[Congressional Record Volume 140, Number 51 (Tuesday, May 3, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   SO-CALLED RACIAL JUSTICE ACT PROVISION IN HOUSE-PASSED CRIME BILL

  Mr. THURMOND. Madam President, I rise today to speak against a 
provision in the House-passed crime bill which would effectively 
abolish the death penalty across the Nation, at the Federal and State 
levels.
  The antideath penalty provision is title IX in the House-passed crime 
bill and often mislabeled by its proponents as the Racial Justice Act. 
This language would allow death-sentenced murderers the opportunity to 
avoid the death penalty by using a statistical quota system to 
challenge their sentence. We have defeated this legislation time and 
time again in the Senate when offered by those who are opposed to the 
death penalty.
  To those who claim that this provision is necessary to prohibit a 
death sentence based on considerations of race, I would point them to 
the 14th amendment to the Constitution. The 14th amendment, along with 
other protections, contains a fundamental proposition which prohibits 
any person from being sentenced to death on the basis of race.
  Title IX in the House-passed crime bill would permit a defendant in a 
capital case to make a showing that race was a statistically 
significant factor in decisions to seek or impose the death sentence in 
the jurisdiction in question. Once this minimal standard of a 
statistical imbalance is shown, a heavy burden of rebuttal is then 
imposed on State or Federal prosecutors.
  I have been a judge and a practicing attorney. It has always been my 
understanding that individuals are tried on the facts of his or her 
case, not on the facts, circumstances or statistics from unrelated 
cases. This has been a fundamental precept in our criminal justice 
system. Passage of the so-called Racial Justice Act would relegate the 
outcome of capital cases to statistical assertions from other unrelated 
capital cases. Needless to say, the focus of the trial should be 
whether the defendant committed the offense for which he was charged 
and it should not be overshadowed by statistical jousting.
  Clearly capital cases should be race neutral. The proposal in the 
House bill brings race consciousness into the trial in order to attain 
a racial balance. This actually heightens the role of an individual's 
race in capital cases and establishes a quota system in death penalty 
cases. The guilt or innocence and imposition of the death penalty 
should turn on the facts of an individual's case having nothing to do 
with the defendant's race or the race of individuals in unrelated 
cases.
  Let there be no mistake, title IX in the House-passed crime bill 
would effectively abolish the death penalty at the Federal and State 
levels. Also, it completely overturns the Supreme Court decision in 
McClesky versus Kemp. In that decision, the Supreme Court held that a 
defendant who contests his capital sentence on the basis of racial 
discrimination is required to prove that the decisionmakers in his own 
case acted with discriminatory purposes.
  The Supreme Court has rejected the statistical theory of racial 
discrimination in death penatly cases and the Racial Justice Act is a 
thinly veiled attempt to overturn the Supreme Court on this matter. It 
is important to note that Justice Powell, writing for the Court in 
McClesky, observed that the statistical premise of discrimination 
advocated by the defendant--and now as title IX in the House bill--
throws into serious question the principles that underlie our entire 
criminal justice system.

  We will soon go to conference with the House to resolve our 
differences in the crime bills passed by our respective bodies. We have 
a good opportunity to pass a comprehensive anticrime measure which the 
American people deserve. If the conference report is to be adopted, it 
must be void of title IX from the House bill. This provision is opposed 
by the National Association of District Attorneys and the National 
Association of Attorneys General. These are the men and women who have 
the responsibility for prosecuting death penalty cases all across the 
Nation on behalf of the American people. I am hopeful that the House 
conferees will not let the American people down by insisting that this 
antideath penalty provision remain in the conference report. If 
necessary, the Senate should vote in the near future on a sense-of-the-
Senate resolution on this matter to alert House Members that we cannot 
support the inclusion of the so-called Racial Justice Act in the final 
anti-crime bill.
  I look forward to working with my Senate colleagues to ensure the 
passage of a responsible comprehensive anticrime bill and the removal 
of language from the House bill which will abolish the death penalty 
across the United States.
  I yield the floor.
  Mr. GRAHAM. Madam President, I ask unanimous consent to speak for up 
to 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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