[Senate Hearing 110-743]
[From the U.S. Government Publishing Office]
S. Hrg. 110-743
OVERSIGHT OF THE FEDERAL DEATH PENALTY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
----------
JUNE 27, 2007
----------
Serial No. J-110-43
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Printed for the use of the Committee on the Judiciary
S. Hrg. 110-743
OVERSIGHT OF THE FEDERAL DEATH PENALTY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JUNE 27, 2007
__________
Serial No. J-110-43
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
47-297 PDF WASHINGTON : 2009
----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
------
Subcommittee on the Constitution
RUSSELL D. FEINGOLD, Wisconsin, Chairman
EDWARD M. KENNEDY, Massachusetts SAM BROWNBACK, Kansas
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
Robert F. Schiff, Chief Counsel
Ajit Pai, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
prepared statement........................................... 259
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 21
prepared statement........................................... 261
WITNESSES
Bruck, David I., Esq., Federal Death Penalty Resource Counsel,
Director, Virginia Capital Case Clearinghouse, Washington & Lee
School of Law, Lexington, Virginia............................. 26
Charlton, Paul K., Former U.S. Attorney, District of Arizona,
Phoenix, Arizona............................................... 13
Mulhausen, David B., Senior Policy Analyst, Center for Data
Analysis, The Heritage Foundation, Washington, D.C............. 17
Otis, William G., Former Chief, Appellate Division, U.S.
Attorney's Office, Eastern District of Virginia, Falls Church,
Virginia....................................................... 24
Sabin, Barry, Deputy Assistant Attorney General, U.S. Department
of Justice, Washington, D.C.................................... 3
Sanchez Ramos, Roberto J., Secretary of Justice, Commonwealth of
Puerto Rico, San Juan, Puerto Rico............................. 15
Shelton, Hilary O., Director, Washington Bureau, National
Association for the Advancement of Colored People [NAACP],
Washington, D.C................................................ 19
PRE-HEARING QUESTIONS AND ANSWERS
Responses of Department of Justice to questions submitted by
Senator Feingold............................................... 38
QUESTIONS AND ANSWERS
Responses of David I. Bruck to questions submitted by Senator
Specter........................................................ 63
Responses of Paul K. Charlton to questions submitted by Senator
Specter........................................................ 68
Responses of David Muhlhausen to questions submitted by Senator
Specter........................................................ 70
Responses of William G. Otis to questions submitted by Senator
Specter........................................................ 73
Responses of Barry Sabin to questions submitted by Senators
Specter and Kennedy............................................ 79
Responses of Roberto J. Sanchez Ramos to questions submitted by
Senator Specter................................................ 154
Responses of Hilary O. Shelton to questions submitted by Senator
Specter........................................................ 166
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, New York, New York, report....... 168
Baldus, David, College of Law, University of Iowa, Iowa City,
Iowa, letter and attachment.................................... 178
Bruck, David I., Esq., Federal Death Penalty Resource Counsel,
Director, Virginia Capital Case Clearinghouse, Washington & Lee
School of Law, Lexington, Virginia, statement.................. 193
Capital Crimes, report........................................... 210
Charlton, Paul K., Former U.S. Attorney, District of Arizona,
Phoenix, Arizona, statement.................................... 221
Fagan, Jeffrey, Columbia Law School, New York, New York,
statement...................................................... 230
Lungren, Hon. Daniel E., a Representative in Congress from the
State of California, statement................................. 263
Mulhausen, David B., Senior Policy Analyst, Center for Data
Analysis, The Heritage Foundation, Washington, D.C., statement. 271
Otis, William G., Former Chief, Appellate Division, U.S.
Attorney's Office, Eastern District of Virginia, Falls Church,
Virginia, statement............................................ 278
Sabin, Barry, Deputy Assistant Attorney General, U.S. Department
of Justice, Washington, D.C., statement........................ 294
Sanchez Ramos, Roberto J., Secretary of Justice, Commonwealth of
Puerto Rico, San Juan, Puerto Rico, statement.................. 301
Shelton, Hilary O., Director, Washington Bureau, National
Association for the Advancement of Colored People [NAACP],
Washington, D.C., statement.................................... 322
Zimring, Franklin E., Law Professor, University of California,
Berkley, California, letter.................................... 326
OVERSIGHT OF THE FEDERAL DEATH PENALTY
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WEDNESDAY, JUNE 27, 2007
U.S. Senate,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:32 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold, Chairman of the Subcommittee, presiding.
Present: Senators Feingold and Leahy.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Chairman Feingold. I call the Committee to order. Good
morning. Welcome to this hearing of the Constitution
Subcommittee entitled ``Oversight of the Federal Death
Penalty.'' We are honored to have with us this morning some
very distinguished witnesses, and I appreciate the effort they
have made to be here today.
Let me start by making a few opening remarks, and then we
will turn to the representative from the Department of Justice
who will be our sole witness on our first panel.
This is the first oversight hearing on the Federal death
penalty that the Senate Judiciary Committee has held in 6
years. Until recently, Congress has asked few questions about
how the Federal death penalty is being implemented, and we
received little information as a result. Indeed, it is fitting
that we will hear from some of the same organizations that
testified at that last hearing in June 2001. That is because in
some respects, we know little more today than we did 6 years
ago.
That said, I do appreciate that the Justice Department has
responded to written questions that I sent in advance of the
hearing. Those responses begin the process of Congress
obtaining the information it needs to conduct oversight in this
area.
And we do have a lot of ground to cover. There have been
many developments in the last 6 years. In 2001, the Justice
Department made controversial changes to the protocols for
Justice Department review of death-eligible cases. The new
protocols required U.S. Attorneys for the first time to get
Attorney General approval to enter into plea bargains that take
the death penalty off the table. This resulted, in one New York
case, in Attorney General Ashcroft nullifying a plea agreement
in which a defendant had agreed to cooperate with the
Government in exchange for pleading guilty to a non-capital
murder charge. This action was heavily criticized for
jeopardizing future cooperation agreements, and Ashcroft
finally reversed his decision more than a year later.
Those protocol changes also reversed the presumption
against seeking the Federal death penalty in a local
jurisdiction that has already chosen to outlaw capital
punishment, and instead stated that a lack of ``appropriate
punishment'' in the local jurisdiction should be a factor in
deciding whether to bring a Federal capital case.
And just this week, we received another set of newly
revised death penalty protocols, which contain broad new
confidentiality rules that appear to pull the curtain on how
the DOJ death penalty review process is working. I am troubled
by this trend toward secrecy. These are public prosecutions
brought by the United States of America. Congress and the
American people give immense power to the Department of Justice
to act in our name and for our protection. We are entitled to
know how decisions to seek the ultimate punishment are made. So
I will pursue this topic with our witness today to better
understand the scope and necessity of these new rules.
What else has happened since 2001? A National Institute of
Justice study ordered by Attorney General Reno at the end of
the Clinton administration was delayed for years. It was
supposed to examine whether there were racial disparities in
application of the Federal death penalty, but when it was
finally released in 2006, it did not tell us much. In addition
to being criticized by a number of experts for a faulty peer
review process, the report left out the most important part of
the decisionmaking process: the point where defendants are
brought into the Federal system in the first place. And, of
course, that study only covered the years 1995 to 2000, so no
study has been conducted to evaluate these issues from 2001
forward.
And now this Committee's investigation into the Department
of Justice's firing of a number of well-respected, experienced
U.S. Attorneys has revealed the inappropriate politicization of
some of the Department's most important functions.
The American people should be able to trust fully the
ability of the Justice Department, and the Attorney General, to
make difficult and nuanced decisions about whether the Federal
Government should pursue the ultimate sentence of death. We
should be able to trust that the Attorney General seeks input
from all sides and takes very seriously his decision whether to
use the full weight of the U.S. Government to seek to put a
person to death.
That is why we are holding this hearing--because that trust
has been shaken. We need to know whether these responsibilities
are being treated with the seriousness they deserve.
In particular, I am concerned that in the course of
deciding whether to seek death in a case, neither the Deputy
Attorney General nor the Attorney General meet personally with
their own internal review committee that examines each case in
detail. And according to what the Attorney General himself told
this Committee earlier this year, a U.S. Attorney was fired, at
least in part, because he asked the Attorney General to
reconsider the decision to seek the death penalty.
I oppose the death penalty, but I recognize that reasonable
people can differ on the question of capital punishment. And
different administrations can take different views about when
it is appropriate to seek the Federal death penalty. But I hope
we can all agree that the decision whether to charge someone
with a capital crime and seek to impose the death penalty is
one of the most profound decisions our Government officials can
make. That power must be wielded carefully and judiciously. If
carefully considered, law enforcement-based judgments are not
winning the day, we need to know about it, and we need to know
why. The stakes are simply too high.
There are no other Senators expected at this point. I was
going to turn to the Ranking Member, but there is not one. So
we will start with our first panel. Our first witness will be
Deputy Assistant Attorney General Barry Sabin. A Federal
prosecutor since 1990, Mr. Sabin is now responsible for the
Fraud Section, Criminal Section, Gang Squad, and Capital Case
Unit of the Criminal Division.
Mr. Sabin, welcome, and thank you for taking the time to be
here this morning. I would ask that you limit your remarks to
approximately 5 minutes. Your full written statement will be
included in the record. And if you would please rise. Do you
swear or affirm that the testimony you are about to give the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Sabin. I do.
Chairman Feingold. Thank you, sir, and you may be seated,
and you may proceed with your testimony.
STATEMENT OF BARRY SABIN, DEPUTY ASSISTANT ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Sabin. Good morning. Thank you, Mr. Chairman. I am
pleased to appear before you today to testify about the
Department of Justice's implementation of the Federal death
penalty statutes. The Justice Department relies upon rigorous
procedural safeguards and highly experienced personnel to
ensure a uniform decisionmaking structure that is respectful to
victims and defendants.
In connection with my written testimony, I emphasize the
paramount importance the Department attaches to the review of
capital cases and key elements that define this review process.
These elements include: the capital case review process is
centralized and the decision in every case is ultimately made
by the Attorney General of the United States; second, the
review of a capital matter is designed to respect the Federal
law; third, the review of a capital matter treats each
defendant as an individual, even as it evaluates the case
within a national framework; fourth, discrimination and bias
play no role in the capital review process; and, fifth, each
review of a capital matter respects victims' and defendants'
rights.
I am a career prosecutor. I have served in the Justice
Department for 17 years. I served as a trial prosecutor in
South Florida and in a variety of supervisory positions in
Miami. I ultimately served as the Criminal Chief and First
Assistant United States Attorney. In those positions, I also
served as a member of the district's Death Penalty Review
Committee. Although I was lead prosecutor on over 50 Federal
felony trials, many of them involving violent offenses, none of
these matters involved capital offenses.
In my present position, I have had the opportunity to work
with experienced capital litigation practitioners in the
Capital Case Unit. Thus, I have had the honor and privilege to
work with dedicated, committed prosecutors, both in the field
and at headquarters, on capital litigation. I want to
underscore that the prosecutors at the Justice Department
understand that implementation of the death penalty is the
ultimate sanction, reserved for the worst offenders, and must
only be applied in a fair and uniform manner.
Pursuant to the Federal Death Penalty Act of 1994, Congress
has authorized the Department of Justice to seek the death
penalty for more than 50 serious Federal offenses. Consistent
with congressional intent, the Justice Department strives to
enforce Federal capital sentencing laws fairly and
evenhandedly, uninfluenced by the locations of prosecutions or
the races or ethnicities of defendants and victims.
With the goal of fair and consistent application in mind,
in June 2001, the Justice Department implemented a protocol
which further harmonized the capital review process. Earlier
this week, the Department issued a revised protocol. Mr.
Chairman, we appreciated the opportunity to discuss the
protocol with members of your staff these past few days.
The Department relies upon a core group of prosecutors
experienced in capital litigation to effectuate the
Department's protocol. In addition to the extensive and
considered review in the United States Attorney's Office, these
veteran prosecutors are located in the Criminal Division's
Capital Case Unit and the Attorney General's Review Committee
on Capital Cases. These entities are integral to ensuring the
proper review of potential death penalty cases.
The Attorney General, the committee, and other Department
personnel involved in reviewing protocol submissions are not
advised of the race or ethnicity of defendants or victims. The
submissions are sanitized of any references to the races of
victims or defendants. The result is a review process that is
blind to the race and ethnicity of victims and defendants.
There are multiple opportunities for defense counsel to
provide information favorable to their client and argue against
the Government seeking the death penalty.
The death penalty protocol also advises the United States
Attorney to consult with the family of the victim. There is,
thus, a robust review with multiple procedural safeguards to
ensure a fully informed decisionmaking process.
The Justice Department's review of capital cases is not
aimed at maximizing or minimizing capital cases; it aims to
apply the most faithful reading of Federal law to cases. Unless
specified intent factors and aggravating circumstances can be
found beyond a reasonable doubt, the death penalty is not
authorized. The Attorney General will not authorize seeking the
death penalty unless these statutory requirements are met. If
they are met, the Department must follow the law and consider
the death penalty as a possible sanction for these crimes. The
Federal Government has an obligation to evenhandedly enforce
Federal law, and the Department of Justice's capital case
review process ensures this outcome.
The review allows each potential case to be viewed in
context of all other such cases, protecting against arbitrary
decisionmaking. The review also ensures that individual
characteristics are highlighted during this review. The Justice
Department's decision turns on what the defendant has done and
the relevant aggravating and mitigating circumstances. Factors
that are arbitrary or impermissible, such as race, ethnicity,
gender, or religion, are not considered. In this way, the
Justice Department is able to effectuate Congress' intent that
the death penalty be sought against the worst offenders, while
simultaneously respecting statutory and constitutional
principles that all defendants must be given individualized
consideration.
In conclusion, the Justice Department has established
rigorous safeguards to ensure that capital cases are reviewed
in a fair, transparent, and uniform manner. We have dedicated
tremendous efforts and resources to ensure fairness in Federal
capital litigation. I appreciate the opportunity to testify
today and I look forward to your questions.
Chairman Feingold. Thank you very much, Mr. Sabin, for that
testimony, and I want you to know that amid all the controversy
currently embroiling the Department, I know that there are good
and honorable people who work there every day and do their best
to serve the interests of justice, and I do appreciate that.
But, of course, as you have indicated as well, the issue of the
death penalty is extremely important, and this Committee needs
to ask tough questions to understand how it has been
implemented in the last 6 years.
Last week, the Department provided me with answers to
questions I had sent in April in anticipation of this hearing,
and I will put those responses in the record of this hearing,
along with the revised protocols you provided earlier this
week. I appreciate the effort that went into these responses.
Mr. Sabin. Thank you, Senator.
Chairman Feingold. However, a lot of the data was difficult
to decipher without more information. So I am sure I will have
followup questions after this hearing, and I hope DOJ will do
its best to respond expeditiously to those followup questions
as well.
Mr. Sabin. Yes. Absolutely, Mr. Chairman.
Chairman Feingold. Thank you.
Prior to my asking for that information that I just
mentioned, had the Department undertaken any effort to review
its implementation of the Federal death penalty to look at
issues like the total number of cases per year, U.S. Attorney
overrule rates, and the race of defendants and victims?
Mr. Sabin. We had not done a rigorous review of the data
until the Congress had--you had posed the questions.
Chairman Feingold. Until you received our questions.
Mr. Sabin. Correct.
Chairman Feingold. Do you think it has been a helpful
process to look at these statistics?
Mr. Sabin. Yes.
Chairman Feingold. Has the Department done any number-
crunching beyond what I specifically asked for?
Mr. Sabin. We wanted to get the information to you and the
Subcommittee as expeditiously as possible. Obviously, in
preparation for the hearing, I have had discussions with the
capital case litigation attorneys so that I could be prepared
to answer any questions that you may ask regarding those
statistics. But it is an ongoing process, and as time passes, I
am sure we will have more considered understanding of the data
that we provided to you and that we now have at our disposal.
Chairman Feingold. Well, I would hope whatever efforts to
engage in number-crunching that could not be done in time for
this hearing would be done now, and that the fact that the
hearing is over does not stop the process of getting the
additional information.
Mr. Sabin. We are in full agreement with that, Mr.
Chairman.
Chairman Feingold. And would you be willing to share those
additional statistics as you complete them?
Mr. Sabin. To the extent that it is responsive to your
questions or your followup questions, absolutely.
Chairman Feingold. All right. Do you think the Department
should have considered looking at these statistical breakdowns
and some of these issues earlier?
Mr. Sabin. Should we have looked at--
Chairman Feingold. Should you have looked at some of these
issues earlier?
Mr. Sabin. We have a lot of operational activities relating
to individual cases, and the staff was focused upon making sure
that the matters proceeded in considered and thoughtful
determination. It is helpful. Certainly we welcome the
oversight, and I think it is a process that we can be more
informed and take a step back to understand what we are doing
over the last few years, compare that to what had occurred
between 1995 and 2000, and then get a larger perspective. So I
think it is helpful.
Chairman Feingold. I would suggest that these statistics
are necessary for what you have described as ``thoughtful
determination.'' So I think you agree, but--
Mr. Sabin. I don't disagree with that. I agree.
Chairman Feingold. As I am sure you know, in 2000 Attorney
General Reno publicly issued a nearly 400-page report with
every conceivable piece of data about Federal death penalty-
eligible cases down to the district level. This included a
breakdown by district of what the U.S. Attorney and Review
Committee recommended and what the Attorney General decided. It
also included breakdowns by race of the defendant and by race
of each of the victims in a case. This comprehensive report was
extremely helpful back in 2000.
Now, I do appreciate that it would be a lot of work if the
Department would issue a report, but a current report in the
detailed form that was issued in 2000 would give this Committee
and others an opportunity to understand how the Federal death
penalty is implemented, and would give the Department an
opportunity to demonstrate its commitment to transparency about
its death penalty work.
I would like the Department to prepare such a report, and I
will ask that you get back to me in writing with the
Department's response to my request.
Mr. Sabin. I will get back to you in writing with respect
to that request, sir.
Chairman Feingold. New Department protocols for reviewing
death penalty cases go into effect next week. As I mentioned
earlier, they contain a lengthy recitation of new
confidentiality rules forbidding anyone at DOJ from disclosing
their views on whether capital punishment should be sought in a
case or any aspect of the review process, even within the
Department.
Now, I do understand the need for DOJ to be able to
deliberate internally. But given the stakes in these cases,
shouldn't there be some level of transparency in how the
decision is made whether to seek the death penalty?
Mr. Sabin. Certainly we would welcome the opportunity to
have transparency in the process, and we also, as you
recognize, have internal deliberative processes to respect so
that the robust and informed debate is not chilled, that all
levels of the review can have frank and candid interaction, so
that they can make the most informed decisions regarding the
most severe of sanctions.
So we want to ensure, as I stated in my written testimony,
that we are accountable for those actions while protecting the
ability of the considered decision makers and the reviewers to
have a dialog that is full and frank.
Chairman Feingold. Well, the previous protocols, I assume,
provided that opportunity. For some reason, these new protocols
cloak the process in greater secrecy. Can you understand how
some people might look at these new rules and think that the
Department must be trying to hide something by changing these
protocols?
Mr. Sabin. And the Department is here today to say that we
are not trying to hide something either from this Subcommittee
or the American people. We are just trying to ensure that the
debate in the Department is robust and considered and that
individual opinions are not chilled as a result of
congressional oversight or other factors.
Chairman Feingold. I appreciate that statement. This
certainly has nothing to do with you, but we have had a lot of
problems with the Department of Justice saying ``Trust us'' on
other issues where there has not been sufficient openness, and
it has led to very serious problems, such as the abuses in the
area of national security letters. So I think you can see why
there might be some concern when things become more closed
rather than more open. And I want to ensure that these new
rules will not be used to thwart legitimate oversight efforts.
Do you agree that they would not cover the type of statistical
information that I requested in advance of this hearing and
that Congress might request in the future?
Mr. Sabin. We certainly want to provide that transparency
as to the statistical information that we have provided to you
in response to your questions, and we continue to believe we
have the trust of the American people and want to maintain that
trust. So--
Chairman Feingold. But these new rules in no way
specifically prohibit or stop you from giving me the
information I have asked for, correct? The statistical
information.
Mr. Sabin. Correct. That is not the intent of the Section
9-10.040. It is to ensure that--
Chairman Feingold. Or any other part of the protocols?
Mr. Sabin. Correct.
Chairman Feingold. Specifically, would Attorney General
Reno have been able to issue her 2000 report if these new
confidentiality requirements had been in place?
Mr. Sabin. Yes, I believe that that is consistent with what
Attorney General Reno had published and what we consider to be
in effect today.
Chairman Feingold. OK. I have another--
Mr. Sabin. As of July 1st when the protocol goes into
effect.
Chairman Feingold. I am sorry?
Mr. Sabin. And as of next week when the protocol goes into
effect on July 1st.
Chairman Feingold. Attorney General Reno could have issued
a similar report under the new protocols?
Mr. Sabin. Yes, that is my understanding.
Chairman Feingold. I have another question about the
revised capital case protocols. These new protocols appear to
delete the longstanding prohibition against seeking or
threatening to seek the death penalty ``solely for the purpose
of obtaining a more desirable negotiating position.''
Has the Department changed its policy on this issue?
Mr. Sabin. Absolutely not. The sentence that you are
referring to, the portion relating to plea agreements was
expanded. The fact relating to prosecutors using the death
penalty as some kind of threat or coercive manner is
inconsistent with our prosecutorial ethics. And other portions
of the U.S. Attorney's manual which prosecutors are bound by,
specifically 9-27.00 and going forward, capture that aspect.
Chairman Feingold. Then why was this provision removed from
the protocols?
Mr. Sabin. Because it was referenced elsewhere in the U.S.
Attorney's manual. It was not as a means to undermine or say
that that portion of the ability for prosecutors to use it in
any improper means is sanctioned.
Chairman Feingold. Well, I do not like redundancy in
Government, but when we are talking about taking away
somebody's life, it seems to me a little certainty in keeping
this in the protocols makes sense. Wasn't this part of the
protocols since they were first written in 1995?
Mr. Sabin. Yes, it was part of it, and I am here today to
say that it is not--that point has not been retracted or in any
way undermined by the present protocol.
Chairman Feingold. I do not see why it should not be put
back in the protocols.
Mr. Sabin. I am sorry?
Chairman Feingold. I do not see why it should not be
returned to the protocols, and I am submitting that to you as
something to think about.
Mr. Sabin. Yes, sir. Thank you.
Chairman Feingold. It just isn't consistent with what you
are saying.
Two Federal judges have argued--one in a law review article
and another in an op-ed--that pursuing a capital case takes a
great deal of prosecutorial resources, so that bringing a
capital case can mean bringing fewer prosecutions overall. When
evaluating whether to decide to seek the death penalty, does
the Department consider these additional costs, in actual
expenditures and staff, of pursuing a capital case? And is that
a factor in the decisionmaking process?
Mr. Sabin. The cost of a criminal prosecution is not a
factor as to whether the prosecution should be going forward or
not.
Chairman Feingold. Does the Department track the monetary
costs of the death penalty in any way?
Mr. Sabin. I am not aware of those numbers being tracked,
to my knowledge.
Chairman Feingold. That surprises me. Can you tell me
anything about the cost of maintaining the Capital Case Unit or
the Internal Review Committee and the other staff who work on
the internal DOJ review process?
Mr. Sabin. You mean in terms of their salaries and the
amount of--
Chairman Feingold. Overall costs of having that Capital
Case Unit or the Internal Review Committee.
Mr. Sabin. I mean, certainly you could compile the
individual salaries of the trial attorneys in the Capital Case
Unit as a slice of the overall expenditure of what the
Department provides for its budget for capital litigation. But
I did not understand that to be the nature of the question.
As to an individual matter, what a U.S. Attorney--what the
investigatory costs would be by the FBI agent and the like,
that is the kind of information we thought that you were
questioning whether the Department captures.
Chairman Feingold. Well, I would be interested in both
types of information. I think it is relevant to this.
Do you have any sense of what it costs--and this sort of
gets to your last answer--an individual U.S. Attorney's Office
to pursue capital charges?
Mr. Sabin. Do I, sitting here today? No, I do not.
Chairman Feingold. Do you think the DOJ should track these
types of costs so that both DOJ and individual U.S. Attorney's
Offices understand what they are doing when they undertake to
seek the death penalty?
Mr. Sabin. I believe that we should spend the taxpayers'
money wisely. I believe that we should provide full support and
resources for the prosecutions as they move forward in order to
prove each and every element beyond a reasonable doubt.
To the extent that that information can be captured, we
will see if we can compile it. But I am not promising that that
information is readily ascertainable.
For example, a U.S. Attorney's Office can submit a request
to the Executive Office of United States Attorneys for complex
matters if they need additional budget to pursue, you know, a
large case, whether it is capital litigation or not capital
litigation. So there is a mechanism for providing supplementary
funding through the Executive Office.
Chairman Feingold. I think in making the overall decisions
on how to most effectively use the Department's limited
resources to fight crime, that this cost of seeking the death
penalty should be a factor. It may be not the most important
factor, but when you are looking at a series of factors, I
would think that these costs would be something the Department
should start to consider. And I hope you will take that back to
the Department.
Mr. Sabin. Yes, Mr. Chairman, I will.
Chairman Feingold. Let me ask you about a few of the
statistics that we were able to extract from the data the
Department provided us last week. It appears that one third of
the total cases in which the Federal Government sought the
death penalty from 2001 to 2006 were the result of the Attorney
General overruling a U.S. Attorney's recommendation against
seeking the death penalty.
Now, does that percentage seem high to you?
Mr. Sabin. In terms of the overruling, this is my
understanding of the relevant statistics. And, again, this is
an ongoing process, and we are happy to work with you and other
members of the Subcommittee to have an informed understanding
of what these numbers mean and what the answers are to your
followup questions in regard to that.
But as I understand it, between 1995 and 2000, U.S.
Attorney's Offices requested authorization to seek the death
penalty for 27 percent of the defendants that were submitted,
and that between 2001 and 2006 U.S. Attorney's Offices
requested authorization to seek the death penalty for
approximately 13 percent--the total number of 1,200,
approximately, where 156 requested authorization, or 13
percent.
Between 1995 and 2000, the Attorney General authorized the
death penalty for 27 percent of the defendants that were
submitted, and then between 2001 and 2006, the Attorney General
authorized the death penalty for approximately 13.6 percent of
the defendants submitted.
So the percentage of requests and authorization from the
Attorney General was the same: 13 percent requested from the
U.S. Attorney's Office between 2001 and 2006, and the Attorney
General authorizing the death penalty in 13 percent of the
matters of total numbers submitted.
In terms of the overrules and the success rate, the
numbers, as I understand it, are as follows: Between 1995 and
2000, 43 percent were sentenced to death, 20 of 46 individuals
that had been submitted. In 2001 to 2006, 33 percent were
sentenced to death--that is, 24 individuals out of the 72
defendants requested--where the Attorney General concurred with
the request of the United States Attorney.
In terms of the overrules, between 1995 and 2000, 7.69
percent of the defendants were sentenced to death when the
Attorney General overruled the United States Attorney request
not to seek, so approximately 7 percent. In the 2001 to 2006
timeframe, 20 percent of the defendants were sentenced to death
when the Attorney General overruled the U.S. Attorney's Office
request not to seek.
So between the time period of 1995 to 2000, it was
approximately 7 percent, where the Attorney General overruled
and you had a success rate. And it was 20 percent between 2001
and 2006, and that number is 6 individuals of the 30 that had
been within the total pool.
Chairman Feingold. Well, getting back to the question of
the greater frequency of the overruling, do I understand you to
be saying that because there were less requests for the death
penalty percentage-wise, the fact that there was greater
overruling of the U.S. Attorneys is something that needs to be
factored in? Is that what you were saying?
Mr. Sabin. No, I don't think that is the point I was trying
to make. I think the total number has increased from 685 to
1,200--
Chairman Feingold. Total number?
Mr. Sabin. Of defendants that are within the potential for
seeking the death penalty, to determine whether to seek or not
to seek. So the total number in the pool has increased, but I
think the percentages with respect to the overruling the
success rate of the past half dozen years is greater than it
had been in the preceding years.
Chairman Feingold. But isn't that a separate question from
why the Attorney General would be more frequently overruling an
initial decision not to seek the death penalty? You are talking
about the success rate, but that is not the only issue here.
Mr. Sabin. Correct. That is true.
Chairman Feingold. It was surprising to me that in one out
of every three Federal capital cases, the Attorney General had
overruled a local recommendation. It is a lot higher than under
Attorney General Reno from 1995 to 2000 when overrule cases
accounted for 16 percent of cases in which the death was
authorized. And let us keep in mind that this Justice
Department here is overruling Republican U.S. Attorneys, so
this is not just a political matter.
So I am concerned about this. I would like to do some
followup questions to further understand these statistics and
what you just presented.
Mr. Sabin. We are happy to engage in that dialog regarding
the nature and extent and the meaning of those statistics, sir.
Chairman Feingold. Another striking statistic that emerged
from that data is the difference in the Department's likelihood
of obtaining a death penalty verdict from 2001 to 2006
depending on whether the case resulted from an overrule, which
I think you were alluding to. It appears that the Government
obtains a death sentence in 33 percent of cases where the
Attorney General approved a U.S. Attorney recommendation to
seek death, but it then drops to 20 percent--it is actually
significantly lower--when the Attorney General overrules a U.S.
Attorney recommendation not to seek death.
What is your explanation for that disparity?
Mr. Sabin. These are tough cases, and tough decisions need
to be made, and we will continue to evaluate what the
information means. But we look at the facts, we look at the
law, and apply the appropriate intent factors and the
aggravating and mitigating circumstances in order to reach a
just determination. These are difficult cases, and juries have
to wrestle with the most severe sanctions.
Chairman Feingold. Now, let me suggest that U.S. Attorneys
are a lot closer to the people in their area than Federal
Government employees at the national level. The fact is that in
the last few years a fair amount of skepticism has developed
about the death penalty, and this fact has an impact on how
jurors feel about the death penalty. The deference to a U.S.
Attorney's judgment about this may affect the success rate
because U.S. Attorneys are in a better position in many cases
to determine not only the overall feelings of a jurisdiction
about the death penalty, but also the likelihood of success.
Mr. Sabin. Certainly it is a critical factor, the position
of the line prosecutor and the United States Attorney in a
particular community. There should be great respect and
understanding of the particular position of those individuals
that are most familiar with the facts and circumstances of the
individual case, the co-defendants, and the local community. So
that is considered as part of the thorough and robust review
process. So that consistent with Federal law and the desire to
have consistent and uniform application in a nationwide
setting, you have that relationship and that dialog, which must
be robust and considered, between the field office, where I had
served, and headquarters. And you need to make sure that you
get that balance and that dynamic correct. I absolutely agree
with you in that, sir.
Chairman Feingold. Finally, there is a stark difference
between the number of cases in which the Attorney General
overruled U.S. Attorney recommendations not to seek the death
penalty in 2005 versus 2006. In 2005, he overruled
recommendations against the death penalty three times. In 2006,
it jumped to 21 times.
Do you know why there was such a large jump?
Mr. Sabin. As I sit here today, I don't know and haven't
evaluated the circumstances relating to those numbers, and we
can get back to you if there is any reason to draw from them.
Chairman Feingold. I would really appreciate that. I want
to thank you for your patience and your responsiveness. It is
not an accident that there has not been this kind of oversight
for 6 years. Certainly it is obvious. It is because I was not
Chairman of the Subcommittee. And as long as I am, there is
going to be this kind of oversight.
Mr. Sabin. We welcome the oversight.
Chairman Feingold. I look forward to it, and I appreciate
your initial willingness to work with us.
Mr. Sabin. Yes, we absolutely will continue to work with
you, sir.
Chairman Feingold. Thank you very much.
[The prepared statement of Mr. Sabin appears as a
submission for the record.]
Chairman Feingold. We will go to the next panel. As the
second panel comes forward, without objection, I will place
some items in the hearing record. These include a 2007 letter
from Professor David Baldus at the University of Iowa; a 2006
letter sent by Professor Baldus and several other researchers
regarding the Rand study; and a report by the American Civil
Liberties Union on racial disparities in the Federal death
penalty.
Now that the witnesses have come forward, will you all
rise? Please raise your right hand to be sworn. Do you swear or
affirm that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Charlton. I do.
Mr. Sanchez Ramos. I do.
Mr. Mulhausen. I do.
Mr. Shelton. I do.
Mr. Otis. I do.
Mr. Bruck. I do.
Chairman Feingold. Thank you very much, and you may be
seated. I want to welcome you and thank you for being here this
morning. I ask that you each limit your remarks to 5 minutes,
as we have a lot to discuss. Your full written statements will,
of course, be included in the record. Our second panel begins
with Paul Charlton, the former U.S. Attorney for the District
of Arizona. Mr. Charlton served as U.S. Attorney from 2001 to
January 2007. Before being a U.S. Attorney, he served as an
Assistant U.S. Attorney in that office and worked in the
Arizona Attorney General's office before that. He currently is
in private practice at the law firm of Gallagher & Kennedy.
Mr. Charlton, you may proceed.
STATEMENT OF PAUL K. CHARLTON, FORMER U.S. ATTORNEY, DISTRICT
OF ARIZONA, PHOENIX, ARIZONA
Mr. Charlton. Chairman Feingold, good morning, and thank
you, sir, for the opportunity to speak with you about the death
penalty and my experience with its implementation in the
District of Arizona while I was the United States Attorney.
As you indicated, I was a career prosecutor before leaving
the United States Attorney's Office in January of this year. I
loved the job of being a prosecutor. It was a job that every
morning gave you the opportunity to get up and know that you
were going to do the right thing and every night go to bed with
the understanding that you had done something to better
society.
I know there are a number of jobs that give people that
opportunity, but what makes prosecutors unique is that they
have a power and responsibility that goes beyond what other
professions have. They have the ability to alter an
individual's career or reputation. When it is appropriate, they
can take an individual from society and put them in prison for
a number of years. But what perhaps is most unique about the
profession of prosecution is their ability to seek the ultimate
penalty.
In every case, it is important that a prosecutor not only
do right but be right. And nowhere is that more important than
when a prosecutor seeks to impose the death penalty.
Before a prosecutor seeks to impose the death penalty, a
prosecutor should seek the input of all of those with special
knowledge and take every factor into consideration. In order to
illustrate that, Senator, I would like to talk about a case
that I dealt with while United States Attorney, and that is the
case of United States v. Rios Rico, which is currently set for
trial.
The facts as alleged by the Government in that case are
that a methamphetamine dealer killed his supplier. Now, the
majority of the Government's case is based upon the testimony
of individuals who have pled guilty in exchange for their
testimony. The evidence is sufficient, I believe, that you can
go forward in good faith and seek a conviction, and if you
obtain a conviction, seek a sentence for a term of years or
life.
But what removes this case from the arena of a death
penalty case is the lack of forensic evidence. In this case,
there is no ballistic evidence. In fact, there is no weapon.
There is no DNA upon the defendant that matches the victim.
There is no DNA upon the victim that matches the defendant.
There are no hair samples. In fact, we do not have the body.
Now, that in and of itself is for me sufficient to remove
this case from consideration as a death penalty case because it
is not only important to look at the aggravating factors and
determine whether or not a case is a death penalty case or not.
We should consider the quality of the evidence. And here that
quality is lacking.
Now, what underscores that point is this additional fact:
We know where the body is. In fact, for the price of between
$500,000 and $1 million, we could go get the body. It is
currently buried in a landfill in Mobile, Arizona.
When I was United States Attorney, we asked the Department
of Justice for those funds to exhume the body. That request was
denied. It is inappropriate to seek the death penalty in a case
where you can literally put your arms around evidence that will
either support your contention that this is an appropriate
death penalty case and allow you in good conscience to go
forward with that prosecution and seek the death penalty, or
perhaps, and just as importantly, show evidence that is
inconsistent with the Government's theory of the prosecution.
Now, with this information, we went to the Death Penalty
Review Committee and asked them not to recommend that we seek
the death penalty. The line assistant who is in charge of this
case, who is most fluent with the facts of the case, appeared
personally before that committee and argued this point. I
submitted a memorandum and argued this point. And we awaited
the decision.
Now, under Attorney General Ashcroft, I was notified along
every step of the way--from the Review Committee to the Deputy
Attorney General to the Attorney General--of their
decisionmaking process. But in this instance, I was not. In
fact, the first I heard of any inconsistency with my
recommendation was a letter from the Attorney General
``authorizing'' me to seek the death penalty.
I immediately began steps to ask the Attorney General to
reconsider that decision. I went to his staff. I went to the
staff of the Deputy Attorney General. I went to the Assistant
Attorney General in charge of the Criminal Division.
I spoke personally with the Deputy Attorney General, Paul
McNulty, and I repeated the facts in greater detail than I have
here about why it is I did not believe that this was a death
penalty case.
Mr. McNulty then went to the Attorney General. The facts as
then reported to me by his chief of staff, Mr. Elston, were
these: Mr. Elston indicated that he wanted me to be aware of
two important factors, that Paul McNulty had personally
instructed Elston to make me aware of two facts: First, that
McNulty and the Attorney General had spent a significant amount
of time, perhaps as much as 5 to 10 minutes, on this issue
discussing it. The second issue that he wanted me to be aware
of was that Paul McNulty had remained completely neutral on
whether or not the death penalty should be imposed or not.
Chairman Feingold. I am going to have to ask you to
conclude soon.
Mr. Charlton. I am sorry?
Chairman Feingold. I am going to have to ask you to
conclude soon.
Mr. Charlton. All right. My point is this, Senator: Before
we seek to impose the death penalty, we need to consider the
opinions of the line assistants. You need to consider the
opinion of the United States Attorney. You need to consider the
quality of the evidence that is involved. You cannot afford to
be wrong in a death penalty case, because the ultimate decision
in this case can never be corrected.
[The prepared statement of Mr. Charlton appears as a
submission for the record.]
Chairman Feingold. I thank you for your very interesting
testimony.
Our next witness is Puerto Rico's Secretary of Justice,
Roberto Sanchez Ramos, who is here today on behalf of the
Governor of Puerto Rico. Secretary Sanchez Ramos has worked in
the Department of Justice Civil Division and the Office of the
Solicitor General for Puerto Rico. He holds degrees from MIT,
the University of Puerto Rico, and Yale Law School.
Secretary, thank you for joining us, and you may begin.
STATEMENT OF HON. ROBERTO J. SANCHEZ RAMOS, SECRETARY OF
JUSTICE, COMMONWEALTH OF PUERTO RICO, SAN JUAN, PUERTO RICO
Mr. Sanchez Ramos. Good morning, Chairman Feingold. I am
appearing on behalf of our Governor, Hon. Anibal Acevedo Vila,
to express our view that the death penalty should be abandoned
as punishment for Federal offenses or, at the very least, that
Congress should establish a rule of deference barring the
imposition of this penalty within jurisdictions, such as Puerto
Rico, that do not allow it locally.
Puerto Rico's special relationship with the United States,
our constitutional prohibition of capital punishment, and lack
of local consent to the Federal law authorizing the imposition
of this most extreme of penalties raises profound questions as
to the legitimacy and wisdom of seeking such punishment in
Puerto Rico.
The Commonwealth favors the total elimination of death as a
form of punishment. As a democratic and developed society, we
should demonstrate an absolute respect for human life, even for
the life of a murderer. I believe that an overwhelming majority
of Americans would strongly disapprove implementing the state-
sanctioned torture of a torturer or rape of a rapist as forms
of punishment. I see no reason why the moral calculus should
vary when considering the state-sanctioned killing of a killer.
In addition, the uniqueness of death as punishment, in that
it is irrevocable, should give any government pause. The
possibility of mistakes in the application of the death penalty
is not theoretical; in fact, the evidence suggests it is not
even remote. In this sense, it is worth noting that at least 14
inmates exonerated by DNA testing were at one time sentenced to
death.
Short of completely eliminating death as punishment,
Congress should at least reconsider whether the value of public
policy uniformity at the Federal level is outweighed in this
instance by significant political, social, and cultural
differences, as well as by the problems and risks associated
with the pursuit of the death penalty in jurisdictions that are
opposed to it.
The very non-existence of death as punishment in some
jurisdictions makes it very difficult to validate a uniform
process for all capital punishment cases. For example,
defendants in jurisdictions without local capital punishment
confront a greater challenge in obtaining proper legal
representation by experienced lawyers.
In Puerto Rico, this matter is aggravated by the fact that
most of the population does not speak English fluently, which
could affect the quality of representation that counsel from
another jurisdiction may be able to provide.
It should be clear that the majority of Puerto Rico's
population firmly opposes the death penalty. No execution has
taken place in Puerto Rico since 1927, and our Constitution,
ratified by the U.S. Congress in 1952, specifically prohibits
capital punishment.
The application of the Federal death penalty in Puerto Rico
stands against our highest social, cultural, political, moral,
and religious values, and such application violates the balance
of power and comity that the people of Puerto Rico envision as
transcendental to their relationship with the United States.
To disregard this political reality, independently of
strictly legal considerations, carries the risk of inviting the
erosion of the important and mutually beneficial relationship
between our peoples.
It is also interesting to note that in defending its policy
on capital punishment before the United Nations, the United
States has relied on an argument based on the political
representation that the people subject to such penalty have in
Congress. However, Puerto Rico has an extremely limited
participation in the Federal decisionmaking process. Therefore,
the idea that our democracy has a self-correcting ability--that
general dissatisfaction with Federal legislation will be
channeled through the ballot box--does not apply to Puerto
Rico.
Furthermore, the unique cultural and social particularities
of Puerto Rico present significant obstacles for the fair
imposition of the death penalty in our island.
First, as mentioned before, the use of English in all U.S.
district courts, including Puerto Rico, negatively affects the
quality of legal representation.
Second, because a jury determines whether death will be
imposed, it is critically important to ensure that the juries
constitute a fair and representative cross-section of the
defendants' peers. However, an estimated 75 percent of the
Puerto Rican population is automatically disqualified from
serving as jurors on a Federal capital case because they are
not proficient in the English language. When the situation
regarding language is combined with the fact that many of the
remaining potential jurors may be disqualified on account of
their moral opposition to the death penalty, the jury selection
process for Federal capital cases in Puerto Rico will rarely
result in the selection of a true cross-section of the
defendants' peers. Of course, this raises troubling issues of
constitutional law and basic fairness.
For all these reasons, Puerto Rico respectfully demands
that this Congress intervene to restore the balance, mutual
respect, and comity that the people of Puerto Rico envision as
a fundamental part of their relationship with the United
States. Puerto Rico's longstanding prohibition of the death
penalty, which is deeply rooted in its values and traditions,
and the extraordinary political process from which it evolved,
entitles our people to such consideration. I urge you to
consider and pass legislation which would eliminate the
possibility of the ultimate penalty of death being imposed in
Puerto Rico.
Finally, I wish to extend the people of Puerto Rico's
gratitude for allowing me to testify before you regarding an
issue of such import and consequence.
Thank you.
[The prepared statement of Mr. Sanchez Ramos appears as a
submission for the record.]
Chairman Feingold. Mr. Secretary, I am very pleased you are
here, and I agree with your statement about a jurisdiction that
does not have the death penalty. I admire the judgment of the
people in Puerto Rico on this, and my State, a long way away in
a very different climate, made the judgment in the 1850s, after
the public was reviled by a public execution, to not have the
death penalty in Wisconsin. We have not had a single execution
since. It is one of the longest jurisdictions to have this in
American history. And I think we feel the same way about the
Federal Government overriding that judgment, the considered and
continuous judgment of the people of my State.
Our next witness is David Mulhausen. He is a senior policy
analyst at the Heritage Foundation Center for Data Analysis.
Previously, Mr. Mulhausen worked for the Senate Judiciary
Committee on crime and juvenile justice policy. Mr. Mulhausen
earned a Ph.D. from the University of Maryland and a B.A. from
Frostburg State University.
Mr. Mulhausen, thank you for joining us, and you may
proceed.
STATEMENT OF DAVID B. MULHAUSEN, SENIOR POLICY ANALYST, CENTER
FOR DATA ANALYSIS, THE HERITAGE FOUNDATION, WASHINGTON, D.C.
Mr. Mulhausen. My name is David Mulhausen. I am a Senior
Policy Analyst in the Center for Data Analysis at the Heritage
Foundation. I thank Chairman Russell Feingold and the rest of
the Subcommittee for the opportunity to testify today. The
views I express in this testimony are my own and should not be
construed as representing any official position of the Heritage
Foundation.
While opponents of capital punishment have been very vocal
in their opposition, a recent Gallup opinion poll found that 67
percent of Americans favor the death penalty for those
convicted of murder, while only 28 percent are opposed.
Despite strong public support for capital punishment,
Federal, State, and local officials must continually ensure
that its implementation rigorously upholds constitutional
protections, such as due process and equal protection of the
law. However, the criminal process should not be abused to
prevent the lawful imposition of the death penalty in
appropriate capital cases.
As of December 2005, there were 37 prisoners under a
sentence of death in the Federal system. Of these prisoners, 43
percent were white, while 54 percent were African-American. The
fact that African-Americans are a majority of Federal prisoners
on death row and a minority in the overall United States
population may lead some to conclude that the Federal system
discriminates against African-Americans. However, there is
little rigorous evidence that discrimination exists in the
Federal system.
To review the Federal death penalty process, the National
Institute of Justice awarded the Rand Corporation a grant to
determine whether racial disparities exist in the Federal
system. The resulting 2006 Rand study set out to determine what
factors, including the defendant's race, victim's race, and
crime characteristics, affect the decision to seek a death
penalty case. To accomplish this mission, three independent
research teams were tasked with developing their own
methodologies to analyze the data.
When first looking at the raw data without controlling for
case characteristics, Rand found that the decision to seek the
death penalty is more likely to occur when the defendants are
white and when the victims are white. However, these
disparities disappeared in each of the three studies when the
seriousness of the crimes was taken into account.
The Rand study concludes that the decisions to seek the
death penalty are driven by characteristics of crimes rather
than by race. Rand's findings are very compelling because three
independent research teams, using the same data but different
methodologies, reached the same conclusions.
In recent years, a growing number of sophisticated studies
having consistently found that capital punishment saves lives,
Federal, State, and local officials need to recognize this
benefit. Three studies of professors at Emory University
support the deterrent effect. The study found that each
execution, on average, results in 18 fewer murders. The second
study found that implementation of State moratoria is
associated with increased incidence of murders. A third study
found that each execution prevents three murders and shorter
waits on death row reduce murders as well.
Studies by professors at the University of Colorado at
Denver found that each additional execution deters five
murders. In addition, each additional commutation resulted in
five additional murders. And removal from death row by a court
resulted in one additional murder.
In summary, Americans support capital punishment for two
good reasons: first, there is little evidence to suggest that
minorities are treated unfairly; and, second, recent studies
have confirmed what we learned decades ago: capital punishment
does, in fact, save lives. Each additional execution appears to
deter between 3 and 18 murders.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Mulhausen appears as a
submission for the record.]
Chairman Feingold. The Chairman of the full Committee,
Senator Leahy, has just arrived, and he has asked that we hear
from the next witness, and then he will speak. And I want to
thank Dr. Mulhausen for his testimony.
Our next witness is Hilary Shelton, the Director of the
NAACP's Washington Bureau. Mr. Shelton runs the NAACP's
Legislative and Public Policy Advocacy Office and has a very
long and distinguished record of advocating for civil rights.
Thank you for joining us, and the floor is yours.
STATEMENT OF HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
[NAACP], WASHINGTON, D.C.
Mr. Shelton. Thank you and good morning. As you mentioned,
my name is Hilary Shelton. I am Director of the NAACP's Federal
legislative and national public policy arm of the Nation's
oldest, largest, and most widely recognized grassroots-based
civil rights organization, with 2,200 membership units, and
units literally in every State throughout the United States.
After 98 years of fighting for full civil rights
protections for all Americans, the NAACP remains resolutely
opposed to the death penalty, and as such I would like to offer
our sincere thanks to the Chairman, Senator Feingold, and
Senator Leahy for their great work on these issues and for
their unflinching efforts to end this discriminatory and
immoral practice at the Federal level. You are indeed our
champion and an inspiration to all on this issue. Thank you,
sir.
The Government's claim to a moral authority to exact the
ultimate punishment is based on the belief that the punishment
will be administered fairly and evenhandedly. But even a
cursory review of the death penalty at both the Federal and
State levels indicate this is false.
From the days of slavery through the years of lynchings and
Jim Crow laws, to even today, capital punishment has always
been deeply affected by race. This is true among the States as
well as at the Federal level. Despite the fact that African-
Americans make up only approximately 13 percent of our Nation's
population, almost 50 percent of those who currently sit on the
Federal death row are African-American. And even though only
three people have been executed under the Federal death penalty
in the modern era, two of them have been racial and ethnic
minorities. Furthermore, all six of the next scheduled
executions are African-American.
The race of the victim also appears to play a role in the
implementation of the Federal death penalty. According to the
report just released by the ACLU's Capital Punishment Project,
under the tenure of the last three Attorneys General, the death
penalty was sought in 35 percent of the cases when the victim
was white compared to 19 percent of the cases when the victim
was a person of color. This means that the risk of Federal
death penalty authorization is 1.8 times higher in the white
victims' cases than racial and ethnic minority cases.
This disturbing trend is mirrored in the States. Across the
Nation, about 80 percent of the victims in the underlying
murder and death penalty cases are white, while less than 50
percent of murder victims overall are white. This statistic
implies that white lives are valued more than those of racial
and ethnic minorities in our criminal justice system.
Finally, the NAACP is deeply concerned about the
implications demonstrated when reviewing the data surrounding
the numbers of people who have been exonerated since being
placed on death row. Since 1973, over 120 people have been
released from State death rows with evidence of their
innocence. When administered, the death penalty is the ultimate
punishment, one that is impossible to reverse in light of new
evidence.
The American criminal justice system has been historically,
and remains today, deeply and disparately impacted by race. It
is difficult for African-Americans to have confidence in or be
willing to work with an institution that is fraught with racial
disparity. And the fact that African-Americans are so over
represented on death row is alarming and disturbing, and
certainly a critical element that leads to the distrust that
exists in the African-American community of our Nation's
criminal justice system.
It bears repeating that 49 percent of all the people, or
almost half of all those currently sitting on the Federal death
row, are African-American. Perhaps more disturbing is the fact
that nobody at the Department of Justice can conclusively say
that race is not a factor in determining which defendants are
to be tried in Federal death penalty cases.
According to DOJ's own figures, 48 percent of the
defendants in Federal cases in which the death penalty was
sought between 2001 and 2006 were African-American.
What we don't know, unfortunately, is whether or not this
number is representative of the number of criminal defendants
who are accused of crimes in which the death penalty may be
sought. And since there are several layers that must be
examined to even begin to assess this data, including whether a
crime is tried at the local or Federal level, it is not an easy
statistic to attain.
What is clear, though, is that at several different points
in the process of determining who is tried in a Federal death
penalty case and who is not, a judgment is made by human beings
in a process in which not everyone has similar views. This is
born out in a new ACLU study which found that a far greater
percentage of white defendants were able to avoid the death
penalty through plea bargains, which can be attributed to the
exercise of Federal prosecutorial discretion. This concern is
mirrored at the State level where 98 percent of the chief
district attorneys in death penalty cases are white and only 1
percent is African-American.
In addition to the factor of the race of the defendants,
the NAACP is also deeply troubled by the role played in the
race of the victim. Although at the Federal level the weight of
the victim's race appears to have changed over the last few
years, at the state level the race of the victim still appears
to play a big role. According to the Death Penalty Information
Center, 79 percent of the murder victims in cases resulting in
an execution were white, even though nationally only 50 percent
of murder victims overall were white. A recent study in
California found that those who killed whites were over 3 times
more likely to be sentenced to death than those who killed
African-Americans and more than 4 times more likely than those
who killed Latinos. Another study in North Carolina found that
the odds of receiving a death penalty sentence rose by 3.5
times among defendants whose victims were indeed white.
These studies, along with the fluctuations we see in all
death penalty jurisdictions including the Federal Government,
speak again to the varying factors involved in determining who
is eligible for the death penalty and who is not. The
overwhelming evidence that a defendant is more likely to be
executed if the victim is white is also incredibly problematic;
it again sends a message that in our criminal justice system,
white lives are more valuable than those of racial or ethnic
minorities.
Obviously with race being so problematic and such an
overwhelming factor in the application of the death penalty,
the NAACP is also concerned that there is no room for error.
Yet errors do occur even today. Nationally, more than 120
people have been exonerated and freed from death row before
they could be executed. Given the finality of the death
sentence under which these people were living, they may, in
fact, be considered the ``lucky ones.'' Furthermore,
considering the disparities in the number of African-Americans
on death row, it is likely that more African-Americans are
erroneously executed, a fact that once again contributes to the
mistrust that is endemic among African-American communities of
the American criminal justice system.
There are several other very valid arguments against the
death penalty that I will mention but not elaborate on now. The
death penalty is not a cost-effective punishment. A 2005 study
showed that in California, taxpayers paid $114 million per year
beyond the costs of keeping convicts locked up for life;
taxpayers have paid more than $250 million for each of the
State's executions.
With that, I want to thank you very much for the
opportunity to speak with you today, and I look forward to your
questions.
[The prepared statement of Mr. Shelton appears as a
submission for the record.]
Chairman Feingold. Thank you, Mr. Shelton, for your
testimony and for your tremendous leadership in this area.
I am just delighted that the Chairman of the full Committee
is here. I am delighted he is here; I am delighted he is
Chairman. And most importantly today, I hope everyone
understands the enormous role that the Chairman has played,
long before I got here and since I have been here, on
principled questioning in opposition to the death penalty not
only at the Federal level but throughout the country. We have
worked hand in glove on this issue, and I am grateful to him
for his tremendous efforts over the years on this issue.
Mr. Chairman.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Chairman Leahy. Well, thank you. And I thank Senator
Feingold for that because he has taken the same, I believe,
principled stands, often difficult in political years, election
years, but we both feel strongly about this.
I recall, Mr. Shelton, the first time I ran for the Senate.
Even though Vermont does not have a death penalty, the polls
showed that about 85 percent of the people prefer it. My
opponent said in the debate, ``How can you possibly oppose the
death penalty? '' I said, ``How many murder scenes have you
gone to? How many murderers have you convicted? Let me tell you
about some of the murderers I have convicted. Let me tell you
about some of the murder scenes I have been to as a
prosecutor.''
It probably did not answer the basic question, but I wanted
to make sure he understood that I speak from some real
experience. Like Mr. Charlton, who is a prosecutor, you speak
from real experience.
I think what Senator Feingold is doing is bringing about
this oversight that is long overdue. This Committee should have
been having oversight hearings on this a great deal more, and I
am glad that this year now with Senator Feingold chairing one
of the major Subcommittees that we have it.
Seven years ago, I came to the Senate floor, and I called
attention to a national crisis in the administration of capital
punishment. I noted that since the reinstatement of capital
punishment in the 1970s, 85 people--now this was 7 years ago;
85 people had been found innocent and released from death row.
Now, this tells you not only did you have the wrong person on
death row who in some instances came within days of being
executed, but it gave everybody a false sense of security. Some
of these were serial murderers. They lock up the wrong person,
everybody says, ``Boy, are we safe. We put the guy away.'' That
means the murderer is still out there and you are not safe.
I talked with one man who was convicted, Kirk Bloodsworth.
I got to know him very well. I think, Mr. Shelton, you know
him. I talked with him yesterday. It was his wedding
anniversary. It was also a couple days after the 14th
anniversary of being released. It was a heinous crime. I will
not go into it here. He was accused of a heinous crime,
declared his innocence. They would not even let him out of--he
was on death row. They would not let him out of jail even to go
to his mother's funeral. And it turned out, oops, sorry, we
should have checked that DNA that they kept asking them to
check. They had the wrong person. Actually, the right person
then confessed to the crime. It is hard to bring back those
years when you sit there wondering if you are going to get
executed.
At that time, 7 years ago, I introduced the Innocence
Protection Act of 2000. I worked for many years with others
until its passage as part of the Justice For All Act of 2004.
And we had a number of people join in it, both Republicans and
Democrats, especially many people that had been former
prosecutors. The legislation made key strides in ensuring that
capital defendants had access to DNA testing and to effective
counsel. You need both. DNA testing is not worth an awful lot
unless you have effective counsel, and that greatly reduces the
chance of innocent people being sentenced to death. It does not
eliminate it; it reduces it.
But, you know, since that time, like in so many other
areas, the Bush administration has proceeded on its own path,
and they have done it in secrecy. Surprise, surprise. I was
struck by the testimony today--and I read your testimony today,
Mr. Charlton, and I was getting briefed in the back room--you
notice the people around me--about your testimony. He reported
that he vigorously opposed seeking the death penalty in one
case with no forensic evidence, but that his opposition was
dismissed without any opportunity for him to discuss the matter
with the Attorney General. Even more troubling, as Deputy
Attorney General McNulty's chief of staff Michael Elston told
Mr. Charlton at the time, Mr. McNulty and Attorney General
Gonzales had spent considerable time on this issue, maybe 5 to
10 minutes--5 to 10 minutes to decide whether somebody might
end up with the death penalty.
That is not sufficient to make a careful decision about
whether to seek to execute a person in what was a difficult
case, one where the evidence was very questionable.
But I worry that the Attorney General and the Deputy
Attorney General may also have taken no more than 5 or 10
minutes in deciding to accept the recommendation from the
political arms of the White House or elsewhere that Mr.
Charlton be fired in spite of his courageous and diligent
service.
I am reminded, Secretary Sanchez Ramos, you have spoken of
the same thing in Puerto Rico where you do not have a death
penalty and being told you are going to have to have the death
penalty in Federal cases. We had a similar thing in Vermont. A
case where a carjacking ended tragically, the person crossed
State lines so it is now in Federal court in Vermont, which
does not have a death penalty. The U.S. Attorney, a highly
qualified U.S. Attorney, sought and got a plea agreement, an
ironclad plea agreement, where the person would get life with
no chance of parole. And the court, a very good judge, was
going to make sure it was going to be ironclad.
But no, after one of those 4-minute, 5-minute phone calls
from the Attorney General, we have got to have a death penalty.
We will show those people in Vermont for not having a death
penalty on the books. We will fix them. We will have a death
penalty on this one. Instead of having a plea bargain, going to
prison for life, with no chance of parole, we will spend
millions of dollars both in the prosecution and defense in this
case, and who knows where we will end up? But we will make a
point.
This, incidentally, was the same Justice Department when we
asked them to put people after 9/11 to investigate the shipping
containers, the ships coming into the port in New Orleans
because of the possibility if they had a bomb and they exploded
it--this is before Katrina--and it blew out the dikes, a lot of
people could be killed. They did not have any people for that,
but they spent a fortune for the prosecution by the Department
of Justice and an investigation. And you know what they found?
This is going to be very shocking. If you shock easily, please
cover your ears. But they found two houses of ill repute in New
Orleans.
Now, I was shocked to even hear there were such things in
New Orleans. I did suggest to the Attorney General that he
probably could have had somebody do what one of our staff did:
get out the Yellow Pages phone book in New Orleans. They
advertised. They did not have to spend millions of dollars
doing that. But it just shows the priorities.
That in a way is almost humorous because of what happened,
but what is not humorous is that the leadership of the
Department of Justice has kept its decisionmaking on these
life-or-death issues quiet. They have kept them out of the
light of day. They made sure that people do not know about it.
They have done things like in Puerto Rico, which does not have
a death penalty, they have basically imposed one in these
private meetings, as they did in Vermont.
So it is time to shine some light on it, and I cannot
commend the Senator from Wisconsin enough for doing just that.
I thank him for that.
Chairman Feingold. Well, again, thank you very much, Mr.
Chairman, for your comments and for your participation in this.
I am looking forward to working with you on this issue.
Our next witness is William G. Otis. Mr. Otis is an adjunct
professor at George Mason School of Law. Previously, he has
served as counselor to the DEA Administrator, as an Assistant
U.S. Attorney, and as an attorney in the Criminal Division of
the Justice Department.
Mr. Otis, thank you for joining us, and you may begin your
testimony.
STATEMENT OF WILLIAM G. OTIS, FORMER CHIEF, APPELLATE DIVISION,
U.S. ATTORNEY'S OFFICE, EASTERN DISTRICT OF VIRGINIA, FALLS
CHURCH, VIRGINIA
Mr. Otis. Mr. Chairman, thank you for inviting me to
testify about issues relevant to the proposed Federal Death
Penalty Abolition Act. Like the great majority of our citizens,
I support keeping the death penalty for particularly gruesome
and heinous murders. At the same time, Mr. Chairman, I want to
thank you for your principled and forthright stand. You do not
seek to disguise your views behind what some market as a death
penalty ``moratorium,'' but what is actually intended for the
most part to be simply the first phase of wholesale abolition.
You support abolition, as you said at the outset of this
hearing. This makes an honest debate possible.
Today's discussion of the death penalty cannot be divorced
from the broader national debate about capital punishment.
Indeed, if anything, the Federal Government's death penalty
procedures are more detailed and painstaking than those of most
other jurisdictions. So if the Federal death penalty were to be
abolished, it is difficult to see why capital punishment should
exist anywhere in the country.
But it should, in Federal law as elsewhere. The central
reason for opposing abolition of the death penalty is that it
is a one-size-fits-all proposition. It would tie the sentencing
jury's hands by intentionally turning a blind eye to the facts
of the case before it, no matter how horrible the crime, how
sinister the killer, how many the victims, or how grotesque
their fate. Yet more remarkably, it would tie the jury's hand
even where the typical objections to the death penalty,
including those that inspire this hearing, have no application.
If the proposed legislation had been the law 10 years ago,
for example, Timothy McVeigh would be with us today. Presumably
he would still be seeking a national audience like the one he
got on ``60 Minutes'' to explain why he was justified in
murdering 168 of his fellow creatures, including 19 toddlers in
the daycare center at the Murrah Building.
It would be wrong to prohibit our juries--the conscience of
our communities--from imposing the death penalty on a person
like McVeigh, and to enforce this prohibition on the basis of
issues that might arise in some cases some of the time, but
that often will have nothing to do with the case at hand, would
be incomprehensible. This was aptly explained by none other
than Barry Scheck, the head of the Innocence Project, who told
the Washington Post that, ``in McVeigh's case, `there's no
fairness issue. . . There's no innocence issue. Millions of
dollars were spent on his defense. You look at all the issues
that normally raise concern about death penalty cases, and not
one of them is present in this case, period.' '' Mr. Scheck
might have added explicitly what was implicit in his remarks,
namely, that there was no racial issue either, a fact no
serious person disputes. But today's proposed bill would have
prevented McVeigh's execution, or the execution of others like
him, notwithstanding the fact that the stated reasons for the
bill, racial and otherwise, were irrelevant to his case, and
will be irrelevant to dozens if not hundreds of future cases.
Now, some will say it is unfair in the context of this
hearing to use McVeigh as an example, but that is not so. There
is nothing ``unfair'' in discussing at a hearing about the
death penalty one compelling illustration of why we should keep
it. Beyond that, McVeigh is fairly representative. Over the
last 50 years, two-thirds of those executed by the Federal
Government have been, like McVeigh, white men. This largely
mirrors the national experience: Since the death penalty was
reinstated by the Supreme Court in 1976, nearly three-fifths of
executed criminals have been white.
We speak this morning against the backdrop of a savage
campaign of global terror, from Madrid to London to New York
and Arlington right across the river. If today's proposed
legislation becomes law, the Federal Government's ability
merely to ask a jury to consider the death penalty for
terrorists will cease to exist, even if Osama bin Laden himself
is in the dock. Millions of Americans would consider that an
outrage, and a huge majority would consider it unjust. It is
noteworthy that a majority of even those who generally oppose
the death penalty thought it was appropriate for our domestic
terrorist, Timothy McVeigh. All told, slightly more than 80
percent of the public thought the death penalty was right in
that case. This bill would tell that 80 percent majority that,
unbeknownst to them, their views are the accomplice of racism.
But that is not true, and it is not the American public I came
to know in my years as a prosecutor. We are a fair-minded and
conscientious people. When the moral compass of 80 percent of
our fellow citizens says that the death penalty should be
imposed, as it did for McVeigh and will for Osama and others,
it is not for Congress to tell them that their sense of justice
doesn't count.
To preserve our country's heritage that justice must turn
on the facts of each case individually considered, I
respectfully submit that Federal juries should continue to have
discretion, acting out of conscience in egregious cases, to
impose the death penalty.
Thank you.
[The prepared statement of Mr. Otis appears as a submission
for the record.]
Chairman Feingold. Well, thank you, Mr. Otis. I appreciate
your being here. I am confused by your testimony. I could not
have been more clear that this was not a hearing about any
piece of legislation, and I assume you were listening. This is
a hearing about congressional oversight of the Federal death
penalty, and if this Committee is not going to be doing the
oversight of the Federal death penalty, I don't know who is.
So, yes, I do believe in certain pieces of legislation, but
there are many who support the death penalty who share our
concern about how the Federal death penalty is administered.
But, again, I do thank you for being here.
Our final witness is David Bruck--
Chairman Leahy. Could I add, Mr. Chairman, that Mr. Otis is
a very well trained lawyer and all that, but we had enough red
herrings thrown out by his testimony, we should probably all be
getting a fishing license here. But the fact of the matter is
not legislation. It is talking about the application of the
Federal law enforcement and the utilization of the death
penalty, and the facts are incontrovertible that we have had
many, many people on death row who were innocent, who were
there because there was not adequate counsel, there was not
adequate evidence made available to them, exonerating evidence.
And I would hope that everybody, whether they are for or
against the death penalty, would feel that if somebody is being
charged with a capital crime, that they would at least have the
ability to see the evidence, all the evidence, that evidence
would not be withheld, and that we not make a mistake.
We do know from the number that have been released that
there is an extremely high probability that innocent people
have been executed. I would also hope that everybody, whether
they are for or against the death penalty, would not condone
having innocent people executed.
Chairman Feingold. Thank you, Mr. Chairman.
Our final witness is David Bruck, a Federal death penalty
resource counsel to the Federal defender system, and clinical
professor of law at Washington & Lee. A death penalty litigator
since 1980, Mr. Bruck has represented capital defendants in
some 20 cases, argued seven death penalty cases before the
Supreme Court, and handled over 60 appeals in the State and
lower Federal courts.
Mr. Bruck, thank you for joining us, and you may begin.
STATEMENT OF DAVID I. BRUCK, ESQ., FEDERAL DEATH PENALTY
RESOURCE COUNSEL DIRECTOR, VIRGINIA CAPITAL CASE CLEARINGHOUSE,
WASHINGTON & LEE SCHOOL OF LAW, LEXINGTON, VIRGINIA
Mr. Bruck. Well, thank you, and thank you so much, Senator
Feingold, for this hearing, which is long overdue. George Will
has reminded conservatives, ``The death penalty is a Government
program, so skepticism is in order.'' And I dare say oversight
is also in order.
We have seen a modest push to increase the reach of the
Federal death penalty since this Committee last had the
opportunity for oversight hearings. But even if success were
judged by the number of extra death sentences that have
resulted, it has been a failure. Mr. Sabin says the Justice
Department keeps no track of the financial cost, but we have
just heard from Mr. Charlton and from General Sanchez Ramos of
some of the unquantifiable moral costs of this attempt to
nationalize capital punishment, irrespective of the judgment of
local prosecutors or the considered judgment of the people may
be.
To put all this in perspective: at least a couple of the
witnesses seem to be debating the death penalty as such. Only
3.2 percent of all the death sentences imposed between 2001 and
2005 have been in the Federal system. Now, that is an increase
from 1.4 percent in the last 5 years of the Clinton
administration; that is, the Federal Government accounted for
less than 1.5 percent of all the death sentences imposed in the
country. But even that does not show that the Federal
Government has been having more success. What it actually
reflects is the fact that the number of death sentences in the
country as a whole has dropped by more than half. As the
country is beginning to reject this punishment, are seeing a
last surge, if you will, from the Department of Justice under
Attorney General Ashcroft and Attorney General Gonzales.
Washington's intervention has resulted in an average of one
extra Federal death sentence a year. That is to say, of the 30
cases in which this Administration has forced U.S. Attorneys to
seek the death penalty when they did not want to and which
actually went to trial, the failure rate is 80 percent. Only
six new death sentences are what we have to show for it, along
with all of the unreckoned costs, and all of the division and
all of the problems that are front and center in this hearing.
I would like to say a couple of things about the revised
protocol. Mr. Sabin seemed very modest about it. The details of
the changes to the protocol were not even referred to in his
prepared testimony, and it seems that but for your efforts, Mr.
Chairman, that protocol would not have been disclosed until
these hearings were over.
The changes are striking. They basically attempt to create
an airtight regime of secrecy over the entire deliberative
process, so that prosecutions in Mr. Charlton's position could
be fired not merely for daring to disagree with the Attorney
General, but for telling anybody that they did so.
The secrecy provisions in this protocol even extend within
the Government. It not only prohibits telling the public, but
creates a ``need-to-know'' restriction on disussing who
recommended and who disagreed with whom in this process. And if
you violate that, you have violated this new Department
regulation. This is not openness. This is going in the wrong
direction.
The new protocol also intensifies to the level of micro
management the Attorney General's personal authority to
implement a one-size-fits-all, Washington-knows-best approach
to the Federal death penalty. It even requires a local U.S.
Attorney to get the personal approval of the Attorney General
before the Government is allowed to waive jury and allow
capital sentencing by a Federal district judge.
Then the protocol says over and over again that the point
of this tremendously centralized structure is to achieve
nationwide uniformity. It is time to look at that, Mr.
Chairman. This is not a goal that is achievable, and even if it
was, it is not a goal in keeping with our Federal system or
with our Nation's values. The Sixth Amendment provides that the
accused gets a jury of the vicinage, not one drawn from a venue
chosen by Washington. There is also a grand jury requirement in
the Fifth Amendment which allows charging decisions be
evaluated by a local grand jury. The Framers believed that the
power over life or death vested in the Federal Government
should be moderated by local conditions and local views. And it
is not written in stone--indeed, it does not even really make
much constitutional sense--that a single appointed official in
Washington far, from the reach of local control and local
petition, should be the one to make these life-or-death
decisions without regard to local experience and local wisdom.
It is time for a tamping down of this nationwide
bureaucratic death-selection system which has grown up in the
last 6 years. And I certainly hope that this Committee will
help to lead this administration in a more rational and cost-
effective direction in the administration of the Federal death
penalty.
Thank you.
[The prepared statement of Mr. Bruck appears as a
submission for the record.]
Chairman Feingold. Thank you very much, Mr. Bruck, and
thank you to all the members of the panel. In a minute we will
begin with questions, but I understand that Congressman Lungren
has asked that his statement be placed in the record of this
hearing. Without objection, that will be done.
Mr. Charlton, DOJ responded in writing last week to a
question I asked about the internal process for evaluating
possible death penalty cases. Here is what it said: ``The
review process permits and encourages communication between the
U.S. Attorney's Office and the reviewing officials within the
Department.'' It then recites a variety of contacts that might
occur between a U.S. Attorney's Office and Main Justice during
consideration of death-eligible cases, and suggests that there
is an ample opportunity for robust debate throughout the
process.
As a general matter, is it your view that that is an
accurate portrayal of the Justice Department review process?
Mr. Charlton. Senator, under Attorney General Ashcroft,
that was my experience. On at least two occasions, I had just
that experience where we spoke at every different level and
debated whether or not the death penalty should be approved or
not. But under Attorney General Gonzales and with the Rios Rico
case, that was not my experience for the reasons that I stated
earlier.
Chairman Feingold. Well, when Attorney General Gonzales
testified before the Judiciary Committee earlier this year, he
testified that you were asked to step down at least in part
because of ``his poor judgment in pushing for a recommendation
on a death penalty case.'' He specifically said that you came
back to him 2 months after he had authorized the death penalty
and asked him to reconsider.
I would like to give you a chance to respond to that.
Mr. Charlton. Well, that was this case, and I am fully
satisfied that it was appropriate to seek the opportunity to
visit with him personally about this issue.
No decision is more important for a prosecutor, as I have
said earlier, than whether or not to seek the death penalty,
and that same truth holds for the Attorney General. I can think
of nothing else in the Attorney General's day-to-day life, in
his professional life, that would be more important than
whether or not to intentionally and methodically take another
person's life. And he ought to give the U.S. Attorney who
oversees that office the opportunity to visit with him
personally.
There has been some discussion here about the financial
costs that are involved, but, Senator, I would like to very
briefly talk about other costs--costs that may be even more
important than money. When you go forward with a death penalty
prosecution, you are telling jurors, you are telling the
jurists, you are telling opposing counsel that we think this is
an important enough case to take another person's life. If, in
fact, it is not, if, in fact, it is not an appropriate case for
the death penalty, then you are spending your credibility. You
are losing credibility. And it is not the Attorney General who
is losing credibility alone. It is those prosecutors who have
to stand before the jury. It is the United States Attorney's
Office that those prosecutors represent. And that credibility
is everything, as you know, Senator. And that is a loss that
you cannot afford as well.
Chairman Feingold. Thank you. Just an editorial. Obviously,
I prefer Democrat Attorney Generals, but there is mounting
evidence at these Judiciary Committee hearings that all
Republican Attorney Generals are not the same. It is really
quite a striking distinction in many instances that we have
witnessed.
Mr. Bruck, does the sort of transparency provided by former
Attorney General Janet Reno's detailed report in 2000 in any
way compromise or undermine the fair and just implementation of
the Federal death penalty?
Mr. Bruck. No. No one has ever suggested that any case was
affected by her unprompted decision to throw sunlight on what
the Department had been doing. And it is astounding to me that
not only did the public not know the tally sheet of the last 6
years, but we have learned from Mr. Sabin today that until you
made the request of the Department of Justice, they did not
know either. So how could the Department be making intelligent
assessments themselves of whether this wheel-spinning, and
almost totally ineffective practice of overruling U.S.
Attorneys and forcing them to seek the death penalty was being
effective when the Department did not even know the numbers.
I would also like to correct one statistic of Mr. Sabin's.
He said that the the death-sentencing rate in ``overrule''
cases under this administration was higher than under Attorney
General Reno, because only 7 percent of cases where she
required the death penalty to be sought ended in death
sentences. The implication was that she was making even worse
judgments than the current administration. That is misleading,
because what he failed to point out is that under the Clinton
administration, U.S. Attorneys retained the discretion to plead
cases out, without the approval of the Attorney General even
after the death penalty was authorized. That safety valve was
cut off in the 2001 regulations. Starting in 2001, the system
became like the case in Vermont that Chairman Leahy described
in Vermont where plea bargains had to be approved by the
Attorney General and often were not.
So the fact is that of the ``overrule'' cases under the
Clinton administration, almost none of them ever ultimately
went to trial. And that is why the death-sentence rate was only
7 percent, not because she was making poor decisions.
Chairman Feingold. Thank you for that.
And, Mr. Charlton, as a former Federal prosecutor, do you
think that this transparency has undermined your work in any
way?
Mr. Charlton. I cannot think of a reason why it is that
transparency would not be beneficial. In running my own office,
when we made decisions about whether or not to go forward with
a case, whether or not to recommend the death penalty, whether
or not to seek a term of life, we openly discussed those
issues. And I think you fail the full process, you fail in
allowing people to give full input when you limit their ability
to discuss their opinions with others.
Chairman Feingold. Thank you, sir.
Mr. Shelton, in your written testimony, you noted that law
enforcement executives and rank-and-file officers agree that
crimes cannot be prevented or solved without a basic community
trust of the police. Can you elaborate on how the
implementation of the Federal death penalty may have an effect
on that level of trust?
Mr. Shelton. Much like the disparate effect of many other
aspects of our criminal justice system, whether it is racial
profiling on our Nation's streets, or whether it is indeed our
juvenile justice system in which even though African-American
children commit crimes at the same rate as white children and
other children but find themselves incarcerated at a much
higher rate than their other counterparts in other racial
groups, when we talk about the death penalty and its finality,
we are hearing from people across the country that, No. 1, the
lack of transparency, they are saying, in how these cases are
being sought, why are they coming after African-Americans more
often in death penalty cases, there is a lack of trust.
Everyone we have talked to, whether it is the local street
police officer or whether it is the Attorney General of the
United States herself, has said to us on many occasions that
very well they cannot prevent crime nor can they solve crimes
without the trust of the communities these law enforcement
officials are serving.
Chairman Feingold. Are potential disparities in the death
penalty widely known or discussed in the black community? Would
you characterize opposition to the death penalty in the black
community as stronger than that in the Nation as a whole?
Mr. Shelton. I think that because I work for the NAACP,
which is a predominantly African-American organization, and
because we have 2,200 membership units throughout the country,
and because these issues for us actually come up from our local
communities through our democratic process of our conventions
and other processes, indeed we know that they feel what is
going, they see what is going on, they end up in the 200 black-
owned newspapers across the country. The issues are being
discussed, and everything we do here in Washington as it works
its way into those units and as we move to try to change the
status quo.
So the short answer is absolutely yes. I think there is a
gut feeling that you hear about first, but then as we look at
the statistics and see the actual effect, we see that very well
it is quite true and our people do know it.
Chairman Feingold. Thank you.
Mr. Secretary, I understand that Puerto Rico faces very
difficult challenges in the area of criminal justice and that
resources are scarce, and it is undisputed that it costs much
more to bring a Federal capital case than it does to bring non-
capital murder charges, although as we heard from DOJ, it has
not even tried to determine how much more, so we do not really
know how much.
From your perspective, is seeking the death penalty the
best use of the resources of the U.S. Attorney's Office in
Puerto Rico to help fight the crime problem that you face?
Mr. Sanchez Ramos. I definitely do not think that that is
the best use or the most efficient use of resources. The U.S.
Attorney's Office in Puerto Rico has very limited resources. At
least that is what the U.S. Attorney has told--the previous one
and the current one have told me over the last few years.
During the past year, quite a few of the most experienced AUSAs
there have quit. The U.S. Attorney in Puerto Rico recently
requested that our prosecutors, local prosecutors, be assigned
to work federally, sort of deputized federally as special AUSAs
to help them deal with the rising crime problem in Puerto Rico.
And I, in fact, was glad to sort of lend her two of my
prosecutors. She had requested three.
So definitely there is a situation of limited resources at
that office by all accounts, and I would definitely rather have
that office spend the limited resources in being able to
apprehend and get convictions for the highest number of
criminals possible, and if the cost of not having the death
penalty for a few of the persons that are caught is to have an
increase in the total number of criminals that are taken off
the streets and put in jail, then I definitely think that that
is the preferable alternative.
Chairman Feingold. Thank you, sir.
Mr. Bruck, based on information released from the
Department, we know that the Attorney General has disapproved
15 plea agreements in death-eligible cases since 2001. What
effect might this have on the willingness of defendants to
cooperate with the Government in future cases?
Mr. Bruck. Well, it is very simple. The way the Federal
criminal justice system works is that criminal organizations
are dismantled by defendants' lawyers proffering the testimony
of their clients and giving up what the clients know in
exchange for some consideration in plea bargaining.
In capital cases, in cases where there are many dead
bodies, the most serious of cases, it is now dangerous to do
that because a defense lawyer can reach agreement with the
United States Attorney based on a proffer where he has laid his
client out and had him interviewed, only to have the agreement
overruled by a distant decisionmaking process in Washington.
And because it is so unpredictable, it is now much riskier to
even initiate that process of providing information to federal
law enforcement.
It is just harder to engage in that process from the
defense side, and I think that is going to mean less plea
bargaining, less information being made available to the
government, and fewer convictions. The system just is not going
to work as well.
Chairman Feingold. Thank you.
Mr. Shelton and Mr. Bruck, can you respond to the arguments
that the 2006 Rand study demonstrated there were no racial
biases in the Federal death penalty prosecutions? And do you
agree that that conclusion can be drawn from that study? Mr.
Shelton.
Mr. Shelton. I think this is an extremely limited study. As
a matter of fact, I believe you have this, and I would like to
just lift this up for the record. It is a letter from a number
of distinguished law professors and others that have taken a
look at that study and seen just how limited that study is. It
is very clear that a lot of information that should be
available to give you benchmarks as we are trying to assess
indeed the effectiveness are not clearly displayed in that Rand
study. And I hope that people will take a good look at this
report and see that indeed, coming from someone like a David
Baldus and others that are cited in this particular letter,
challenging the effectiveness and the thoroughness of that
study, someone who has actually been accredited by the Supreme
Court in a number of cases and done very thorough
investigations along those lines, I think that are very well--
with his position and the positions that we have looked at and
the inconclusiveness of that study, you cannot really consider
it.
Chairman Feingold. Thank you, Mr. Shelton.
Mr. Bruck. I would like to add a couple things. The letter
from Professor Baldus is actually from five of the six members
of the Advisory Committee for the Rand Corporation study
itself, complaining not only about the way the study developed,
but about the lack of openness in the way it developed.
But the biggest thing to say about it is what you, Mr.
Chairman, have already said. It is of archaeological interest.
It is a study of the Clinton years, and there has been no study
of the Bush years. On top of that it begs the question of how
did an overwhelmingly minority pool come to be the group from
which these cases are drawn? In other words, how is the
Federalization decision made? Why are these cases the cases the
end up in Federal court?
I only want to add that this issue is about to become front
and center before all of the people in this country, because as
things stand now, the next six Federal executions are all going
to be of African-American men. Every one of them. Mr. Shelton
is talking about people wondering in the community. Well, they
are sure going to wonder then. And we will still not have the
answers.
Chairman Feingold. Thank you for that, Mr. Bruck.
Mr. Secretary, let's discuss the court battle several years
ago about whether the Federal death penalty could be sought in
Puerto Rico given the provision in the Puerto Rican
Constitution outlawing capital punishment. Ultimately, the
Federal Court of Appeals decided that Puerto Rico was subject
to the Federal death penalty. Can you talk about the public
reaction in Puerto Rico to that decision? I am not sure that
many people are completely aware of the depth of public
opposition to the death penalty in Puerto Rico.
Mr. Sanchez Ramos. Sure. The opposition to the death
penalty in Puerto Rico is not only broad, but very deep. People
are not casually opposed to it but very firmly opposed to it.
And so every time that the Federal Government announces that it
is going to pursue death in a case in Puerto Rico, it generates
public reaction that is massive and that is very strong.
Specifically, the Acosta case is the one that you are
referring to. In that case, the defense made the argument that
the Federal statute providing for the death penalty could not
legally be--was not applicable to Puerto Rico, using technical,
legal arguments. The district court judge ruled in favor of the
defense. However, the United States took it to the First
Circuit Court of Appeals. The court of appeals held for the
United States and concluded that the Federal statute was
applicable to Puerto Rico. This was all before the trial
happened. This all got a lot of publicity. It generated quite a
bit of debate on the island.
And what ended up happening was the Federal Government got
its wish of having the death penalty authorized by--validated
by the courts, and then when the trial occurred before the jury
in the guilt phase of the trial, the jury ended up hearing the
evidence and acquitting Acosta and the other co-defendant of
all charges.
Chairman Feingold. Was that unusual or surprising?
Mr. Sanchez Ramos. It was very unusual, very surprising. I
have been for about 7 years working on the prosecutor's side,
first as Solicitor General, now as Secretary of Justice, and I
have been observing, of course, the behavior of--you know, how
the Federal system works in Puerto Rico, and it is very, very
unusual in a murder case of this magnitude and with the
strength of the evidence that was presented there to have an
acquittal.
And, you know, basically the conclusion of most everyone
that I have talked to and of most commentators was that this
had to be a reaction by the jury, just sort of a protest by the
jury against the Federal Government's decision to seek death in
that case. And so there is a risk in Puerto Rico because of the
depth of feeling by the population against the death penalty
and because of how strongly these beliefs are held that seeking
the death penalty, you know, carries this risk that the Federal
Government will not even get a conviction. And so this is--
Chairman Feingold. Given Puerto Rico's longstanding
opposition to capital punishment, why do you think the Federal
Government ran the risk here?
Mr. Sanchez Ramos. Well, I am not sure. I mean, I think,
you know, you would have to ask the Department of Justice. My
speculation would be that, as they more or less stated today,
they have this--they aspire to have national uniformity in an
area where, as Mr. Bruck said, it is not an area where national
uniformity is achievable. And even if it were constitutional,
as he said, it is not something that might be desirable, even
if in practical terms we were able to get it.
You know, Puerto Rico presents, of course, unique problems
not only in terms of how the population feels but also the
language issues, which make it very hard to get good, adequate
legal representation. Since locally you do not have any death
penalty cases, there are no local lawyers who are sufficiently
familiarized with the proceedings and the dynamics of this type
of case. So you have to go and get outside lawyers, which
normally is going to be someone who does not speak Spanish, and
that creates problems.
The juries also, it is a very non-representative jury in
practical terms. Although legally the courts have upheld the
way the juries are selected in the Federal district courts in
Puerto Rico right now, you know, the truth of the matter is
that the pool from which these people can be selected is very,
very small and biased toward more educated people who
understand English. It is really a very small minority in
Puerto Rico that can understand English well enough to serve in
a jury.
Chairman Feingold. Thank you, Mr. Secretary.
Mr. Charlton, everybody at the Justice Department, of
course, ultimately works for the Attorney General and the
President, and the employees have to follow instructions from
their superiors. But what effect does it have on the morale of
line prosecutors when they are directed to seek death in a case
where they believe it is not warranted? Isn't that decision
somewhat qualitatively different from other decisions?
Mr. Charlton. It is. And as I said earlier, it affects the
morale because those Assistant U.S. Attorneys know that they
are about to expend political good will, that they are about to
waste their credibility in front of a jury that they don't
believe should impose the death penalty.
I am also aware of another case from another district in
which Assistant U.S. Attorneys specifically said that they did
not wish to go forward with the death penalty and then refused
to go forward with the death penalty once the Attorney General
commanded that they do so. And I know that the Department of
Justice sought to punish those Assistant U.S. Attorneys for
their refusal to go forward, when I believe they were acting in
good conscience.
Chairman Feingold. Thank you, Mr. Charlton.
You know, I regret that there were no representatives of
the minority here for this hearing. This is very important
oversight, and normally they are the ones who would seek to
elicit comments from their witnesses. But I am now going to
give everyone a chance to very briefly, if they wish, make some
concluding remarks, whoever would like to--if anyone. Mr.
Mulhausen.
Mr. Mulhausen. Thank you for this opportunity. I guess in
conclusion I would just like to say that when you look at
disparities in sentencing, if you just look at descriptive
statistics, you will not get the real picture. As a trained
social scientist, what we do is we take those disparities and
you control for whether or not the individuals are charged with
the same type of crimes, the severity of the crime, and other
characteristics. And what the Rand study did was, after
controlling for those factors, found that there are no
disparities in the sentencing system for the Federal capital
punishment.
The second point I would like to make is that social
science research is increasingly concluding--emerging to a
consensus that capital punishment saves lives. Regular studies
over the last 5 or 6 years are showing that capital punishment
prevents anywhere between 3 and 18 murders. So we need to
recognize that there is a possible benefit here that needs to
be in the discussion as well.
That is all. Thank you.
Chairman Feingold. Thank you, Doctor.
Any others? Yes, Mr. Otis.
Mr. Otis. Thank you. I very much appreciate your giving the
other side the opportunity to say something here. I think that
speaks very well for your fairness as Chairman of this
Committee. I have only two things to add.
When you try to have justice by the numbers, by looking at
tables and statistics, you will get numbers, but you will not
get justice. I have found in my career, which was 18 years as a
career Assistant U.S. Attorney--not a political appointee, but
a career person--that you had to look at the facts of each
case. It did not matter what happened in the case before or in
ten cases before or what you thought was going to happen in the
ten cases after. You have to look at the facts of each case and
give that defendant and that victim and the public as potential
future victims your best judgment. I have never believed in
justice by the numbers. I think numbers are interesting for
some purposes, but for deciding as a prosecutor what is the
right thing to do, don't look at the numbers, look at the
facts.
The second thing I would say is this: There have been some
suggestions that by looking at these numbers, what we would
discover is that there is racism in the Department of Justice.
I was in the Department of Justice for a long time. I was in
the U.S. Attorney's Office from 1981 to 1999 under
administrations of both parties. In my 18 years there, under
both Democrats and Republicans, not one single time did I
encounter a colleague of mine in the U.S. Attorney's Office or
at Main Justice who made a decision based on racial bigotry.
Not one single time. Those are not my colleagues. That is not
the service we granted. And if such a thing were to have
happened and the person had been found out, he would have been
run out of the building, and I would have been one of the
people running him.
Chairman Feingold. Thank you, Mr. Otis.
Anyone else? Mr. Shelton.
Mr. Shelton. Chairman Feingold, I want to thank you for
holding this proceeding to raise these issues that are too
often hidden in our society. As we talk about issues like the
death penalty in the United States, we really are speaking to
the values of the American people, and a value I think that can
become misconstrued all too often, I think the American people
value life. They value people having an opportunity to make
their case, to prove their concerns, to raise the issues in the
public forum. And very well if you put someone to death, indeed
they don't have that opportunity anymore.
We know in cases like Gary Graham in Texas, we had an
African-American man who was not able to even get a new trial,
though it was proven that his attorney slept through much of
the proceeding. And let us look at other places, making sure
that we have good, qualified attorneys as counsel. Indeed, we
know we do not have that in our country.
It would be great if every American had the dream team that
O.J. Simpson had when his life was being challenged, when
indeed his life was on the line as he made his arguments in an
American court. But we know that that is not the case for most
African-Americans or other people of color in the United
States.
The death penalty is something that we can do without. It
costs too much. It costs too much in not only the dollars that
we could utilized for other things to prevent crimes from
happening in the first place and advance quality of life
throughout our Nation, but it costs to much to the very soul of
Americans in being able to say that we will put someone to
death even after they have been caught, even after they have
been locked in a prison, even though we could very well leave
them in there for the duration of their life. We still seek to
spend the extra resources to put them to death. I think it is
unnecessary, and indeed we need to reconsider this and move
toward some change in our country.
Chairman Feingold. Thank you so much, Mr. Shelton.
Let me thank all--did you want to say something, Mr.
Secretary?
Mr. Sanchez Ramos. I just wanted to say briefly that
deterrence, as Dr. Mulhausen has said, is definitely an
important value, but it is not the only value in the calculus.
I am sure we could devise or change the system to--even
assuming that the death penalty has a deterrent effect, we
could even increase its deterrence effect by maybe giving the
defendants fewer rights, maybe having public executions, maybe
painful executions. Maybe that would, in fact, statistically
provide higher deterrence, but there are other principles and
values that should be taken into consideration when one does
this equation in terms of, you know, what kind of society we
want to be and what value we ascribe to the problem, what cost
we ascribe to the problem of having an innocent person be
convicted and punished.
And so, you know, in this sense, societies that have fewer
liberties, such as, you know, communist societies throughout
the years, they have had fewer crime. But at what cost? And so
that is basically the point that I wanted to make. Deterrence
is not the only value. You have to look at what the cost of
that deterrence is in order to have the proper equation in
balance to make a good policy determination.
Chairman Feingold. Thank you, Mr. Secretary. I would note
that the issue of deterrence was, in fact, taken up in this
Subcommittee in a hearing last year, and I will now place in
the record, without objection, the testimony of Professor
Jeffrey Fagin from that hearing.
Mr. Shelton.
Mr. Shelton. I am sorry, Senator Feingold. I could not sit
quietly as we talked about the issue of deterrence. I think it
is very important to also consider that the States that utilize
the death penalty also have the highest murder rates in our
country. So, indeed, if there is some correlation between
deterrence and the number of murders that are actually
occurring, then indeed what we are seeing is that in States
throughout the United States, those States that have the
highest murder rate also have the death penalty. There is some
cause and effect that is not being--
Chairman Feingold. We have always had that feeling in
Wisconsin.
Thank you all for your testimony and a thoughtful
discussion. We appreciate your taking the time to be here. We
thank you for your insights.
The hearing record will remain open for 1 week for
additional materials to be submitted. Because of the upcoming
recess, we will require written questions for the witnesses to
be submitted by the close of business 2 weeks from today. We
will ask the witnesses to respond to those questions promptly
so the record of this hearing can be completed.
I am concerned about some of the things we have learned
today. I am concerned that the Justice Department is itself not
tracking basic statistics about its Federal capital cases,
including something as basic as what it costs to bring such a
case. In this time of rising violent crime and limited Federal
criminal justice resources, I would hope DOJ would be
interested in knowing what it costs to bring a capital case and
might consider whether those resources could be more
effectively used elsewhere.
I am also concerned about the death penalty becoming just
another political tool. If the message is conveyed in whatever
form to U.S. Attorneys that the Attorney General looks with
disfavor on those who do not recommend frequently enough that
the Government seek the death penalty, might some of these
individuals end up making a recommendation to seek death in
cases where that is not the best outcome from a law enforcement
perspective or where it is against their better judgment? Such
considerations have no place in the decision about whether the
Government should take someone's life.
I remain concerned about racial disparities in the
administration of the death penalty. This is an area where we
need more information. And I believe the Justice Department
should reconsider its policy of routinely seeking the death
penalty in jurisdictions where that penalty is not usually
available. At the very least, a very strong Federal interest in
seeking death should be present, and perhaps of most concern is
that it appears that the current Attorney General does not
appreciate the gravity of his authority to decide whether to
seek to execute an individual. And it appears that he discounts
the views of his U.S. Attorneys on the ground who know the
local judges and who know the local community.
So this, as I have said, is not the end of our oversight
work. We will continue to examine all of these issues. I want
to again thank the Department of Justice for its cooperation in
preparing for this hearing and, again, our witnesses for their
contributions.
Thank you, and the hearing is adjourned.
[Whereupon, at 11:28 a.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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