[Congressional Record Volume 140, Number 47 (Tuesday, April 26, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: April 26, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                  THE DEATH PENALTY AND THE CRIME BILL

  Mr. HATCH. Mr. President, I have what I consider to be quite 
important remarks here today, after meeting in the Judiciary Committee 
this morning.
  President Clinton is prepared, in my opinion, to end the death 
penalty in the States and at the Federal level. Last week the other 
body left in its crime bill the so-called Racial Justice Act. This 
provision, through its misuse of racial statistics, will result in the 
abolition of the death penalty in every State which has a 
constitutional death penalty, including my State of Utah, as well as 
every Federal death penalty. They will all be removed.
  This provision is opposed by most State attorneys general, the 
National District Attorneys Association, and other law enforcement and 
victims groups. To my astonishment, Attorney General Reno, in testimony 
before the Senate Judiciary Committee just this morning, expressed the 
Clinton administration's neutrality regarding this provision. 
Evidently, the President is prepared to sign a bill which will include 
this provision.
  Thus, in a single blow, President Clinton is prepared effectively to 
strike down this law enforcement tool favored by the overwhelming 
majority of Americans. While professing verbal support for the death 
penalty, this administration is a cynical and willing participant in 
the destruction of the death penalty.
  Let me first emphasize what is not at issue. Under the 14th amendment 
to the Constitution, no person can be sentenced to death on the basis 
of race. No one disputes this elementary proposition. Moreover, the 
Senate crime bill requires the trial judge to instruct the jury not to 
consider race and to return a certificate, signed by each juror, that 
race was not involved in their judgment in a death penalty case.
  In the guise of protecting against race-based discrimination, title 
IX of the House bill would in fact use an unreliable and manipulable 
statistical quota to redefine when a death sentence shall be deemed to 
have been based on race. Specifically, title IX provides that an 
``inference that race was the basis of a death sentence is 
established'' if the evidence shows that ``race was a statistically 
significant factor in decisions to seek or to impose the sentence of 
death in the jurisdiction in question.''
  It is essential to recognize that statistics can be selected and 
manipulated across an endless number of variables. Thus, a supposed 
expert retained by a death-sentenced murderer could make choices from 
among the following:
  The relevant State actor could be an individual prosecutor, a 
prosecutor's office, a jury, some set of juries, a judge, some set of 
judges, an executive with clemency authority, or some combination of 
the above;
  Statistical evidence of alleged discrimination could relate either to 
the race of the defendant or to the race of the victim;
  The ``jurisdiction in question'' could be defined as a city, county, 
State, district, circuit, or some other governmental unit;

  Any of countless features of crimes could be categorized and compared 
in countless ways.
  Given these many variables, it is inevitable that in virtually every 
case, a supposed expert could manufacture a statistical disparity that 
would then be alleged to be significant.
  The Racial Justice Act would, as a result, convert every death 
penalty case into a massive sideshow of statistical squabbles. Instead 
of the prosecutor putting a brutal murderer on trial, the murderer 
would be putting the prosecutor on trial. Moreover, once a statistical 
disparity was artificially deemed to establish an inference that a 
death sentence was based on race, the Government would have the burden 
of proving a negative: It could rebut this fictitious inference only by 
proving an absence of discrimination. Worse, it might have to try to 
prove such evidence years, or even decades, after the events in 
question, when witnesses and records are no longer available.
  The Supreme Court rejected this statistical theory of racial 
discrimination in the death penalty in McCleskey v. Kemp, 481 U.S. 279 
(1987), where it ruled that a capital defendant claiming a violation of 
the Federal equal protection clause must show the existence of 
purposeful discrimination and a discriminatory effect on him. Justice 
Powell, in his opinion for the Court in McClesky, noted that 
implementation of murder statues inherently requires discretion, which 
he recognized ``is essential to the criminal justice process.'' Justice 
Powell explained that this process is ``unique.'' He went on to say:

       [T]he nature of the capital sentencing decision, and the 
     relationship of the statistics to that decision, are 
     fundamentally different from the corresponding elements in 
     venire-selection or Title VII cases. * * * In those cases, 
     the statistics relate to fewer entities and fewer variables 
     are relevant to the challenged decisions.

  Justice Powell further stated:

       Another important difference between the cases in which we 
     have accepted statistics as proof of discriminatory intent 
     and this case is that, in the venire-selection and Title VII 
     contexts, the decisionmaker has an opportunity to explain the 
     statistical disparity. Here, the state has no practical 
     opportunity to rebut the [statistical] study. 
     ``[C]ontrolling considerations of * * * public policy,'' 
     dictate that jurors ``cannot be called * * * to testify to 
     the motives and influences that led to their verdict.'' 
     Similarly, the policy considerations behind a prosecutor's 
     traditionally ``wide discretion'' suggest the impropriety 
     of our requiring prosecutors to defend their decisions to 
     seek death penalties, ``often years after they were 
     made.''

  Justice Powell also observed that the use of statistics advocated by 
McCleskey--and incorporated into the House bill--``throws into serious 
question the principles that underlie our entire criminal justice 
system,'' and cannot be limited in any principled manner to the context 
of the death penalty and race.
  In practice, as prosecutors already recognize, they would ultimately 
have no choice under title IX but to abandon the death penalty. For the 
only way to ensure statistical proportionality across the range of 
conceivable measures it to have the incidence of the death penalty 
equal zero--that is, to abolish the death penalty.
  President Clinton claims to support the death penalty. He has been 
calling on Congress to pass a crime bill that contains a Federal death 
penalty. Yet he and his administration have been silent as the House 
has moved to abolish the death penalty nationwide by this racial 
justice provision.
  If President Clinton truly supports the death penalty--if his actions 
are to match his rhetoric--he must speak out against title IX. If he 
remains silent or neutral on this issue, that can only mean that he is 
prepared to repeal the death penalty for the most heinous crimes in 
this country.
  A vote for any bill that contains title IX is a vote to abolish the 
death penalty, both at the Federal level and among the States. I look 
forward to working with my colleagues to make sure that this provision 
is removed at conference.

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