[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

                               ----------                              

         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






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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

                              ----------                              

                    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

                              ----------                              


                        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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