[Congressional Record Volume 140, Number 44 (Wednesday, April 20, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: April 20, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                     THE DEATH PENALTY QUOTA SYSTEM

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
February 11, 1994, the gentleman from Georgia [Mr. Gingrich] is 
recognized for 60 minutes as the designee of the minority leader.
  The Chair would also thank the gentleman for his accommodating some 
special problems some of the other Members had earlier today.
  Mr. GINGRICH. I thank my friend, the gentleman from my neighboring 
district in Georgia. I appreciate the opportunity. I was glad to 
exhibit a spirit of comity.
  Mr. Speaker, I was going to talk tonight about the death penalty 
quota system which we had a vote on today, and which I hope a number of 
my Democratic colleagues are going to vote with us tomorrow in a 
bipartisan basis to take out of the crime bill.
  I really want to be able to vote for the crime bill on final passage. 
I think it is a very important bill. I think it is a bill that we 
should try to pass.
  But I am very concerned, because today in a very unusual situation, 
we had a McCollum of Florida amendment to take out the chapter, and I 
believe it is 177, which is essentially a quota system for the death 
penalty, which lost by 212 to 212. Among the Members, it was a tie, and 
since when you offer an amendment, it fails on a tie, and it is very 
interesting. Because it looked like it was a bigger defeat. It looked 
like it was 217 to 212. That is because the delegates were allowed to 
vote, even though they are not Representatives. And so on a actual vote 
of the Representatives it was 212 to 212.

  Now, we have analyzed. There were seven absentees. Those 7 absentees 
would have voted 5 to 2 in favor of the McCollum amendment, so we will 
tomorrow offer a motion to recommit which will include only the 
identical language that was in the McCollum amendment today.
  So the Members, our hope is that the 212 Members who were there 
today, who voted yes, will continue to do tomorrow what they did today, 
and that we will have the additional 5 votes who were absent today but 
will be here tomorrow.
  In addition, we hope to convince a few more of our friends to join 
us, because this is a very, very important amendment. We have to 
recognize that setting up quotas for the death penalty basically kills 
the death penalty as an effective tool in most parts of the country.
  Let me read some of the language from the chapter 177, which the 
McCollum amendment uses. Now, on the surface it sounds very reasonable. 
It says, ``Prohibition against the execution of a sentence of death 
imposed on the basis of race.'' Of course, I agree with that. We do not 
want anyone sentenced to death because of their race.
  But then you come down here and find out what they mean by race: ``An 
inference that race was the basis of a death sentence is established if 
valid evidence is presented demonstrating that at the time the death 
sentence was imposed race was a statistically significant factor in 
decisions to seek or to impose the sentence of death in the 
jurisdiction in question.''
  In other words, if you do a statistical analysis and you find in a 
particular constituency or a particular area any kind of imbalance in 
who has been sentenced to death, you can at that point raise the issue 
automatically and appeal the death penalty, and the burden of proof 
under this chapter, the burden of proof is on the Government. So what 
happens is after all of the effort in the Senate and the House to 
expand the death penalty, this particular chapter actually narrows and 
makes virtually impossible the death penalty.
  I am not a attorney. So I went to several attorneys today and asked 
them. ``Explain to me what this means,'' and they said that this means 
that if somebody commits a really vicious crime and we know that person 
committed the vicious crime and the judge and jury have found them 
guilty and they are sentenced to death, that the very first thing their 
defense lawyer can do is look at the statistical evidence of the area 
and automatically have a presumption that they should not get the death 
penalty if the statistics are out of whack.
  But notice this has nothing to do with whether or not that particular 
person was guilty. This has nothing to do with whether or not that 
particular crime was horrible and vicious and brutal. This has nothing 
to do with whether or not that sentence was just. What this has to do 
with is a brand-new concept of statistical guilt and statistical 
innocence.
  We are a multiracial country. We have many marriages in America 
between blacks and whites, between Hispanics and Asians, between Asians 
and whites, between Asians and blacks, between native Americans and all 
those groups.
  Let's assume you have two jurisdictions. In one jurisdiction every 
time a person shows up who is half black and half native American, they 
count them as native American; and in every other district, every time 
somebody shows up and they are half-black and half-Native American, it 
counts them as blacks. They are going to statistically have radically 
different results even though the individuals are exactly the same 
ethnic background.
  And so what do we have? In America, the land of opportunity, America, 
the country where you are supposed to count as an individual, we are 
now going to take murderers and lump them together statistically and 
then decide whether murderers are being in fact statistically treated 
fairly.
  Let me give you an example. The term ``statistical'' starts with the 
notion, and I am quoting now from page 108, so that any of my 
colleagues who want to check can look at this later on, ``If 
statistical evidence is presented to establish an inference that race 
was the basis of a sentence of death, the court shall determine the 
validity of the evidence, and if it provides a basis for the inference, 
such evidence must take into account to the extent it is compiled and 
publicly made available evidence of the statutory aggravating factors 
of the crimes involved and shall include comparisons of similar cases 
involving persons of different races.''

                              {time}  1930

  So if it turns out that Polynesians have one set of sentences because 
of circumstances involving, remember, a judge and jury, and let us say 
you happen to have a group that got a jury that had a psychological 
tendency to be lenient so you got off okay. There was only one case 
that year involving Polynesians. But Hispanics, on exactly the same 
charge, had a harsher sentence because that year they got a jury and a 
judge who were tougher. That would not be a statistical inference that 
on the next case to show up, that that particular convicted murderer 
sentenced to a death penalty by the judge and jury should be lumped in 
statistically with the prior cases. I am told that these have several 
effects by lawyers who know far more than I do. First of all, you can 
count on a $2 million or $3 million appeal automatically. By the way, 
that number is not a random number.
  That number actually comes out of a case, I believe, in California, 
which actually cost that amount of money to the Government of 
California in order to try to deal with that particular issue.
  So we are not talking here about something which just came up as an 
arbitrary number, but rather as something which has a real historic 
example of what happened.
  Now, the National Association of Attorneys General looked at all of 
this, and the National Association of Attorneys General said that they 
are opposed. They said, ``A measure that would allow a capital 
defendant to make a statistical showing from unrelated cases as the 
basis for appellate or collateral leave.'' In other words, notice that 
the cases have no relation to each other. They could occur over many 
different years, they could be in different size towns, in different 
parts of the community; they could involve different kinds of detailed 
crimes, but if they are statistically related even though they are 
unrelated, then they set the base for an appeal.
  The National Association of Attorneys General said that it strongly 
supports all efforts to strike the provision for any statistical 
showing and it opposes any legislation which undermines finality and 
promotes unnecessary delay, and it opposes any measure that would allow 
a capital defendant to make a statistical showing from unrelated cases.
  Now, these are the Attorneys General of the United States from all 50 
States. What they are saying is that if you allow statistics to blur 
the individual responsibility, to blur the individual accountability, 
to stop us from executing a person who, remember now, we are not 
talking about sombody at random, a person who has been indicted, they 
have had a jury trial, they have been convicted by a jury and they have 
been sentenced by a judge and now the very first thing the defense 
attorney does is he or she does not go in and say, ``Let me find out 
about my client.'' They say, ``Let me find out about the statistics 
because I may have an automatic appeal.''
  Now, people are very frankly tired of appeals. Georgians may be 
particularly aware of that because we just recently had a murderer 
executed 16 years after the murder.
  Now, think about that: 16 years of appeals, 16 years of lawyers fees, 
16 years of costs, 16 years of imprisonment and maybe even more 
tragically, no one except the immediate family remembers why we are 
executing this murderer because it has been 16 years.
  And what does establishing a quota system for the death penalty do? 
It creates a whole new layer of appeal to make it, as several attorneys 
said to me today, for all practical purposes, impossible in most of our 
States to have a death penalty. Now, it could be on the books, you just 
never execute anyone. It becomes automatic on the face of it an 
opportunity to appeal.

  Let me give you as a history teacher a background of that that I 
found fascinating.
  If you go back and look at 1933, President-elect Franklin Delano 
Roosevelt was with Mayor Anthony Cermak of Chicago. A man tried to kill 
President Roosevelt, missed, and killed Anthony Cermak. This was 
February 15, 1933.
  On March 20, 1933, the State executed the man who killed the mayor of 
Chicago, less than 5 weeks, because they had eyewitnesses, they had all 
the proof they needed, they indicated, they tried, they sentenced, and 
they executed.
  Now, you do not have to ask for 5 weeks; we have said on our side 18 
months is a reasonable length of time to have an appeal thoroughly 
processed after you have had a trial. But compare 5 weeks in 1933, when 
America was substantially safer because people understood that the 
penalty would relate to the crime and would occur soon enough that it 
would make some sense; then compare things like the racial quota 
chapter, which absolutely creates what I think is frankly an un-
American standard. ``We are not going to judge you as an individual, we 
are not going to judge you on your own case, we are not going to judge 
you based on a judge and jury; we are going to lump you in with a whole 
bunch of statistics, including people who may in fact not be related to 
you or have anything in common with you.''
  Now, what is the result? Not only is the National Association of 
Attorneys General opposed, the National District Attorneys Association 
is opposed to this provision, because they believe it will weaken the 
death penalty and make it virtually impossible.
  The National State Troopers Coalition is opposed to this provision 
because they are convinced that it will weaken the death penalty and 
make effective execution of the death penalty almost impossible.
  The American Legislative Exchange Council, legislators from all over 
the country, are opposed to this provision because they are convinced 
that it will in fact add a whole new layer of appeals and add a new 
standard which would be very hard for the State to prove. And in that 
context, it would set a standard which would make it virtually 
impossible to have an effective death penalty.
  Now, I think it is very important to recognize that this is a basic 
test about two things: It is a basic test, first of all, about the 
death penalty. And I would say to my colleagues, if you do not want an 
effective death penalty, then you should vote ``no'' tomorrow when Mr. 
McCollum makes his motion to recommit. If you in fact are looking for a 
good excuse to avoid a death penalty, then you should vote ``no'' 
tomorrow. If you think the death penalty is inappropriate or wrong, you 
should vote ``no'' tomorrow.
  But if you believe that in situations of murder so brutal or vicious 
that there are legitimate reasons to have a death penalty, if you 
believe that a death penalty is an appropriate action by the Government 
after a fair trial, after a jury decision, after a judge, after a 
legitimate appeals process, then you should vote ``yes'' on the 
McCollum motion to recommit because that is the only way to take out of 
this bill this brand-new racial quota system.
  There is a second part of this, and let me say, by the way, the 
number of people earlier this week who voted for various death 
penalties was massive, overwhelming.
  If they would simply vote to make effective tomorrow what they voted 
to establish earlier this week, the McCollum motion to recommit would 
win by a big margin.
  But it goes a step deeper; I think it is profoundly wrong to 
establish a presumption of statistics based upon race. I think it is 
wrong for a couple of reasons.
  I think it is absolutely morally wrong to go from individual judgment 
in an individual case by an individual jury and an individual judge 
dealing with this example and suddenly have some mathematical model 
that depersonalizes the whole process so that in one State you could 
have a convicted killer who had done something and they would get 
executed because of the statistics. And in another State you could have 
the very same crime committed in the very same way and they would not 
be executed because of the statistics. Now, I think that takes away 
from us the entire concept of individual accountability and individual 
responsibility, and I believe, frankly, it strikes at the heart of the 
American system.
  I think there is a second problem with this: We are a Nation that 
believes in integration. We are a Nation that has an increasing number 
of people who marry across traditional racial bounds. You can be an 
American and be a Polynesian who is married to a European. You can be 
an American and be a Native Indian who is married to a Hispanic. You 
can be an American and be of African origin and be married to somebody 
who is of Chinese origin. Then, coming from these backgrounds, their 
children could marry each other.

                              {time}  1940

  And I ask my colleagues, If you have, someday, a murderer who is one-
fourth Chinese, one-fourth European, one-fourth African, and one-fourth 
Native American by background, and that person is a murderer, under 
this particular provision how are we going to count them, and will the 
prosecutor look around, decide which statistic he needs the least of 
and not count them as that one, and look at the one where he needs a 
new statistic, and count them as that one, so this will be a good year 
to count you as Chinese because we haven't had many of those recently, 
or this will be a good year to count you as native American?
  I say to my colleagues, I mean there is something grotesquely un-
American about the idea that we are now going to start recording for 
the purposes of the death penalty in some way to be decided by the 
Government without you having anything to do with it, your racial 
status so we can then make you a statistic so we can then determine 
whether or not we should execute you.
  I cannot imagine a more dehumanizing and depersonalizing process than 
that kind of approach.
  Let me point out also that there are some problems in terms of 
victimization. Forty-seven percent of the 230,000 victims of murder and 
manslaughter between 1980 and 1990 were black. Let me repeat this. I 
think this number is so astonishing that I want to repeat it for my 
colleagues. In the decade of the eighties there were 230,000 victims of 
murder and manslaughter. That is an astonishing number. Forty-seven 
percent of those victims were black, although blacks account for only 
12 percent of the resident population.
  I say to my colleagues, let's say that you're in a jurisdiction where 
you are part of that 47 percent, but you don't quite fit statistically. 
You have a loved one who has been murdered. You have a person who may 
well be of the same race who did the murder, and yet the statistics are 
flawed. It didn't quite work out right, and so even though you have a 
loved one who has been killed, you are now not going to get justice.
  Ninety-four percent of black murder victims were victims of black 
offenders; that is, it was a black on black crime. Now that is an 
extraordinary percentage, and it is a tragedy, and yet all of us are 
trying to protect the innocent. We want to stop the next 100,000 
murders. We want to stop the murderer. We want to protect the innocent. 
We think the place to watch out in terms of the racial impact of crime 
is on the innocent victims, not on the murderer. We think that the 
great tragedy of America is:
  If you're black, you're the most likely to be victimized. If you're 
Hispanic, you're the second most likely.
  Mr. Speaker, we think the best thing that can happen to minority 
groups in America is to end the crime, end the rape, end the drug 
dealing, end the murder, and create safe neighborhoods in which poor 
people can grow up in safety, go to work and have a chance to have a 
better future, and yet this chapter does not focus on protecting people 
who are black and Hispanic, who are American Indian. This does not 
focus on protecting people who are innocent. This is a chapter 
dedicated to protecting the murderers.
  Now I just want to suggest--and they are not suggesting here that the 
person is innocent. They are not suggesting here that there ought to be 
a process of overturning the conviction. They are simply saying:
  ``If you're a murderer who gets lucky, and you're in the right 
jurisdiction, you're not going to get the death penalty because of the 
impact of statistics.''
  The people who will be, as a consequence, the most affected are, in 
fact, black and Hispanic because this will have the effect of 
minimizing deterrence in this communities where we have, in fact, the 
greatest number of crimes, and so of these victims--remember we are 
talking here about 110,000 black Americans who were killed in the 
1980's, and it is an astonishing number, twice the total deaths in 
Vietnam. That is how many black Americans were killed in the 1980's.
  Those of us who believe in the death penalty and believe in an 
effective and believable death penalty are, in fact, committed to 
trying to protect innocent African Americans, innocent Hispanic 
Americans, innocent Asian Americans, innocent native Americans, 
innocent European Americans, we think:
  If you're innocent, you ought to be protected.
  Yet this particular amendment, or this particular chapter, actually 
focuses on protecting the convicted murderer.
  Now let me say also for my colleagues that we have to recognize the 
scale of the effort that this is going to involve. This is going to 
mean that the local district attorney, possibly the State attorney 
general, are now going to engage in a whole series of collecting 
statistics, and they are going to know every time they ask for a death 
penalty that they can count on the criminal defense lawyer 
automatically appealing the case, or almost automatically appealing the 
case, on a statistical ground, and they are going to know that they 
have an obligation to then gather all of the information to prove that 
it is not true.

  In testimony on May 7, 1991, before the Senate Judiciary Committee, 
Attorney General Dan Lundgren of California provided a striking 
illustration of the prohibitive costs of the type of statistical gain 
that this racial quota bill for murderers would require. In one case in 
California State attorneys spent 3 years and over a million dollars 
preparing for a hearing on a statistical discrimination claim in a 
capital case ultimately moot by the Supreme Court's decision in 
McCloskey versus Kemp. Let us think about that: Three years, over a 
million dollars of our tax money, for a statistical hearing for a 
person already convicted of murder and already sentenced to death. Now 
we are not protecting the innocent here. We are protecting the 
murderers.
  Let me finally talk briefly about the situation we are going to have 
on the floor tomorrow, and I think for the American people it is 
important to understand what is about to happen. Today in the Committee 
the gentleman from Florida [Mr. McCollum] had an opportunity to offer 
his amendment. As I said earlier, If you were watching the vote on C-
SPAN it was misleading because it looked like he lost by five votes 
when in fact it was tied. But the five votes that were against it that 
didn't count were the Delegates whose votes don't count in a close 
vote, but its looks psychologically like his motion was going down, and 
it is hard to know when something which is tied looks like it's losing, 
whether or not the last three or four people might not have changed 
their vote if they thought they were the decisive margin. In fact, 
today the 212 Members who voted against any one of them, if they had 
switched their vote, any one them, if they had switched their vote, 
would have been in the decisive margin in carrying the amendment 
offered by the gentleman from Florida [Mr. McCollum] and striking this 
quota for murderers provision from the crime bill.
  Now tomorrow, 24 hours later, we are going to offer the exact same 
language, and there will be a chance to take out this quota for 
murderers provision.
  But there will be a difference procedurally. Today we were in the 
Committee of the Whole. That is the process where the House writes 
legislation, and we were in a position to offer the amendment without 
regard to parties. Tomorrow at the end of the bill there is a procedure 
called a motion to recommit. It is, by tradition, always given by the 
minority party, and yet it is slightly rigged because historically 
Democrats do not like to vote for it on procedural grounds. 
Historically, they say, ``Well, yeah, I'm for that, but I can't vote 
for a motion to recommit,'' and yet tomorrow it is going to be exactly 
the same wording, exactly the same amendment.
  So, Mr. Speaker, I wanted to come to the floor tonight to explain to 
everyone that in a spirit of bipartisanship in almost every vote that 
has passed, almost every amendment that has improved this bill has been 
a joint moderate Democrat-Republican vote against liberals. The 
partisanship has been liberal Democrats. The bipartisanship has been, 
generally speaking, moderate Democrats and Republicans voting together 
on key issues.
  I want to say to all of my colleagues, Democrat and Republican, that 
I hope tomorrow we can put aside partisanship. I hope tomorrow we can 
put aside procedural arguments. We are going to have one chance on one 
vote in the House to put the McCollum amendment in, to knock out the 
racial quota provision for murders, and to ensure a more effective and 
a more expeditious and a more appropriate death penalty.
  So I just want to appeal to all of my colleagues: If your favor the 
death penalty and you want it to be effective, vote yes tomorrow on Mr. 
McCollum's motion to recommit. Help us clean-out this particular I 
think terrible provision of the bill, and help us get a bill that is 
actually a good bill.
  If we get that bill, if we can win this, I am going to vote yes on 
the bill. I think it is that important. But if this stays in, if we are 
in a position where this bill with this provision would in effect kill 
all the death penalties in America, because it would make it so 
difficult to win an appeal and so expensive to win an appeal, then I 
will vote no, and I will hope that the conferees take this out.
  I think this is a very important vote. This may be the most important 
vote on the death penalty in the House this year, and I hope everyone 
understands going into tomorrow's vote that this is the key vote on 
whether or not there is an effective death penalty, and that only by 
voting for McCollum's motion to recommit can you vote for an effective 
death penalty in this bill.

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