I commend the Chairman for his interest in this 
issue. I think it is a very important issue. I think the 
committee's oversight has already assisted the Department in 
revising the protocol, and I would be happy to discuss my 
experience with the protocol or with prosecutions in the 
Eastern District of Virginia with the Chair and the committee.
    Thank you.
    [The prepared statement of Mr. McBride follows:]

                     Statement of Andrew G. McBride

                            I. Introduction

    Chairman Feingold, Senator Thurmond, distinguished Members of the 
Subcommittee, and learned colleagues. I am honored to appear before the 
Subcommittee today on the important subject of the fair and even-handed 
enforcement of the federal death penalty. By way of background, I am a 
former law clerk to Justice Sandra Day O'Connor. I served as an 
Associate Deputy Attorney General in the first Bush Administration, 
where I helped draft then-President Bush's crime control bill. I have 
testified several times before Congress regarding the federal death 
penalty and habeas corpus reform. I also served as a federal prosecutor 
for almost seven years in the United States Attorney's Office for the 
Eastern District of Virginia. As a prosecutor, I appeared twice before 
the Attorney General's capital case review committee, and I tried a 
fourdefendant capital case in federal district court in Richmond, 
Virginia in 1997.
    I believe that the death penalty serves an important role in the 
spectrum of penalties that the federal criminal justice system has 
available. Recent studies indicate the death penalty does in fact play 
a role in the general deterrence of capital crimes. See, e.g., 
Dezhbackhsh, Rubin & Shepherd, Does Capital Punishment Have a Deterrent 
Effect? New Evidence from Postmoritorium Panel Data, Department of 
Economics, Emory University (January 2001). We know the death penalty 
accomplishes specific deterrence, for it eliminates the possibility 
that a known-killer will kill again in prison or upon eventual release. 
The death penalty offers an additional measure of protection for our 
federal law enforcement officers--who are often faced with the prospect 
of arresting violent felons who are already facing life imprisonment. 
Most importantly, the death penalty sends a message of society's 
outrage and resolve to defend itself against the most heinous of 
crimes. As we have seen most recently in the McVeigh case, it gives 
survivors a sense of justice and closure that even life imprisonment 
without parole cannot accord.
    As a former prosecutor who has tried capital cases, and as a 
citizen, I share the concern of the Chairman and the entire 
Subcommittee that the death penalty be enforced in a fair, even-handed, 
and race-neutral manner. At the same time, I am wary of the misuse of 
race and racial statistics as a ``stalking horse'' for those who are 
opposed to the death penalty in all circumstances. Honest opposition to 
capital punishment on moral grounds is one thing, throwing charges of 
racism at federal law enforcement officers and federal prosecutors in 
order to block enforcement of a penalty the Congress has authorized and 
the American people clearly support, is another. I fear that some of my 
fellow panelists today have let vehement opposition to all capital 
punishment blind them to some simple facts about enforcement of the 
federal death penalty.

  II. There is no Credible Statistical Evidence of Racial Bias in the 
                Enforcement of the Federal Death Penalty

    The dangers of statistical analyses are perhaps best captured in 
the old saying ``Figures never lie but liars often figure.'' The 
Subcommittee should be very wary of the results of regression analysis 
or other statistical devices applied to capital punishment. No two 
capital defendants are the same. No two capital crimes are the same. 
Federal law and the Eighth Amendment require that juries be allowed to 
consider every aspect of the crime, the background and competence of 
the defendant, and even impact evidence regarding the victim, in 
arriving at the correct punishment. Regression analysis posits that 
each factor relevant to the imposition of the death penalty can be 
identified and then given an assigned weight, such that very different 
cases can be meaningfully compared. This premise is simply false. There 
are literally millions of legitimate variables that a prosecutor or 
jury could consider in seeking or imposing capital punishment. If we 
truly believed that they could all be identified and weighted, we would 
allow computers to deliberate and impose penalty. Instead, we quite 
properly rely upon human judgment, the judgment of the prosecutor, the 
death penalty committee in the Department of Justice, the Attorney 
General, the district court judge, and a fairly-selected jury from the 
venue where the crime occurred. In my opinion, and in my experience for 
seven years as a federal prosecutor, I saw no evidence that the race of 
defendants or victims had any overt or covert influence on this 
process. I believe the charge is fabricated by those who wish to block 
enforcement of the federal death penalty for other reasons.
    I would ask the Subcommittee to keep four points in mind as it 
evaluates these very serious, but, in my opinion, wholly unsupported 
charges. First, pointing to statistical disparities between racial 
percentages of capital defendants and racial percentages in the 
population at large is utterly specious. The population at large does 
not commit violent felonies--only a small percentage of both the white 
and non-white communities are ever involved in violent crime. The sad 
fact is that non-whites are statistically much more likely to commit 
certain crimes of violence that might lead to death penalty 
prosecutions. African Americans make up approximately 13 percent of the 
nation's population. Yet, according to the FBI's 1999 uniform crime 
reports, there were 14,112 murder offenders in the United States in 
1999, and of those offenders for whom race was known, 50 percent were 
black. Given that most murders are intraracial, it is not surprising 
that of the 12,658 murder victims in 1999, 47 percent were black.
    Capital crimes also are more likely to occur in urban areas that 
are more densely populated and tend to have higher minority 
populations. According to the FBI data, 43 percent of murders in 1999 
were recorded in the South, the most heavily populated area of the 
country. The same data shows that the Nation's metropolitan areas 
reported a 1999 murder rate of 6 victims per 100,000 inhabitants, 
compared to rates of 4 per 100,000 for rural counties and cities 
outside metropolitan areas.
    One cannot simply ignore these facts in evaluating the performance 
of our criminal justice system. Indeed, if the numbers of federal 
capital defendants of each race precisely mirrored their representation 
in society as a whole, that would be truly a cause for alarm. It would 
suggest real ``racial profiling'' in the death penalty.
    Second, the federal government does not have general jurisdiction 
over all violent crimes committed within its jurisdiction. From 1988 to 
1994, the only federal death available was for murder in relation to 
certain drug-trafficking crimes. See 26 U.S.C. Sec. 848(e). This period 
coincided with the worst drug epidemic in our Nation's history--the 
spread of crack cocaine from New York and Los Angeles to all our major 
urban centers. Most of the participants in the drug organizations that 
distributed crack cocaine were black, and most of the homicides 
connected with this drug trade were black-on-black homicides. 
Approximately half of the defendants presently on federal death row 
were convicted of a drug-related homicide.
    The Department of Justice study released last week indicates that 
the Eastern District of Virginia is a prime example of an area where 
the type of crime at issue and the needs of state and federal law 
enforcement have shaped the statistics. I was a prosecutor in that 
district for a period of seven years, and I can assure the Subcommittee 
that I never saw any racial bias in the investigation or charging 
stages by federal agents or prosecutors during my tenure there. 
Drugrelated homicide was a major problem in the urban areas of 
Richmond, Norfolk, and Virginia Beach. Many of these homicides were 
unsolved and had in fact been committed by interstate drug gangs with 
roots as far away as New York, Los Angeles, and even Jamaica. Joint 
task forces, composed of federal agents, state police, and local 
detectives investigated these cases under the supervision of federal 
prosecutors. Local leaders and politicians, including leaders of the 
African American community, welcomed this effort to focus federal 
resources on inner-city crimes and the unsolved murders of African-
American citizens. These prosecutions were a classic example of the 
federal government lending support where support was needed and 
requested and the crimes had a significant interstate element. The 
results of aggressive federal prosecutions have included cutting the 
murder rate in Richmond, Virginia in half from its high in the early 
1990's.
    Third, the available statistical evidence indicates that whites who 
enter the federal capital system (both pre- and post-1994) are 
significantly more likely to face the death penalty than minority 
defendants. Thus, even opponents of the federal death penalty seem to 
concede that there is no racial bias in the Department of Justice 
procedures for determining whether or not to seek the death penalty. 
Instead, they posit racial bias in the decision to take a case federal 
in the first place. It is obvious that these critics have never served 
as a state or federal prosecutor. The same federal prosecutors who make 
the initial intake decision regarding state or federal prosecution also 
make the initial decision on the death penalty and prepare the 
recommendation memorandum to the Attorney General's standing committee. 
The proposition that they are severely racially biased in the former 
(the intake decision when capital status is unsure) but are not biased 
in the latter (when the decision to seek the death penalty is actually 
made) is absurd. Intake decisions are made by supervisors in the United 
States Attorney's Offices, who often have fixed protocols with their 
state counterparts regarding certain crimes. The fact that a group of 
bank robbers is multi-jurisdictional, or that an organization's 
trafficking level of cocaine has gone above 10 kilograms of crack are 
factors likely to result in federal prosecution. Race is never a factor 
and the notion that federal law enforcement agents are making 
``racist'' intake decisions (by themselves) is a baseless charge that 
displays a shocking lack of knowledge of how our federal/state criminal 
justice system actually works.
    Fourth, the Subcommittee should not place any stock in statistical 
patterns or comparisons. A ``pool'' of approximately 700 federal 
capital cases is too small a cohort for any serious statistician to 
produce any reliable conclusions. Moreover, all such studies suffer 
from the flaw noted above--they assume that all the factors that 
influence capital punishment can be quantified. It is clear that they 
cannot be. Rather than focus on largely meaningless statistical games, 
we should focus on continuing and improving the procedures in place at 
the Department of Justice to ensure that every capital eligible crime 
is submitted and reviewed, and that every decision to seek the death 
penalty is fully justified by the facts and circumstances of the case.

                               Conclusion

    In my opinion as a former federal prosecutor, there is no racial 
bias in the federal capital system. The decision to seek federal 
prosecution itself is made by federal prosecutors based on largely 
fixed criteria regarding the interstate nature of the crime or other 
objective, non-racial factors. The decision to actually seek the death 
penalty for a capital eligible crime has several layers of review and 
includes a standing committee that ensures fairness and continuity. 
Statistical evidence is of little or no probative value in this area 
and is, in my opinion, being manipulated by those who simply oppose the 
federal death penalty for any crime. The American people overwhelmingly 
support capital punishment and Congress has made it available for a 
limited set of federal crimes. I believe that the Department of Justice 
has enforced these laws in an unbiased manner to date and that it will 
continue to do so under the leadership of Attorney General Ashcroft. I 
will be happy to answer any questions that the Members of the 
Subcommittee might have.

    Chairman Feingold. Thank you, Mr. McBride.
    Now, we will hear from Professor Samuel Gross. Professor 
Gross is currently a visiting professor at Columbia University 
Law School. He is a professor of law at the University of 
Michigan Law School and he has written widely on the subject of 
the death penalty over nearly two decades.
    Professor Gross, thank you for coming this morning.

  STATEMENT OF SAMUEL R. GROSS, VISITING PROFESSOR, COLUMBIA 
           UNIVERSITY LAW SCHOOL, NEW YORK, NEW YORK

    Mr. Gross. Thank you for having me, Mr. Chairman, Senator 
Sessions. I will try to be brief.
    The starting point of this problem, as you have mentioned, 
Mr. Chairman, is that Federal death row is now approximately 90 
percent minorities. Federal capital cases are overwhelmingly 
minorities, 75 or 80 percent. It is, of course, true that 
minorities are overrepresented on death rows across the Nation, 
but not to that extent. Whites are a majority of death row 
inmates in the States, but not in the Federal system.
    The question is, is this caused in whole or in part by 
discrimination? The answer is that we don't know, and the 
problem with the report that was submitted by the Attorney 
General last week is that it reaches a conclusion, the report 
and his testimony before the House Judiciary Committee, in 
which he said that he concluded that there is no racial bias in 
the way we are administering the Federal system. That 
conclusion is premature and not based on facts.
    Why? The big issue is the creation of the pool of cases 
that are tried in Federal court on charges that could be 
subject to the death penalty, what is colloquially known as 
``making a Federal case out of it.'' As we know, few cases are 
made into Federal cases; most are left to the State 
authorities. At that point, in the creation of that initial 
pool, large disparities are injected into the system, for 
reasons that have not been explained.
    How does this report respond to that? Well, they respond by 
examining only the cases that the Department of Justice did 
take on. If I can offer an analogy, Mr. Chairman, think of a 
firm that is charged with gender discrimination because they 
hire a workforce that is 90 percent men and they say, well, 
let's look at the people we hired. There is Mr. Smith; he got 
excellent evaluations from his previous employer, did a 
wonderful job. That is why we hired him, not because he is a 
man. And Mr. Jones had 10 years of experience; that is why we 
hired him, not because he is a man.
    We would immediately say, wait a second, we don't know 
about the female applicants that you didn't hire. They might 
have been just as qualified. That is what we have here, I am 
afraid. We don't know anything about the cases that the 
Department of Justice didn't take, and therefore we can't reach 
any conclusion about the cause of the disparities at that 
stage.
    What about what happens after that stage in the processing 
within the Department of Justice? Attorney General Ashcroft and 
Deputy Attorney General Thompson talked about this at some 
length.
    Let's talk about that same company. Let's say they now say, 
well, look at the female employees that we have hired. On 
average, they are paid more than the men. So, that shows that 
we are not discriminating. Well, we would say, wait a second, 
first we were talking about hiring discrimination, and it is 
perfectly possible to discriminate in hiring and then not 
discriminate in compensation.
    Second, that doesn't tell us that you are not 
discriminating in compensation. The few women that you hired 
may all be superstars; they may be much more qualified or more 
experienced than the men. Unless we know about these 
individuals and unless we know about the cases, we can't make a 
judgment on that. But that is all we have here.
    The report does offer some attempt to explain this 
basically on what is described as common experience. Deputy 
Attorney General Thompson in his remarks suggested repeatedly 
that some of the aspects of that common experience are not well 
known to us. But the basic explanation is that the Federal 
Government is focusing on drug trafficking and violence 
associated with drug trafficking which is carried on 
predominantly by minority gangs. But no evidence is offered to 
support this, except the say-so of the Department of Justice.
    As you have pointed out, Mr. Chairman, in the Eastern 
District where they make this statement in very strong terms, 
it appears to be, in fact, obviously false. Does that mean that 
there is discrimination? We don't know, but we need to learn by 
studying it.
    If I can draw an analogy, in 1991 here is what we knew 
about traffic stops on the New Jersey Turnpike. We knew that 
minorities were much more likely than whites to be stopped and 
searched by the New Jersey State Police. And the New Jersey 
State Police said that is not discrimination; that is based on 
appropriate law enforcement considerations. The New Jersey 
Attorney General said that.
    Now, 10 years later, we are in a different world. Now, the 
Governor of New Jersey, the Attorney General and the State 
Police themselves all agree that this was a program of 
discrimination, what we now call racial profiling and, 
incidentally, not one based on racism or some belief in white 
supremacy, but one put into place by law enforcement agents 
acting in good faith because they believed that that 
intentional focus on minorities was effective law enforcement.
    The reason we know that now is because the problem was 
studied over a period of years. Studies were conducted of how 
drives on that highway, how many people speed, what the 
policies of the New Jersey State Police are, how they decide 
who to stop and who to search. And after those studies, it is 
possible to reach this evaluation.
    Here, I am afraid the Attorney General has put the cart 
before the horse. He has concluded that there is no 
discrimination without the evidence, and the issues are, if 
anything, more important than they were with racial profiling 
on the highway.
    Thank you.
    [The prepared statement of Mr. Gross follows:]

 Statement of Samuel R. Gross, Visiting Professor, Columbia University 
                              Law School*

    Chairman Feingold, Senator Thurmond, Honorable members of the 
Subcommittee, thank you for inviting me to testify before you this 
morning. I have been asked to speak about race and the federal death 
penalty generally, and in particular about a recent report on this 
topic from the Department of Justice.

                               I. Summary

    On June 6, 2001 the Department of Justice released a report 
entitled The Federal Death Penalty System: Supplementary Data, Analysis 
and Revised Protocols for Capital Case Review (the ``Ashcroft Report 
''). This report follows a detailed study of the federal death penalty 
system that was released in September of last year, by former Attorney 
General Janet Reno. That earlier study found stark racial and 
geographic disparities in federal capital prosecutions. The most 
important was that the vast majority of federal capital defendants 
since 1988 have been African American or Hispanic.
    Announcing the release of the new report, Attorney General John 
Ashcroft said in testimony before the House Judiciary Committee: ``Our 
conclusion is, as the Reno study concluded, that there is no evidence 
of racial bias in the administration of the federal death penalty.'' In 
fact, the June 6 report provides no basis to conclude that the 
administration of the federal death penalty is free of racial 
discrimination. What's more, former Attorney General Reno did not reach 
that conclusion. On the contrary, she expressed deep concern about the 
racial patterns revealed in the DOJ's self examination, and she called 
for more detailed study by academic experts from outside the 
Department.
---------------------------------------------------------------------------
    *Samuel R. Gross is Thomas & Mabel Professor of Law at the 
University of Michigan Law School. He is an expert on criminal 
procedure, evidence, and the use of social science in legal 
proceedings. He has written extensively about the death penalty, 
including a book on racial discrimination in capital punishment (Death 
and Discrimination, Northeastern University Press, 1989, with Robert 
Mauro), and about the use of expert evidence in litigation.
---------------------------------------------------------------------------
    Attorney General Ashcroft seems to have concluded that an external, 
professional study of race and the federal death penalty is 
unnecessary. That is a serious mistake. Based on the evidence reported 
last September, there was every reason to be worried that racial 
discrimination might play a role in the use of the federal death 
penalty. The new report does nothing to change that.

                           II. The Reno Study

    On September 12, 2000 former Attorney General Janet Reno released a 
study entitled Survey of the Federal Death Penalty System (1988-2000) 
(the ``Reno Study '').\1\ Among others, the Reno Study reported the 
following findings:

    \1\ See http://Www.usdoj.govldaglpubdocldpsurvey.htmil.
---------------------------------------------------------------------------
         The Department of Justice sought the death penalty 
        against 206 defendants from 1988 through 2000. Of these 75% 
        (155) were minorities (and 51% (105) were African Americans); 
        only 25% (51) were white. Reno Study pp. 23-24, Table (``T'') -
        245, T-266.
         Of 19 defendants under a federal sentence of death as 
        of July 20, 2000, 79% (15) were minorities and 68% (13) were 
        African American; only 21% (4) were white. Reno Study p. 36. By 
        contrast, as the study points out, 55% of state death row 
        inmates across the country at the end of 1998 were white, and 
        63% of the 505 inmates executed in the United States from 1988 
        through 1999 were white. Id. at p. 36 n.28.\2\
---------------------------------------------------------------------------
    \2\ That disproportion has since become even more extreme, as a few 
new defendants have joined federal death row, and a few others have 
been removed by the courts, or, in the case of Mr. McVeigh, by 
execution. As of today, 18 of 20 of Federal capital defendants-90%--are 
minorities.
---------------------------------------------------------------------------
         These racial disparities are generated primarily at 
        the early stages of federal capital cases. Thus, among the 235 
        defendants for whom United States Attorneys recommended seeking 
        the death penalty from 1988 through July, 2000, 77% (180) were 
        minorities (and 51% (120) were African American), while only 
        23% (55) were white. Reno Study, T-5, T-6. For the death 
        penalty ``protocol'' period separately (1995-2000) the pattern 
        is nearly the same: United States Attorneys recommended capital 
        charges for 183 defendants, of whom 26% (48) were white and 74% 
        (135) were minorities, including 44% (81) African Americans. 
        Id. p.12. In fact, the major problem seems to occur in the 
        initial selection of cases for federal prosecution on capital-
        eligible charges. Of 682 such cases across the country from 
        1995 through July, 2000, 80% (548) involved minority defendants 
        (and 48% (324) involved African American defendants), while 
        only 20% (134) involved white defendants. Id. at T-6.

    The DOJ report also contains many other troubling items. For 
example, since 1995 only 49 of the 94 United States Attorney offices 
have recommended any capital prosecutions (Reno Study, p. 12); 21 
districts did not even file charges in a single capital-eligible case. 
Id. At the other end of the spectrum, the Eastern District of Virginia 
sought the death penalty against 21 of 66 defendants in potentially 
capital cases filed from 1995 through 2000. Id. at T-41. At the end of 
the judicial process, 12 of the 19 men on federal death row as of July, 
2000, were sentenced in the South, including 6 from Texas and 4 from 
Virginia. Id. at T-307-T-309. There were also pronounced disparities by 
race of victim. For example, United States Attorneys were twice as 
likely to recommend capital punishment for black defendants charged 
with killing white victims (22 out of 55, or 40%) as for black 
defendants charged with killing black victims (46 out of 227, or 20%). 
Id. T-67.
    When the Reno Study was released, Attorney General Reno and Deputy 
Attorney General Holder conducted a press conference. The Attorney 
General summarized the key findings of the study, expressed her concern 
about them, and described some of the study's limitations, including 
the absence of information on why the defendant was ``arrested and 
prosecuted by federal authorities rather than state authorities,'' and 
why ``the U.S. attorney submitt[ed] the case for review rather than 
enter a plea bargain.'' She added that:

        ``More information is needed to better understand ... how 
        homicides make their way into the federal system, and once in 
        the federal system, why they follow different paths. An even 
        broader analysis must be undertaken to determine if bias does, 
        in fact, play any role in the federal death penalty system.''

    She called for studies by experts outside the Department. Later, in 
response to a question, Attorney General Reno amplified this point: 
``[W]e want to continue to do everything we can to expose any bias if 
it exists. But at this point, we are troubled by the figures, but we 
have not found the bias.''

        Deputy Attorney General Holder was equally explicit:
        ``I am a career law-enforcement officer. . .I have approved the 
        death penalty in several cases. But I can't help but be both 
        personally and professionally disturbed by the numbers that we 
        discuss today. . . .[N]o one reading this report can help but 
        be disturbed, troubled by this disparity. We have to be honest 
        with ourselves. Ours is still a race-conscious society, and yet 
        people are afraid to talk about race.''

    The present Attorney General, John D. Ashcroft, in response to 
written questions submitted to him as part of his confirmation hearing 
before the U.S. Senate Judiciary Committee, echoed the sentiments of 
Ms. Reno and Mr. Holder. For example, Senator Russel D. Feingold asked: 
``Are you troubled by the fact that about 75% of those against whom the 
Department of Justice seeks the death penalty are people of color or 
ethnic minorities, even though far less than 75% of the people who 
commit federal capital crimes are people of color and ethnic 
minorities?'' and Attorney General Designate Ashcroft answered: ``Yes, 
it troubles me deeply.'' Asked to comment on Ms. Reno's statement that 
further studies are needed ``to determine if bias does in fact play a 
role in the federal death penalty system,'' Mr. Ashcroft said: ``I 
fully agree that the Department of Justice should do everything 
necessary to eliminate any racial bias from the federal death penalty 
system, including undertaking all reasonable and appropriate research 
necessary to understand the nature of the problem.'' Attorney General 
Ashcroft also stated that ``federal law should be applied uniformly 
across the country,'' and promised to help ensure that, if 
confirmed.\3\
---------------------------------------------------------------------------
    \3\ z http://www.senate.gov/-Ieahy/press/200I01/ashcroft.html
---------------------------------------------------------------------------

                 III. The National Institute of Justice

    On January 10 of this year the National Institute of Justice 
convened a meeting of practitioners, researchers and government 
representatives, to discuss the federal death penalty. The main purpose 
of the meeting was to discuss how best to proceed to conduct the study 
that Attorney General Reno requested. I attended that meeting.
    The Ashcroft Report (p.12) says that the discussion at that meeting 
``indicated'' that such a study ``could not be expected to yield 
definitive answers concerning the reason for disparities in federal 
death penalty cases.'' This description is puzzling. The researchers at 
the meeting did not talk in these terms, which have a peculiar lawyerly 
ring.\4\ (What is a ``definitive'' answer? Do we have ``definitive'' 
evidence that nicotine is addictive?) In fact, the clear consensus at 
the meeting was that a thorough and highly informative study of the 
federal death penalty could be done, given the resources and the will.
---------------------------------------------------------------------------
    \4\ The report lists no author(s), so it is unclear who provided 
the information on which this description is based.
---------------------------------------------------------------------------
    The Ashcroft Report correctly states that the researchers present 
saw this study as a ``multi-year'' project. The general estimate was 
two years. The main requirement that was discussed, in addition to 
funding, was cooperation from the Department of Justice. As I recall, 
the representatives of the Department who were present were strongly 
opposed to the notion of providing information on federal capital 
charging for such a study, regardless of any guarantees of 
confidentiality that were discussed by the researchers and that are 
available by statute under the authority of the NIJ. Excellent studies 
of capital charging and sentencing have been completed in several 
states, using data from a wide range of state agencies. With DOJ 
cooperation, the same could be done for the federal system.
    The NIJ representatives present on January 10 said that they were 
committed to going ahead with this study, and promised to keep the 
participants at the meeting informed of their plans. Since then, I have 
heard nothing from the NIJ on the matter. In his testimony before the 
House Judiciary Committee, Attorney General Ashcroft said that he had 
already concluded ``that there is no racial bias in the way we are 
administering the death penalty in the federal system.'' I believe this 
conclusion is unsupported, as I will explain. Given that conclusion, 
Mr. Ashcroft seems to have decided that there is no need to proceed 
with the study that Ms. Reno requested in order ``to determine if bias 
does, in fact, play any role in the federal death penalty system.'' 
Instead, he announced that:

        ``[IJn order to assure public confidence and guarantee that our 
        future efforts in the enforcement of the federal death penalty 
        are consistent with the high standards of fairness that are 
        required in charging, trying and sentencing those accused of 
        federal death-eligible murders, I am directing today that the 
        National Institute of Justice initiate a study of how death 
        penalty cases are brought into the federal system.'' (Emphasis 
        added.)

    To summarize: Former Attorney General Reno requested a study by 
outside experts to determine whether there is racial bias in the 
system; a meeting was convened by the NIJ, the study was discussed, and 
we were assured that it would take place; no action was taken on the 
proposed study; despite the absence of the planned study, Attorney 
General Ashcroft concluded that there is no racial discrimination; he 
then proposed a similar sounding study, on a problem that he has 
already stated does not exist, for the explicit purpose of generating 
``public confidence''. I know no independent researcher who would agree 
to conduct a study under these circumstances.

                        IV. The Ashcroft Report

    The most striking thing about the Ashcroft Report is how little new 
material it contains. The new information in this report consists of 
two things:
        (1) Information on 291 additional potentially capital federal 
        cases that were not included in the Reno Study. Unlike the Reno 
        Study, the Ashcroft Report provides few details on these new 
        cases. It seems, however, that the great majority of these new 
        cases are comparatively low severity crimes that were initially 
        omitted because the defendants had pled guilty to non-capital 
        offenses before capital charges were ever filed. Ashcroft 
        Report, n. 10.
        (2) The DOJ's own explanations for the racial disparities in 
        federal capital prosecutions, in general and in four selected 
        federal districts.
    These items add nothing of substance to the Reno Study. As a 
result, the Ashcroft Report does not support any new conclusions about 
the administration of the federal death penalty.

    1. initial federal charging and later stages of the prosecution
    Federal prosecutors occupy an unusual position in our system. For 
state prosecutors, charging in most homicide cases is automatic. If 
someone has been killed and there is good evidence against a known 
suspect, they almost always file charges (although not necessarily 
first degree murder). But nearly all federal crimes can also be 
prosecuted locally, so the Department of Justice can pick and choose a 
small number of cases and leave the rest to state authorities. The most 
conspicuous racial disparities in the use of the Federal death penalty 
are generated at this initial step. The pool of potentially capital 
cases that are selected for federal prosecution consists overwhelmingly 
of minority defendants, and nothing that happens later does much to 
change that stark disparity. That is why Attorney General Reno asked 
for additional information on ``how homicides make their way into the 
federal system.''
    The Ashcroft Report purports to study this issue without looking at 
the much larger universe of cases in which federal capital charges 
could have been filed, but were not. It cannot be done. Whatever this 
report may be, it is not the sort of factual research that any scholar 
would ever rely on.
    Imagine a company that is charged with gender discrimination for 
hiring a workforce that is 90% male. What if they responded by talking 
only about the men they did hire: ``Mr. Smith had ten years of 
experience, so that's why we hired him, not because he's a man; Mr. 
Jones did an outstanding job for his previous employer;'' and so forth. 
The immediate reaction would be: ``That's no good. You have to tell me 
about the female applicants that you didn't hire. For all we know they 
were just as qualified.'' But that is just what the Department of 
Justice did not do. For all we know there were many white defendants 
with cases just as suitable for Federal prosecution as the minority 
defendants who were charged, or more so.
    The Ashcroft Report emphasizes that among cases that are charged as 
federal capital crimes, the death penalty is sought more frequently for 
white defendants than for minority defendants. In his testimony on June 
6, Attorney General Ashcroft relied on this finding repeatedly as 
evidence of lack of discrimination. This finding is not new--the same 
pattern was reported last September--and it does not show lack of 
discrimination.
    What if the same company we discussed before said: ``Look, we pay 
our female employees just as much as our male employees. Clearly we 
don't discriminate by gender.'' Nobody would believe it. We'd answer: 
``Wait a second. Maybe that shows that you don't discriminate in pay; 
but you were charged with discrimination in hiring.'' And yet this is 
the substance of the argument on this point in the Ashcroft Report and 
in the Attorney General's testimony.
    It is, of course perfectly possible that the DOJ does discriminate 
by race in the initial intake decision on who to prosecute on capital 
charges, and then does not further discriminate among those who are 
chosen for federal prosecution. In fact, it would not be surprising. 
The Ashcroft Report focuses on the professionalism of Assistant United 
States Attorneys, the lawyers who make the legal decisions once a case 
has been taken on. But the initial decision to undertake a federal 
investigation is often made by law enforcement agents rather than 
prosecutors, by the FBI or the DEA rather than the United States 
Attorneys. Perhaps these two sets of DOJ employees have different 
patterns of behavior.
    In general, it is impossible to conclude anything about 
discrimination from the proportions of cases that are treated in a 
particular manner without detailed information on those cases. The 
imaginary firm I mentioned could discriminate against its female 
employees in compensation, even if they are paid more on average than 
the men, if the few women it hires are far more skilled and experienced 
than most of the men. This report provides essentially no information 
about the characteristics of the cases that were prosecuted federally. 
As a result, we cannot know why DOJ lawyers asked for the death penalty 
in some but not others.
    The new data that are included in the Ashcroft Report illustrate 
how little can be learned from aggregate numbers like these. The Reno 
Study reported that among those charged with federal capital offenses 
from 1995 through 2000, the death penalty was sought for 38% of the 
white defendants, 25% of the black defendants, and 20% of the Hispanic 
defendants. Reno Study, p. 7. In the Ashcroft Report, the corresponding 
percentages are 27% for whites, 17% for blacks, and 9% for Hispanics. 
Do these new figures--which show that Hispanics are only \1/3\ as 
likely as whites to face the death penalty--provide new evidence of 
absence of discrimination against Hispanics, or even of discrimination 
in their favor? Not at all.
    As I mentioned, it appears that most of the 291 new cases that are 
added in the Ashcroft Report are comparatively low seriousness cases in 
which the defendant was allowed to plead guilty to non-capital charges. 
We also know that 53% of all the 291 new cases involve Hispanic 
defendants. See pie chart attached to Ashcroft Report. As result, the 
proportion of Hispanic federal defendants in capital eligible cases 
increased from 29% in the Reno Study (p.6) to37% in the Ashcroft Report 
(n.10), mostly by adding low aggravation cases. Inevitably, the 
proportion of death charges went down.
    Does this decrease in the percentage of death charges for Hispanics 
mean there has been a decrease in discrimination against them? Consider 
a police department that is charged with racial profiling because 70% 
of the tickets it issued were given to minorities. What if they said: 
``But wait. There's another batch of cases where we just gave warnings, 
and those drivers were 90% minorities. So, overall, among all the 
drivers we stopped, minorities were less likely than whites to get 
tickets rather than warnings.'' Would anyone take this defense 
seriously? Unfortunately, the Ashcroft Report's use of numbers is no 
more convincing.

     2. explanations for the racial disparities in federal charging
    The Ashcroft Report does offer some explanations for the racial 
disparities in federal death cases, but they are unsupported by data. 
The main one is that federal prosecutors target crimes associated with 
drugs, and that in the districts where they do so most actively 
``organized drug trafficking is largely carried out by gangs whose 
membership is drawn from minority groups.'' Ashcroft Report, p.3. No 
evidence is offered for this sweeping assertion.
    The report goes into some detail about federal capital prosecutions 
in the Eastern District of Virginia. Ashcroft Report, pp. 16-18. This 
is a natural choice. Overall, 26 of the 206 federal cases in which the 
death penalty was requested from 1988 through July 2000 were from this 
one district, 13% of the national total. Reno Study, T-203 and T-207. 
All of these 26 death penalty defendants were African American.
    Most of the potentially capital federal cases in the Eastern 
District of Virginia are homicides in the course of drug trafficking. 
The Ashcroft Report explains why there are no whites among the 34 
federal defendants charged with capital murder for drug-related 
killings in that district:

        ``[T]he members of the drug gangs that engage in large-scale 
        trafficking in the Eastern District of Virginia are not 
        white.'' Ashcroft Report, p.17.

    How does the Department of Justice know that all major drug 
traffickers in that entire district from Arlington to Norfolk to 
Richmond--are minorities? The report does not say. Are we supposed to 
accept this extraordinary statement on faith?
    Worse, this explanation has a depressingly familiar ring. Police 
departments that are charged with racial profiling sometimes respond: 
``It's not discrimination. We're stopping and searching mostly black 
and Hispanic drivers because we're looking for major drug traffickers, 
and they're all black and Hispanic.'' Is something similar going on 
here? Are Federal law enforcement agencies, the FBI and the Drug 
Enforcement Administration, searching for African American and Hispanic 
drug dealers because they think they know that the worst drug 
traffickers are all black or Latin American? Are the racial disparities 
in Federal capital prosecutions a manifestation of race-specific drug 
investigations? We don't know, and this report does nothing to allay 
our fears.

    Chairman Feingold. Thank you, Professor Gross.
    Our next witness is James Fotis. Mr. Fotis is the Executive 
Director of the Law Enforcement Alliance of America. The LEAA 
is a non-profit advocacy organization with more than 65,000 
members, representing law enforcement professionals, crime 
victims and concerned citizens.
    Mr. Fotis, we are pleased you could be here today and you 
may proceed.

     STATEMENT OF JAMES J. FOTIS, EXECUTIVE DIRECTOR, LAW 
    ENFORCEMENT ALLIANCE OF AMERICA, FALLS CHURCH, VIRGINIA

    Mr. Fotis. Good afternoon, Mr. Chairman. I would like to 
thank you and the members of the Committee for having me here 
today on behalf of the more than 65,000 members and supporters 
of the Law Enforcement Alliance of America. I respectfully 
submit the following testimony as the position of the Law 
Enforcement Alliance of America with respect to capital 
punishment in the United States and questions as to the 
possible racial disparities in such sentencing.
    However, before I go forward with my formal testimony, I 
have a letter directed to you, Mr. Chairman, from one of our 
Federal law enforcement officers.
    It says, ``Dear Mr. Chairman, as a former Federal law 
enforcement officer, I have seen the need for appropriate 
punishment in our criminal justice system. On those rare 
occasions when we are confronted by the most horrible criminals 
and their murderous deeds, it is extremely important to have a 
punishment that fits the crime--capital punishment. Death 
penalty opponents have made all sorts of attacks on the death 
penalty in order to see it abolished. One such attack is based 
on claims of racial bias. I am an African-American, a law 
enforcement officer, but most importantly an American citizen. 
It is my utmost concern that we have a fair and effective 
justice system, and capital punishment is part of that system. 
I urge you not to let those who cry `wolf' over race and 
capital punishment convince you to support a moratorium on the 
death penalty. Their concerns are not for racial justice, as 
they would oppose the death penalty with any excuse they can 
find. One of the most fundamental principles of our justice 
system is that the application must be color-blind. So should 
the preservation of justice. Those violent criminals facing the 
death penalty should not be judged, counted or queried based on 
the color of their skin, but on their guilt or innocence. I 
urge you not to let unproven allegations revoke the justly 
given sentences of those whose crimes are proven.'' And it is 
signed Kenneth F. Blanchard.
    The Law Enforcement Alliance of America has long been a 
firm believer in the importance of capital punishment as a 
critical part of America's criminal justice system. This 
sentence is held out for those extremely horrific and rare 
cases that warrant such profound punishment.
    Capital punishment in America is a rarely exercised 
discretion, saved for the most heinous of crimes. Those guilty 
of such crimes and sentenced to capital punishment have the 
greatest protections of due process and appeal. Our justice 
system is second to none in protections afforded the accused.
    The right to remain silent, the right to have counsel 
provided by the state, the right to a jury of one's peers, and 
the right to extensive appeal are just some of the careful 
measures that make our system the most sensitive and protective 
in the world. No nation does more to protect the rights of the 
accused.
    Capital punishment is defined by statute to be reserved for 
only the most extreme and horrible crimes. In fact, for our 
most serious crime of murder, less than 1 percent result in the 
killer receiving a sentence of capital punishment.
    In addition to full discretion in sentencing, every 
possible measure of appellate protection is afforded to those 
sentenced to capital punishment. Evidence of the overwhelming 
appellate protections granted to convicted murderers under 
sentence of death since the U.S. Supreme Court reinstated 
capital punishment in 1976 is shown by the fact that only 90 
percent of those sentenced to death have had their sentences 
carried out. The average time on death row is more than 10 
years.
    Contrary to the claims of those who wish to abolish the 
death penalty, the majority of prisoners on death row are white 
males. In a report to President Clinton in September of 2000, 
then Attorney General Janet Reno noted that with regard to 
capital punishment in the Federal system, in cases eligible for 
capital punishment, the Government sought the death penalty at 
a higher rate for whites than minorities.
    Anti-death penalty advocates; only response to these facts 
are baseless and shameful racist accusations that law 
enforcement officers are somehow selectively apprehending 
criminals based on the color of their skin. These claims are an 
insult to the men and women of all colors who serve their 
communities as law enforcement officers.
    The only statistical indications available to make the 
claim of racial bias with regard to the death penalty are those 
that show minorities are represented on death row in higher 
proportions than their representation in the general 
population. These findings are mirrored in minority 
representation among the general prison population and show 
that these figures have nothing to do with capital punishment.
    Conversely, the same method of statistical analysis of the 
death penalty that opponents use to make claims of racial bias 
is far more suited to assert a claim of gender bias, as males 
make up a far greater proportion of our death row inmates than 
they do of the general population. Anti-death penalty activists 
do not make claims that the death penalty is sexist because 
they know there is no willingness among the public to believe 
such nonsense, even though the numbers are far more favorable 
than the arguments of a racist death penalty.
    Finally, I would like to specifically address the idea of a 
moratorium on the death penalty and the threat of withholding 
Federal prison grants to enforce such a demand. As I have 
stated earlier, the average time for a death row inmate 
awaiting sentence is approximately 10 years. This is ample time 
to exhaust all manner of legal protections on a case-by-case 
basis.
    We are adamantly opposed to granting a universal reprieve 
to all those justly convicted and properly sentenced to death 
for the purpose of conducting even more studies in the area of 
racial bias and death penalty. Every person under the sentence 
of death in this country should have their case judged on an 
individual basis and not granted the opportunity to escape 
their sentence based on obscure, overly broad or racist 
accusations against the death penalty.
    Each of these individuals has been found guilty and 
sentenced in accordance with the law. Any effort to avoid that 
sentence must come from the facts of their own individual case 
and be conducted in our court system, a court system, I might 
add, which grants that anyone under the sentence of death who 
can make a showing that the prosecutor or other decisionmaker 
in the case acted on the basis of racial or ethnic bias is 
entitled to relief from a capital sentence.
    Further, for the Federal Government to put prison funding 
in jeopardy by holding Federal prison grants hostage to demands 
over the death penalty threatens not only the legal rights of 
each individual State to set forth and carry out their own 
system of capital punishment, but endangers the operation of 
prisons that house criminals convicted of other types of 
crimes.
    Thank you.
    [The prepared statement of Mr. Fotis follows:]

   Statement of James J. Fotis, Law Enforcement Alliance of America 
                           Executive Director

    Chairman Feingold, Members of the Senate Committee on the Judiciary 
Subcommittee on Constitution, Federalism end Property Rights;
    On behalf of the more than 65,000 members arid supporters of the 
Law Enforcement Alliance of America. I respectfully submit the 
following testimony as the position of the Law Enforcement Alliance of 
America (LEAA) with respect to capital punishment in the United States 
and questions as to possible racial disparities in such sentencing.
    The Law Enforcement Alliance of America has long been a firm 
believer in the importance of capital punishment as a critical pan of 
America's criminal justice system. This sentence is held out for those 
extremely hortifie and rare cases that warrant such profound punishment
    Capital punishment in America is a rarely exercised discretion 
saved for the most heinous of crimes. Those guilty of such crimes sod 
sentenced to capital punishment have the greatest protections of due 
process and appeal.
    Our justice system is second to none in protections afforded the 
accused. The right to remain silent, the right of counsel provided by 
the state and the right to a jury of one's pecans with sentences 
subject to extensive appeal are just some of the careful measures that 
make our justice system the most sensitive and protective in the world. 
No nation doves more to protect the rights of the accused.
    Capital, punishment is defined by statute to be reserved for only 
the most extreme and horrible crimes. ht Fact, for our most serious 
crime of murder, less than 1 % result in the fcillor receiving a 
sentenet of capita punishments.\1\
---------------------------------------------------------------------------
    \1\ FBI Uniform Crime Reports, 1999
---------------------------------------------------------------------------
    In addition to the careful discretion in sentencing, every possible 
measure of appellate protection is afforded to those scntencod to 
capital punishment. Evidenrx of the overwhelming appellate protections 
granted to convicted murderers under sentence of death is the fact that 
since the U.S, Supreme Court reinstated capital punishment in 1976, 
only 9% of those sentenced to death have had their sentences carried 
out.\2\ The average time on death row before a sentence is carried out 
is over ten years.\3\
---------------------------------------------------------------------------
    \2\ USDOJ, OJP-BJS '`Capitol Punishment 1999'' December 2000 NCJ 
184795
    \3\ USDOJ, OJP-13 JS ``Capitol Punishment 1999'' December 2000 NCJ 
184795
---------------------------------------------------------------------------
    Contrary to the claims of those who wish to abolish the death 
penalty, the majority of prisoners on death roar are white males.\4\ In 
a report to President Clinton in September of 2000, then-Attorney 
General Janet Rcno noted that with regard to capital punishment in the 
fcdcral system, in cases eligible for capital punishment, the 
government sought the death penalty at a higher rate for whites than 
for minorities.\5\ Anti-death penalty advocates' only response to those 
facts are basclcss and shmreful racist accusations that law enforcement 
offlcers are somehow selectively apprehending criminals based on the 
color of their skin. These claims are an insult to the men and women of 
all colors who serve their communities as law enforcement officers.
---------------------------------------------------------------------------
    \4\ USDOJ, OJP-BJS ``Prisoners in 1999'' August 2000 NCJ 193476
    \5\ USDOJ, ``Fedcral Death Penalty System Review'' September 12, 
2000
---------------------------------------------------------------------------
    The only statistical indications available to make a claim of 
racial bias with regard to the death penalty are those that show 
minorities represented on death row in higher proportions than their 
representation in the general population. These findings are mirrored 
in minority representation among the general prison population and show 
that these figures have nothing to do with capital punishment.
    Conversely. the same method of statistical analysis of the death 
penalty that opponents use to make claims of racial bias is far more 
suited to asset a claim of gender bias. As males make up a far greater 
proportion of death row inmates than they do the general population. 
Anti-death penalty activists do not make claims that the death penalty 
is sexist because they know there is no willingness among the public to 
believe such nonsense, even thought the nurnbors are more favorable 
than the arguments of a racist death penalty.
    Finally, I would like to specifically address the idea of a 
``moratorium' on the death penalty and the threat of withholding 
fcdcral prison grdnts to enforce such a demand. As I have stated 
earlier, the average time on death row for an inmate awaiting sentence 
is approximately ten years. This is ample time to exhaust all manner of 
legal protections on a case by case basis. We are adamantly opposed to 
granting a univwsdl reprieve to all those justly convicted and properly 
sentenced to death for the purposes of conducting even more studies in 
the area of racial bias and the death penalty.
    Every person under sentence of death in this country should have 
their case judged on an individual basis and not be granted the 
opportunity to escape their sentence based on obscure, overly broad or 
racist accusations against the death penalty process. Each of these 
individuals has been found guilty and sentenced in accordance with the 
law. Any effort to avoid that sentence must come firm the facts of 
their own individual cases and be conducted in our court system. A 
court system I might add which grants that anyone under sentence of 
death who can make a showing that chc prosecutor or other decision 
makers in the case acted an the basis of racial or ethnic bias is 
entitled to Tchef from a capital sentence.\6\
---------------------------------------------------------------------------
    \6\ McCesKey v. Kemp, 481 U.S. 279, 309 do x30 (1987).
---------------------------------------------------------------------------
    Further. for the Federal Government to put state prison Rending in 
jeopardy by holding federal prison grants hostage to demands over the 
death penalty threatens not only the legal tights of each individual 
state to set forth and carry out their own system of capital punishment 
but endangers the operation of prisons that house criminals convicted 
of all other types of crimes.

    Chairman Feingold. Thank you, Mr. Fotis. I just need to 
clarify something here. You talk about the withholding of 
Federal prison grants to enforce a moratorium on executions. 
For the record, the moratorium bill I have introduced doesn't 
do that and we have no intention of doing that.
    Mr. Fotis. We understood that the bill was leaning toward 
that direction to withhold.
    Chairman Feingold. It is not in the bill, and I think I 
have done the only moratorium bill in the Senate, just to 
clarify that.
    Mr. Fotis. OK.
    Chairman Feingold. There is not a whole lot of them. Thank 
you, though, sir.
    Our last witness is David Bruck. Mr. Bruck is a defense 
attorney in private practice, in Columbia, South Carolina, 
specializing in capital cases. He serves as one of the three 
Federal Death Penalty Resource Counsel to the Federal Defender 
System nationwide. He has represented capital defendants in 
more than 15 trials, has handled more than 60 capital appeals 
in State and Federal courts, and has argued 6 death penalty 
cases in the United States Supreme Court.
    Mr. Bruck, I thank you for coming as well and for your 
patience.

  STATEMENT OF DAVID I. BRUCK, FEDERAL DEATH PENALTY RESOURCE 
               COUNSEL, COLUMBIA, SOUTH CAROLINA

    Mr. Bruck. Thank you very much, Mr. Chairman.
    As one of the three Federal Death Penalty Resource Counsel, 
I have been involved in greater or lesser extent in virtually 
every Federal death penalty prosecution in the last 10 years in 
the entire country, from the Virgin Islands to Alaska, to 
Hawaii, to Boston, and everywhere in between. So I suppose I am 
something like Mr. McBride's counterpart, and I want to for a 
couple of minutes talk to you about what this problem looks 
like from the ground level, where the cases are being tried.
    Part of the work we do in trying to assist on the defense 
side is to monitor the cases, see where they are being brought. 
Early on, in 1992, 1993, 1994, we noticed something very 
strange, which was that the Federal death penalty system that 
was just then coming into being seemed to only involve minority 
defendants, black and Hispanic, and only a tiny handful of 
white defendants, and that that was different than the State 
systems. It was more all-minority than Alabama, than 
Mississippi, than South Carolina, where I have most of my 
experience. It was something new and quite odd.
    Before long, we discovered that the Justice Department had 
been tracking these numbers, as we had, and that they had the 
same numbers that we did. Because of the McCleskey decision, it 
has proven extremely difficult to challenge or even to get 
discovery of this issue in the courts. But in September 2000, 
the Attorney General did something very unusual, which was that 
she and the Government faced up to the situation and said there 
was going to be a reckoning.
    Now, we hear that while the research might go on, there is 
no unfairness in the system. Yes, it appears to be an all-
minority system, but that is just because that is who commits 
the crimes, or at least that is who happens to commit the 
crimes that we as the Federal Government think are worth 
prosecuting in Federal court. Now, that may be true, but we 
don't know.
    It is familiar to me. A little while before I undertook 
this 10-year project, I made a trip to South Africa in 1986 and 
studied and researched how South Africa at that time used the 
death penalty, because they were the only country with a 
Western judicial system that used the death penalty as a 
routine part of its criminal justice system and I thought we 
might learn something from their experience.
    That was during the days of the apartheid regime. The South 
African system at that time executed 120, 140, 160 people a 
year. Ninety-eight percent of the people they hanged in South 
Africa every year were non-whites. But everybody you talked to 
in the system, including some very liberal judges whom I would 
talk to, stoutly denied there was any racial discrimination 
going on. What they said was that is just who commits the 
crimes. This isn't discrimination. What do you want us to do, 
hang people by a quota system so that it won't look so bad?
    Now, that also may have been largely true. There was much 
more crime in the black townships under the apartheid regime, 
and still today, than in the rich white suburbs in South 
Africa. But would anyone have taken the word of the South 
African regime without looking in great detail at how the 
system actually processed the cases? Of course not.
    Probably, if there had ever been a study in South Africa, 
it would turn out that that was partly true. There was some 
discrimination and there was also some actual disparity in the 
rates of crime, and both sides had a point. But certainly there 
was discrimination in the system that produced these remarkably 
racially one-sided results.
    I have the feeling that when the day comes when finally a 
thorough and adequate and reliable study of the Federal death 
penalty system is done, we will find that there is some merit 
on both sides. But what that will mean is that, yes, there is 
discrimination in the system, perhaps not as much as the raw 
numbers would suggest, but nevertheless. My point is that we 
don't know and we had better find out, and we had better find 
out before we press ahead with executions of people that have 
been put there in this way.
    Now, that is for the 20 people who are on death row 
already. What about the future? You are charged not only with 
making sure that we don't execute people unfairly, but also how 
are we going to get out of this mess in the future. There is a 
reason why the death penalty 30 and 40 years ago in the Federal 
system involved predominantly white defendants and why it 
involves, I think, predominantly black and Hispanic defendants 
now, and it has to do with some non-racial reasons.
    The Federal death penalty now overlaps with the State 
system in a way that it didn't used to. It used to be that 
there was a Federal interest for bringing each of those cases. 
It was a narrow death penalty. Now, it is very broad.
    I would suggest that for the future, if the Department of 
Justice adopts a stringent Federal interest standard and only 
seeks the death penalty in cases that are truly attacks on the 
Federal Government--and the Oklahoma City bombing is a pretty 
good example of such a crime--you will find that we will have a 
smaller Federal death penalty like we used to have, but that it 
also will not be characterized by these stark racial 
disparities. Now, I can't prove that either, but that is a 
proper subject for the National Institute of Justice to analyze 
and try to figure out.
    In the end, the South African regime declared a moratorium 
by President DeClerc. Because of the fact that it was costing 
that country terribly in the court of world opinion to have a 
death penalty like that. He did it on the very same day that he 
announced the freeing of Nelson Mandela and recognized the 
African National Congress. It was part of the process of 
democratization.
    We must in this country also have a reckoning, and I hope 
it will come soon because this is costing us a great deal. We 
cannot afford to divide our people when we are in the face of 
violent crime.
    Thank you.
    [The prepared statement of Mr. Bruck follows:]

 Statement of David I. Bruck, Federal Death Penalty Resource Counsel, 
                        Columbia, South Carolina

              Administration of The Federal Death Penalty
    Chairman Feingold, Senator Thurmond, I would first like to thank 
you for the opportunity to appear before the Subcommittee today as you 
consider the grave questions surrounding how the federal government has 
been implementing the death penalty statutes passed by Congress since 
1988.

   1. HOW THE PROBLEMS OF RACIAL DISPARITY AND ARBITRARINESS EMERGED

    I have been a criminal defense attorney in Columbia, South 
Carolina, for the past 25 years, and have been a close observer of the 
federal death penalty for almost a decade, beginning in 1992. In 
January of that year, the federal defender system contracted with me 
and Kevin McNally, a colleague in Frankfort, Kentucky, to provide 
expert assistance on as ``as-needed'' basis to federal defenders and 
courtappointed counsel in federal capital cases brought under the Anti-
Drug Abuse Act of 1988, 21 U.S.C. Sec.  848(e). Over the nine-and-a-
half years since then, Mr. McNally and I (joined in 1997 by a third 
lawyer, Richard Burr of Houston, Texas), have worked roughly half-time 
in assisting counsel who have been appointed to defend the increasing 
numbers of federal death penalty prosecutions brought under Sec. 848(e) 
and later under the Federal Death Penalty Act of 1994 (18 U.S.C. 
Sec. 3591 et sea.). In addition to working with individual 
courtappointed lawyers, our responsibilities as Resource Counsel 
include:

         identification and recruitment of qualified, 
        experienced defense counsel for possible appointment by the 
        federal courts in death penalty cases,
         monitoring and data-collection concerning the 
        implementation of the federal death penalty throughout the 
        nation's 94 federal districts,
         development of training programs and publications, 
        including a web site, www.calpdefnet.org, to assist federal 
        defenders and court-appointed private counsel in death penalty 
        cases;
         responding to Congressional inquiries addressed to the 
        federal defender system concerning proposed capital punishment 
        legislation, and
         maintaining a liaison between the federal public 
        defender system and the Department of Justice regarding the 
        administration of federal death penalty statutes.

    This effort has led to our involvement, to a greater or lesser 
extent, in virtually every federal death penalty case brought by the 
federal government since the beginning of 1992.
    It wasn't long before we noticed something strange about the 
federal cases that we were tracking and helping to defend. As lawyers 
whose working lives have been spent representing clients facing the 
death penalty in Southern state courts, we were accustomed to seeing 
large proportions of minority defendants facing capital charges. But 
none of us had ever seen anything like this. Within a year or two, it 
began to appear that almost all the defendants in the federal death 
penalty cases were African-American or Hispanic, and most of the cases 
were originating in the ``Death Belt'' states of the Old Confederacy 
that were already producing most of the state courts' death sentences.
    This pattern began to attract attention in Congress' and in the 
press,\1\ and was apparently a large part of the motivation for 
Attorney General Reno's promulgation of regulations, in January, 1995, 
that created a multi-tiered system for reviewing and systematizing the 
exercise of prosecutorial discretion in death-eligible cases. U.S.A.M. 
910.010 et sea. But while the charging system became more complex as a 
result of the 1995 protocols, the overall picture did not change: 
whether one looked at the death-eligible defendants considered for 
death penalty authorization, at the defendants actually authorized for 
capital prosecution by the Attorney General, or at those ultimately 
sentenced to death,\2\ roughly threequarters were members of racial and 
ethnic minority groups, while only 20-30 percent were white.
---------------------------------------------------------------------------
    \1\ ``Racial Disparities in Federal Capital Prosecutions, 
19881994,'' Staff Report by the House Judiciary Subcommittee on Civil 
and Constitutional Rights, March 15, 1994; ``Jury asked to condemn 3 
blacks while lawmakers assail legal bias,'' (Norfolk) Virginia Pilot-
Ledger (March 16, 1994) (reporting statements by Norfolk-area 
Congressman Robert C. Scott).
    \2\ New York Times, ``Another Biased Death Penalty'' March 17, 
1994; Carl Rowan, ``Judgment day for race and the death penalty,'' 
Sunday Star-Ledger, May 15, 1994.
---------------------------------------------------------------------------
    Legal challenges based on this largely ``minorities-only'' record 
of federal prosecution went nowhere. In one 1994 case, United States v. 
Bradley, 880 F.Supp. 271 (M.D. Pa. 1994), a federal court in 
Pennsylvania did order the Justice Department to produce files on other 
cases that were rejected or approved for federal prosecution. However, 
after reviewing the files and discovering that up to that point the 
Attorney General had approved almost every death penalty prosecution 
request received from U.S. Attorneys, the court declared that its 
inquiry was at an end, because the Department's ``rubber stamp'' 
approach was certainly non-discriminatory: as for the decision by the 
local prosecutor, the particular U.S. Attorney involved in Bradlev had 
never handled any other potential death penalty case, and so could not 
possibly be guilty of disparate treatment. (As far the argument that 
discrimination might have been occurring in the 93 other districts, the 
court read McCleskey v. Kemp, 481 U.S. 279 (1987), as rendering any 
such discrimination irrelevant, since the other U.S. Attorneys were not 
involved in the defendant's own case, and thus could not have 
discriminated against him.). United States v. Bradley, No CR-92-200-01, 
slip op. at 5-6 (M.D.Pa. May 27, 1994). Other federal courts went no 
further than Bradley in responding to claims of racial discrimination, 
and the racially-lopsided roster of federal death penalty prosecutions 
continued unabated throughout the 1990s.

                       2. THE GOVERNMENT RESPONDS

    There things stood until September 12, 2000, when something quite 
unusual occurred: the government itself, unprompted by an adverse court 
decision, acknowledged the problem on its own. On that day Attorney 
General Reno released the Department's preliminary analysis of its 
death penalty prosecution record, and acknowledged that the persistence 
of an overwhelming majority of AfricanAmerican and Hispanic defendants 
on the roster of federal capital prosecutions raised disturbing 
questions that could not be answered on the basis of then-available 
information. Attorney General Reno recognized that a much deeper 
examination of the federal system of homicide prosecution would be 
needed to answer the fundamental question--was the prevalence of 
minority defendants simply reflect that such defendants committed most 
of the death-eligible federal crimes, or were black and Hispanic 
defendants being singled out in some way? Ms. Reno directed the 
National Institute of Justice to enlist the expertise of researchers 
outside the government in answering this and related questions. And 
because the answers were still pending in early December of last year, 
President Clinton stayed the first scheduled federal execution--that of 
Juan Garza--for another six months.
    On January 10, 2001, the National Institute of Justice convened a 
one-day meeting of social scientists and lawyers representing both 
prosecution and defense to discuss how to respond to the Attorney 
General's directive. Since a new Administration was only 10 days away, 
the issue of whether this directive would actually be implemented was 
on the minds of many at the meeting. However, we were assured several 
times by NIJ officials, including the Acting Director, that although 
NIJ is an agency of the Department of Justice, its research is 
conducted independently and would go forward regardless of political 
changes. Thus reassured, we spent the day in what seemed a very useful 
exchange of ideas, and participants identified a series of research 
questions that might finally clarify why the federal death penalty 
seems to have been almost totally reserved for members of racial and 
ethnic minorities. These questions included:

    1. Identifying the entire universe of homicides that could have 
been indicted as federal (and deatheligible) offenses--either 
nationwide, or within given districts or states--including in states 
that have already undertaken careful studies of homicide prosecution 
practices such as New Jersey and New York.
    2. Researching offense characteristics of authorized and 
nonauthorized cases already within the federal system.
    3. Evaluating processes by which homicides are (a) referred and (b) 
accepted or rejected for federal prosecution.
    4. Examining offense characteristics of all negotiated (i.e. plea-
bargained) death-eligible cases, both before and after capital 
authorization.
    5. Re-analyzing authorized and non-authorized cases using a model 
designed to measure the extent of ``federal interest'' in each case.
    6. studying the effect of federalization on the racial composition 
of the decision-makers--prosecutors, judges and juries.
    No one at the January 10 meeting underestimated the challenges 
inherent in such a national research initiative. But it is simply not 
true, as the Department of Justice asserted in its June 6, 2001 
statement, that the January 10 session produced any consensus to the 
effect that ``that even if such a study were carried out, it could not 
be expected to yield definitive answers concerning the reasons for 
disparities in federal death penalty cases.'' On the contrary, the 
majority of those in attendance concluded (as had Attorney General 
Reno) that such studies were needed precisely to obtain such answers, 
and that no such answers would ever be forthcoming absent much more 
probing investigation than had taken place so far.
    Then, so far as we know, nothing more occurred at NIJ. The 
Department did gather data on some 291 additional cases that had been 
omitted from the 2000 study (and, reportedly, from the DOJ death 
penalty itself), but the addition of these new cases only proved that 
the pool of death-eligible cases indicted in the federal courts was 
even more overwhelmingly comprised of minority defendants than had been 
previously reported (83 percent, as compared to the 80 percent figure 
in the September, 2000 report). Once again, the Department released no 
identifying case information, so no qualitative analysis of the 
Department's decision-making record can be undertaken. And most 
important, the question posed by President Clinton when he stayed the 
execution of Juan Garza last December appears no closer to an answer 
now than then.

                  3. THE GOVERNMENT'S CURRENT POSITION

    Under these circumstances, the Attorney General's announcement, 
just thirteen days before Mr. Garza's scheduled execution, that the 
questions raised by Attorney General Reno and President Clinton can't 
be answered (or should be answered on the basis of speculation by 
Department of Justice lawyers rather than facts and evidence) is simply 
not good enough. It is hard to avoid the suspicion that the Attorney 
General's apparent short-circuiting of the inquiry begun by his 
predecessor reflects concern for what an independent and truly through 
probe might reveal, rather than confidence in the fairness of the 
federal death penalty system. Perhaps further study will confirm the 
Department's premature conclusion that the racial and ethnic patterns 
in capital indictments simply reflect the race and ethnicity of the 
entire pool of people who commit federal capital crimes. If so, nothing 
will have been lost--and a great deal gained--by having taken the time 
to do the work.
    Until that research has been commissioned and completed, there is 
little point in debating competing theories about what might explain 
the current racial and ethnic makeup of the federal death row. The 
government now claims vindication; critics point to the 
currentlyavailable racial statistics as clear evidence of 
discrimination. In truth, both sides ought to admit that whiled there 
is cause for concern, we just don't know. What matters is that every 
effort be made to gather the evidence, and to withhold judgment till 
then.\3\
---------------------------------------------------------------------------
    \3\ One issue that bears serious study in this process is the 
significance, if any, of the fact that removing a murder case from 
state to federal court can mean the virtual exclusion of nonwhite 
decision-makers from the process. In many urban jurisdictions-Atlanta, 
Richmond, Baltimore, to name three--African-American defendants charged 
in state courts are likely to be tried by majority-black juries. 
However, prosecutors can draw an allwhite or almost all-white jury by 
the simple expedient of indicting the case in federal court instead. 
The gravity of this problem, and the risk of race-based prosecutorial 
decision-making it creates, is perceptively described by Senior U.S. 
District Judge Richard L. Williams, in United States v. Claiborne, 92 
F.Supp.2d 503 (E.D.Va. 2000). If conscious racial considerations do 
enter federal death penalty decision-making at all, they are much more 
likely to appear in such ways as these, rather than as the straw man of 
explicit racial ``favoritism'' that the Department of Justice seeks to 
dispel in its June 6 release.
---------------------------------------------------------------------------
    Gathering the evidence will mean taking the time to commission 
independent research, and to allow the work to be done. It will also 
mean disclosing-under appropriate safeguards--relevant data now held by 
government prosecutors, for only by taking into account many factual 
variables about each case can anyone tell whether truly similar cases 
involving defendants and victims of different races are being treated 
alike.
    Although he has already expressed his conviction that the federal 
death penalty system is operating in a color-blind manner, the Attorney 
General still seems to recognize the need for further study. I hope and 
trust that he will ensure that qualified researchers are given both the 
time and the information needed to complete this important assignment.

                     4. THE NEED TO HALT EXECUTIONS

    Which brings up the question of what should be done with the 
handful of federal death row inmates who face execution in the 
meantime. Of these only one, Mr. Garza, currently has an execution 
date, and only 9 others have even begun the process of post-conviction 
review (after the initial or ``direct'' round of appeal). This makes it 
very unlikely that any other federal death row inmate beside Juan Garza 
will have an execution date set during 2001. In fact, it is entirely 
possible that no other federal prisoner will be scheduled for execution 
during 2002. Given the tiny numbers of cases that are at or near the 
end of the appellate process, halting executions until a thorough 
review of the selection process by which the 20 prisoners now on the 
federal death row in Terre Haute came to be there would affect almost 
no cases at all.
    But ignoring the issues of racial and regional disparity that led 
President Clinton to stay Juan Garza's execution, and continuing to 
execute in the face of grave questions about the integrity of the 
process, would have serious consequences indeed. The death penalty's 
practical impact is minute, but its symbolic meaning is enormous. The 
United States Government has generated a death row population more 
overwhelmingly populated by minority defendants than that of any state. 
For our Government to insist on executing one, two or three of those 
prisoners without taking the time--and without disclosing the 
information--that is necessary to determine whether racial bias helped 
put them there, would be terribly corrosive of public confidence in our 
government. Government's response to the worst of crimes should be 
designed to knit our society back together, not tear it further apart.

  5. RACE, GEOGRAPHIC DISPARITY, AND THE CASE FOR A FEDERALISM-BASED 
                               APPROACH.

    In addition to achieving a reliable understanding of how the 
federal death penalty system came to concentrate so exclusively on 
minority defendants in a relative handful of (primarily Southern) 
states, we should also think constructively about how to avoid 
recreating this situation in the future. The first step is to 
understand that the federal death penalty is fundamentally different 
today than it was during most of the first 200 years of our nation's 
existence.
    From the first federal ``crime bill'' in 1790 until quite recently, 
federal jurisdiction over violent crime was limited to offenses 
committed on federal land or that could not be prosecuted in state 
court. Now, with the Anti-Drug Abuse Act of 1988, and especially the 
Federal Death Penalty Act of 1994, the federal government has 
concurrent jurisdiction with state courts over many hundreds and even 
thousands of murders each year. What we do not yet have is a principled 
method of determining which murder cases should be prosecuted capitally 
by the federal government, and which should be left to the states.
    My own belief, based on experience with hundreds of actual and 
potential federal death penalty cases over the past nine-and-a-half 
years, is that the current controversy over racial and geographic 
disparity would never have arisen had the Department of Justice 
embraced federalism as its guiding principle in the exercise of 
prosecutorial discretion in capital cases. So long as the federal death 
penalty is misconceived as a sort of parallel death penalty structure 
that duplicates the states' systems, considerations of fairness will 
mandate reasonable uniformity in application throughout the country, 
and among various groups of defendants. The experience of the 1990s 
suggests that such uniformity will never be attained, and so the 
federal death penalty will remain a divisive distraction within the 
federal criminal justice system.
    However, if the federal death penalty is returned to its historic 
role--as a penalty to be invoked only where state homicide jurisdiction 
is substantially lacking, or where the homicide involved is self-
evidently one against the federal government or the nation as a whole, 
rather than against the people of a particular state--the penalty will 
be understood as one that is by its nature infrequent and somewhat 
random, simply because the crimes that trigger it are infrequent and 
random.\4\ Terrorist attacks on federal buildings, murders of federal 
law enforcement personnel, assassinations of federal officials, murders 
in the course of large scale international or nationwide drug 
trafficking operations--these are the truly federal capital crimes 
where the justification for federal prosecution and federally-
authorized punishment is selfevident, and where race and geography 
simply do not matter. If the federal death penalty was limited to cases 
such as these--as it has been for most of our nation's history-the 
current controversy over the application of the federal death penalty 
would resolve itself.
---------------------------------------------------------------------------
    \4\ To be sure, the Justice Department's current death penalty 
protocol advises that where concurrent state-federal jurisdiction 
exists,''a Federal indictment for an offense subject to the death 
penalty will be obtained only when the Federal interest in the 
prosecution is more substantial than the interests of the State or 
local authorities.'' U.S.A.M. 9 10.070. But this guideline has failed 
to produce any sort of uniform application of federal death penalty 
statutes throughout the country, and we know of only a tiny handful of 
cases that have been rejected for federal capital prosecution for lack 
of a sufficient federal interest. A bill now pending in the Senate, S. 
486 (``The Innocence Protection Act of 2001 '') would codify the 
existing ``federal interest'' requirement. Id. Sec. 303. While such 
codification is desirable, the standard remains vague, and must be 
stringently applied if any change is to result.
---------------------------------------------------------------------------
    The alternative is what we have now, and it isn't working. In the 
absence of a rigorously-enforced ``federal interest'' requirement, the 
application of the federal death penalty will continue to follow local 
fashion: as has already occurred, it will be invoked frequently in 
states where death sentences and executions are routine, and almost 
never in states where they are rare or unknown.\5\ It is beyond the 
power of the federal government to override local opposition to the 
death penalty in any substantial number of cases: the current 
experience of Puerto Rico, where 15 death penalty authorizations by the 
Attorney General have produced intense and mounting public protest but 
not a single capital trial (let alone any death sentences), provides an 
especially clear example.\6\ Narrowing the scope of the federal death 
penalty may not do much good either, but it can be expected to do a lot 
less harm. And it will also solve, in a colorblind way, the seemingly 
intractable problems of racial and regional disparity that afflict the 
system today.
---------------------------------------------------------------------------
    \5\ As the Committee is aware, the Justice Department's September, 
2000 report reveals that between 1995 and mid-2000, 40 of the nation's 
94 federal districts did not request authorization to seek the death 
penalty in even a single case. Survey of the Federal Death Penalty 
System at 21. At the other end of the spectrum, 14 of the 20 prisoners 
now on the federal death row were prosecuted in the three states whose 
state courts have generated the nation's highest execution rates--Texas 
(6 federal death row inmates), Missouri (4), and Virginia (4).
    \6\ See Jim Oliphant, ``An Island's Holy War Against the Death 
Penalty,'' Legal Times (Dec. 14, 2000).
---------------------------------------------------------------------------
    In the meantime, let's call a halt. Juan Garza isn't going 
anywhere, and no one seriously believes that marijuanarelated murders 
in the Rio Grande Valley (or any other crimes anywhere else) are going 
to increase if he is not executed on schedule next week. But the cost 
of going forward, in the face of such grave doubts about the fairness 
of our system, may be large indeed.

                             6. CONCLUSION

    I am reminded today of a trip I made to South Africa 15 years ago. 
In 1986, South Africa was the only major country besides ours that 
attempted to use the death penalty as an instrument of crime-control 
within a western-style judicial system. I spent several weeks there, 
watching capital trials, interviewing judges and lawyers, and 
researching the South African system of capital punishment to learn how 
the death penalty works within such a judicial system once it has 
become ``routine.''\7\
---------------------------------------------------------------------------
    \7\ See David Bruck, ``On Death Row in Pretoria Central,'' The New 
Republic, July 13-20, 1987.
---------------------------------------------------------------------------
    In 1986, Nelson Mandela was still in prison, and the apartheid 
regime was still firmly in power. The nonwhite majority of the 
population was wholly excluded from the political system. In court, the 
defendants were usually black, while whites did all the prosecuting and 
all the judging. Not surprisingly, black and ``mixed-race'' defendants 
made up almost all of South Africa's death row, and some 98 percent of 
the scores of prisoners hanged every year.
    Given such stark racial disparities, it seemed selfevident that the 
gallows, like almost every other facet of South African life, was 
organized by race. But the South Africa judicial system had a ready 
response. ``We're not discriminating, it's just that the people who 
commit the capital crimes happen to be nonwhite. So what do you want us 
to do? Institute quotas?"
    And unpleasant as it was to admit it, the South African regime had 
a point. Violent crime tends to be found amidst poverty and 
hopelessness, and those conditions were certainly not evenly 
distributed by race. Even so, it seemed unlikely that an all-white 
judicial system operated on a powerless black population in an 
impartial and race-neutral manner. At a minimum, any objective person 
would want to see some convincing evidence of the system's fairness 
before accepting its verdict on itself.
    I personally believe that our country will eventually abolish 
capital punishment--as South Africa has now done--and that until we do, 
we will continue to isolate ourselves among the world's democracies, 
while dividing our own people here at home. But whether one supports or 
opposes capital punishment as a general matter, it should be apparent 
that we must not implement the federal death penalty under a cloud of 
suspicion and resentment. We now know that the great majority of those 
targeted for federal capital prosecution have been black or Hispanic 
Americans. We still do not know whether this troubling fact simply 
reflects the demographics of federal crime, or the inclinations and 
assumptions of those charged with prosecuting it, or some of both. It 
is time to do whatever is necessary to find out, and then to be 
governed by what we learn.
    I would be happy to answer any questions that the Committee may 
have.

    Chairman Feingold. I certainly thank you for that.
    We will now go to 5-minute rounds of questions, and my 
colleagues have been very patient. I am going to begin with 
Senator Durbin and then Senator Sessions, and then I will do 
some questions.
    I want to thank Senator Durbin for being here. It is his 
State, the State of Illinois, that really took notice of this 
issue and gave us a wake-up call, and I really appreciate his 
attendance.
    Senator Durbin. I want to thank Senator Feingold for this 
hearing. It takes some courage to even schedule this hearing 
and I am glad he did it. It is time that we faced this issue 
head-on, as painful as it is.
    The credit in my State does not go to me. It goes to 
Governor George Ryan, a Republican Governor who in January of 
the year 2000 declared a moratorium on all executions in my 
home State of Illinois. When he imposed this moratorium, 
Governor Ryan cited, ``the shameful record of convicting 
innocent people and putting them on death row.''
    I support Governor Ryan's decision. I have, as he has in 
the past, supported the death penalty, but I believe he has 
taken the only morally coherent position for those of us who 
support the death penalty. During the past 14 years, the State 
of Illinois has released 13 people from death row. These people 
were convicted of the most heinous crimes our criminal justice 
system could find and they were facing the most serious 
punishment any society can exact, a death penalty. Yet, none of 
them were apparently guilty of the crimes they were charged 
with. Eight of the 13 were black.
    I have listened to a lot of conversations by people in both 
Democratic and Republican administrations about racial 
profiling. It appears that we are all ready to concede the fact 
that this occurs, and we should. Certainly, people that I have 
spoken to who have been victimized by this can cite chapter and 
verse and their own personal experience.
    I wonder why it is so obvious when a State trooper pulls 
someone over and they happen to be black or brown that that is 
racial profiling, but that when we look at the population in 
our prisons or the people on death row, that isn't racial 
profiling. It strikes me that it is all part of the same 
continuum; it is part of the justice process. If the process is 
wrong from the investigation forward, it could ultimately 
result in someone sitting on death row, a helpless victim of 
racial profiling.
    Mr. Fotis, you made a point that I just have to go to for a 
moment. To use as a defense that the number of minorities on 
death row reflects the number of minorities in prison, I think 
is to miss the point. I think you have to start at the 
beginning of the process and ask whether or not the process is 
fair to minorities from the beginning.
    Roughly 12 percent of Americans are African-American. 
Thirteen percent, according to our drug statistics, commit drug 
crimes. Thirty-five percent are arrested. Over 50 percent are 
convicted, and over 65 percent of the drug incarcerations are 
African-Americans.
    Now, if I am sitting at this table as an African-American, 
I have to think this system is not really treating my race 
fairly. If we committed as many crimes to warrant this type of 
incarceration, that makes sense. But if we don't, if we are 
only 13 or 13 percent of the actual crimes and represent so 
much of the incarceration, you can understand the feelings of 
many toward this system that it isn't fair, that the statue of 
justice is not blind.
    And the same thing is true, sadly, when it comes to meting 
out the death penalty. The statistics we have been given here 
suggest that some 75 percent of those against whom the 
Department of Justice seeks the death penalty are people of 
color or ethnic minorities, even though far less than 75 
percent of the people who commit Federal capital crimes are 
people of color and ethnic minorities.
    My question to the panel is this, and I will open it to any 
who want to answer it. How can we preserve a jury system in 
America, a system that is open to all Americans, and expect 
justice to come from it if the minorities in America feel that 
the system is stacked against them, if they see racial 
profiling from investigation through arrest and conviction and 
incarceration, and even the death penalty?
    Mr. Bruck. Senator, if I can make a comment about that, 
your comment about juries, I think, sheds some light on what 
really may be happening with these numbers on the Federal death 
penalty.
    Mr. McBride said those who raise the question are accusing 
prosecutors of intentional racism. Let me suggest on the 
ground, in reality, another thing that actually happens. It 
isn't intentional racism.
    I have cited in my written submission an opinion by Judge 
Richard Williams of the Eastern District of Virginia, in United 
States v. Claiborne, in which Judge Williams agonizes over a 
case in which a defendant in a drug murder case was acquitted 
in State court by a jury of six to eight African-Americans, a 
majority-black jury, in Richmond, Virginia, and then was re-
prosecuted by the Federal Government in the Eastern District in 
Federal court under circumstances where simply because the case 
was moved from Richmond State court into Federal court, the 
expectation was that the jury would probably be all white.
    That typically is what happens when you Federalize a case 
that arises from inner-city Baltimore, from inner-city Atlanta, 
from inner-city Richmond, all through the country. Now, that, 
on the ground, at the level of reality, is the sort of thing 
that actually happens when drug trafficking murders are 
targeted by the Federal Government and cases are taken out of 
State court.
    That doesn't mean we shouldn't do it, but let's think a 
little bit on the competitive pressures. Think of the Claiborne 
case. They couldn't get a conviction with a majority-black 
jury. Is there no temptation--and this is what Judge Williams 
struggled with--is there no temptation to say we can fix this? 
There is no double jeopardy. We can take the case into Federal 
court, and think of the white suburban jury we will have for 
the next go-around.
    That may be part of the story of what explains these 
numbers, and it is a very sobering issue. I am not saying it 
is. That is one of the topics that was put on the table at the 
NIJ meeting on January 10, the suggestion being made of let's 
look at that. That is the sort of thing that we must look at. 
Has that been happening and how can we make sure it doesn't 
happen in the future?
    Senator Durbin. I think the jury system is the bedrock of 
our system of justice, and if we find ourselves reaching the 
point where we cannot trust the jury system, then I don't know 
where we are going to turn for justice in this society.
    Chairman Feingold. Mr. McBride, did you want to respond?
    Mr. McBride. Yes, Mr. Chairman. I just wanted to say that I 
have probably tried 30 to 40 criminal cases in the Eastern 
District of Virginia, in Alexandria and Richmond. In the 
Richmond Division, I don't believe I ever tried a criminal case 
before an all-white jury, and the capital cases that I tried 
were before racially mixed juries.
    It is true that when you expand the pool to the district, 
the division, the Richmond Division, it encompasses some of the 
suburbs, but it also continues to encompass the city of 
Richmond. And the idea that these are all white juries or that 
prosecutors are manipulating the process to get juries of a 
certain racial composition, I don't believe that to be the 
case.
    I appreciate the Senator's concern, and I share the concern 
as a former Federal prosecutor. I don't think a death penalty 
that is infected by overt or covert racism serves any function 
for us. It doesn't help the victims of crime, it doesn't help 
us deter crime, and I appreciate the committee's efforts to try 
and root out any bias that is there.
    As I said in my opening statement, my experience was that 
we as Federal prosecutors were called to the scene. We weren't 
making selections. The State would say we need help with this.
    What you see, Senator Durbin, I think, on Federal death row 
now is a reflection of what the priorities were from 1988 to 
1994, and the tools that you, the Congress, gave us. All we had 
then was the death penalty for large-scale drug-dealing, and 
what we set out to do was to prosecute crack cocaine offenders 
in the inner cities, in our case in Richmond and Norfolk and 
Virginia Beach, unsolved homicides largely of African-American 
citizens. And we were called by the local authorities to 
assist, and that may explain some of the statistical 
disparities.
    The Chairman mentioned the motorcycle gangs and organized 
crime, and I think it is a fair point. On the other hand, we 
did not receive authority to impose the death penalty under the 
RICO Act for racketeering, aside from drug-dealing, until 1994. 
So you really can't judge our performance as a prosecutorial 
body until you gave us all the death penalties in 1994. And you 
do notice in the statistics that the number of white capital-
eligible defendants going into the Federal system increases 
after 1994.
    Senator Durbin. Mr. Chairman, I will conclude because my 
time is up here, but I hope to get back and ask a question 
related to the areas where you do have prosecutorial 
discretion. In the September 2000 report from the Attorney 
General, where they have approved a capital prosecution, 48 
percent of white defendants avoid the risk of a death penalty 
by entering a plea agreement to a non-capital charge. Rates 
that blacks and Hispanics enter such agreements are 25 percent 
and 28 percent, respectively.
    So where there was prosecutorial discretion, we find that 
white defendants facing capital charges on an almost two-to-one 
basis were then allowed to enter a plea agreement to a non-
capital charge.
    Mr. McBride. Senator, if I may, I think that is an issue 
that the Deputy Attorney General addressed. He agreed, No. 1, 
that the Department needs to keep statistics on this issue. 
There is not a full range of statistics.
    No. 2, at least in my experience, I interpreted the 
protocol to mean that if I charged a capital offense and sought 
the death penalty, I had to go back to the review Committee in 
order to take a plea to life without parole. Now, my 
understanding is that, in fact, the protocol as it existed did 
not call for that. It has been amended to do so.
    But I agree with the Senator that plea agreements are an 
area that the Department needs to monitor under the protocol or 
the protocol can be bypassed.
    Mr. Gross. Senator, may I correct a misstatement, no doubt 
unintentional, by Mr. McBride?
    Chairman Feingold. Yes.
    Mr. Gross. I don't remember the exact numbers. I am sure 
Mr. Bruck does, but the great majority of Federal prosecutions 
since 1988 have been brought since 1995 under the new, expanded 
Federal death penalty law that was passed in 1994 and under the 
Department of Justice's 1995 death penalty protocols.
    I am sure Mr. McBride didn't intend to mislead the 
committee, but I think he gave the impression that most of what 
we are seeing is based on the first Federal death penalty, 
when, of course, that is not true.
    Chairman Feingold. Thank you.
    Senator Sessions?
    Senator Sessions. Thank you.
    Professor Gross and Mr. Bruck, I first would like to point 
out that this is indeed an administration who has been in 
office only a few months, and the cases we are referring to 
overwhelmingly were either prosecuted by or the appeals were 
handled by the Clinton-Reno Department of Justice.
    You would agree that Attorney General Reno, after a review 
of all these cases on death row, did conclude there were none 
that were innocent or there was a factor of guilt question 
there?
    Mr. Bruck. No, actually I don't. She said that, and then 4 
months later she sent a letter to President Clinton asking him 
to commute the sentence of Ronald David Chandler because of 
grave doubts concerning his guilt. And solely on the basis of 
the Department of Justice's recommendation made through her 
President Clinton did commute that sentence to life without 
parole because of the risk of executing an innocent man.
    So, actually, that really illustrates how things seem to be 
OK, and 3 months later with a closer look it turns out that 
they are not OK. I think there is a lesson to be learned there.
    Senator Sessions. Chandler was white, if I recall, was he 
not?
    Mr. Bruck. He was white, and he was probably innocent.
    Senator Sessions. Well, I don't know about that, but he was 
not released from prison, was he?
    Mr. Bruck. No. He is serving life without parole.
    Senator Sessions. The death penalty was pulled back.
    Mr. Bruck. That is correct.
    Senator Sessions. Well, I think that is the way the system 
should work. If the Attorney General ever has a doubt about 
whether or not a person is guilty, a commutation recommendation 
to the President would be appropriate. That is the way the 
system ought to work.
    I guess what I would be interested in pursuing would be the 
question of what can we do. Now, we know that for people who 
are deeply opposed to the death penalty, there will always be 
objections to that death penalty. There will never be a system 
that will satisfy them.
    Senator Durbin raised the numbers on the plea bargains. 
Having looked at all the statistical data that I have seen, the 
only thing that seems a bit aberrational would be those plea 
bargain numbers, and Attorney General Ashcroft has committed to 
reviewing those carefully to make sure that plea bargains are 
also reviewed carefully.
    I guess I would first ask do any of you see anything in the 
death penalty statute itself that is racially biased?
    [No response.]
    Senator Sessions. Do any of you see anything within the 
detailed guidelines that the Reno Justice Department declared 
to review every death penalty case before charges were made and 
all the way to its conclusion--do you see anything in those 
guidelines that is in itself racially biased?
    Mr. Bruck. Nothing in the statute and nothing in the 
guidelines. They are susceptible to racial bias, but clearly 
there is no statute in the whole country that is itself 
racially biased.
    Senator Sessions. Mr. McBride, do you want to comment?
    Mr. McBride. Senator, I think Mr. Bruck would agree that 
the procedures that we now have in place in the Federal 
system--he would probably like to see them in every State that 
has capital punishment. I think that Attorney General Reno is 
to be commended for the protocol that she adopted.
    I think it is unique in the criminal justice system to 
allow defense attorneys to make a presentation to prosecutors 
at the charging phase when you decide whether or not to seek 
the death penalty. The defense can actually make a presentation 
to avoid the death penalty being charged, and that is a very 
unique right that has been granted in the Federal death penalty 
system.
    As someone who has participated in it as a prosecutor, the 
review is extremely rigorous and the materials that an 
Assistant United States Attorney, as you know, as a former 
United States Attorney, must submit, including a draft 
indictment and an analysis of aggravating and mitigating 
factors in each of the individual cases that might be charged 
as a capital case--it is a very rigorous review and I think 
Attorney General Reno and her staff and the changes that 
Attorney General Ashcroft has proposed can be very proud of 
that system. I think it is one that works very well.
    Senator Sessions. I appreciate that. Oftentimes, there is a 
lot more likelihood, in my experience, of an individual 
district attorney, Mr. Bruck, in a county who maybe only had 
one death penalty case in his career--with the kind of 
universal review by experienced prosecutors dealing with all 
these cases, you probably have got a more coherent picture in 
the Federal system than in most State-charging situations, do 
you not?
    Mr. Bruck. Yes, I think that is right. Once the case enters 
the Federal system, I think that is true.
    Senator Sessions. Then it strikes me that what we have got 
to be careful about and what we are asking of the Federal law 
enforcement officers--I am sure it is galling to Mr. Fotis, as 
a man who has committed his life to the rule of law and doing 
what is fair and just, and every Federal FBI agent and DEA 
agent who work these cases, and every prosecutor, to have it 
suggested repeatedly that they are somehow biased in what they 
have done, when all they have done is enforce the law that the 
Congress of the United States has passed, and complied with the 
greatly detailed guidelines that the Attorney General of the 
United States has required of them.
    So, first of all, I want to defend those officers and their 
integrity and their commitment to doing the right thing. I 
don't know anybody involved in a death penalty case who does 
not take that seriously. It is really an awesome thing to have 
that matter fall in your lap.
    I won't take any more time, Mr. Chairman. I just would say 
that I think it is significant that we don't have a complaint 
about the way the law is written or the guidelines are 
established.
    Chairman Feingold. Thank you, Senator Sessions.
    Let me be clear. I have listened carefully today and I have 
also followed this debate. No one has accused anyone in the 
system of being intentionally racist or biased. In fact, every 
witness has been modest and careful in their remarks to suggest 
that if there is a problem--and we are not certain that there 
is--it is more likely to be on the basis of institutional 
concerns about discrimination rather than any intentional 
conduct.
    I think this issue has to be discussed in that way, and 
that is my intent and I think it is the intent of every Senator 
involved and everybody on this panel on both sides. This is not 
about accusing people of racism. The question is whether the 
system, however it is constituted, ends up operating in a 
discriminatory manner. That is a very different thing. Of 
course, I join with you in praising the law enforcement people 
throughout our country who do a very good job.
    My first question is for Mr. Bruck and Mr. Gross. You have 
heard Mr. McBride say that the Subcommittee should not place 
any stock in statistical patterns or comparisons, or focus on 
largely meaningless statistical games. What is your response to 
what he said, Professor Gross?
    Mr. Gross. I am sorry. That was a comment by Mr. McBride?
    Chairman Feingold. Yes.
    Mr. Gross. I did hear Mr. McBride's comments on that, and 
also saying that you shouldn't rely on regression analysis. I 
was puzzled by them because I wasn't sure to whom they were 
addressed.
    The only statistics that we have here are those that have 
been provided by the Department of Justice, and on the basis of 
the statistics provided by the Department of Justice the 
Attorney General was willing to reach a conclusion that there 
is no discrimination in the administration of the Federal death 
penalty. I don't think Mr. McBride was saying that that was an 
inappropriate conclusion, but that is the only set of 
statistics and the only conclusion based on statistics that we 
are dealing with today.
    If he means, on the other hand, that we will never be able 
to do a study that will shed light on this issue because it is 
not a question that is studyable, that no matter what we do it 
will never be good enough, I think that is an extremely 
pessimistic view, and that, in fact, we can learn a lot. 
Whether we will know for sure at the end of the day, I can't 
say. But if we don't look, we will never know.
    Chairman Feingold. Mr. Bruck?
    Mr. Bruck. I really have very little to add to that. It is 
true that no matter how sophisticated and thorough and 
exhaustive a study is done, one can always say, well, it could 
have been better. But I think we can learn a lot.
    I would like to say that perhaps the most crucial moment 
for the NIJ study came when you, Mr. Chairman, asked Mr. 
Thompson in a very brief exchange about whether the Department 
of Justice would be willing to turn over the data. And Attorney 
General Thompson said, yes, we will, subject to various 
restrictions.
    Now, the size of those restrictions will decide whether 
this topic can be studied because all of the data is in files 
at the Department of Justice. The one, I have to say, rather 
discordant note at the January 10 meeting was some very strong 
expressions by prosecutors of reluctance or refusal--a 
prediction that the Department of Justice would refuse to turn 
over the very, very exhaustive files in which the answers to 
these questions are contained.
    There obviously have to be safeguards, but it will be 
crucial for the Department of Justice to be forthcoming with 
the data, and I know that the Committee will ensure that that 
happens.
    Chairman Feingold. Let me follow up with one more for you, 
Mr. Bruck. The supplemental report's discussion of geographic 
disparities is pretty skimpy. It says that there is nothing 
illegitimate about a district focusing on the actual needs of 
the geographic area for which it is responsible in decisions 
about the exercise of Federal jurisdiction. It further says the 
geographic disparities are neither avoidable or undesirable.
    What is your reaction to those conclusions?
    Mr. Bruck. You know, that is one thing as far as it goes 
that I agree with. There will never be a uniform application 
geographically of the Federal death penalty, and I think it is 
a hopeless effort--this country is too different--any more than 
there could be a uniform application of the Fugitive Slave Act 
150 years ago.
    The culture of various parts of this country are different 
and some parts of the country simply will not tolerate the 
level of capital prosecutions that are commonplace and routine 
in other parts of the country. It is useless to try to make 
Vermont like Texas; it is never going to happen.
    What can be done is that the disparity geographically ought 
to be informed not by the culture of Texas or the culture of 
Vermont, but whether the crime is really a Federal crime. We 
have been spinning our wheels down in Puerto Rico, where 15 
death penalty cases have been authorized by the Attorney 
General in the last 5 years. Not one of them has ever gone to 
trial. It is the most divisive issue in Puerto Rico, except for 
the shelling of the island of Vieques. There is never going to 
be a trial. We are spending hundreds of thousands and millions 
of dollars chasing our tail there. It is time to call a halt.
    If there is truly a Federal capital crime in Puerto Rico, 
God forbid, the attack on a Federal building or the murder of a 
Federal agent, that will be one thing. But simply to try to 
have some sort of uniformity based on the happenstance of 
whether there happens to be a Federal program against violent 
crime in this or that district, or whether States don't provide 
for grand juries and the Federal system somewhere does, that is 
no basis for deciding how the Federal death penalty should be 
distributed. It should be distributed based on where there are 
capital crimes that are attacks against the country.
    Chairman Feingold. Thank you. I have just one more question 
and then I think Senator Durbin has another question.
    Mr. Bond, as a longtime leader in the civil rights 
movement, could you please place the death penalty issue in the 
context of the struggle for civil rights, equal rights, and 
equal protection of the laws?
    Mr. Bond. Well, it has long been true that in parts of the 
United States in our past, there was ample evidence of 
discriminatory application of the death penalty, with African-
Americans being the usual victims, selective prosecutions, 
discriminatory prosecutions, prosecutions for crimes which in 
another context the death penalty would not have been sought.
    Luckily, to some extent we have moved away from that, but 
it has long been troublesome for those in the civil rights 
community, and I think for Americans generally, that there at 
least appears to be discriminatory application of a wide 
variety of our laws.
    A study done in the fall of a year ago, I believe, in 
conjunction with the Department of Justice demonstrated a high 
level of discretion where race entered from the moment of 
arrest through the sentencing phase, and spoke, I believe, if 
memory serves, about two young men, a white young man involved 
in some minor scrape, patted on the back--go home, see your 
parents, make sure this doesn't happen again--and the black 
young man sent into the criminal justice system. A record 
attaches to him. If he falls afoul of the law later on, that 
record is a part of the system and he receives an even heavier 
punishment. So on and on and on and on.
    Equally as troubling are these statistics from the 
newspaper report that you referenced a moment ago. Those are 
troublesome, they are bothersome, and they create in African-
Americans and racial minorities, and I believe in the larger 
public, too, serious questions about justice and fairness.
    All of us want to believe we live in a country dedicated to 
equal justice under the law. All of us want to believe that if 
we run afoul of the law, we are going to be treated fairly and 
decently. All of us want to believe that if a relative or a 
friend is the victim of some crime, the perpetrator is going to 
be punished strongly and strictly and severely. But none of us 
wants to believe that this process is going to be unfair, and 
large numbers of Americans, I think, believe sincerely that 
this process is awfully unfair.
    Chairman Feingold. Thank you so much.
    Senator Durbin?

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman.
    Very briefly, I would just like to make one point here. I 
am glad that we are having this hearing and it relates to the 
death penalty, but I think that I would like to put it in this 
perspective: I think we focus on the death penalty because the 
universe involved is relatively small and the people can be 
identified and their cases carefully analyzed.
    Those who are interested in this issue on either side can 
look at them ever so carefully, scrutinize them, and decide 
whether there was competent counsel, whether a DNA test might 
have some impact on the outcome, while we ignore the mass of 
humanity sitting in prisons for crimes, short of a death 
penalty, who may have been subject to the same imperfect system 
of justice that brought them to their end. They may never made 
the headlines and they may never become a university project.
    But the fact is we are filling our prisons at the Federal 
and State level at record numbers, and this hearing, although 
it focuses on the death penalty, raises a larger question. If 
we recognize, acknowledge and condemn racial profiling, it 
shouldn't end with a discussion of the death penalty. It has to 
go back through every step of the process.
    African American men end up in Illinois prisons on drug 
convictions at a rate 57 times greater than white men, the most 
striking gap of any State in the Union. Ninety percent of drug 
offenders admitted to State prisons in Illinois are African-
Americans, the highest percentage in the country. This troubles 
me, representing this great State.
    I will acknowledge what Senator Sessions and Senator 
Feingold said. The men and women on the front line who put 
their badges on everyday and put their lives on the line to 
protect us deserve our respect and admiration, as to the 
prosecutors in every part of the system. But there is something 
imperfect, there is something broken in the system. We see it 
at its worst on death row, but I am afraid it permeates the 
entire system. Will we have the courage to face it? I hope we 
will.
    Chairman Feingold. Well, I couldn't agree with the Senator 
from Illinois more. The only reason that this was the first 
hearing was the urgency relating to the execution next week. 
But as Senator Durbin knows, this Subcommittee will have the 
opportunity to take up the racial profiling bill which I 
introduced and Senator Durbin cosponsored last week with 
Representative Conyers, and also the issue of disproportionate 
minority incarceration. All of these have to be central to the 
work of this Subcommittee and the committee, and I am so 
pleased that, his help, we are finally moving in that 
direction.
    After hearing the testimony this morning, it seems to me 
that we have surprisingly a lot of agreement here. The experts 
on the panel all said we don't know whether bias is responsible 
for the racial disparities on Federal death row. The Deputy 
Attorney General has told us that the Department of Justice, 
through the NIJ, will continue its study of this issue. Of 
course, I am pleased to hear that because it seemed that just 
the opposite was the case a few days ago.
    The difference is quite clear, though. The Attorney General 
of the United States is prepared to execute an Hispanic man 
before that study is completed. I believe that is a tragic 
mistake and an unnecessary mistake. Mr. Garza is not going 
anywhere. He is in a high-security prison in Indiana. Whether 
he is executed next week or next year makes in the long run 
very little difference. But if the study that the Deputy 
Attorney General said today will continue reveals bias in the 
system, the confidence of the public in our system of justice 
in this country will be forever undermined.
    Let me sincerely thank all of our witnesses for their 
testimony and what I thought was a very thoughtful discussion. 
We appreciate your taking all this time to be here on short 
notice. We thank you for your insights.
    As I told the Deputy Attorney General, the record will 
remain open for a week, if you wish to submit additional 
materials for the record. In addition, any individual or 
organization that wishes to submit a statement for the record 
may do so within that time.
    Written questions from members of the Committee are due by 
the close of business Friday, and we will ask that the 
witnesses provide answers promptly.
    Thank you, Senator Durbin, and thank you all for coming. 
The hearing is adjourned.
    [Whereupon, at 1 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

                         QUESTIONS AND ANSWERS

  Responses of David Bruck to questions submitted by Senators Leahy, 
                    Feingold, Sessions, and Thurmond

                      Question from Senator Leahy
    Question: Do you have any suggestions for strengthening (the 
``federal interest'') provision of S. 486?
    Answer: Upon reflection, I doubt that any greater clarity can be 
achieved in this necessarily imprecise question. However, the 
certification requirement of subsection (b) could usefully be made 
slightly more explicit, by requiring that

        (a) certification under sub-section (a) shall state the basis 
        on which the certification was made, including the federal and 
        state interests identified, and the reasons for the 
        certification.

    Subsection (b) as currently drafted requires an articulation of the 
federal interest only, and this might produce only an unenlightening 
boilerplate recitation of the federal interest in combating whatever 
federal crime might be involved. A requirement that the state interest 
also be articulated might well encourage a genuine federalism-based 
analysis in each case, based on traditional notions of caution and 
restraint in federalizing a difficult and divisive area of criminal 
justice policy that has heretofore been consigned to the states. Such 
an analysis, in turn, offers the best hope of ameliorating the racially 
and geographically lopsided patterns that have characterized the 
federal death penalty to date.
                     Question from Senator Feingold
    I have conferred with Professor Gross concerning the issues to be 
addressed and the data to be gathered by the National Institute of 
Justice, and request that his follow-up answer to this question be 
considered as having been submitted by me as well.
                     Question from Senator Sessions
    Question: Do you oppose the imposition of the death penalty in all 
cases whatsoever, regardless of guilt, including Timothy McVeigh's 
murder of numerous children, women, and women in Oklahoma City, 
Oklahoma?
    Answer: A. Yes.
                    Questions from Senator Thurmond
    Question (1): Is there any criminal conduct that you personally 
believe warrants the death penalty?
    Answer: Yes, I do. However, this does not answer the more difficult 
question of whether we should maintain a system for inflicting capital 
punishment. I do not think we should, because experience has shown that 
as fallible human beings, we will never find a way to determine 
reliably and fairly, without ever making mistakes, which defendants 
warrant the death penalty.

    Question (2): Given (that Justice Department decision-makers 
generally are not told the race of the defendants whose cases they 
consider) how could there reasonably be racial bias in the capital 
review process at Main Justice?
    Answer: I do not contend that there is racial bias infecting the 
system, either at Main Justice or at earlier or later stages of the 
federal deathselection process. I suggest only that the question arises 
from the data that have been released so far, and much more probing 
inquiry is warranted. The most important point to keep in mind is that 
if such bias does exist, it probably has the greatest impact at the 
``intake'' stages when the decision to prosecute death-eligible crimes 
in federal court is being made. If bias played any part in bringing 
about the fact that three-quarters of the cases reaching DOJ involve 
minority defendants, concealing the racial composition of this mostly-
minority pool once it arrives at DOJ would do little to remove the 
effect of such bias. Moreover, much more careful review is needed to 
determine whether racial and ethnic stereotyping infects the way that 
information is received by local federal prosecutors and transmitted to 
DOJ officials (who must, of course, rely on the information they 
receive). Finally, the ``color blind'' procedures to which you refer 
are hardly impenetrable: a decision-maker who knows that the defendant 
has a Hispanic or Asian surname, or is a 22-year-old crack cocaine 
dealer from inner-city Richmond, Virginia or a member of a Jamaica-
based criminal syndicate, does not need a checked box on a form to 
intuit the defendant's race or ethnicity.

    Question (3):Do you see socio-economic problems to be a more 
realistic and fundamental explanation for disparity in the death 
penalty rather than the choices of federal authorities?
    Answer: The hypothesis that minority citizens commit a greatly 
disproportionate share of federal death-eligible crimes, and that this 
is attributable to poverty, social isolation and marginalization, is a 
plausible one. However, at this point that's all it is--a hypothesisand 
it cannot be accepted as the entire explanation for the racial 
lopsidedness of the federal death penalty system without much more 
evidence than the Department of Justice has produced to date. You may 
recall that in my testimony, I cited this hypothesis as the defense 
offered by South African officials of the apartheid era for the 
nonwhites-only death penalty system that operated in that country 
through the 1980s. That explanation may have been true there too. Or it 
may have been wholly false- Or (and this seems most likely) it may have 
accounted for some, but not all, of the racial disparity reflected in 
South Africa's execution statistics. If this last possibility were 
correct, then the system would was infected by bias, even though an 
unbiased system would still have produced a higher execution late among 
nonwhites that among whites (and among killers of white, as opposed to 
nonwhite, victims).
    The only way to know whether bias explains any of the observed 
disparity is to identify all of the death-eligible cases that were or 
could have been considered in the death-selection process, and then to 
carefully compare how they were treated, taking into account the myriad 
non-racial factors present in each case. The South African regime 
refused to conduct such a painstaking selfexamination. We should choose 
a different course.

    Question (4): The Attorney General will simplify the procedure for 
reviewing cases in which the U.S. Attorney is not recommending the 
death penalty. . . . Do you believe this change is beneficial?
    Answer: Yes. As one of the part-time resource counsel who have been 
helping the federal defender system address the need for adequate 
indigent defense services in capital cases, I have been urging such a 
``fast-track'' procedure ever since the Department of Justice 
instituted its death penalty protocol in 1995. I hope that this change 
will reduce somewhat the cost and delay that the unprecedented 
expansion of the federal death penalty has brought to the federal 
criminal justice system since 1994.

                                

   Responses of Andrew G. McBride to questions submitted by Senators 
                         Thurmond and Sessions

                     Question from Senator Thurmond

    Question: Mr. McBride, based upon your experience as a federal 
prosecutor, did you ever have any reason to think that prosecutors and 
investigators sought the death penalty for any invidious reasons?
    Answer: The answer to Senator Thurmond's question is that I did 
not, I served as an Assistant United States Attorney in the Eastern 
District of Virginia from 1992 to 1999, in both the Alexandria and 
Richmond offices. During that time period, I sought the death penalty 
against four criminal defendants and prosecuted numerous other murder 
cases in which the decision was made not to seek the death penalty. I 
never observed any evidence that prosecutors or investigators were 
influenced by race or any ocher invidious factor in their; 1) decision 
to proceed with federal prosecution of a particular case; or 2) 
decision to seek or not to seek the death penalty.
    Both intake decisions and capital punishment decisions were subject 
to multiple layers of supervisory review. No individual prosecutor or 
investigator could make the decision to undertake federal prosecution 
or to seek the ultimate penalty. During my tenure, those decisions were 
made by the United States Attorney, in consultation with the first 
assistant, the chief of the criminal division and other prosecutors. 
Intake decisions were based on a number of factors, including the 
federal interest in the crimes and the local need or desire for federal 
assistance. Death penalty decisions were made in the United States 
Attorney's Office after rigorous review of the facts of the case--often 
requiring several lengthy meetings between the line prosecutors and 
supervisors. Of course, after the United States Attorney made the 
decision to recommend the death penalty, the case was subject to 
another layer of review before the Attorney General's capital 
punishment committee. At none of these stages of the process did I 
observe any evidence of overt or subtle racial bias entering the 
proeess----

                    Questions from Senator Sessions

    Question: Do you oppose imposition of the death penalty in X11 
cased whatsoever, regardless of guilt, including Timothy McVeigh's 
murder of numerous children, women, and men In Oklahoma City, Oklahoma?
    Answer: The answer to Senator Sessions' question is that I am in 
favor of the death penalty for a limited number of particularly heinous 
crimes. I believe that the death penalty does defer murder--
particularly in the felony murder situation where a rapist or murderer 
may have a strong incentive to kill a victim or police officer to avoid 
apprehension. Only a punishment more severe than life imprisonment can 
provide any general deterrence in these situations. The death penalty 
also provides specific deterrence--it ensures society that a particular 
individual who has already taken the life of another human being will 
not do so again. l also believe that the death penalty properly 
expresses society's moral outrage at the taking of innocent human life, 
such as that involved in the McVeigh case. The survivors of McVeigh's 
victims almost uniformly indicated chat his execution brought them a 
sense of closure and a sense of justice.

    Question: In your experience as as Associate Deputy Attorney 
General under President Bush and as an Assistant United Stags Attorney 
under President Clinton, did you ever see a federal employee engage in 
racial bias is the performance of his profossional duties with respect 
to a federal capital case.
    Answer: The answer to Senator Session's question is no I did not. 
As to my tenure as an Assistant United States Attorney, I have 
indicated in my answer to Senator Thurmond's question that I saw no 
evidence of overt or covert bias in the selection of federal cases or 
the decision to seek or forego the death penalty. In addition, from 
1990 to 1992, I was employed in the Department of Justice as an 
Associate Deputy Attorney General (1990-91 ) and as an Assistant to the 
Attorney General (1991-92). In both those capacities, I was involved in 
reviewing the applications to seek the death penalty from the United 
States Attorney's Offices and making recommendations to the Attorney 
General. While serving in this capacity, T newer saw any evidence of 
federal investigators, prosecutors, or Department of Justice personnel 
considering race or ether improper factors in assessing whether a case 
was worthy of capital punishment. In fact, neither the race of the 
victim nor the defendant is disclosed to Department of Justice 
personnel who review death penalty applications.
    I hope these responses assist the subcommittee and its Members in 
addressing these issues. Thank you again for the opportunity to address 
the subcommittee regarding this important criminal justice issue.

                                

    Responses of Samuel R. Gross to questions submitted by Senators 
                    Sessions, Thurmond, and Feingold

                    Questions from Senator Sessions

    Question 1. Do you oppose the imposition of the death penalty in 
all cases whatsoever, regardless of guilt, including Timothy McVeigh's 
murder of numerous children, women, and men in Oklahoma City, Oklahoma?
    Answer: Yes, I do. I believe that the death penalty is unnecessary, 
even for the worst crimes, and that its use produces many bad effects 
and no significant benefits. That is why most democratic countries in 
the world, including our closest allies--Canada, Great Britain, 
Germany, France, among others--have abolished capital punishment and so 
suffered no ill effects. On the contrary, they have benefitted. The 
same is true of my home state of Michigan.

    Question 2. On page 7 of your written testimony, you state:
    The Ashcroft Report focuses on the professionalism of Assistant 
United States Attorneys, the lawyers who make the legal decisions once 
a case has been taken on. But the initial decision to undertake a 
federal investigation is often made by law enforcement agents rather 
than prosecutors, by the FBI or the DEA rather than United States 
Attorneys. Perhaps these two sets of DOJ employees have different 
patterns of behavior.
    Further, on page 9 of your written testimony, you state:
    Are Federal law enforcement agencies, the FBI and the Drug 
Enforcement Administration, searching for African-American and Hispanic 
drug dealers because they think they know that the worst drug 
traffickers are all black or Latin American? Are the racial disparities 
in Federal capital prosecutions a manifestation of race-specific drug 
investigations? We don't know, and this report does not allay our 
fears.
    Answer: Apparently, the actual question was lost in the facsimile 
transmission. Unfortunately, I only just returned from a two-week trip 
abroad. I would be happy to answer the question that Senator Sessions 
intended to ask as soon as possible, if it is re-sent to me.

                    Questions from Senator Thurmond

    Question 1: Mr. Gross, is there any criminal conduct that you 
personally believe warrants the death penalty?
    Answer: I'm unsure how to understand the term ``warrants,'' but I 
take the question to be whether I personally oppose the death penalty 
in all circumstances. On that assumption, the answer is that I do, for 
the reasons given in response to a question by Senator Sessions: I 
believe that the death penalty is unnecessary, even for the worst 
crimes, and that its use produces many bad effects and no significant 
benefits. That is why most democratic countries in the world, including 
our closest allies--Canada, Great Britain, Germany, France, among 
others--have abolished capital punishment and so suffered no ill 
effects. On the contrary, they have benefitted. The same is true of my 
home state of Michigan.

    Question 2: Mr. Gross, I understand that when a death eligible case 
is forwarded to the death penalty review committee at the Justice 
Department, the committee members are told the race of the defendant, 
unless the defense attorney chooses to disclose it. Given this, how 
could there reasonably be racial bias in the capital review process at 
Main Justice?
    Answer: I agree that to the extent that the committee members are 
unaware of the race of the defendants and the victims, they cannot 
engage in intentional racial discrimination.

                     Question from Senator Feingold

    Question 1: What are the questions that need to be answered and 
data that needs to he gathered in the study to be conducted by the 
National Institute of Justice?
    Answer 1: The basic questions that need to be answered in the study 
to be conducted by the National Institute of Justice are:
    (1) How are potentially capital cases chosen for Federal rather 
than state prosecution? What factors effect that decision? Is it 
influenced by race, or by geography, or by other illegitimate or 
arbitrary factors?
    (2) Among those potentially capital cases that are prosecuted 
federally, how does the DOJ decide when to seek the death penalty? What 
factors affect that decision? Is it influenced by race, or by 
geography, or by other illegitimate or arbitrary factors?
    (3) How does the DOJ decide when to offer or agree to plea bargains 
in capital cases, and when not to do so? What factors affect that 
decision? Is it influenced by race, or by geography, or by other 
illegitimate or arbitrary factors?
    (4) What general prosecutorial policies, if any, affect the DOJ's 
decisions to prosecute potentially capital cases, to seek the death 
penalty, and to engage in plea bargaining in capital cases? If such 
policies exist, how are they determined and how do they affect the 
racial composition of the cases in which the DOJ seeks the death 
penalty, and of the cases in which it is imposed? (for example, a 
recent news article describes a difference in practice between the DOJ 
units that investigate and prosecute mostly white ``organized-crime'' 
defendants, and those that deal with mostly minority ``street-crime'' 
defendants: the street-crime unit is far more likely to seek the death 
penalty. See Tom Brune, ``The Two Faces of the Death Penalty; Minority 
Gangs Face It, White Mobsters Do Not.'' Newsday, 6/13/01, P.A6.)
    It is impossible to describe specifically the data that will be 
needed to answer these questions until we find out what data are 
maintained by the DOJ, and what data will be made available for this 
study. To the extent that the data that need to be gathered can be 
described in advance, they include:
    (1) Data on the entire universe of homicides that could be 
prosecuted as death-eligible federal offenses, including, to the extent 
possible, information on the nature of the alleged crimes; the evidence 
available to prove them; the criminal histories of the defendants and 
the victims; and the age, sex and race of the defendants and the 
victims.
    (2) Data on potentially capital federal cases that are prosecuted 
by the DOJ, including, to the extent possible, information on: the 
nature of the alleged crimes; the evidence available to prove them; the 
criminal histories of the defendants and the victims; and the age, sex 
and race of the defendants and the victims.
    (3) Data on the decision-making process in potentially capital 
federal prosecutions, including, to the extent possible, data on: the 
actions taken and the information considered in deciding whether to 
prosecute a case federally, whether to seek the death penalty, and 
whether to offer or to agree to a plea bargain.
    (4) Data on any prosecutorial policies that affect the DOJ's 
decisions to prosecute potentially capital federal crimes or to decline 
to do so, to seek or not to seek the death penalty, and to engage in 
plea bargaining or not to do so.

                                

                       SUBMISSIONS FOR THE RECORD

      Statement of American Civil Liberties Union, Washington, DC

                              News Release

   ACLU CALLS ASHCROFT DEATH PENALTY POSITION SWITCH, REMARKABLE AND 
                              UNBELIEVABLE

    WASHINGTON--In light of last week's remarkable--and frankly 
unbelievable--switch of positions by Attorney General Ashcroft on the 
federal death penalty, the American Civil Liberties Union continued its 
call today for the Justice Department to fulfill its pledge to 
conclusively investigate the extent of racial and geographic disparity 
in the imposition of the death penalty by the federal government.
    ``It appears that Mr. Ashcroft has decided to turn his bailiwick 
into the Department of Injustice,'' said Rachel King, ACLU Legislative 
Counsel. ``The Administration is obviously playing politics with 
people's lives.''
    In a preliminary report issued in September of last year, the 
Justice Department found very significant disparities that led 
President Clinton, a death penalty supporter, to impose a six-month 
delay in what was scheduled to be the first federal execution in almost 
40 years. During that six-month period, Clinton ordered the Justice 
Department to finish its preliminary report.
    The preliminary report had found that in 75 percent of the cases in 
which a federal prosecutor sought the death penalty in the last five 
years, the defendant had been a member of a minority group, and that in 
more than half of the cases, the defendant was an African American.
    But the report that came out last week from the new Bush 
Administration Justice Department found no significant disparity.
    The preliminary report found that 85 percent--or 17 out of 20--of 
those on federal death row are people of color. And in 80 percent--or 
548 out of 684--of the cases submitted to the Attorney General as a 
possible federal death penalty case, the defendant was not white.
    In addition to concerns about race and ethnic bias, the survey 
revealed geographic disparities in the federal capital prosecutions 
sought. For example, most death penalty prosecutions were pursued by 
only a handful of federal prosecutors--42 percent or 287 out of 682 of 
the federal cases submitted to the Attorney General for review came 
from just 5 of the 94 federal districts.
    ``This Administration is seeking political cover for its desire to 
execute Juan Garza,'' King said. ``Worse, they're willing to get it at 
the expense of the truth. It's that simple.''
    The ACLU is releasing a report detailing the problems with the 
Justice Department's current analysis, and will be placing an ad in 
Friday's Washington Times criticizing the findings.

                                

           News Article from Associated Press, June 14, 2001

                  Death Penalty System Racism Disputed

    Washington (AP)--Days before a Hispanic drug dealer is to be 
executed in the same chamber as Oklahoma City bomber Timothy McVeigh, 
death penalty advocates told members of Congress that racism doesn't 
exist in the federal death penalty system.
    ``In my experience for seven years as a federal prosecutor, I saw 
no evidence that the race of defendants or victims had any overt or 
covert influence on this process,'' said Andrew BcBride, former 
Virginia federal prosecutor who testified before a Senate Judiciary 
subcommittee on Wednesday. ``I believe the charge is fabricated by 
those who wish to block enforcement of the federal death penalty for 
other reasons.''
    Juan Raul Garza, 44, is a convicted drug runner who killed one many 
and ordered the deaths of two others he thought were informers. His 
lawyers argue that he should be spared because there are more Hispanics 
and blacks on federal death row than whites.
    Sen. Russ Feingold, D-Wis., a death penalty opponent, said 
Wednesday that 17 of the remaining 19 federal death row inmates are 
minorities, 14 of whom are black. Besides Garza, no other death row 
inmates have executions scheduled. Monday's execution of McVeigh was 
the first time the federal death penalty has been carried out in 38 
years.
    Attorney General John Ashocroft issued a report last week that said 
there is not evidence of racial bias in federal death penalty cases.
    ``The case of Juan Garza illustrates why the call for a moratorium 
is misguided,'' said Sen. Orrin Hatch, R-Utah. He said Garza is facing 
the death penalty because he is guilty of committing heinous crimes, 
not because he is Hispanic.
    Ashcroft's report differed from a report former Attorney General 
Janet Reno issued in September that led former President Clinton to 
delay Garza's execution for six months, until June 19. Reno's report 
said the Justice Department found significant racial and geographic 
disparities in the system.
    Feingold said nothing had been done on Reno's limited study since 
early January, despite Ashcroft's pledge to continue looking into the 
issue.
    ``I believe that the execution of Juan Garza should again be 
postponed, and indeed, there should be a moratorium on all federal 
executions until a thorough and independent study by (the National 
Institute of Justice) is completed and considered,'' Feingold said.
    Julian Bond, chairman of the National Association for the 
Advancement of Colored People, said, ``At no time since the death 
penalty was reinstated by the Supreme Court in 1976 have Americans 
voiced such grave doubts about the fairness and reliability of capital 
punishment.''

                                

     Editorial from the Atlanta Journal-Constitution, June 8, 2001

                         The evidence is clear

    Opponents of the death penalty should quit ignoring facts that 
refute claims of racial bias and work instead to determine why 
minorities are overrepresented in the commission of crimes.
    When the U.S. Justice Department issued a report proving that 
racial prejudice doesn't play any significant role in imposition of the 
death penalty in federal cases, the reaction from staunch opponents to 
capital punishment was predictable: Don't confuse us with the facts, 
our minds are made up.
    As we noted in an editorial last month, no objective and fair-
minded person can seriously argue that the system used to determine 
which federal cases merit death-penalty prosecution is biased.
    All cases in which capital punishment is a possibility are sent by 
U.S. attorneys to a special review panel and eventually to the attorney 
general; information about the ethnic background of the defendants is 
concealed during this process. The result is that capital punishment is 
recommended at a higher rate for white defendants than for minorities.
    The fact that more blacks and Hispanics end up on federal death row 
is the result, then, of the reality that more minorities are convicted 
of crimes that carry the potential of capital punishment.
    As we wrote earlier, even if there is no bias at the end of the 
process, it would be useful to exmine earlier stages for signs of 
questionable practices.
    The Justice Department report issued this week does just that, and 
produces a wholly satisfactory explanation. It turns out that there are 
several special circumstances in various locations that have resulted 
in a larger number of minority defendants being tried in the federal 
court system for crimes that carry the death penalty.
    In Puerto Rico, for instance, local authorities and the U.S. 
attorney have an agreement that fatal carjacking cases should be 
handled as federal, not local crimes. That resulted in 72 murder cases 
being submitted for review during the past five years, all of them 
involving Hispanic defendants.
    In Virginia, federal prosecutors handled the cases of 66 defendants 
charged with multiple murders committed by a non-white drug gang; in 
California, prosecution of members of a ``Mexican Mafia'' prison gang 
skewed the proportion of Hispanics sent up for death-penalty review; 
and in the District of Columbia, where the U.S. attorney has 
jurisdiction over local as well as federal crimes, 22 of 23 cases 
involved minorities because the district's population is predominatly 
black.
    No amount of evidence, of course, will ever satisfy those who 
simply oppose capital punishment altogether and seize on supposed 
racial bias as a tool to use against the death penalty itself. But for 
people to whom facts are important, this study offers considerable 
reassurance that the federal criminal justice system is not driven by 
racism, but in fact bends over backward to be certain that each stage 
of the process is fair.
    No institution created and operated by human beings can be perfect, 
but this one appears to be as nearly above reproach as any we've seen. 
If the critics really want to be useful, why don't they turn their 
efforts to determining why minorities are overrepresented in the 
commission of crimes, and see if they can find a cure for that?

                                

 Editorial from the Atlanta Journal-Constitution, Thomas Sowell, June 
                                15, 2001

                 Journal: Opponents Getting Desperate:
                   examining the death penalty debate

    Palo Alto, Calif.--The execution of Timothy McVeigh has again 
raised the issue of capital punishment. Much of the case against 
capital punishment does not rise above the level of opaque 
pronouncements that it is ``barbaric,'' by which those who say this 
presumably mean that it makes them unhappy to think of killing another 
human being. It should. But we do many things we don't like to do 
because the alternative is to have things that make us even more 
unhappy.
    As Adam Smith said, two centuries ago, ``Mercy to the guilty is 
cruelty to the innocent.'' Those who lost loved ones in the Oklahoma 
City bombing do not need to spend the rest of their lives having their 
deep emotional wounds rubbed raw, again and again, by seeing Timothy 
McVeigh and his lawyers spouting off in the media. McVeigh inflicted 
more than enough cruelty on them already and they need to begin to 
heal.
    Sometimes those who oppose capital punishment talk of ``the 
sanctity of human life.'' Ironically, many of these same people have no 
such reluctance to kill innocent unborn babies as they have to execute 
a mass murderer. But the issue of capital punishment comes up only 
because the murderer already violated the sanctity of human life. Does 
his life have more sanctity than the life or lives he has taken?
    Shabby logic often tries to equate the murderer's act of taking a 
life with the law's later taking of his life. But physical parallels 
are not moral parallels. Otherwise, after a bank robber seizes money at 
gunpoint, the police would be just as wrong to take the money back from 
him at gunpoint. A woman who used force to fight off a would-be rapist 
would be just as guilty as he was for using force against her.
    It is a sign of how desperate the opponents of capital punishment 
are that they have to resort to such ``reasoning.'' Since these are not 
all stupid people, by any means, it is very doubtful if these are the 
real reasons for their opposition to executions. A writer for the 
liberal New Republic magazine may have been closer to the reason when 
he painfully spoke on TV about how terrible he felt to watch someone 
close to him die.
    Nothing is more universal than the pain of having someone dear to 
you die, whether or not you witness it. Nor should anyone rejoice at 
inflicting such pain on someone else. But one fatal weakness of the 
political left is its unwillingness to weigh one thing against another. 
Criminals are not executed for the fun of it. They are executed to 
deter them from repeating their crime, among other reasons.
    Squeamishness is not higher morality, even though the crusade 
against capital punishment attracts many who cannot resist anything 
that allows them to feel morally one-up on others.
    It is dogma on the political left that capital punishment does not 
deter. But it is indisputable that execution deters the murderer who is 
executed. Nor is this any less significant because it is obvious. There 
are people who would be alive today if the convicted murderers who 
killed them had been executed for previous murders they had committed.
    Glib phrases about instead having ``life in prison without the 
possibility of parole'' are just talk. Murderers kill again in prison. 
They escape from prison and kill. They are furloughed and kill while on 
furlough. And there is no such thing as life in prison without the 
possibility of a liberal governor coming along to pardon them or 
commute their sentence. That, too, has happened.
    The great fear of people on both sides of the capital punishment 
debate is making an irretrievable mistake by executing an innocent 
person. Even the best legal system cannot eliminate human error 100 
percent. If there were an option that would prevent any innocent person 
from dying as a result of our legal system, that option should be 
taken. But there is no such option.
    Letting murderers live has cost, and will continue to cost, the 
lives of innocent people. The only real question is whether more 
innocent lives will be lost this way than by executing the murderers, 
even with the rare mistake--which we should make as rare as possible--
of executing an innocent person.
    Thomas Sowell is a senior fellow at Stanford University's Hoover 
Institution. His column appears occasionally.

                                

Statement of David C. Baldus, Joseph B. Tye Distinguished Professor of 
                Law, College of Law, University of Iowa

    I have read U.S. Department of Justice, The Federal Death Penalty 
System: Supplementary Data Analysis and Revised Protocols for Capital 
Case Review (June 6, 2001) (``the report''), which supplements the DOJ 
report of September 12, 2000. The following comments explain why in the 
face of the findings and data in the DOJ September 2000 report, the 
latest DOJ report utterly fails to convince me that there is no 
significant risk of racial unfairness and geographic arbitrariness in 
the administration of the federal death penalty. I believe there is 
still the just as much reason to be concerned about these issues as 
there was when the September 2000 report was issued.

   1. The report completely overlooks the evidence of race-of-victim 
      discrimination documented in the September 12, 2000 report.
    A main theme of the latest report (p. 10) is that the death penalty 
authorization rate is higher for whites (.38) than it is for blacks 
(.25) and Hispanics (.20). These are the same figures that appeared in 
the September 2000 report. The latest report's emphasis on these 
statistics appears to suggest that white defendants are actually 
treated more punitively than minority defendants.
    A more plausible explanation for the higher authorization rates for 
the white defendants is plainly documented in the September report--(1) 
white defendants are more likely to have killed whites \1\ and (2) the 
U.S. Attorney charging and DOJ authorization rates are much higher in 
white-victim cases than they are in minority-victim cases. For example, 
data in the September 2000 report indicate that the Attorney General 
(AG) authorization rate for capital prosecutions is .37 (61/167) in 
whitevictim cases and .21(81/383) in minority-victim cases--a 16 
percentage point difference that is statistically significant at the 
.001 level. The more punitive treatment of white-victim cases is a 
plausible alternative explanation for the higher authorization rates in 
white-defendant cases that the new DOJ report does not even recognize, 
let alone dispel.
---------------------------------------------------------------------------
    \1\ For the cases for which both race-of-defendant and race-of-
victim data are available, 92% (109/119) of the white defendant cases 
involved a white victim.
---------------------------------------------------------------------------
    The September 2000 report also documents race-of-victim disparities 
in the actual imposition of death sentences in the federal system. 
Among all death-eligible offenders, those data indicate that the death-
sentencing rate from 1995 to 2000 is twice as high in white victim 
cases as it is in minority victim cases. Nationwide, the rates are .05 
(10/198) for the white-victim cases versus .02 (10/446) for the 
minority-victim cases; in the eleven states in which death sentences 
were actually imposed, the rate in the white-victim cases was .17 (10/
59) versus .08 (10/119) in the minority-victim cases--a nine 
percentage-point difference.\2\
---------------------------------------------------------------------------
    \2\ The race-of-victim disparity nationwide is significant at the 
.06 level while the disparity in the states in which death sentences 
have been imposed is significant at the .09 level. The states in which 
death sentences were imposed between 1995 and 2000 are Arkansas, 
Georgia, Illinois, Kansas, Louisiana, Missouri, North Carolina, 
Oklahoma, Pennsylvania, Texas, and Virginia.
    Of particular relevance are the race-of-victim disparities in case 
involving black defendants. Nationwide, in black defendant/white victim 
cases, the death-sentencing rate was .11 (6/55) while in the black 
defendant/minority victim cases, the rate was .03 (7/253), an 8 
percentage-point difference significant at the .O1 level. In the eleven 
death-sentencing states, the death-sentencing rate in the black 
defendant/white victim cases was .24 (6/25) while in the black 
defendantlminority victim cases, the rate was .07 (7/95), a 17 
percentage-point difference significant at the .02 level.
---------------------------------------------------------------------------
    These are the same kinds of race-of-victim disparities documented 
in McCleskey v. Kemp.\3\ The latest report simply ignores the data on 
race-of-victim disparities in the charging and authorization process, 
and in the actual imposition of federal death sentences.
---------------------------------------------------------------------------
    \3\ 481 U.S. 279 (1987).
---------------------------------------------------------------------------
 2. The report confounds the issue of ``regional disparities'' in the 
 administration of the federal death penalty with the issue of racial 
        disparities in the distribution of death eligible cases.

    The report argues that we should not expect the proportions of 
black, white, and Hispanic offenders among death-eligible cases that 
are accepted for federal prosecution to correspond to ``the racial and 
ethnic proportions in the general population.'' (p.13) Perhaps, but 
that is not the question. The real issue in this regard is the racial 
composition of the pool of death-eligible cases that are not accepted 
for federal prosecution. The report offers no data on that question. As 
a result, we do not know to what extent the death-eligible cases that 
were prosecuted in federal court are representative of all homicides 
that could have been charged as federal capital crimes, in the 
districts that are discussed in the report (pp.14-18) and in the 
country as a whole.
    More importantly, the report seeks to equate its arguments 
concerning geographic disparities in the racial distribution of death-
eligible cases with an explanation for clearly documented geographic 
and regional disparities in the administration of the death penalty. 
(Pp. 17-18) This is extremely misleading. The patterns that need to be 
studied are differences between regions in the rates at which death 
sentences are (a) sought by United State's Attorneys, (b) approved by 
the Attorney General, and (c) imposed by juries.
    The September 2000 report clearly shows that in practice the 
federal death sentencing system is largely a Southern program. Twelve 
of the 19 men on federal death row as of September were sentenced in 
the South, including 6 from Texas and 4 from Virginia. The new report 
focuses on regional differences in the racial composition of the pools 
of potential capital cases that the districts have generated (p. 17). 
This has nothing to do with regional disparities in the rates at which 
death eligible defendants in the system are capitally charged and 
sentenced to death.

 3. The report presents no data or other compelling reasons to dispel 
  concerns about the exercise of discretion by U.S. Attorneys in the 
                post-authorization stage of the process.

    One the most striking findings of the September 2000 report is that 
in the period after the AG has approved a capital prosecution, 48% of 
white defendants avoid the risk of a death penalty by entering a plea 
agreement to a non-capital charge, while the rates that blacks and 
Hispanics enter such agreements are 25% and 28% respectively. (p.19) 
The department is obviously concerned about this issue because it plans 
to limit the power of U.S. Attorneys to enter such agreements without 
AG approval. (p. 22)
    The report seeks to dispel concerns created by these data by 
pointing out first that it ``takes two to make a plea agreement'' and 
the data do not reflect racial differences in the rates at which the 
government offered post-authorization plea agreements. This argument 
raises an empirical question about the 62 cases (as of the September 
2000 report) in which a postauthorization plea agreement was not 
reached. Was a plea bargain offered by the prosecution in these cases 
and rejected by the defense, or was none offered? It would have been 
easy for the DOJ to ask its own prosecutors whether they offered plea 
agreements in these cases. Apparently, it was not done.
    The report further argues that even if differential acceptance 
rates by white and minority defendants did not explain the race 
disparities in the post-authorization guilty pleas, the September 2000 
report's findings on this issue ``would not be suggestive of bias by 
the U.S. Attorney's offices.'' (p. 20) The argument is that the 
detection of discrimination by U.S. Attorneys must rest on an analysis 
of ``what happens in the process as a whole'' and that decisions taken 
``at the final plea stage are uninformative as possible indications of 
bias by the U.S. Attorney offices.'' (p.20) Certainly it is important 
to view the system as a whole, but prior research demonstrates that 
race disparities may operate at discrete stages in a decision making 
process that overall appears to be evenhanded. There is serious cause 
for worry here, and the report makes no attempt to address it.\4\
---------------------------------------------------------------------------
    \4\ The report's argument also overlooks the fact that many of the 
post-authorization plea agreements are made in cases in which the U.S. 
Attorney's initial recommendation to waive the death penalty was 
overruled by the AG, a circumstance that needs to be factored into any 
analysis of the post-authorization decisions.
---------------------------------------------------------------------------
    The claim that no differential treatment exists in the post-
authorization plea stage is a mere assertion with no evidence whatever 
to support it. Without data on the comparative culpability of the 
offenders (and the race of the victims) in the cases affected by these 
postauthorization pleas bargaining decisions, one has no idea the 
extent to which similarly situated defendants were in fact treated 
comparably.

  4. The report provides no compellin reason for the DOJ's failure to 
  authorize a comprehensive state of the art study of fairness in the 
          administration of the federal death penalty system.

    The report notes a meeting of ``researchers and practitioners on 
January 10, 2001'' in Washington D.C. to consider the feasibility of 
conducting a comprehensive empirical study and evaluation of fairness 
in the administration of the federal system. (p.11) 1 was one of the 
researchers at that meeting.
    The report correctly states that there was general agreement at the 
January meeting that the conduct of such a study would entail a 
``multi-year research initiative.'' Two years would be the likely time 
line. In the meantime, half a year has passed since that meeting, and 
nine months since the release of the initial report, and neither the 
NIJ nor any other agency of the Department of Justice has taken any 
visible step to begin to make such a study possible. Quite the 
opposite. Attorney General Ashcroft's testimony last week suggested 
that he believes that the idea should be abandoned.
    The report also states that ``discussion'' at the January 10 
meeting ``indicated,'' that such a study ``could not be expected to 
yield definitive answers concerning the reasons for disparities in 
federal death penalty cases.'' This was certainly not the consensus of 
the researchers at the January 10 meeting. On the contrary, the 
consensus was that such a study would provide the best possible 
evidence on the question. Certainly the results of such a study would 
yield far more definitive answers to the issue of racial fairness in 
the system than the arguments presented in the department's latest 
report.
    The new report offers no reason at all why such a study should not 
be conducted even if it would require up to two years to complete. It 
also offers no reason why the DOJ appears unwilling to identify by 
defendant name and docket number the more than 700 death-eligible cases 
that make up the database for its latest study. With this information 
independent researchers could collect data on the cases in the DOJ 
database and conduct the kind of study that would provide the best 
evidence available on the question of fairness in the federal death 
sentencing system.

  5. The report misconceives the nature of race discrimination in the 
              administration of the federal death penalty.

    A main theme of the report is that the core issue of racial 
fairness is whether U.S. Attorneys are consciously engaged in 
``favoritism towards White defendants.'' (p. 11) In other words, are 
their decisions based on ``invidious'' racial reasons (p.12) or 
motivated by ``bias'' (p. 20) or a ``particular desire to secure the 
death penalty for minority defendants.'' (p. 17) This states the issue 
far too crudely. No one with an understanding of the system suggests 
that it is driven by such a conscious and blatant animus against 
minority defendants or defendants whose victims are white.
    The concern about racial unfairness in the system is whether 
defendants with similar levels of criminal culpability and 
deathworthiness are treated comparably or differently because of their 
race or the race of their victims. The reasons for differential 
treatment by U.S. Attorneys--and by agents of the FBI, the DEA and 
other are federal law enforcement agencies--are almost certainly 
nonconscious. More importantly, the reasons for the differential 
treatment of similarly situated offenders on the basis of their race or 
the race of the victim are irrelevant. It is the fact that differential 
treatment cannot be explained by legitimate case characteristics that 
makes it morally and legally objectionable, when it exists. Without a 
systematic study based on full information concerning the criminal 
culpability and the race of the victims of all of the death eligible 
offenders, we will remain in the dark about whether unexplained 
differential treatment based on the race of the defendant and victim 
exists in the federal death penalty system, and if so, what causes it.

                                

      Editorial from the Boston Globe, Jeff Jacoby, June 18, 2001

                       Death penalty `arguments'

    TWO DAYS after Timothy McVeigh's execution, The New York Times 
published eight letters to the editor discussing the event and 
expressing an opinion on the death penalty. Six of the eight were 
against executing murderers, one was in favor, and one was in favor in 
a case of mass atrocity like McVeigh's.
    Four days earlier, the Times had published a letter from a death-
penalty supporter. The day before that there had been three letters on 
the subject, all opposed. A few days earlier, three more letters; 
again, all opposed. And four letters opposing capital punishment had 
appeared in May, around the time McVeigh was originally supposed to 
die.
    By my count, then, over the past six weeks the Times has run 19 
letters remarking in some fashion on the death penalty, of which 16-
84--percent were anti-execution.
    Now, letters to the editor, even in the nation's unofficial ``paper 
of record,'' are no gauge of public opinion. It is common knowledge 
that Americans support capital punishment--in McVeigh's case, 
overwhelmingly.
    But even if letters published in the Times are no reflection of 
society at large, they do tell us one thing: what sort of letters the 
Times, with its global readership and famously high standards, deems 
worthy of publication.
    So it is striking that the collective case made by the Times's 
recent blizzard of anti-death penalty letters was so feeble.
    With McVeigh's death, wrote Rob Ham of California, ``What has 
changed? The victims are still dead. Do the families now have closure? 
Can anyone ever have closure after losing a child, a husband, a wife, 
or a parent? ''
    This is an appeal to emotion, not reason. Of course the victims are 
still dead. They would still be dead if McVeigh had gotten life in 
prison, too. Or 20 years. Or probation. No one thinks the purpose of 
punishment is to undo the crime, yet death penalty abolitionists 
routinely remind us that killing a murderer won't bring his victims 
back to life. If that is a reason to ban executions, it is a reason to 
ban all punishment.
    Ham's ``closure'' argument, meanwhile, is simply uninformed. The 
families of murder victims do not stop mourning when the killer dies, 
but for many, there is indeed a measure of solace in knowing that the 
monster who destroyed their loved one will never hurt anyone again. 
Abolishing executions certainly won't bring ``closure'' to grieving 
relatives. On the contrary, it will deepen their torment, mocking them 
each time they remember that the person they their torment, mocking 
them each time they remember that the person they loved is in the 
grave, while his killer continues to breathe.
    From Michigan, Dawne Adam wrote that she wept at the news of 
McVeigh's execution. ``It is barbaric for any country to murder its 
citizens, despite the damage they may do.''
    The barbarism of the death penalty is taken for granted by anti-
execution fundamentalists. They believe fervently that when the state 
kills, it commits a great evil. This is not something they can prove 
logically or explain rationally--it is, for them, simply an article of 
faith.
    Why is it barbaric to require that one who violently steals the 
life of an innocent (or 168 innocents) not be allowed to keep his own? 
Where is the moral tradition that prescribes life for mass-murderers? 
How can it be civilizing to tell the world's worst people that no 
matter how many victims they butcher, no matter what cruelty they 
inflict on others, the worst that will happen to them is that they will 
go to prison? Those are questions that abolitionists never answer.
    ``The loss of freedom for the remainder of one's life is no mild 
punishment,'' James Bernstein of New York wrote to the Times. ``We do 
not need the death penalty to express society's utter repudiation of 
those who would take the lives of others.''
    Bernstein has it exactly wrong. A society that bans the death 
penalty outright Buy a Globe photo is confirming that it does not 
utterly repudiate its worst murderers. The United States last week made 
clear just how seriously it regards McVeigh's monstrous crime. Change 
the law so that no future McVeigh can be put to death, and the United 
States will be sending a different message: Mass murder isn't that bad.
    Other letters made even weaker arguments. McVeigh should have been 
kept alive, in one Oklahoma writer's view, so scientists could study 
him and ``try to determine the cause of these acts of violence.'' A 
Michigan psychologist wanted him spared so we could analyze ``the 
psychopathy that creates people Search the Globe: like him.''
    And then there were those who hated to see McVeigh miss out on the 
finer things in life.
    ``Would we not all have been better off it Mr. McVeigh had lived a 
long, secluded life in prison?'' asked Michael Pressman of New York. 
``He could have read history and literature. He could have painted and 
sculpted and listened to great music. His new-found knowledge and 
maturity could have obliterated his warped views. He could have lived 
in profound regret.''
    Those of us who favor death for murderers rely on history, on 
common sense, and on a moral tradition stretching back to Sinai. But in 
our time as in all times, there are those who would rather let 
evildoers get away with murder. The debate goes on.

                                

        Article from the Boston Herald, Don Feder, June 20, 2001

    Timothy McVeigh was a test of faith for anti-death penalty die-
hards. With Juan Raul Garza, executed yesterday in Terre Haute, Ind., 
they were on more familiar ground.
    The drug dealer and convicted murdered of three became the second 
federal prisoner executed since 1963. Late last year, then-President 
Bill Clinton issued a stay of execution after a Justice Department 
study disclosed that between 1995 and 2000, where U.S. attorneys sought 
the death sentence, 80 percent of defendants were minorities.
    This led NAACP Chairman Julian Bond to sermonize, ``I don't believe 
that anyone, ever the strongest supporter of the death penalty, wants 
anyone to die unfairly,'' Note that Bond isn't specking of the innocent 
dying, but violation of some mythical standard of absolute fairness.The 
possibility that a disproportionate number of minorities may be 
committing capital crimes under federal law never penetrates their 
mindset.
    A more recent study showed that where the feds could have sought 
the death penalty, they did so 58 percent of the time when the 
defendant was Hispanic, in 79 percent of cases where he was black and 
in 81 percent of cases where the accused was white.
    Two of Garza's victims were Hispanic, as was the judge who tried 
this case and the assistant U.S. attorney who prosecuted him. Bias here 
exists only in the eyes those who see everything through race-colored 
glasses.
    Sadly for them, the race card couldn't be played with McVeigh. 
``We're executing too many white, militia types,'' just doesn't cut it. 
The mad bomber admitted to his horrific crimes, for which--to his dying 
breath--he showed no remorse.
    According to a Gallup poll, 81 percent of the American people 
wanted McVeigh put down. Among them were 58 percent of those who say 
they're against capital punishment.
    Death penalty opponents were reduced to stamping their feet like 
petulant children. ``We're giving him exactly what he wants''--a media 
menagerie followed by a quick end--they pouted.
    Quite the contrary. After his conviction, McVeigh decided not to 
prolong the inevitable. When there seemed to be a chance that his 
sentence might be overturned--based on FBI files not initially turned 
over to the defense--he instructed his attorneys to petition for a stay 
of execution.
    When it became clear that this was futile (after the 10th U.S. 
Circuit Court of Appeals turned him down), he accepted his fate. 
McVeigh wanted to live but knew his course was hopeless.
    Yes, but whether clear that this was futile (after the 10th U.S. 
Circuit Court of Appeals turned him down). he accepted his fate. 
McVeigh wanted to live but knew his cause was hopeless.
    Yes, but whether or not a murderer wants to die, life in prison is 
a much better punishment, opponents urge. Let him rot in a cell.
    If Timothy McVeigh had lived another 60 years behind bars, he would 
have spent that time using his screwball philosophy to justify his 
atrocities--mocking his victims and their families in the prcess.
    What exactly did those who opposed his execution have in mind for 
the mass murder? That he be kept in solitary confinement, shackled and 
blindfolded, denied diversions and all human contact?
    Hardly. Wile McVeigh's life in prison would been circumscribed, 
Still he would have visits from family and friends, letters from 
deranged admirers, and access to books, music and television.
    Opponents think themselves especially clever when the observe that 
an execution won't resurrect the murderer's victims. But punishing a 
rapist won't undo his crime either. There are very few cases, mostly 
restitution for property crimes, where the victim is returned to his 
original condition.
    For death-penalty foes, the argument doesn't turn on racism, 
innocents dying or any of the other facile arguments advanced.
    Exhibit A is Michael Radelet, a University of Florida professor who 
candidly argues, ``The death penalty debate is not about the McVeighs 
and Bundys,'' but ``the poor, victims of child abuse, people who had 
bad attorneys.'' (Ted Bundy was a notorious serial Killer of the 
1970's.)
    In other word, if the murderer was impoverished, aroused, a victim 
of discrimination, denied the services of a Johnnie Cochran Jr.--if he 
was emotionally deprived, confused--he doesn't deserve to die.
    Given enough time, Radelet and Co. could find extenuating 
circumstances for any killer, even a McVeigh or a Bundy.

                                

 Article from the Dallas Morning News, Michelle Mittelstadt, June 14, 
                                  2001

              Some urge more study of death penalty, bias

    Washington--A week after Attorney General John Ashocroft declared 
there is no evidence of racial or ethnic bias in the use of the federal 
death penalty, his remarks are continuing to provoke consternation on 
Capitol Hill.
    Senate Democrats and several witnesses at a congressional hearing 
hastily called in advance of next week's execution of a Hispanic 
murderer from Texas said Wednesday that it's far too early to make such 
a sweeping pronouncement.
    ``That conclusion is premature and not based in fact,'' said 
Columbia university law school professor Samuel Gross, a death penalty 
expert.
    He and others contend that further analysis is required to explain 
the cause of persistent racial and geographic disparities that are most 
graphically manifested by the composition of federal death row--where 
17 of the 19 convicts are minorities, more than half of them dispatched 
there by just two states: Texas and Virginia.
    ``We cannot in good conscience put people to death until we are 
confident in the fairness of the system that leads to those 
decisions,'' said Sen. Russell Feingold, D-Wis., chairman of the Senate 
Judiciary subcommittee that held Wednesday's hearing. ``I do not yet 
have that confidence, and many in the country share my concerns.''

                           TRAFFICKER'S CASE

    Mr. Feingold, who is pressing for a moratorium on federal 
executions until questions about the treatment of minorities are fully 
answered, renewed his call for the government to halt the impending 
execution of Brownsville marijuana trafficker Juan Raul Garza.
    The 44-year-old, who was sentenced to death for the murders of 
three associates, faces lethal injection Tuesday at the federal 
execution facility in Terre Haute, Ind., where Oklahoma City bomber 
Timothy McVeigh met his death Monday. Mr. Garza's lawyers are asking 
President Bush to commute his sentence to life imprisonment without 
possibility of parole, contending that the capital punishment system is 
``grossly'' discriminatory.
    The attorney general has said he knows of no reason to defer Mr. 
Garza's death date. He also opposes a moratorium on executions.
    Mr. Ashcroft said last week that a Justice Department review of 
nearly 1,000 cases in which defendants were charged with federal crimes 
punishable by death turned up ``no indication'' of any racial or ethnic 
bias.
    The study ``provides no evidence of favoritism towards white 
defendants in comparison with minority defendants,'' Deputy Attorney 
General Larry Thompson reiterated Wednesday. While the study found that 
more minorities are charged with crimes punishable by death, he said 
white defendants were statistically more likely to be recommended for 
capital prosecution at every level of the process.

                          SUBJECT OF CRITICISM

    That study, which is a follow-up to a Justice Department study last 
year that found pronounced racial and geographic disparities, was 
roundly denounced by critics.
    ``We reject any suggestion that the report released by Mr. Ashcroft 
on June 6 constitutes a reliable or thorough study of possible racial 
and regional bias in the federal death penalty system,'' NAACP Chairman 
Julian Bond told the subcommittee.
    He and others say there cannot be a definitive answer about whether 
the system is biased until researchers examine prosecutors' decisions 
on which criminal charges to file; which plea bargains to grant; or 
whether to file in state or federal court.
    Some of those questions could be answered by a study that Mr. 
Ashcroft is directing the National Institute of Justice to undertake, 
using independent experts to examine the prosecution of murder cases at 
the state and federal levels. That review first was suggested by Mr. 
Ashcroft's predecessor, Janet Reno, but never got off the ground.
    Mr. Feingold, who was critical Wednesday of the delay in starting 
the National Institute of Justice study, said it would be a ``tragic 
mistake and an unnecessary mistake'' to execute Mr. Garza while the 
latest study is in progress.
    There was little sympathy for that view--or for a moratorium--from 
subcommittee Republicans, who noted that Mr. Garza's guilt is not in 
doubt. The prisoner has acknowledged responsibility for the crimes.
    ``Like all of the defendants on federal death row, Mr. Garza faces 
execution not because of his race, ethnicity or place of residence, but 
because he is guilty of committing heinous crimes,'' said Sen. Orrin 
Hatch, R-Utah.
    The hearing, said Sen. Strom Thurmond, R-S.C., is ``really about an 
endless political effort to discredit the death penalty by any possible 
means.''
    James Fotis, executive director of the Law Enforcement Alliance of 
America, a lobbying group, bristled at what he called ``baseless and 
shameful racist accusations that law enforcement officers are somehow 
selectively apprehending criminals based on the color of their skin.''
    But, Mr. Feingold replied, ``No one has accused anyone in the 
system of being intentionally racist or biased.''

                            COCAINE QUESTION

    Sen. Jeff Sessions, R-Ala., questioned whether some of the racial 
disparity in the system might be due to federal sentencing guidelines 
that order far harsher penalties for crack cocaine than powder cocaine.
    The federal government's focus on drug trafficking does play a 
role, said Mr. Thompson, the deputy attorney general ``In areas where 
large-scale, organized drug trafficking is largely carried out by gangs 
whose membership is drawn from minority groups, the active federal role 
in investigating and prosecuting these crimes results in a high 
proportion of minority defendants,'' he said.

                                

                                      Department of Justice
                            Drug Enforcement Administration
                                             Washington, D.C. 20537

The Honorable Russ Feingold
United States Senate
Washington, D.C. 20510

    Dear Mr. Chairman:

    After reviewing the testimony of Samuel R. Gross before the United 
States Senate Judiciary Subcommittee on Constitution, Federalism, and 
Property Rights on June 13, 2001, I feel compelled to respond to some 
of his points which I believe acre erroneous. Mr. Gross suggests that 
the Federal Bureau of Investigation (FBI) and the Drug Enforcement 
Administration (DEA) discriminate by race in the initial decision to 
undertake a federal investigation.
    Mr. Gross states that ``The Ashcroft Report focuses on the 
professionalism of Assistant United States Attorneys, the lawyers who 
make the legal decisions once a case has been taken on. But the initial 
decision to undertake a federal investigation is often made by law 
enforcement agents rather than prosecutors, by the FBI or the DEA, 
rather than United States Attorneys. Perhaps these two sets of DOJ 
employees have different patterns of behavior.'' Mr. Gross continues by 
asking ``Are Federal law enforcement agencies, the FBI and the Drug 
Enforcement Administration searching for African American and Hispanic 
drug dealers because they think they know that the worst drug 
traffickers are all black or Latin American- Are the racial disparities 
is Federal capital prosecutions a manifestation of race-specific drug 
investigations?''
    For the record, I would like to inform the committee that the men 
and women of the Drug Enforcement Administration (DEA) do not engage in 
racial profiling, nor do they engage in discriminatory practices on the 
basis of ethnicity--More specifically, DEA does not adopt a blanket 
assumption that individuals engage in criminal activity simply because 
they are minorities. To the contrary, crime is universal, and DEA 
investigates illegal activity wherever it may occur. Furthermore, DEA 
does not selectively enforce the law based upon race or ethnicity as a 
basis for law enforcement action. Drug enforcement based on race or 
ethnicity is not only ineffective, but it is illegal.
    The DEA does not use race, national origin, or religion as part of 
a ``profile'' to target individuals. Rather, in making investigative 
decisions, DEA relies on other factors which, in the totality of the 
circumstances, create reasonable suspicion that an individual is 
involved in criminal activity.
    Mr. Chairman, attached is a memo from me to the men and women of 
the DEA articulating my unwavering opposition to the unlawful use of 
race or ethnicity in the discharge of our law enforcement duties. I 
respectfully request that this letter, and the attached memo be entered 
into the hearing's official record.
    I would like to assure the Committee that DEA will continue to 
uphold its longstanding opposition to racial profiling and that I, as 
the Agency head, will not tolerate any form of racial or ethnic 
profiling in the discharge of DEA's mission.
         Sincerely,
                                         Donnie R. Marshall
                                                      Administrator

                                

     Memorandum of Donnie R. Marshall, Acting Administrator, Drug 
               Enforcement Administration, Washington, DC

      Executive Order: Fairness in Law Enforcement (FFS: 601-Q2.1)
                           all dea employees
    Over the last two years, there has been increased national 
attention given to racial profiling--the unlawful use of race or 
ethnicity is the discharge of law enforcement duties. At ever 
opportunity, while working with the Department of Justice, DEA has 
always articulated its unwavering opposition to this unlawful and 
unethical technique.
    AS ever, I continue to state emphatically that DEA has not and will 
not investigate or collect intelligence against any one or say group 
based on their racial or ethnic makeup. DEA investigates individuals 
and criminal organizations-regardless of their origin or base of 
operation-that manufacture and traffic illicit drugs throughout the 
United States.
    Crime is universal. Race sad ethnicity, therefore, are never a 
basis for law enforcement to suspect an individual of wrongdoing. In 
both DEA policy and case law, it is well established that a law 
enforcement officer may not rely on race or ethnicity as the sole basis 
for law enforcement action, such as a traffic or pedestrian stop or a 
request for consent to search.
    On June 9, 1999, the President issued an Executive Order entitled, 
Fairness in Law Enforcement. Collection of Data. This Order directs the 
Departments of Interior, Justice, and Treasury to; (1) begin collection 
of Federal law enforcement data is as attempt to track the truce, 
ethnicity, and gender of persons stopped or searched by law 
enforcement; and (2) prepare a report on training programs, Policies, 
bad practices regarding the rue of rare, ethnicity, and gender in 
Federal law enforcement activities, along with recommendations far 
improving those programs, policies and practices. In compliance with 
the Order, and at the request of the Attorney General, DEA nominated 
Operation Jetway for inclusion in the pilot study. The pilot study is 
underway in several Jetway sites around the nation. The Attorney 
General will report to the President it the end of the first year field 
test. According to the Order, the Attorney General's report shall 
include:

        (i) an evaluation of the first year of the field test; (1) an 
        implementation plan to expand the data collection and reporting 
        system to other components and locations within the agency and 
        to make such system permanent; and (iii) recommendations to 
        improve the fair administration of law enforcement activities.

    I will continue to uphold DEA's longstanding position and, as the 
Agency head, will not tolerate any form of racial or ethnic profiling 
in the discharge of DEA's mission. Supervisors end managers and will 
continue to be, held accountable for the quality, outcomes, and 
constitutionality of encounter, with the public.
    Proactive narcotics law enforcement is an effective way to protect 
the public from drug-related crime and violence. Drug enforcement based 
on race or city is not only ineffective, but is unethical and illegal. 
Such methods have no place in DEA, nor in law enforcement in general.

                                

                                 U.S. Department of Justice
                            Federal Bureau of Investigation
                                     Washington, D.C. 20535
                                                      June 13, 2001

Hon. Russ Feingold, Chairman
Subcommittee on the Constitution,
Federalism and Property Rights
Committee on the Judiciary
Washington, D.C. 20510

Dear Mr. Chairman:

    We understand the deep concern that you and your colleagues have 
that the criminal justice system be administered without consideration 
of race. This principle is fundamental to the fairness of our system 
and one to which the FBI constantly dedicates itself in every aspect of 
enforcing the laws.
    Submitted for your hearing today is testimony of Professor Goss of 
Columbia University suggesting that the FBI and DEA determine which 
federal drug investigations to undertake based upon the race of the 
drug dealers involved. While examination of the issue can be a healthy 
exercise to help address this postulation, reaching such a conclusion 
ignores the laws, guidelines, and congressional and judicial scrutiny 
under which we operate. Just as in every type of violation addressed by 
the FBI, race is not and cannot be a factor, let alone the dominant 
factor, in determining whether the threshold guidelines predicate has 
been reached for conducting an investigation.
    Our commitment and our practice is to expend our valuable 
investigative resources in a manner that is color blind, regardless of 
the program or violation. Consistent with our strategic plan, resources 
dedicated to fighting violent crimes and major drug organizations are 
deployed based on analysis of factors such as crime patterns, 
complexity, levels of available local resources, levels of violence, 
degree of organized gang enterprises, and the likely impact our efforts 
will have on the overall safety of the community. There is no place in 
the equation for any factors that are not color blind in their 
application. This is true for these programs and every other, whether 
it be cybercrime, terrorism or any other of our major investigative 
programs.
    Finally, I might add that the FBI devotes considerable resources to 
vigorously enforce the civil rights laws. No law enforcement officer is 
immune from investigation and prosecution for violating these laws. 
There is no alternative if we are to ensure fairness in the application 
of criminal justice.

            Sincerely yours,

                                          Ruben Garcia, Jr.
                                                 Assistant Director
                                    Criminal Investigative Division

                                

               Federal Law Enforcement Officers Association
                                       Lewisberry, PA 17339
                                                      June 12, 2001

Hon. Russ Feingold, Chairman
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Hart Building, Room 506
Washington, DC 20510

Honorable Strom Thurmond
Ranking Member
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Russell Building, Room 217
Washington, DC 20510

Dear Mr. Chairman and Ranking Member:

    On behalf of the more than 19,500 members of the Federal Law 
Enforcement Officers Association (FLEOA), I wish to express our strong 
opposition to any national moratorium on the death penalty. FLEOA 
believes the option of imposing the death penalty should be available 
in certain extreme cases--In each of the pending cases in the federal 
system there is no doubt whatsoever of the person's guilt, nor is there 
any question that they haven't been afforded complete and competent 
counsel.
    FLEOA is a volunteer, non partisan, professional association, 
exclusively representing federal agents, with members from the agencies 
listed on our left masthead. We recognize and understand the concerns 
expressed by individuals who want to ensure that any one convicted of 
heinous crimes is afforded all rights and privileges accorded under our 
Constitution. However, once these rights are afforded and a person is 
convicted and a jury determines this person should forfeit his right to 
live--than this option should be available. This would even include any 
federal agent (Philip Hassen) why would sell our country's most 
valuable secrets to our enemies.
    On a personal note, in my Basic Criminal Investigators Class at the 
Federal Law Enforcement Training Center was Paul Broxterman. On April 
19, 1995, he was sitting in his office in the Murrah Building in 
Oklahoma City, OK. He died that day along with 7 other federal agents, 
19 children and 141 other people. It is our belief, any one 
perpetrating a crime such as this forfeits his right to exist in our 
society.
    If you have any questions, or need further information please feel 
free to contact me directly at (212) 264-8406, or through FLEOA's 
Administrative offices at the numbers listed above. Thank you for your 
attention to this matter.

                                           Richard J. Gallo

                                

               Federal Law Enforcement Officers Association
                                       Lewisberry, PA 17339
                                                      June 13, 2001

Hon. Russ Feingold, Chairman
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Hart Building, Room 506
Washington, DC 20510

Honorable Strom Thurmond
Ranking Member
Subcommittee on Criminal Justice,
Senate Judiciary Committee
United States Senate
Russell Building, Room 217
Washington, DC 20510

Dear Mr. Chairman and Ranking Member:

    On behalf of the more than 19,500 members of the Federal Law 
Enforcement Officer Association (FLEOA), I wish to address an false 
accusation of racism by federal law enforcement officers being made by 
Samuel R. Gross who is testifying before you Subcommittee today. Page 
seven of Gross' testimony, in substance, insinuates the FBI and DEA 
make decisions to initiate investigations based on a discriminatory 
racial basis. FLEOA believes nothing can be further from the truth.
    FLEOA is a volunteer, non partisan, professional association, 
exclusively representing federal agents, with members from the agencies 
listed on our left masthead. We appreciate someone who has passion for 
his point of view, since we believe law enforcement is a calling, not 
just a job. However, when someone's passion is so great he manipulated 
the truth and thus becomes less than credible we feel it is our 
responsibility to bring this to your attention.
    Federal law enforcement has many levels of oversight. We take a 
moment to remind everyone that each department has its own Internal 
Affairs unit as well as an Inspector General's Office. In addition, 
there is the Office of Professional Responsibility, the Civil Rights 
Division of the DOJ, tile FBI and many individual U.S. Attorney's 
offices. Historically, state and local prosecutors investigate the 
actions of Federal officers involved in shootings, or high profile 
cases of alleged wrongdoing. Federal Agents are subject to civil suits 
in Federal, state and local courts.
    Finally, there is Congress itself, which is the ultimate oversight 
authority, since they control the purse strings of each agency. I 
challenge anyone to name a state or local law enforcement group that 
has as many layers of oversight as the Federal law enforcement 
community. If Gross has ever seen, heard or dreamed about any such 
decision that he implies the FBI and DEA are making, why has he never 
spoken out before this? Is he shy? Doesn't he know whom to call? Or is 
it. possible his passion over an issue tie feels so strongly about has 
blinded him to a higher set of ethics? FLEOA hopes you can get the 
answer since his statement may start as misguided accusations but then 
mutate into the media exclaiming this ``theory'' as the given truth. 
Thus, Gross will do more harm to our society and the law enforcement 
officers within it then he may realize.
    If you have any questions, or need further information please feel 
free to contact me directly at (212) 264-8406, or through FLEOA's 
Administrative offices at the numbers listed above. Thank you for your 
attention to this matter.

                                           Richard J. Gallo
                                                 National President

                                

                                  Fraternal Order of Police
                              Albuquerque, New Mexico 87109
                                              June 13, 2001

The Hon. Strom Thurmond Ranking Member,
Subcommittee on the Constitution,
Federalism and Property Rights
United States Senate
Washington, D.C. 20510

Dear Senator Thurmond:

    I am writing on behalf of the more than 294,000 members of the 
Fraternal Order of Police to express our views at the hearing being 
held today on the application of the death penalty as examined through 
the lens of race, It is my hope that the hearing will affirm the 
results of a review initiated by former Attorney General Janet Reno--
the death penalty is meted out to our nation's worst criminals, 
regardless of their race.
    The FOP supports the use of the death penalty at the state and 
federal level. This week, for the first time in almost forty years, a 
federal execution was carried out. Timothy McVeigh's horrific cringe 
precluded any real debate about whether the death penalty was 
appropriate in his case. Clearly, it was. However, X remind you and the 
Subcommittee that there are twenty-one (21) other criminals on death 
row whose crimes may lack the scope of this terrorist, but are 
deserving of the death penalty nonetheless.
    We urge the Subcommittee to reject any suggestion or legislation 
that would end, curtail or delay the use of the death penalty at the 
federal level. If the death penalty is to be effective justice, federal 
executions must continue. It is our hope that Juan Raul Garza will be 
executed as scheduled on June 19. A moratorium on the death penalty is 
a moratorium on justice for the victims of the most heinous of crimes.
    There is no evidence that a moratorium is necessary and to delay 
the application of justice in capital crimes thwarts the aims of 
justice and the will of the people and the Congress that put these laws 
in place. We do not want the administration of justice to become a 
political football.
    In fact, we would ask that you consider joining with us to correct 
a loophole in federal law that makes the death penalty applicable to 
any person who murders a state or local law enforcement officer only if 
that officer is assisting a federal law enforcement officer or a 
federal investigation. We believe that anyone who murders a law 
enforcement officer--local, state or federal--should face the death 
penalty.
    I thank you for your attention to the views of our nation's police 
officers, if I can be of any further help on this or any other issue, 
please do not hesitate to contact me or Executive Director Jim Pasco 
through my Washington on office.

            Sincerely,
                                        Gilbert G. Gallegos
                                                 National President

                                

   Statement of Joseph D. Hubbard, District Attorney, Calhoun County 
                      Courthouse, State of Alabama

    Dear Senator Sessions:
    On his last day in office, President Clinton commuted the death 
sentence of David Ronald Chandler who had been convicted ire United 
States District Court for the Northern District of Alabama in 1991 for 
murder in the furtherance of a continuing criminal enterprise. The 
Supreme Court of the United States was soon due to consider this case 
further when the commutation was granted. I implored the President not 
to intervene. While Chandler's attorneys and supporters, many in the 
media, have viciously attacked the integrity of those investigators and 
prosecutors who diligently pursued Chandler, the truth is that the 
President commuted a death sentence that was appropriate and fair under 
the circumstances of the case. My understanding is that the former 
Attorney General concurred, at least tacitly, in the President's 
actions. It is disheartening that both of these officials saw tit to 
turn their backs on their line personnel who had done nothing except 
vigorously enforce the law as written.
    The evidence at trial showed that Chandler was the controlling 
partner in a large marijuana growing, transporting and trafficking 
operation between 1957 and 1990. He and his partners cultivated and 
harvested thousands of marijuana plants in eastern Alabama and western 
Georgia, and bought and sold large quantities of marijuana fair 
distribution. Testimony showed Chandler had attempted to use deadly 
physical force against a Georgia Bureau of Investigation officer upon a 
previous arrest, and that Chandler had said that ``if he got set up 
again, he'd have to kill somebody.''
    Persons with intimate knowledge of Chandler's operation testified 
that Chandler had solicited them to kill an informant and the local 
police chief who had been instrumental in bringing Chandler's 
activities to the knowledge of state and federal law enforcement 
officials, according to these witnesses, Chandler offered money to 
secure these deaths, even providing a weapon for such use Martin 
Shuler, the deceased victim of Chandler's crime, informed local law 
enforcement in March 7, 1990 that Chandler was having marijuana 
distributed from the home of Shuler's ex-wife, Donna Shiner. A search 
warrant revealed Shiner's allegations true and Ms. Shuler was arrested 
for her possession of one kilogram of marijuana. The evidence at trial, 
indicated Chandler learned of Martin Shuler's informant activities 
during the legal proceedings concerning Ms. Shuler's arrest, Chandler, 
according to one witness, solicited him, to kill Shuler and the local 
police chief because of their intruding into his marijuana distribution 
process.
    Charles Ray Jarrell, Chandler's brother-in-law who worked with 
Chandler in the growing and distribution, of the marijuana, testified 
Chandler offered him money on several occasions to ``take care'' of 
Martin Shuler Jarrell further testified that on the day of Shuler's 
death, Chandler told him Shuler was ``going to cause us a lot of 
trouble'' and that Jarrell ``better go on and get rid of him.'' 
Chandler told him he still had the money available to pay Jarrell if he 
would do as he was asked, Jarrell testified that, using a gun given to 
him by Chandler, he shot Shuler while they visited a local lake, that 
he and Chandler buried the body in a remote mountain area, and hid 
Shuler's car Jarrell later led authorities to the gravesite. An autopsy 
was performed that revealed Shuler died from a gunshot wound to the 
back of the head.
    Later, in August and September, 1990, Chandler made threats with 
respect to two other individuals who, according to testimony, he 
believed were stealing his marijuana from where it was being grown or 
stored. Neither of those individuals have been seen after early 
September 1990. Their families have never been allowed to bury their 
loved ones, yet Chandler has been able to sway the President of the 
United States that his fife should be spared.
    Chandler's attorneys have painted their client as a ``Robin Hood'' 
type character and his prosecutors has suborners of perjury and liars 
themselves, They offer Jarrell's recantation of his trial testimony as 
incontrovertible evidence of Chandler's innocence when, in actuality, 
it is only one brother-in-law doing his best to have anorher removed 
from a death row cell he helped build. After 23 years of prosecuting 
criminals, I know there are no winners or losers in cases such as these 
only--justice should win. In this case, justice is mysteriously absent.

                                

                                        Birmingham, Alabama
                                                      June 11, 2001

Chairman Russell Feingold,
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington, DC

Dear Chairman Feingold and Committee Members

    It is my understanding that the judiciary committee wants to 
somehow derail the federal death penalty. I am one who has witnessed 
first hand what violent crime can do to devastate a family. My only 
son, Dewayne was violently beat to death. There is no way the defendant 
could ever feel the pain or injustice that me and my family has felt. 
Justice truly is only served when the convicted murderer is given his 
just sentence. Being an African-American, some of my brethren might 
disagree. But, until you live through what we have lived through, you 
cannot possibly make that decision. I implore you all to not water down 
or try to place a moratorium on the death penalty. If you do, there 
will be more acts performed by cowards like Timothy McVeigh and there 
only punishment will be life. Thank you for your time in reading my 
letter.

            Sincerely,

                                               Lucy Jackson

                                

                                        The Law Enforcement
                                        Alliance of America
                                           Falls Church, VA
                                                      June 13, 2001

Hon. Russell D. Feingold, Chairman
Committee on the Judiciary
Subcommittee on Constitution, Federalism
and Property Rights
United States Senate
Washington DC 20510

Dear Mr. Chairman,

    As a former federal law enforcement officer, I have seen the need 
for appropriate punishment in our criminal justice system. On those 
rare occasions when we are confronted by the most horrible criminals 
and their murderous deeds, it is extremely important to have a 
punishment that fits the crime--capital punishment.
    Death penalty opponents have made all sorts of attacks on the death 
penalty in order to see it abolished. One such attack is based on 
claims of racial bias. I am an. African American, a law enforcement 
officer, but most importantly, an American citizen. It is my utmost 
concern that we have a fair and effective justice system and capital 
punishment is part of that system.
    I urge you not to let those who cry wolf over race and capital 
punishment convince you to support a ``moratorium'' on the death 
penalty. Their concerns are not for racial justice, as they would 
oppose the death penalty with any excuse they can find.
    One of the most fundamental principles of our justice system is 
that the application must be colorblind. So should the preservation of 
justice. Those violent criminals facing the death penalty should not be 
judged, counted or queried based on the color of their skin, but on 
their guilt or innocence. I urge you not to let unproven allegations 
revoke the justly given sentences of those whose crimes are proven.

            Sincerely,

                                     Kenneth V.F. Blanchard
                                                           Director

                                

 National Association for the Advancement of Colored People
                                   Baltimore, MD 21215-3297
                                                      July 16, 2001

The Hon. Patrick J. Leahy
Senate Judiciary Committee
433 Russell Senate Office Building
Washington, DC 20510

    Dear Senator Leahy:
    In response to Senator Sessions' follow-up questions regarding the 
federal death penalty, I do oppose the death penalty in all cases.
    So does the NAACP.
    My testimony does not state or imply that Attorney General designee 
Ashcroft testified that he ``would delay all federal executions until 
any or all studies were complete.''
    My statement that he ``has broken his pledge'' is explained in my 
written testimony.
            Sincerely,
                                                Julian Bond
                                                           Chairman
                                  NAACP National Board of Directors

                                

                                National Troopers Coalition
                                         Albany, N.Y. 12207
                                                      June 19, 2001

Hon. Strom Thurmond
Ranking Member
Subcommittee on Criminal Justice
Senate Judiciary Committee
Russell Building, Room 217
Washington, DC 20510

    Dear Senator Thurmond:

    On behalf of our Chairman, Scott Reinacher, and the National 
Troopers Coalition Membership, which represents this Nations' State 
Police and Highway Patrol sworn law enforcement personnel I am writing 
to affirm our support of the death penalty. The National Troopers 
Coalition supports the death penalty at both the State and Federal 
levels of government.
    The death penalty is meted out in extreme conditions. When 
criminals such as Timothy McVeigh commit unspeakable heinous crimes 
that are even difficult to talk about the death penalty is the 
appropriate remedy. The death penalty has an important role to play in 
deterring and punishing the most heinous violent criminal offenders. 
The death penalty serves to permanently incapacitate extremely violent 
offenders. The death penalty serves as the important societal goal of 
just retribution. The death penalty also reaffirms society's moral 
outrage at the wanton destruction of innocent human life and assures 
the family and other survivors of murder victims that society take 
their loss seriously.
    We urge the Subcommittee Members to reject any legislation that 
would place a national moratorium on delay of the use of the death 
penalty. The death penalty must continue to be an effective form of 
justice in this country. There is no evidence that a moratorium is 
necessary and to deny the will of the people and previously passed 
legislation would be an injustice to society and our former lawmakers.
    Many of our nation's law enforcement officers are killed in the 
performance of their duties and we respectfully request that you remedy 
a loophole in current federal law that makes the death penalty 
applicable to any person who murders a state or local law enforcement 
officer only if that officer is assisting a federal law enforcement 
officer or a federal investigation. We believe that anyone who murders 
a law enforcement officer--local, state, and federal--should have the 
death penalty imposed.
    Thank you for your continued support of this Nation's law 
enforcement officers.

            Sincerely,

                                           Johnny L. Hughes
                                   Director of Government Relations

                                

    Article in Newsday, Tom Brune, Washington Bureau, June 13, 2001

                     The Two Faces of Death Penalty

             MINORITY GANGS FACE IT, WHITE MOBSTERS DO NOT

    Washington--In September 1997, an aspiring organized crime 
associate named John Pappa was arrested on charges he had carried out 
several mob-war hits on orders of Colombo family members.
    Two months later, an ambitious member of the Latin Kings street 
gang in Yonkers named Jose Santiago was arrested on charges he was the 
triggerman in a killing ordered by his leader to settle a personal 
dispute.
    Although indicted for separate, unconnected murders, Pappa and 
Santiago, both 19 at the time of the crimes, each were charged with a 
federal offense--murder in aid of racketeering--that made them eligible 
for a capital trial and a sentence of death by lethal injection.
    But after reviewing the cases, the federal government decided it 
would not seek the death penalty for Pappa, a white mob hitman charged 
in four murders, but that it would for Santiago, a Hispanic gang member 
accused of a single slaying.
    These two cases reflect the racial and geographic disparity that 
clouds the federal death penalty, but they also highlight a little 
noticed fact overlooked in the Justice Department analysis of capital 
cases released last week. Scores of black and Hispanic street and drug 
gang members have faced death-sentence prosecutions, but white mob 
figures have been virtually exempt from the federal death penalty since 
it was restored in 1988.
    Since then, more than 700 defendants have been charged with death-
eligible federal offenses. The attorney general, who has the final say, 
has authorized death penalty prosecutions of 211 of them, according to 
court records and lists of cases compiled by the Federal Death Penalty 
Resource Counsel Project. At least 40 of those facing capital 
prosecutions were gang members but only one was a mob figure, the 
records and project's lists show.
    Those numbers arise from a criminal justice system that has created 
two separate law enforcement strategies, one to pursue organized crime, 
another to pursue street gangs, a review of cases and interviews found.
    Prosecutors and the Justice Department might have considered any 
number of undisclosed factors in making death-penalty decisions in the 
cases of Pappa and Santiago, a department official said.
    But the public record of the two cases show the difficult and 
subjective choices the government must make in deciding which murders 
are such a threat to national interests that the criminal responsible 
deserves to die.
    The decision to seek the death penalty in a case raises the stakes 
so high that many defendants plead guilty to avoid a possible 
execution, as Santiago did, rather than gamble on proving their 
innocence.
    ``Why are the white Mafia guys any less of a national threat than 
the black guys and Hispanic guys prosecuted for drug killings?'' asked 
Elisabeth Semel, director of the American Bar Association's Death 
Penalty Representation Project.
    ``These figures make a very compelling case that the decisions at 
each stage of the process may very well contribute to the racial bias 
that we see in the federal death penalty,'' said Marc Mauer, executive 
director of the Sentencing Project.
    Last week, however, Attorney General John Ashcroft said a Justice 
Department report found no racial bias in the administration of the 
federal death penalty. It blamed the fact that minorities are 90 
percent of those on federal death row on factors such as regional 
demographics and relationships between local and federal prosecutors.
    The report also cited Congress' war on drugs--and its targeting of 
high-volume, violent drug traffickers for death sentences.
    Ashcroft stressed that Justice Department capital cases are based 
on the offenses that Congress decided were worthy of death when it 
passed death penalty laws in 1988, 1994 and 1996.
    A Justice Department official, speaking on the condition of 
anonymity, acknowledged the near absence of La Cosa Nostra death-
penalty cases. ``It think it's a real issue that we have to look at,'' 
the official said. ``I don't know that we have.''
    Zachary Carter, who was the U.S. attorney based in Brooklyn from 
1993 until 1999, charged more than a dozen mob figures, including 
Pappa, with death eligible offenses but did not recommend seeking the 
death penalty against any of them.
    ``The statistics won't tell the whole story,'' he said. ``It's 
complicated. You've got to look at individual cases.''
    Carter listed two guiding principles: whether an innocent victim 
was murdered and the strength of the evidence. If the case was based on 
accomplice testimony, he said he had doubts the evidence was strong 
enough to sustain a death penalty case.
    As a prosecutor considers a case, he or she must weigh many 
factors, Carter said. ``There is a level of subjectivity that makes me 
wonder if we should be making those decisions,'' he said.
    Mauer said one factor could be the glorification of white mob 
families as likeable, if criminal, in shows like the ``Sopranos,'' 
while depicting minority drug traffickers as cruel and intimidating in 
movies like ``Traffic.''
    ``The idea of executing the `Sopranos' is not a welcome one to most 
people,'' he said.
    Such attitudes may have been evident in the only death-penalty 
trial of an organized crime figure, conducted by the U.S. attorney's 
office in Brooklyn in 1992.
    A jury convicted hitman Tommy Pitera on charges he tortured and 
killed six victims, dismembering and burying the remains of five in 
suitcases in a Staten Island marsh. But three jury members couldn't 
bring themselves to vote to give Pitera a sentence of death.
    The government itself views the mob and street gangs as ``different 
folks involved in the two different industries,'' said criminologist 
Alfred Blumstein of Carnegie Mellon University.
    In 1970, when federal capital punishment was on hold, Congress took 
aim at organized crime with a package of tough laws that included the 
Racketeer Influenced and Corrupt Organizations Act, known as RICO.
    The FBI organized crime unit adopted the ``enterprise theory of 
investigation,'' a long-term strategy to dismantle organizations--not 
to target individual criminals--that relies on wiretaps, informants and 
cooperating witnesses, said Tom Fuentes, chief of the FBI's Organized 
Crime section.
    Many of the best-known mob figures, including John Gotti, were 
convicted before the federal death penalty resumed. But since 1996, an 
FBI crackdown has led to the convictions of 1,500 organized crime 
defendants, Fuentes said, but not a single death-penalty case.
    ``It's not our strategy, let us say, to go after them with the 
death penalty,'' Fuentes said. ``We have used life without parole.''
    In 1988, after violent street crime fueled by crack cocaine soared, 
Congress restored federal capital punishment to target drug kingpins 
and in 1994 expanded the death penalty to about 60 offenses aimed at 
criminal enterprises and a variety of murders.
    In 1992, the federal government for the first time took on street 
gangs, employing drug laws and RICO but, unlike the organized crime 
section, also using the death penalty.
    ``It's just one of the tools,'' said, Ken Neu, the FBI's assistant 
section chief of violent crimes.
    ``Traditional organized crime has preyed on its own,'' Neu 
explained. ``In the gang arena, a lot of innocent people have been 
killed because they happened to be there when the shooting started.''
    In the cases of John Pappa and Jose Santiago, the government had to 
weigh separately whether to seek the death of a Colombo family 
associate charged with four murders and accused of as many as six 
more--all of them connected to organized crime--and a Latin King member 
charged only with a single slaying of a man not connected to the gang.
    Court records and interviews with defense attorneys show how 
different Pappa and Santiago's criminal careers were, and how 
prosecutors had to make difficult, and subjective, decisions on their 
cases.
    In September 1997, based largely on the FBI's confidential 
informants, Pappa was arrested as he arrived at a Staten Island church 
for the wedding rehearsal of the brother of John Sparacino, one of 
Pappa's victims.
    Pappa, prosecutors say, aspired to become a Colombo family hitman 
like his slain father, and even got his back tattooed with a slogan in 
Italian that said ``death before dishonor.''
    To prove himself Pappa committed the 12th and final killing in the 
bloody wars between rival factions of the Colombo family in the early 
1990s, prosecutors said.
    Pappa began a killing spree that would take four lives two weeks 
after he turned 19 in October 1993, according to charges filed against 
him.
    On Colombo family orders, prosecutors said, Pappa helped gun down 
Joseph Scopo, a rival faction's acting underboss, as he drove up to his 
Queens home.
    A few months later, charges say, Pappa shot and dumped associate 
Rolando Rivera on the side of the Staten Island Expressway.
    Several weeks after that Pappa and an associate shot Sparacino in 
the back of the head, sliced off his genitals and tried to cut off his 
face, then left him in a burning car on Staten Island, prosecutors 
said.
    Three days before his 20th birthday, Pappa fired a dozen bullets 
into Eric Curcio in a Brooklyn auto body shop--for taking credit for 
Scopo's murder -and then called a friend the next day to brag about it, 
prosecutors said.
    A grand jury indicted Pappa on charges of drug trafficking, 
racketeering and murder. It included a death-penalty count for only 
Curcio's murder, because the others had occurred before the capital law 
cited in the case had gone into effect in 1994.
    Carter recommended against seeking a death sentence for Pappa, and 
the Justice Department's death-penalty review panel and Attorney 
General Janet Reno agreed.
    Prosecutors and Justice officials refuse to discuss the decision, 
but Pappa's attorney, Michael Bachner, said a variety of factors came 
into play.
    ``He was 19 years old at the time, and the evidence against him was 
primarily based on statements he was said to have made,'' Bachner said. 
``His father was a hitman for the mob. I think there was some thought 
there might be psychological issues at work.''
    But Bachner added, ``I think a lot of it was the victims were all 
quote unquote people in the business. I think there were no quote 
unquote innocent victims.''
    Besides, Bachner said he believes prosecutors bought his argument 
that what could be worse for a young man, death or being locked up for 
the rest of his life?
    Pappa pleaded not guilty and went to trial. In May 1999, a jury 
convicted Pappa for all four murders, and a judge sentenced him to two 
life terms plus 65 years and sent him to a maximum-security prison.
    In November 1997, based on reports from informants and a wiretapped 
conversation of Latin King members, Santiago was arrested on a murder 
warrant for the shooting death of Efraim Torres.
    Prosecutors charged that Santiago, who took the name King Monkey, 
had sought to rise in the gang by volunteering to be the triggerman.
    On March 17, 1995, Yonkers Latin King leader Hector Colon got into 
a fight over a girlfriend with Torres. Torres stabbed and injured 
Colon, court records show. Torres, known as Peewee, was not connected 
to the Latin Kings.
    Two weeks later, Colon learned where Torres was hiding and told 
Santiago--who, like Pappa, had just turned 19--to go and kill Torres. 
He did.
    Prosecutors said informants and Torres family members told 
authorities that Santiago had forced the wife and two children of 
Torres to stay in the room to watch him shoot and kill him. ``Jose 
always from the first denied that was what happened,'' said Loren 
Glassman, Santiago's attorney.
    Santiago was indicted in 1998 by the office of Manhattan U.S. 
Attorney Mary Jo White, on two counts of murder, including murder in 
aid of racketeering, that made him eligible for the death penalty.
    Soon after the indictment, Santiago talked to prosecutors about 
testifying against Colon, who also was charged but had evaded arrest, 
Glassman said.
    But that option was eliminated. FBI agents found Colon in 
Connecticut in 1999. When they confronted him, Colon reached for his 
cell phone and agents, thinking he was reaching for a weapon, shot and 
killed him, according to a Justice Department investigation of the 
incident.
    Glassman argued against a capital prosecution in presentations to 
the government's capital review panels. He said Santiago was only 19 at 
the time of the murder, had committed no other major violent crimes and 
regretted what he had done.
    ``He was the most remorseful client I ever had,'' Glassman said. 
``If he were given the choice he would spend the rest of his life 
trying to atone for what he had done.''
    As Carter had done in the Pappa case, White recommended against 
seeking a death sentence for Santiago. But this time the Justice 
Department review panel and Reno disagreed.
    ``What I heard was that Mary Jo White and Janet Reno spent the 
better part of three days arguing about this case,'' said Glassman. 
``And in the end, Janet Reno prevailed and required Mary Jo White to 
file a death penalty case.''
    A spokesman for White declined to discuss internal discussions.
    The government said the aggravating factor that justified a death 
sentence was the presence of Torres' wife and two children: they were 
endangered by the shooting and suffered when forced to watch the death 
of a husband and a father.
    Two months later, in April of last year, Santiago pleaded guilty to 
the murder to avoid a death-penalty trial.
    But he refused to admit in court in his plea agreement that he had 
forced the family of Torres to watch the shooting. A judge sentenced 
Santiago to 50 years in prison.

                                

                                                      June 11, 2001
Chairman Russell Feingold and
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington D. C.

Chairman Feingold,

    Losing a loved one under natural circumstances is hard enough to 
deal with but imagine losing one under the most heinous circumstances. 
No one wants to see another person's life ended but if someone thinks 
nothing of another person's life and takes it, especially under the 
most brutal circumstances, then he or she should pay with their lies.
    Before we lost our son Komommo Offem to gun violence In March of 
1998, we believed in the death penalty and we believe strongly in it 
now. We are also strongly opposed to any moratorium for the death 
penalty. We are not playing God, but if someone has no regard for human 
life, why should we have regard for theirs?

                           Monday Offem and Elizabeth Offem
              Members of V.O.C.A.L. (Victims of Crime and Leniency)

                                

Dear Chairman Feingold:
    I am an African-American crime victim advocate who strongly 
supports the death penalty. In May 1999 my only child was found 
brutally murdered in her apartment. The person who committed this 
heinous crime has so far shown no remorse. He is now free on bond after 
being incarcerated only one month. These types of criminals are a 
threat to all of society and do not deserve to live among decent men 
and women. I feel that the punishment should fit the crime and the 
death penalty is certainly appropriate for those who are cold, 
calculated murderers.
    In my opinion, without the death penalty there is no hope in 
curbing the escalating violence in our society. Most criminals today 
have been in arid out of penal institutions all of their lives and have 
no fear of being incarcerated for long periods of time. Some of them 
even boast about their criminal activities during incarceration. 
However, when it comes to their own lives being abruptly ended they do 
have a substantial amount of fear.
    I am urging you to please support death penalty legislation because 
it is greatly needed. In a lot of instances criminals are not punished 
to the fullest extent of the law because of parole board hearings, 
appeals, etc., etc. The death penalty is needed now more than ever to 
send a message to murderers that when you take someone's life be 
prepared to give up your own.

                                               Nell Rankins
               (Mother of the late Katrina Jenelle Rankins)
                                             Montgomery, AL

                                

            Article from Reuters, Sue Pleming, June 13, 2001

           U.S. Senators urge executions halt amid bias fears
    Washington, June 13 (Reuters)--With just six days until the 
execution of drug kingpin Juan Raul Garza, several U.S. Democratic 
senators on Wednesday called for a halt to federal executions until a 
government study has been completed into possible racial and 
geographies bias on death row.
    Democratic Sen. Russ Feingold of Wisconsin told a Senate 
subcommittee hearing the United States could not in ``good conscience'' 
put people to death while questions remained over the fairness of the 
system.
    The death of Garza, a Hispanic convicted of one murder and of 
ordering two others, would be the second federal execution this month 
following the lethal injection given to Oklahoma city bomber Timothy 
McVeigh on Monday.
    While state executions are more common, McVeigh's was the first 
federal execution for 38 years and sparked condemnation abroad--
especially in europe--of the U.S. death penalty.
    ``I believe that the execution of Juan Garza should again be 
postponed and indeed there should be a moratorium on all federal 
executions until a thorough and independent study by the NIJ is 
completed and considered,'' said Feingold.
    Feingold, who chaired the Senate Judiciary sub-committee hearing on 
``racial and geographic disparities'' in the federal death penalty 
system,'' was referring to a study to be done by the Justice Department 
National Institute of Justice.
    That study follows an analysis by the Justice Department last year 
into racial and geographic disparities on death row and another review 
released by Attorney General John Ashcroft last week in which he said 
there was no evidence of racial bias in the U.S. death penalty system.

                      ``STATISTICAL DISPARITIES''

    Feingold noted that of the 19 people currently on federal death 
row, 17 were racial or ethnic minorities and that six of those were 
from the president's home state of Texas and another four were from 
Virginia.
    ``The concentration of death row inmates from particular regions of 
the country is troubling and I don't think this issue has yet been 
adequately addressed by the Department of Justice,'' Feingold said.
    Garza is due to die by lethal injection in Terre Haute, Indiana, in 
the special death row unit where McVeigh died.
    Convicted in Texas, Garza, 44, has admitted to the drug-linked 
killings but says he does not deserve death.
    His lawyers filed a clemency petition on Tuesday in which they 
said, among other arguments, he should not executed because it was 
still an open question whether his sentence resulted from bias against 
minorities in federal cases.
    Deputy Attorney General Larry Thompson rejected suggestions of 
racial and geographic bias in imposing the death penalty but said an 
appearance of such a practice was cause for concern.
    In fact, said Thompson, the death penalty was more likely to be 
recommended by United States Attorneys for white defendants than for 
blacks and Hispanics.
    ``Our study found abundant evidence that the statistical 
disparities observed in federal capital cases resulted from non-
invidious factors rather than from racial or ethnic bias,'' Thompson 
told the subcommittee.
    Asked whether he supported former President Bill Clinton's decision 
last year to postpone Garza's execution to allow for a review of the 
death penalty, Thompson said he had not and that there was no question 
about Garza's guilt.
    Democratic Sen. Patrick Leahy from Vermont said the report released 
by the Justice Department last week fee far short of what the American 
people deserved.
    ``Instead of a thorough and objective empirical analysis we are 
given a superficial and one-sided set of legal answers. Instead of 
Answers we are given more questions,'' said Leahy.
    Republican Sen. Strom Thurmond of South Carolina, a ranking member 
on the judiciary subcommittee, countered a demand for a moratorium and 
called the hearing an ``endless political effort to discredit the death 
penalty by all possible means.''
    ``There is no death penalty crisis and there is absolutely no basis 
for ending the federal death penalty,'' he said.
    After the death penalty was struck down in 1972, the federal death 
penalty was not reinstated until 1988 and then expanded in 1994 to 
cover certain crimes, including major drug trafficking, terrorism, and 
espionage.
    In contrast, the states have executed more than 700 inmates since 
the Supreme Court reinstated the death penalty in 1976.
    by Sue Pleming

                                

   Statement of Hon. Jeff Sessions, a U.S. Senator from the State of 
                                Alabama

    I am glad that Senator Feingold called this hearing. The death 
penalty is a serious issue, and the Senate should give it serious 
consideration.
    As a federal prosecutor for 15 years and as Attorney General of my 
State, I have a different perspective on criminal justice issues than 
many in the political arena. I have seen first hand how violent crime 
devastates victims, families, and communities. And I have seen the 
importance of demonstrating with words and deeds fairness and due 
process of law to every segment of the community. Ultimately, the 
truth, justice, and the certain rule of law are more important than 
partisan political speeches. I hope this hearing will shed important 
and constructive light on how our federal criminal justice system is 
doing in its application of the death penalty.
            Constitutional Recognition of the Death Penalty
    The Constitution expressly recognizes that the federal and state 
governments will impose the death penalty. The 5th Amendment, which 
limits the power of the federal government, provides ``No person shall 
be held to answer for a capital, or otherwise infamous crime, unless on 
a presentment or indictment of a Grand Jury . . . .'' The 5th 
Amendment's Double Jeopardy Clause provides that ``No person shall. . . 
be subject for the same offence to be twice put in jeopardy of life or 
limb . . . .'' Further, the 5th Amendment's Due Process Clause provides 
that ``No person shall . . . be deprived of life . . . without due 
process of law.'' Finally, the 14tn Amendment, which limits the powers 
of State governments, provides that ``No State shall . . . deprive any 
person of life . . . without due process of law.''
    The simultaneous passage of the provisions recognizing the death 
penalty in the 5th Amendment and the subsequent passage of such a 
provision in the 14'' Amendment demonstrate the illegitimacy of 
arguments that capital punishment is per se prohibited as cruel and 
unusual under the 8th Amendment. Indeed, the same body that proposed 
the 8th Amendment also provided, in the first Crimes Act of 1790, for 
the death penalty for a number of offenses.\1\
---------------------------------------------------------------------------
    \1\ 1 Stat. 112.
---------------------------------------------------------------------------
                           FURMAN V. GEORGIA

    Almost two centuries later, in 1972, however, a bare 5-4 majority 
of the Supreme Court, in Furman v. Georgia,\2\ held that the death 
penalty was cruel and unusual as applied by the States at that time. 
The talisman of unconstitutionality was the unbridled discretion of 
juries to mete out the death penalty for a wide range of crimes. 
Justice Thurgood Marshall pointed out that this discretion resulted in 
significant racial disparities. Of all the prisoners executed from 1930 
to 1968, 54% were black and only 46% were white.\3\ He also pointed out 
that over the same time period, 89% of prisoners executed for rape were 
black.
---------------------------------------------------------------------------
    \2\ 408 U.S. 238 (1972).
    \3\ Id. at 316 (Marshall, J. dissenting).
---------------------------------------------------------------------------
                        POST-FURMAN DEVELOPMENTS

    Later, in 1976, in Gregg v. Georgia,\4\ the Supreme Court approved 
a new death penalty statute that provided guidelines to control the 
discretion of the jury and make application of the penalty less subject 
to the passions of the jurors. To pass constitutional muster, a statute 
had to ensure that only heinous crimes in which one of a list of 
certain specified aggravating circumstances was found were punishable 
by death. Further, the statute had to provide that the jurors would 
hear mitigating evidence.
---------------------------------------------------------------------------
    \4\ 428 U.S. 153 (1976).
---------------------------------------------------------------------------
    In 1977, in Coker v. Georgia,\5\ the Supreme Court held that 
capital punishment could not be imposed for rape without a murder. 
Thus, the plainly disproportionate and unjustified execution of black 
prisoners for committing rape ended.
---------------------------------------------------------------------------
    \5\ 433 U.S. 584 (1977).
---------------------------------------------------------------------------
    In 1986, the Supreme Court's decision in Batson v. Kentucky \6\ 
prohibited the use of race in selecting a jury. Thus, ending the 
practice of striking a potential juror just because of his race.
---------------------------------------------------------------------------
    \6\ 476 U.S. 79 (1986).
---------------------------------------------------------------------------
    Further, as the years went by, there were more black, Hispanic, and 
women, law enforcement officers, jurors, prosecutors, and judges. The 
entire criminal justice system looked more like America.
    And the results showed up in the death penalty system. Since the 
death penalty was reinstated by Gregg v. Georgia in 1976, the 
percentage of blacks executed has dropped from 54% to 36%.\7\ While the 
percentage of whites executed has climbed from 45% to 62%.\8\ And 
today, 53% of the inmates on Alabama's death row are white and 47% 
black.\9\ And not one innocent person has been executed since the death 
penalty was reinstated in 1976.\10\
---------------------------------------------------------------------------
    \7\ Bureau of Justice Statistics  (visited June 11, 2001).
    \8\ Id.
    \9\ Death Penalty Information Center, Alabama Death Row Inmates 
 (visited June 13, 2001).
    \10\ Paul G. Cassell & Stephen J. Markman, Protecting the Innocent: 
A Resonse to the Bedau-Radelet Study, 41 STAN. L. Rev. 121 (1988).
---------------------------------------------------------------------------
                        THE STATISTICS ARGUMENT

    In 1987, in McCleskey v. Kemp,\11\ the Supreme Court rejected a 
challenge to the death penalty based on a 1983 statistical study 
showing that in Georgia, a prisoner was 4.3 times more likely to face 
the death penalty for killing a white victim than for killing a black 
victim.\12\ The Court held that to prevail on a race-based equal 
protection challenge, a defendant must show that the state legislature 
or the decision makers in his particular case acted with a racially 
discriminatory purpose. Although the author of the majority opinion in 
McCleskey, Justice Lewis Powell, left the Court in 1987, McCleskey's 
focus on the individual trial, as opposed to group statistics, was 
reaffirmed by the Supreme Court in the 1994 case of Romano v. 
Oklahoma.\13\
---------------------------------------------------------------------------
    \11\ 481 U.S. 279 (1987).
    \12\ Baldus, Pulaski, & Woodworth, Comparative Review of Death 
Sentences An Empirical Study of the Georgia Experience, 74 J.CRIM.L. & 
C. 661 (1983).
    \13\ 512 U.S. 1 (1994).
---------------------------------------------------------------------------
                            THE DOJ STUDIES

    Since McCleskey's rejection of the statistical study, the 
Department of Justice has completed 2 additional studies on how it 
administers the death penalty: the September 12, 2000 study completed 
by Democrat Attorney General, Janet Reno, and the June 6, 2001 study 
completed by Republican Attorney General, John Ashcroft. These studies 
provide even less evidence of racial discrimination than the 1983 study 
that failed to win the day in the McCleskey case.
    Both of these studies show that approximately 90% of the prisoners 
currently on federal death row are minorities. The question then 
becomes why is there an over representation, compared to the general 
population, of minorities on federal death row? To find the answer, we 
must examine two areas: (1) how defendants get into the criminal 
justice system; and (2) how the federal criminal justice system 
operates. With respect to how federal criminal justice system operates, 
the question is whether racial bias played a role?
    The Reno study and the Ashcroft study both found no racial bias in 
the Department's administration of the death penalty. The high 
proportion of black and Hispanic death row defendants results, in part, 
from the population that the federal death penalty draws from: a 
significant number of carj acking murders from Puerto Rico; a 
significant number of murders at the Lorton Prison for District of 
Columbia offenders; and a significant number of drug kingpin murders in 
border states and inner cities.\14\
---------------------------------------------------------------------------
    \14\ The Federal Death Penalty System Supplementary Data, Analysis 
and Revised Protocols for Capital Case Review 3, 15-16 (June 6, 2001) 
[The Ashcroft Report].
---------------------------------------------------------------------------
    Once in the federal criminal justice system, the Ashcroft Report 
shows that the attorney general's office, which reviews all death 
penalty cases in the federal system, agreed to capital charges for 27% 
of the eligible whites, 17% of the eligible blacks, and 9% of the 
eligible Hispanics.\15\ Thus, the Justice Department is 59% more likely 
to seek the death penalty for white murderers than black murderers; and 
200% more likely to seek the death penalty for white murderers than for 
Hispanic murderers.
---------------------------------------------------------------------------
    \15\ The Federal Death Penal System: Supplementary Data, Analysis 
and Revised Protocols for Capital Case Review 12 (June 6, 2001) [The 
Ashcroft Report].
---------------------------------------------------------------------------
    The study does not answer all the questions because all the data is 
not yet available. Nor could this data have physically been gathered 
before the April 1, 2001 deadline for this study set by President 
Clinton. For the data that is available, however, no racial bias was 
found. Further, Attorney General Ashcroft has directed that more 
information be gathered from U.S. Attorney offices regarding conduct by 
defendants that could result in a death penalty whether the U.S. 
Attorney wants to pursue the death penalty or not. Further, more 
information will be gathered about plea agreements. This will help 
provide a more complete picture as to the application of the death 
penalty.
    Finally, Attorney General Ashcroft has ordered the National 
Institute of Justice to complete a broad, multiyear study on the death 
penalty. This will provide more information on the fairness of the 
application of the death penalty across the country.
    It is also important to note that Attorney General Ashcroft at his 
confirmation hearing committed to finish ongoing death penalty studies, 
but did not commit to a moratorium on the death penalty until all 
studies were completed, or at any other time. Indeed, to delay 
executions of clearly guilty murders to conduct a future study would be 
a dereliction of the duty to faithfully enforce the law. Attorney 
General Reno did not support such a delay and neither does Attorney 
General Ashcroft. Instead, Attorney General Ashcroft has completed the 
Reno study, ordered the NIJ study to continue, and he has carried out 
the execution of Timothy McVeigh--the worst mass murderer in the 
history of our country. He kept his word. He did his duty.

                        NO NEED FOR A MORATORIUM

    I cannot favor a moratorium on the death penalty for several 
reasons. First, as Attorney General Reno concluded in her September 12, 
2000 report, all the prisoners now on federal death row are guilty.\16\ 
Second, not one innocent person has been executed since the death 
penalty was reinstated in 1976.\17\ Third, DNA is now used up front to 
prevent innocent persons from being tried, much less convicted, and put 
on death row. Fourth, studies showing large error rates in capital 
trials have been debunked by more accurate studies showing that many 
reversal ``errors'' were caused by newly announced procedural rules 
that applied retroactively and that upon retrial, an overwhelming 
majority of defendants were reconvicted.\18\ Fifth, the death penalty 
deters murder as studies as recent as this year have found.\19\ And 
finally, the procedural protections and multiple levels of appellate 
review ensure that we, in fact, have a very accurate and very fair 
death penalty system.
---------------------------------------------------------------------------
    \16\ Statement of Attorney General, Janet Reno, Press Conference 
with Attorney General Janet Reno and Deputy Attorney General Eric 
Holder on the Federal Death Penalty (Sept. 12, 2000). On January 20, 
2001, President Clinton commuted David Ronald Chandler's capital 
sentence to life without parole. Chandler was a white prisoner on 
federal death row who was convicted of running a large drug enterprise 
and of ordering the murder of an associate-turned-informer. Chandler's 
clemency application presented evidence that a major witness against 
Chandler had recanted his testimony. The application, however, was 
strongly challenged by the prosecutor in the case who submitted the 
attached letter. Chandler's case has been denied certiorari by the 
United States Supreme Court and his conviction was upheld by an en banc 
opinion of the Eleventh Circuit last year. The vigilance of the 
Department of Justice's attorneys in administering the clemency review 
process reaffirms the efficacy of the federal death penalty system's 
safeguards for giving the defendant every reasonable opportunity to 
establish his underlying innocence.
    \17\ Paul G. Cassell & Stephen J. Markman, Protecting the Innocent: 
A Resonse to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988).
    \18\ See, e.g., Barry Latzen & James N.G. Cauthen, Another Recount: 
Apepals in Capital Cases, THE PROSECUTOR 25, 26 (Jan./Feb. 2001); 
Bennet A. Barlyn, A Res[ponse to Professor Liebman's ``A Broken 
System,'' (Nov. 2000) ; Statement of Attorney General Bill Pryor to the Alabama 
State Bar Commissioners Regarding the Death Penalty Moratorium (Oct. 
27, 2000).
    \19\ See, e.g., Hashem Dezhbakhsh, et al., Does Capital Punishment 
have a Deterrent Effect? New Evidence from Post-Moratorium Panel Data, 
Emory Univ. Dep't of Economics Report (2001) (concluding that each 
execution results in an average of 18 fewer murders).
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    Indeed, the increased fairness in the application is also reflected 
in the increased support for the death penalty by the American people. 
When Furman was decided, only 51 % of the public supported the death 
penalty.\20\ Today, that number has climbed to between 63% and 71%.\21\ 
And in the last election, the presidential candidates for both parties 
said that they supported the death penalty.
---------------------------------------------------------------------------
    \20\ See Furman v. Georgia, 408 U.S. 238, 330 n.9 (Burger, C.J., 
dissenting).
    \21\ See, g.g., ABC News/Washington Post Poll  (63%); Associated Press Poll  (71 %).
---------------------------------------------------------------------------
                               CONCLUSION

    The death penalty is a serious subject and deserves serious 
attention. It should be studied to ensure that it is fair to all people 
of all races. It should be remembered, however, that the victims of 
these vicious killers are largely minorities. As Attorney General 
Reno's report showed, 70% of the victims of those charged with federal 
capital crimes were minorities.\22\ The death penalty protects our 
poorest and most defenseless citizens against the most vicious murders.
---------------------------------------------------------------------------
    \22\ U.S. Dep't of Justice, Survey of the Federal Death Penalty 
System 22 (Sept. 12, 2001).
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    As Lucy Jackson from Birmingham, Alabama stated:

        ``I am one who has witnessed first hand what violent crime can 
        do to devastate a family. My only son, Dewayne, was violently 
        beat[en] to death. There is no way the defendant could ever 
        feel the pain or injustice that me and my family [have] felt. 
        Justice truly is only served when the convicted murderer is 
        given his just sentence. Being an African-American, some of my 
        brethren might disagree. But, until you live through what we 
        have lived through, you cannot possibly make that decision. I 
        implore you all to not water down or try to place a moratorium 
        on the death penalty. If you do, there will be more acts 
        performed by cowards like Timothy McVeigh and the[ir] only 
        punishment will be Life.''

    Similarly, the Fraternal Oder of Police, the Federal Law 
Enforcement Officers Association, and the Law Enforcement Alliance of 
America all support the death penalty and oppose a moratorium because 
their members, white, black, Hispanic, Asian, and Native Americans face 
vicious criminals every day. They correctly believe that the death 
penalty protects them as well. Violent criminals live by force. It is 
often the only thing that they understand.
    We have a profound duty to ensure that racial bias has no place in 
the application of the death penalty. The death penalty, however, has a 
place in protecting all citizens, especially minorities and police 
officers. It is the responsibility of the Department of Justice to 
ensure both. Under Attorney General Ashcroft, I am confident that every 
defendant will receive due process of law and that every guilty 
criminal will receive the penalty that he justly deserves.

                                

  Statement of Hon. Paul Strauss, a U.S. Senator from the District of 
                   Columbia (Shadow), Washington, DC

    Chairman Feingold, and members of the Senate Subcommittee on the 
Constitution, federalism, and property rights, I am Senator Paul 
Strauss, the United States Senator elected by the voters of the 
District of Columbia, and an attorney who practices in our local 
courts.
    I appreciate the opportunity to provide this statement on behalf of 
my constituents, the citizens of Washington, D.C. I am testifying in 
order to raise my voice in favor of a moratorium on the federal death 
penalty, until a full investigation into racial disparities in the 
system can be conducted. I commend the leadership for bringing this 
issue the attention that it deserves.
    It is especially disturbing that seventeen of the nineteen people 
on federal death row are minorities. One of the issues that was brought 
up is that the racial disparities on federal death row, which seem to 
be greater than those in the state system might be due to the federal 
prosecution of local crimes. It has been noted that, in fact, many of 
the federal death penalty cases are for crimes related to federal 
crackcocaine prosecutions.
    One of the witnesses, Mr. McBride, a former Federal prosecutor from 
the eastern district of Virginia who has tried federal capital cases, 
has stated that the federal government only steps into local cases when 
there is a request for such action from state prosecutors. In the 
District of Columbia, it appears that a different rule applies.
    The residents of Washington, D.C. have consistently raised their 
voices in opposition to the death penalty. First, in 1992, they voted 
against it in a referendum, with a margin of two to one.\1\ Then, in 
2000, the city council passed a resolution once again reaffirming 
opposition to capital punishment. The city has certainly not asked for 
federal intervention in order to have the death penalty imposed on its 
residents.
---------------------------------------------------------------------------
    \1\ On November 3, 1992, 66,303 voted in favor of the death 
penalty, while 135,465 voted against it.
---------------------------------------------------------------------------
    Recently, however, the Federal Government has seen fit to prosecute 
Tommy Edelin, a District of Columbia resident, on charges of capital 
murder, for crimes committed within the District of Columbia. Many see 
his case as a test case for federal involvement in prosecuting crimes 
committed within Washington, D.C. This case is not an issue of a crime 
committed against the Federal Government, or on federal property, but 
is an issue of a crime committed against the people of the District of 
Columbia.
    While I recognize that national sentiment seems to be in favor of 
the death penalty, if local residents do not wish to see capital 
prosecution for local crimes, then the death penalty should not be 
forced upon them, whatever the national sentiment is. In light of 
recent information showing possible racial disparities in 
implementation of the federal death penalty, it seems that by 
prosecuting residents of the District of Columbia, which has a large 
minority community, these disparities will only increase.
    Although my main concern is with the representation of the ideas 
held by my constituency, I recognize the larger issue as well. The 
debate about the death penalty as a whole is perhaps one of the most 
divisive in our society today. Many people are adamantly opposed to its 
continued use, and see it as cruel and unusual punishment, while even 
more see it as a useful tool in the spectrum of punishments for crimes. 
It is obvious that the debate on that issue will not end anytime soon.
    The death penalty is the obviously most permanent form of 
punishment that we have in this country. There should be no room for 
error in its implementation, and not even an appearance of bias in its 
prosecution. To continue to have a perception of bias would cause 
further doubts in an institution that many Americans already see as 
flawed.
    Those who see the federal death penalty as fair and unbiased would 
be wise to listen to the testimony of David Bruck. When he spoke about 
the situation in South Africa during apartheid, he spoke of Judges who 
said much of what many Americans are saying now: ``Blacks commit more 
crime.'' in hindsight, and to many at the time, that statement seems to 
be farcical. While I am not saying that we live under apartheid in this 
country, long term prejudices against African-Americans and the other 
minorities cannot be declared ``cured'' just because we wish that to be 
the case. The exact opposite must be assumed.
    While we are loathe to admit it, many Americans still harbor 
prejudice against those that they see as ``other,'' that prejudice has 
an effect on the decisions of Federal juries, which are more likely to 
consist of people who have had vastly different life experiences from 
those being charged, especially in drug cases.
    In light of the execution of Juan Raul Garza, a man of hispanic 
heritage, on June nineteenth--the second federal execution in one 
month--I strongly urge the Federal Government to call an immediate 
moratorium on all federal executions. We should not let another person 
be executed before a review of the uncertainty surrounding the even-
handedness of the federal death penalty. In addition, as an advocate 
for the residents of the District of Columbia, I raise the additional 
concern of the federalization of what, rightfully, should be seen as a 
local decision against capital punishment. On behalf of my 
constituents, I thank you for bringing this issue to national 
attention, and for allowing me the opportunity to make these comments.

                                

                              Victims of Crime and Leniency
                                  Montgomery, Alabama 36103
                                                      June 11, 2001

Chairman Russell Feingold and
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington, D.C.

    Dear Chairman Feingold and Committee Members:

    It has been brought to my attention that efforts are being made to 
weaken the death penalty. The families of the homicide victims and the 
public In general vehemently oppose this action.
    I lost a daughter In 1976 by a vicious act of rape and murder by 3 
srarnger5. One of the offenders has been executed but the fact that 2 
others have not leaves my family with the realization that justice cry 
never be served.
    I did not ask to become a victim of the system, but having become 
one, it has certainly changed my perspective on the entire judicial 
process. I have been In the Victims' Movement for almost 25 years and 
the battle for just the basic rights for the victim has been one of the 
most grueling and snail-paced ventures I have ever endured. We have 
made strides in the Victims' Movement for which I am eternally 
grateful, but the tenuous efforts to eliminate the few accomplishments 
we have been successful in getting Is disheartening.
    I was honored to be selected as one of ten recipients of the 
National Crime Victim Service Award presented in the Oval Office by 
President Clinton In 1994. These awards indicate to me that the heads 
of sate were concerned about the lifelong devastation for innocent 
crime victims.
    I do not know of anyone who advocates executing an innocent person, 
however, Attorney General Ashcrofts report on the death penalty Is 
10096 accurate. Those states that feel they have problems should most 
assuredly address their problems. Alabama does not have a problem and 
an effort too prolong an already lengthy process is so unjust. Alabama 
has inmates that have been sitting on death row for 20 to 25 years and 
still have riot exhausted their appeals. ``This Is NOT justice by any 
of the Imagination. A provision to prove one's innocence Is already in 
the system. The fact that the courts are finding some cases of 
innocence only gives more credence that the present system is working 
efficiently.
    I have followed this effort to delay executions for some time and I 
am convinced that the movement Is not about proving Innocence--It Is 
rather to abolish-the death penalty. Having the knowledge that the 
death penalty Is favored by the majority, this is the only tactic 
opponents feel they tan be successful In using to accomplish their 
goal.
    Crime victims are counting on your support for justice. Please do 
not succumb to false rhetoric and tilt the scales of justice even more 
favorably for the perpedrator.

            Respectfully yours,

                                             Miriam Shehane
                                                 Executive Director

                                

                                         Columbia, SC 29203
                                                      June 13, 2001

Sen. Strom Thurmond
U.S. Senate Judiciary Comm.
Washington,D.C. 20510

    Greetings:

    We are the black parents of a murdered son and we are favor of the 
death penalty.
    Our son,Federal Corrections Officer, D'Antonio Washington was 
murdered by Mr. Anthony Battles on December 22, 1994. D'Antonio was 31 
years old and on duty at USP. Atlanta when Mr. Battles killed him , for 
no reason. Mr. Battles was already serving time in Federal Prison for 
killing his wife and inborn baby.
    We sat through the trial in Atlanta and watched Mr. Battles admitt 
killing our son, and he showed no remorse. He had his life spared after 
the first killings. He does not deserve a chance to kill again. The 
death penalty fits this case. The fact that Mr. Battles is black and 
our son is black does not change our feelings.
            Sincerely,

                                 Mr. & Mrs. F.N. Washington

                                

                                        Montgomery, Alabama
                                                      June 11, 2001
Chairman Russell Feingold and
Ranking Member Strom Thurmond
Senate Judiciary Committee
Washington, D.C.

Dear Chairman Feingold and Committee Members

    It is my understanding the Senate Judiciary Committee is making an 
attempt to deplete the death penalty in Its current status. I would 
like for you to know I am fervently against this movement.
    In 1989, my brother Robert Mays, was brutally murdered by his 
girlfriend. It was a cold and calculated murder. This murderer was so 
callous, she shot him and stood over his body to make sure he was dead. 
All the wile her children were begging her not to do it. Every year, 
our family has to go to the Board of Pardons and Parole and beg them to 
keep this murderer locked up. This case should have been a Capital 
offense. Only until the convicted murderer receives the same sentence 
that was Imposed on the victim, there will be no justice.
    I am an African American woman and know full well the ramifications 
being wrongly accused and punished. I for one am not advocating that 
course of action. But, when there is no doubt and the case has went 
through the courts and the appeals process the convicted murderer 
should get what he or she so justly deserves. The death penalty will 
not bring back the loved that was murdered but it will give the family 
a sense of justification.

            Sincerely,

                                               Viola Watley