[Congressional Record Volume 140, Number 54 (Friday, May 6, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 6, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                     CONGRESSIONAL GIFTS REFORM ACT

  The Senate continued with the consideration of the bill.
  Mr. D'AMATO. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1685

  (Purpose: To express the sense of the Senate concerning the Racial 
                              Justice Act)

  Mr. D'AMATO. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New York [Mr. D'Amato], for himself, Mr. 
     Gorton, and Mr. Domenici, proposes an amendment numbered 
     1685.
       At the appropriate place, add the following:
       It is the sense of the Senate that the conferees to the 
     upcoming Senate-House conference on omnibus crime legislation 
     should totally reject the so-called Racial Justice Act 
     provisions contained in the crime bill passed by the House of 
     Representatives on April 21, 1994.
  Mr. D'AMATO. Mr. President, this is a straightforward, sense-of-the-
Senate resolution that clearly indicates there is no place in our 
society, and particularly in our criminal justice system that a 
situation can exist whereby the punishment of an individual or the 
sentence imposed on an individual will be determined or the guilt or 
the innocence of an individual will be determined by way of their race, 
color, or creed.
  Lady Justice is unique in that she wears a blindfold. It is more than 
symbolism because we take pride in working to see to it that we have a 
system that dispenses justice regardless of a person's ethnic 
background, race, color, religion, their wealth, or their position. 
Justice should be dispensed in a manner and in accordance with what is 
right and proper, in accordance with the evidence--the facts.
  Let us understand clearly what our colleagues in the House of 
Representatives have done. They have now said that the imposition of 
law--the death penalty in this case--will be based on statistical 
evidence that can be used to keep a person who may even be an admitted 
killer, a person who has been judged by a jury and found to be guilty 
of a heinous crime, from receiving the verdict of the jury, if that 
verdict were the death penalty.
  I find it interesting that while the House of Representatives has 
jumped up and down and said that the death penalty has now been 
expanded to cover--I do not know how many--new laws, it has in this 
instance passed the so-called racial justice provision.
  There is no one who is opposed to racial justice. Yet, when we 
discuss this subject we are talking about political gamesmanship. That 
is what it is--political gamesmanship. How can you get up and say you 
are opposed to racial justice?
  Let us make it very clear. There should never be, at any point in 
time, the introduction or undertaking that we could be considering a 
person's guilt or innocence, particularly in criminal law, that it 
would be impacted or affected as a result of a person's race. That is 
repugnant to everyone. That is why this amendment that the House put 
in, the so-called racial justice provision, is so repugnant.
  Simply put, we are rolling back the clock. We are now saying the 
innocence of a person or the guilt of a person or the sentence that 
will be meted out will be on the basis of racial quotas. As a matter of 
fact, under the House bill, an inference that race was the basis of a 
death penalty can include evidence that the death sentences were being 
imposed significantly more frequently on persons of one race as opposed 
to that of another.
  Any numerical inequality in sentencing persons of different races 
would be considered statistically significant. This means that the 
death penalty must be imposed on an equal number of persons from all 
races. I have never heard of anything so preposterous.
  In order to apply the death penalty under this provision, you would 
have to have an equal number of people--black, white, Hispanic, Asian--
otherwise you cannot apply it. The result is clear, this provision 
wipes out the death penalty. This is a wonderful and clever way of 
abolishing the death penalty. I would like to state that I respect 
those people who have deep convictions and do not believe the death 
penalty should ever be applied. At least, we can argue on the basis of 
their system of beliefs--at least I know from where they are either 
coming from as opposed to them hiding it and cloaking it with the so-
called idea of racial justice.
  Everyone is for racial justice. We are not for saying that because a 
person may be of a particular color or ethnic background at a 
particular time and statistically there are not the same number of 
people who are going to be executed within that jurisdiction, that the 
punishment should not be applied. We look to the facts of each 
individual case, and based upon that case and the person's actions, and 
if a jury finds them to be guilty, and then if they impose a sentence, 
that is the criteria. Was it done fairly? Was that person given an 
opportunity to defend himself or herself? Were they given all of the 
safeguards provided under the Constitution, both of the United States 
and of the constitution of the various States? If they were, then the 
law goes forward--color blind, not with some kind of mumbo jumbo about 
racial equality, that the House hid behind.
  Does this mean that all of those on death row today can raise appeals 
now--some of them may have been there 10 years, and all of their 
appeals have been exhausted, more than 3,000 of them. Can they then 
say, ``We want to ascertain whether or not we fall within a certain 
statistical proportion as it relates to a number of people from the 
jurisdiction we come from who may be awaiting imposition of the death 
penalty''? Yes.
  It means that effectively you have wiped out the death penalty. The 
ugly thing about this--and it is ugly, nasty, and mean spirited and 
wrong--that when we title this racial justice, that is a 
mischaracterization of a deliberate nature. This provision is intended 
to obfuscate the facts and intended to say that those people who now 
will be calling for the death penalty and getting rid of this obnoxious 
provision, somehow do not care, do not share the craving that justice 
should be without any relationship to the ethnic background or race of 
an individual who is being tried.
  That is why I find it particularly disturbing. That is why I think 
many of my colleagues have a reluctance--although they feel as strongly 
as this Senator, some more strongly, that this is a repugnant provision 
that the House included under the guise of racial justice, they are 
reluctant to publicly come forward, because we are in the age of 
political correctness. When some of the great newspapers can so blindly 
fall into this business and spend no time analyzing the impact of what 
this legislation does, and simply under the call of equality and 
fairness, back this legislation. This is something all of us believe 
in, because if you were to believe the headlines and not look behind 
the content of this provision, you would say, ``of course, I am for 
racial justice,'' and this Senator is. But I am not for a system that 
will now develop a quota system for the imposition of a penalty, and I 
do not care what the penalty is.
  Do we really go about saying, ``Well, I am sorry, this is a 
disproportionate number of people who committed this particular offense 
and, therefore, you are not subject to the imposition of a law''? 
Sorry, the quota is up. Do you mean that confessed killers, who have 
admitted their deed, with evidence that is uncontrovertable, with 
witnesses, et cetera, under this provision they would escape the death 
penalty on the basis of what their race, color, or ethnic background 
is? Sorry, you do not fit the statistics; there are too many whites 
today, too many Asians today, which would effectively denude this 
country of one of the great features of our justice system--equality 
under the law.
  Our justice system has not always been perfect, and people can dredge 
up cases from the sixties and earlier, in which discrimination was 
present and rampant. Let us wipe out discrimination, and make sure it 
is discrimination that we are after and not an attempt to impede the 
imposition of a penalty by this ruse--and that is what this is.
  Racial justice is a way to erase the equality of the application of 
the law. It will say that we will not apply the law any longer on the 
basis of the guilt or innocence of the particular person, but on the 
basis of his or her race. It should not be based upon the origin of 
that person.
  Mr. President, there are many more things that we can say and which I 
will be speaking to later. I know Senator Gorton has some remarks, and 
I know there will be further debate on this.
  I yield the floor.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Washington [Mr. Gorton].
  Mr. GORTON. Mr. President, throughout the history of this country 
and, for that matter, of those other nations from whom we inherit our 
legal institutions, the prosecution of crime has been intensely 
individual. It is individuals, by name, who are charged with offenses 
against the state and against society.
  Verdicts are based on whether or not a jury believes beyond a 
reasonable doubt that the individual committed the offense with which 
he or she is charged. And when a conviction is obtained, we have prided 
ourselves, throughout our history, in suiting the sentence to that 
individual and to the circumstances surrounding that individual's 
conviction.
  In fact, in the many debates in the Supreme Court of the United 
States over the constitutionality of capital punishment, the ultimate 
result was a demand by the Supreme Court that individuals convicted of 
capital offenses be subject to capital sentences only on the basis of 
their own actions, and only after jurors or judges have listened 
carefully to both aggravating and mitigating circumstances surrounding 
the commission of the most serious criminal offenses.
  This has been our history; this has been our glory; this has been the 
result of decisions of the Supreme Court of the United States based on 
the due process and equal protection clauses. Never has the Supreme 
Court permitted consideration of race with respect to the imposition of 
capital punishment or, for that matter, the conviction of a crime. It 
is not a defense to the traffic offense of running a red light that 
other people ran the red light and were not arrested and prosecuted, 
whether of the same or a different race or sex. It is an individual 
offense. It is not a defense to a drug charge that those who lived in a 
different neighborhood were not so frequently charged or convicted, or 
those of a different sex, or those of a different race were not charged 
and convicted in similar numbers or in similar percentages.
  The theory of title IX of the House crime bill stands our history on 
its head. It is badly misnamed the ``Racial Justice Act.'' It ought to 
be named the ``Racial Quota and Repeal of Capital Punishment Act.'' For 
the first time, the House of Representatives, in this title, says that 
race must be a conscious consideration in the imposition of capital 
punishment sentences.
  They can be challenged, almost certainly successfully, on the basis 
of a showing that any other race has been subjected to capital 
punishment within that jurisdiction in differing numbers in spite of 
the percentage of that group in the society or, I assume by inference 
in reading title IX, in different percentages without regard to the 
number of those charged, the number of those convicted. Although that 
itself will be a separate ground for challenging under title IX of the 
House bill.
  This totally and completely different theory of criminal justice 
undercuts the entire history, the entire proud history, of not 
permitting the charging of groups simply on the basis of the fact that 
they belong to the same race, the same family, the same neighborhood, 
of the criminal activities of a single individual.
  Granted this reverses the process and says in the ultimate analysis 
it is only the sentence which can be changed on that ground, but it is 
absolutely certain that if title IX should become law, many, if not 
all, of the most aggravated forms of first-degree murder, the most 
outrageous of crimes, the crimes of serial killers, will result in a 
challenge to a sentence of capital punishment, not on the basis of any 
act or omission of the defendant, but solely on the basis of the way in 
which other members of that race were treated over an extended period 
of time in the same jurisdiction.
  The net result of the passage of this proposition is the repeal, not 
only of the capital punishment statutes which have been passed by the 
Senate of the United States and the House of Representatives in the 
course of the last 6 months--almost without exception by overwhelming 
votes--but the repeal, or at least the attempted repeal, of the capital 
punishment statutes of all or the great majority of the States in which 
they are imposed.
  (Ms. MOSELEY-BRAUN assumed the chair.)
  Mr. GORTON. We have a graphic example in the State of Washington of 
the effect in communities of a proposal like this. More than 12 years 
ago in the small community of Clearview, WA, a work-release inmate 
named Charles Campbell brutally murdered Renae Wicklund, her 8-year-old 
daughter Shannah, and her neighbor Barbara Hendrickson, in revenge for 
Renae's earlier testimony which had sent Mr. Campbell to jail for 
sexual assault.
  When several months later, almost 12 years ago, a jury sentenced 
Campbell to death for his acts, the family and friends of the victims, 
and overwhelmingly the people of Washington State, felt that justice 
was done and expected justice to be served.
  Twelve years later the family, the neighbors, the people of the State 
are still waiting.
  Charles Campbell is exhibit A for failures of the present criminal 
justice system. More than $2.3 million in taxpayer money has been spent 
on 44 motions and briefs filed during five different appeals of that 
sentence, including three Federal habeas corpus petitions. Still, this 
murderer and his attorneys are using additional opportunities to delay 
justice.
  Most recently, a panel of the Ninth Circuit Court of Appeals 
dismissed Mr. Campbell's last petition for habeas corpus. He has now 
asked the Supreme Court once again to intervene.
  It seems unlikely to this former attorney general of the State of 
Washington, Madam President, that the Supreme Court will do so, the 
Supreme Court itself having taken almost unprecedented action a couple 
of years ago to direct the ninth circuit to expedite and to decide one 
of these earlier habeas corpus appeals. Nonetheless, the possibility of 
another stay exists.
  Charles Campbell is now scheduled to be executed on the 27th of this 
month. According to officials in the State of Washington, the only 
likely factor to delay final justice for Mr. Campbell is a major change 
in the law like this one.
  The prosecuting attorney in the county in which Mr. Campbell was 
tried and sentenced, wrote me on April 21 about the so-called Racial 
Justice Act provisions in the following words:

       In our view, if the bill passed before that date [of 
     Campbell's execution], the execution will almost certainly 
     not occur as scheduled. It is entirely possible that the 
     execution would never occur. * * * Under this bill, all death 
     sentences in a State are illegal if death sentences are 
     ``imposed based on race.'' Defendants can create an inference 
     of this simply by showing that upon persons of any one race 
     more frequently than those of another. The State must then 
     prove race was not a factor. How it could meet this burden is 
     not at all clear. The statute specifically precludes reliance 
     on testimony that State officials did not intend to 
     discriminate.

  Madam President, I agree with the judgment of the prosecuting 
attorney of Snohomish County. I believe that there is a high degree of 
likelihood not only that Mr. Campbell's execution would be delayed, but 
that it might never take place should, by some fortuitous circumstance, 
this title become law before the date of his execution. Mr. Campbell is 
Caucasian. Nevertheless, he would have the right to make such a 
challenge under the terms of this title.
  Now, I understand it was stated during debate over this matter in the 
House of Representatives that the House conferees would, at the very 
least, take out the retroactivity provisions of this title. But that 
really does not make any difference. It might possibly mean that 
justice was done in this single instance, but it would almost certainly 
prevent justice from taking place under any similar or even identical 
set of circumstances in the future.
  It is the view of many in law enforcement, especially those who must 
prosecute and defend appeals in capital punishment cases, that for all 
practical purposes this title repeals capital punishment in the United 
States.
  I am not saying that there is something wrong with debating the 
appropriateness of capital punishment statutes. That is a debate which 
is almost as old as the Republic itself. It is a debate in which many 
thoughtful and principled people find themselves with a different 
position than my own. But it is clearly not the view of the majority of 
the American people. It is not the law in the majority of American 
States. It is not what this body decided as recently as 6 months ago 
when it voted to extend capital punishment to a significant additional 
number of extremely serious crimes.
  The problem with this proposal, Madam President, is that it allows 
the repeal of capital punishment by indirection, by those who say that 
this is simply a minor procedural step designed to enhance rather than 
to inhibit justice, when, in the case of many, they privately have 
reached the same conclusion that I state here.
  Madam President, this sense of the Senate is very simple and 
straightforward. It strongly suggests to the conferees, yet to be 
appointed, on this bill that they reject this provision. It is, I 
suspect, a subject which can appropriately be debated independently and 
on its own. If the Judiciary Committee should choose to pass a proposal 
of this nature and bring it to the floor of the Senate, I rather 
imagine that the debate might be enlightening.
  It is highly inappropriate, however, to be included as a part of a 
bill which is designed and advertised to reduce violent crime in the 
United States. It will, if it is passed, add to the contempt with which 
the legal profession and the judiciary is treated by the general public 
because it will say, on the one hand, that we have greatly expanded 
capital punishment in the Federal Criminal Code and, on the other hand, 
by indirection repealed it, not only from the Federal Criminal Code but 
with respect to State criminal codes as well.
  Madam President, the distinguished Senator from New York and I, of 
course, have shared these views privately with the eloquent chairman of 
the Senate Judiciary Committee, as he has shared with us his intention 
to add to this amendment by second degree a statement that, 
nevertheless, racial discrimination shall not be practiced in 
connection with capital punishment. I hope, in anticipating that 
amendment, that he will explain to us what effect his second-degree 
amendment is intended to carry out.
  As I read the Constitution of the United States and as I read Supreme 
Court decisions of the United States, racial discrimination is 
absolutely prohibited in connection with capital punishment or, for 
that matter, prosecution or the conviction of any other crime by the 
due process and equal protection clauses of the Constitution of the 
United States.
  So, if we get such a second-degree amendment, either it is intended 
only to restate protections which the Constitution already provides, or 
it is intended to change slightly this title IX and to add factors in 
sentencing not related to the crime of the individual, the actions of 
the individual, and not add in rights not granted by the Constitution 
itself as interpreted by the Supreme Court.
  For myself--I do not know that I can speak for the Senator from New 
York in this connection--for myself, if it is the intention of any 
second-degree amendment here simply to restate constitutional 
protections which already exist, I would regard the amendment as 
harmless and would probably agree with it. If it is intended to create 
other grounds for appeal or other grounds for habeas corpus action than 
those which presently have been granted by the Supreme Court of the 
United States, it seems to me this body should have outlined to it 
exactly what those additional rights are by those who are unwilling to 
accept this amendment in its present form.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Madam President, I rise in opposition to the amendment of 
my friend from New York. I will be relatively brief.
  Let me start off by saying my friend from Washington State indicated 
that there was an appropriateness to debate the existence and the 
utility and the morality and the constitutionality of the death 
penalty. And we all agree on that. There is an appropriateness in 
debating that.
  I do not think he meant to say it would be inappropriate to debate 
whether or not the death penalty was imposed fairly or unfairly.
  We do not have to go back 208 years or 150 years or 100 years or 50 
years to come up with examples where the application of the death 
penalty has been applied in a prejudicial manner, where a black man or 
a black woman committing the same crime as a white man or white woman, 
where the black man got the death penalty and the white man did not get 
the death penalty. Unfortunately, to our great shame as a nation, we 
have several hundred years of history to demonstrate that that has 
occurred.
  I do think that it is totally appropriate for us to debate--and I 
might add, I am the author of the amendments the Senator from 
Washington State is referring to. The so-called Biden crime bill which 
passed out of here and all those death penalties in the crime bill, I 
wrote, I authored, I put in my bill, the bill that the Senate passed.
  I support the death penalty. I have supported the death penalty in 
appropriate cases, and I outline what those appropriate cases are in 
the crime bill. There are over 50 cases in which I say, if someone is 
found guilty beyond a reasonable doubt and all of their appeals under 
the Constitution are exhausted, they should be put to death for having 
committed those crimes, and I list them in the Biden crime bill, the 
bill the Senate passed. So I am the author of those. And I do not mean 
I am author in terms of originality. I did not think up all of them, 
but I put them in the Biden crime bill.
  So, we should start from the premise that there are many of us who 
support the death penalty, vote for the death penalty, draft 
legislation expanding the death penalty, who feel that it is necessary 
to make sure that the application of those death sentences are done in 
a nondiscriminatory way.
  I do not have the letter that my friend from Washington read from the 
prosecutor, I guess it was a Washington State prosecutor. I may be 
wrong about this--and when my colleague comes back on the floor he can 
correct me--but I thought I heard a phrase or a sentence in there where 
the prosecutor says, ``If this passes, we will have to go back and look 
at whether or not we applied the death penalty to blacks the same way 
as we did to whites, to all people.''
  Why should you not have to go back and look at that? Why should there 
not be, in a country with our history in the way in which we have 
treated black Americans, why should we not have to say, let us just 
make sure here that we are doing the same thing with white folks as we 
do with black folks or with black folks as with white folks? What is 
wrong with that?
  My friends--and, you know, especially the Senator from New York, he 
and I are truly really good friends. We say that in this body. We say, 
``My friend from'' wherever. I mean, this guy is my friend. We hang out 
together. Our kids hang out together. They room together in college, in 
law school together. I totally respect his position on this.
  But, it seems to me that the debate should be whether or not what 
those of us Senators--the Presiding Officer, Senator Carol Moseley-
Braun; the Senator from Massachusetts; the Senator from Delaware, and a 
lot of other people in this body--are talking about does in fact what 
we say. What we say is, we just want, as we expand the death penalty, 
we just want to make sure we do not slip into some bad old habits that 
have been practiced by this country, by States, some bad old habits of 
having a different standard when we apply it to the black folk than we 
do to white folk.
  So, it may be, arguably, the language the House of Representatives 
included in the crime bill--in which it attempted to instruct me as the 
chairman of the committee who is going to go negotiate this bill with 
the House, instructing me to say: OK, we do not like that language. But 
let us make sure there is something in there that makes sure we see to 
it that this is not applied in a racially discriminatory way.
  We can argue, and there are reasonable people who argue that the 
House bill has unnecessary language in it or goes too far. I might add, 
back in 1991 I submitted, from the Committee on the Judiciary, a 
Federal Death Penalty Act that we ultimately passed. It was called the 
Federal Death Penalty Act of 1989. It actually had the language 
proposed by Senator Kennedy. But because I was the guy responsible for 
putting the bill in and included it in the bill, that had even stronger 
prohibitions against the discriminatory application of the death 
penalty. And it passed. It passed the U.S. Senate. It did not become 
law, but it passed the Senate.
  So I think the starting point of this debate should be: Do we all 
agree that there have been some States, there are some circumstances 
where in this country today the application of the law is not always 
applied even- handedly?
  It seems to me we have to acknowledge that occurs. It does not occur 
all the time. I do not think it occurs most of the time. I do not think 
it even occurs 40 percent of the time or 30 percent of the time. But it 
does occur. So, if I, in writing this legislation, am going to increase 
the number of death penalties, I for one as a supporter of the death 
penalty want to make sure it is done fairly.
  We can argue about whether or not the House language which my friend 
from New York is attempting to strike goes too far.
  By the way, I said 1991. It is not 1991, it was 1989, that report we 
passed--that provision.
  Whether or not it goes overboard, we can argue about that. One part I 
do think goes overboard. I personally think it goes overboard. The 
House language says you go back and retroactively apply this. The 
sponsors of the legislation in the House and the chairman of the 
Judiciary Committee in the House on the floor said: We want to tell 
everybody now, we are going to take that out in conference. This is an 
example we can argue about, if we are up here argue, whether we should 
or should not have retroactivity. At least it says on the playing field 
we are worried about discriminatory application of the death penalty. 
But here what we are doing is we are saying we do not want anything in 
this massive crime bill that requires us to take an extra look at 
whether or not black people are being treated the same as white people 
with regard to the application of the ultimate sanction.
  If we put someone in jail, and we put them in jail for drunk driving 
or we put them in jail for robbery or burglary and they are going to 
get 1 year, 2 years, 10 years, 12 years, and we turn out to be wrong or 
it turns out we made a mistake or we did not apply the law fairly, we 
can go back and make amends. You can say, ``Mea culpa, mea culpa, mea 
maxima culpa. We are sorry. You are out of jail. We will try to make 
you whole.'' You never can, but we will try to do it. But once you pull 
that switch, once you give that injection, it is over. What do we do if 
it is wrong then? What do we do if it is clear we focused only on one 
segment of our population? We say, ``Oh, golly, we made a mistake.'' It 
is too late. It is too late.
  So, what we are trying to do here is we left the flexibility in the 
conference that says: Wait a minute, the idea of including racial 
justice in this bill makes sense. This is the bill we passed. I have a 
copy of it here. We passed it in the Senate, the Senate crime bill. I 
will not read the appropriate sections but I will just cite the page, 
265:

       The Attorney General acting through the Bureau of Justice 
     Assistance may make grants to States that have established by 
     State law or by court of last resort a plan for analyzing the 
     role of race in the State's criminal justice system. Such 
     plans shall include recommendations designed to correct any 
     findings that racial and ethnic bias plays any role.

  Well, we already passed that. This just goes to the thing that is the 
big deal--death; death.
  So, Madam President, when we passed in the Senate Judiciary Committee 
the Racial Justice Act of 1991, which did not pass the Senate, did not 
become law but we got it through that committee, what we were trying to 
do then is what I hope we all are attempting to do. It is not eliminate 
the death penalty. If you are against the death penalty you are against 
the death penalty--racial justice, no racial justice, you are against 
it. I am for it, but I respect that position. But if you are for the 
death penalty it is still totally appropriate to sit here and say, 
``Wait a minute, are we doing this and applying it in a 
nondiscriminatory way?'' I for one can only support a death penalty 
that is fair, that punishes those who truly deserve to pay the maximum 
price for their crimes. And as I have added death penalty provisions as 
the author of these crime bills, the primary sponsor, I have 
consistently worked to put adequate safeguards in death penalty bills.
  I support the Racial Justice Act because I think it furthers that 
goal. It protects defendants from death sentences imposed for reasons 
that have nothing to do with the character of the crime but only have 
to do with the color of their skin.
  Federal law already provides that statistical--you heard this 
argument about these statistics. You know, that it is kind of a radical 
thing to be talking about, to be able to introduce in evidence that 
statistically it applies more to blacks than whites. Federal law, as 
the Presiding Officer knows, already provides that statistical proof of 
discrimination is sufficient to obtain relief where the right of 
housing or employment has been infringed. If you can statistically 
show--and it is very complicated--but if you can statistically show 
that you are denied housing because notwithstanding the fact you are a 
U.S. Senator, that you are a black woman, you can, in fact, carry the 
day. That is because we know that discrimination is insidious. It is 
awfully hard to find absolute proof that this person at this moment 
made that decision on the grounds that they say we do not like black 
women: I do not like black women, therefore you cannot live in this 
house.
  No one says that anymore. They used to say that. The good news is 
those days are gone, by and large. The bad news is it has gotten much 
more sophisticated, racism in this country. It has kind of gone 
underground.
  So in order to respond to that, just like for the history of the 
entire civil rights movement, since and including Dred Scott in the 
middle of the 19th century, the courts when they have made the right 
decisions have always had to not just state a principle that you cannot 
discriminate, they have had to use their ingenuity to overcome the 
ingenuity of States and governments and people who came up with massive 
constructs to accomplish the same discriminatory end through a less 
direct means. So that is how we got to using statistics in housing or 
employment.
  It is kind of interesting. We say if you have a company that has 100 
people and 500 black folks come and apply for jobs and 100 white folks 
come and apply for jobs, if you end up with 100 white folks and no 
black folks you do not have to be a rocket scientist to figure out 
maybe--maybe--maybe the employer was discriminatory. Just maybe.
  Citing statistics does not automatically make the case. It becomes a 
presumption that has to be rebutted by the employer.
  We do that in housing, we do that in job employment in the law. 
People on that side of the aisle voted for those kinds of proposals, 
along with the rest of us. I do not know how either one of the sponsors 
voted on housing discrimination and employment discrimination. I do not 
know. But I know the vast majority of us voted for that.
  But now we are saying when it comes to putting you to death, we are 
not going to apply that same kind of reasoning. Somehow that is being a 
quota king or queen, or that is being--there is nothing novel about 
this, Madam President. There is nothing novel about this approach.
  Racial discrimination should play no role in a decision as to who 
shall live and who shall die. And for that reason, that simple basic 
reason, I support this legislation. Now again, maybe the precise 
legislation, as written, does not meet the requirement or meets more 
than the requirement of that simple proposition that race can play no 
role in the application of the death penalty. But I hope for goodness 
sake, this Senate is not saying that is something we should not 
consider. We consider it in housing, schooling, in everything we do 
because we, unfortunately, have a history in this country of having 
some people and some governments act in a discriminatory fashion.
  Madam President, the opponents of the Racial Justice Act claim that 
it will put an end to capital punishment. Let me tell you that with the 
retroactivity provision taken out, I would not support the Racial 
Justice Act or an attempt to fashion such language if I believed it 
would end all capital punishment.
  As a start, it is the plan that the Racial Justice Act will not 
eliminate capital punishment in cases where the statistics do not 
support any claim of discrimination, and under the act, the defendant 
has to establish not only that discrimination existed in the system 
overall, but that he himself was discriminated against. He must show 
that his case is a type of case where race makes a difference. If he 
cannot make that showing, then the Racial Justice Act is no bar to the 
execution of his sentence.
  Let me give you an example, and I see other colleagues are here to 
speak and I will not take much longer because the Senator from 
Massachusetts knows so much more about this than I do and has been 
committed to seeing to it that there is nondiscriminatory policy in the 
application of all our laws, civil and criminal, for the entirety of 
his public life.
  But let me just give you an example. In a highly aggravated case, a 
case where the defendants have committed the most heinous of capital 
crimes, the statistics, in fact, show that the death penalty is dealt 
out evenly without regard to race. These are the facts now. Remember, I 
said in the beginning I do not believe that the vast majority or even a 
significant minority of death penalty sentences are racially motivated 
or not handed out evenhandedly. The statistics show that the death 
penalty is dealt out evenly without regard to race in the most heinous 
crimes because there is no showing of discrimination in those cases, 
the most serious cases.
  The Racial Justice Act will not affect the imposition of death 
penalty in those cases at all. Nor will the Racial Justice Act affect 
those cases where the defendant is not a member of a suspect class, a 
class of persons whose sentences have been tainted by race. Defendants 
who are not members of a suspect class will not be able to invoke the 
Racial Justice Act. White males have not been one of those suspect 
classes.
  So the Racial Justice Act will have no impact on a broad range of 
cases where the death penalty has been imposed. Only in those cases 
where history has shown that race may be a factor will the Racial 
Justice Act even apply. Contrary to the claims of the critics, the 
Racial Justice Act will not dictate the result that the courts must 
reach. Rather, the act sets out a simple, self-evident proposition, and 
I quote:

       No person shall be put to death in the execution of the 
     sentence that was imposed based on race.

  What is wrong with that?
  Then turns the application of that simple proposition over to the 
factfinding body that we most rely upon: The court. It is for the 
courts, not the Congress, to determine whether racial discrimination 
exists in a particular case. The courts have long expertly dealt with 
claims of discrimination on a wide variety of contexts, as I mentioned 
the reference earlier. This act simply permits the courts to apply that 
expertise here. By the same token, the act frees the courts to consider 
in death penalty cases the types of relevant evidence that has been 
considered for decades in other contexts, such as housing 
discrimination, employment discrimination, and discrimination in our 
schools.
  At the same time, the act explicitly confers on the court the 
discretion to reject evidence that is not valid or relevant. In short, 
the Racial Justice Act will not outlaw capital punishment. What the act 
will do is force the States to seriously address the issue of racial 
disparity in capital sentences. It will force prosecutors to take a 
hard look at their procedures for seeking the death penalty.
  Contrary to what the critics say, there is nothing wrong or 
wrongheaded about requiring prosecutors to adjust their actions that 
impact upon the black community more severely. Such actions should be 
carefully scrutinized so that we can all be sure that racial bias plays 
no part in the decision to seek the ultimate penalty: Death.
  There is no doubt, at least initially, the Racial Justice Act will 
make it harder to impose the death penalty in certain cases. There is 
no doubt about that, initially. But assuming the States take seriously 
their responsibility to develop procedures to do away with unexplained 
differences in capital sentencing, the act will serve as a restriction 
only temporarily, because what the State will do here, Madam President, 
if there is a history of a misapplication of the death penalty, they 
will turn around and say, here is how we will proceed from now on, and 
they start from scratch.
  Since we are not making it retroactive for people who are already on 
death row, the inconvenience is de minimis compared to the potential 
wrong that is possible to be perpetrated.
  Mr. D'AMATO. Will the Senator yield for a question?
  Mr. BIDEN. I will in just one moment.
  Mr. D'AMATO. Just as relates to retroactivity.
  Mr. BIDEN. I beg your pardon?
  Mr. D'AMATO. I believe that I heard that the application of the 
provision that we are discussing was not retroactive to those cases. I 
do not believe the Senator meant that.
  Mr. BIDEN. Madam President, the Senator from Delaware did mean that. 
Let me explain again why. The Senator may not have been on the floor 
when I started.
  It is true the House-passed provision has retroactivity in it.
  Mr. D'AMATO. Right.
  Mr. BIDEN. What I am asserting on the floor today is that, in my 
discussions, and also discussions on the floor at the time of passage, 
the sponsors of the act, including the chairman of the Judiciary 
Committee in the House, Mr. Brooks, and the chairman of the Senate 
Judiciary Committee in the Senate, coupled with the sponsors of the act 
assert that we will remove retroactivity in the conference.
  So the Senator is correct, it is in the bill. But prior to its 
passage, there was a colloquy on the floor by the sponsors saying--
under the House rules, they could not amend it at that moment 
procedurally. They made a commitment to all their colleagues, and I am 
making a commitment here, that that retroactivity provision will be 
removed. No crime bill will come back with the retroactivity provision 
in it. That is all I meant to say.
  Mr. D'AMATO. I am very glad to hear that. I think that is a point of 
great concern to many as it relates to the problems in the justice 
system at the present time.
  Again, that does not mean--as my colleague, I think, understands and 
explained--that we want anybody punished unfairly on the basis that 
they were discriminated against. But certainly this concession----

  Mr. BIDEN. No, it is not a concession.
  Mr. D'AMATO. Or acknowledgment.
  Mr. BIDEN. An acknowledgment----
  Mr. D'AMATO. There would be no retroactive application as it relates 
to those people who are on death row at the present time.
  Mr. BIDEN. Right.
  Mr. D'AMATO. I thank the Senator. That is why I asked for that point 
of clarification.
  Mr. BIDEN. Madam President, I do not want to mislead anybody here. 
No. 1, if you take away the retroactivity and, No. 2, you do what this 
act does in the House language, you in effect say to the States that 
may have had a practice that was discriminatory or showed a statistical 
application to blacks more than whites, all they have to do is come 
along and say from this moment on here is how we are proceeding, these 
are the rules we are going to use in the future relative to the 
application of the death penalty--those two things done, I acknowledge 
in a small number of cases it is going to make it more difficult 
temporarily to bring about the imposition of a death penalty--those 
that fall between those already convicted and the passage of this 
legislation and before a State sets out a new procedure explaining how 
they are proceeding, if that State is required to do so because of the 
way in which it has been applied before has made it difficult to 
discern whether or not it was equally applied.
  So I am not suggesting that passage of this act means that nobody has 
to change the way they are doing business. I am asserting that the 
change, if necessary, will be able to be done immediately by a State 
and that it will not affect but a small number of cases temporarily. 
And the payoff, the benefit of having once and for all in place a 
capital offense, capital procedures in all the States guaranteeing 
nondiscriminatory application is worth that minor inconvenience. That 
is the position of the Senator from Delaware.
  Now, on a final note, the Racial Justice Act does not, as some claim, 
overrule the Supreme Court decision in McCleskey versus Kemp. Justice 
Powell, the author of that opinion, effectively invited legislative 
acts in this arena.
  Madam President, let me conclude by saying for the reasons I have 
stated and others I have not, I support there being in this crime bill 
legislation that is called racial justice, a Racial Justice Act. I will 
vote to oppose the amendment of the Senator from New York, but tell the 
Senator from New York, whether he wins or loses, I am committed to the 
withdrawal of retroactivity, and I am open to any reasonable changes or 
proposals that relate to the House language.
  But I am not prepared to say what essentially a vote for the 
amendment of the Senator from New York would require of me--to be 
insensitive that: First, there is no need for a Racial Justice Act; and 
second, the Racial Justice Act in the House provision would end the 
death penalty.
  I yield the floor.
  Mr. KENNEDY addressed the Chair.
  Mr. D'AMATO. I wonder if I might ask for the yeas and nays.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. I will yield for the purpose of making that request and 
retain my right to the floor.
  Mr. D'AMATO. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. D'AMATO. I thank my colleague.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I want to commend my friend and 
colleague, the chairman of the Judiciary Committee, for the excellent 
explanation of the public policy issues which are involved in the 
Racial Justice Act.
  It is no secret to any of the Members of this body that I am opposed 
to the death penalty as a matter of conscience. That has been my 
position for as long as I have been in the Senate and still remains my 
position. I do think, nonetheless, we will and should speak out on the 
issues of how the death penalty is applied in our country. And that is 
the subject I want to address the Senate about this afternoon.
  Madam President, as the Senator from Delaware has pointed out, the 
issue of the role of race in the application of the death penalty, 
whether it is in regard to the race of the defendant or the victim, has 
been an issue in our society for many years. Numerous studies conducted 
over a very long period of time have analyzed the application of the 
death penalty State by State and it is unquestionable that the race of 
both the defendant and the victim has a profound effect on the 
application of the death penalty.
  I can remember when we passed the 1988 anticrime act. In that 
legislation we asked the General Accounting Office to conduct an 
analysis of race discrimination in death penalty cases using the most 
modern technology and analysis available to the General Accounting 
Office. I will just take a moment to read their conclusion:

       Our synthesis of the 28 studies shows a pattern of evidence 
     indicating racial disparities in the charging, sentencing, 
     and imposition of the death penalty. * * * In 82 percent of 
     the studies, race of victim was found to influence the 
     likelihood of being charged with capital murder or receiving 
     the death penalty--those who murdered whites were found to be 
     more likely to be sentenced to death than those who murdered 
     blacks.
       This finding was remarkably consistent across data sets, 
     states, data collection methods, and analytic techniques. * * 
     * The race of victim influence was found at all stages of the 
     criminal justice process. * * * Legally relevant variables, 
     such as aggravating circumstances, were influential but did 
     not explain the racial disparities researchers found. * * * 
     After controlling statistically for legally relevant 
     variables and other factors thought to influence death 
     penalty sentencing * * * differences remain in the likelihood 
     of receiving the death penalty based on the race of the 
     victim.

  Now, we do not have to accept every conclusion reached by the General 
Accounting Office, but we agreed during the 1988 debate to have an 
unbiased authority take a look at this issue that many of us had raised 
over a period of some 10 years; let us get a definitive study about 
these various analyses. Let us use the latest computer technology to 
really review that.
  Well, it was agreed at that time by both Republicans and Democrats to 
ask the GAO to report back to us on this controversial matter.
  Now we have the GAO's finding. And now the opponents of the Racial 
Justice Act say, ``Oh well this is something different. We will not 
accept it. We will not look at it. We will not regard it as 
authoritative. It is a flawed study.''
  You cannot get away from it. Every time you have a responsible review 
about the nature of the race of the victim or the defendant in capital 
punishment, it comes out this way time in and time out. Let us make 
sure that the Record includes some of this evidence:
  Perhaps the best example, but by no means the only one, is the 
evidence before the Supreme Court in the 1987 case of McCleskey versus 
Kemp.
  Warren McCleskey, the defendant in that case, was a black man 
convicted of killing a white police officer in Fulton County, GA, and 
he was sentenced to death.
  In fact, between 1973 and 1980, 16--16--other defendants were 
convicted of killing police officers in Fulton County, but Warren 
McCleskey was the only one who received a death sentence. In only one 
other case was the death penalty sought, and in that case a defendant 
convicted of killing a black police officer received a life sentence 
instead.
  In challenging his death sentence, McCleskey placed into evidence two 
studies conducted by Prof. David Baldus of the University of Iowa Law 
School.
  From official State records, the two studies collected data on all 
the key factors in each of 2,400 homicide cases in Georgia between 1973 
and 1979--information relating to the characteristics of the defendant 
and the victim, the circumstances of the crime, the strength of the 
evidence, and the mitigating and aggravating factors in each case.
  The conclusions were striking: When the characteristics of the crime 
and the defendant were weighed, those who kill whites were 4.3 times 
more likely to receive the death penalty than killers of blacks. If 
Warren McCleskey had been white, or if his victim had been black, it is 
highly likely he would be alive today serving a life sentence instead 
of having been executed.
  In the McCleskey case, the five members of the Court who voted to 
affirm the death sentence did not dispute the accuracy of the studies. 
The majority conceded that statistical evidence of the kind contained 
in the studies would be sufficient to prove intentional race 
discrimination in other areas, such as housing and job discrimination.
  But the Justices concluded that evidence of widespread race 
discrimination in capital sentencing is best presented to the 
legislative bodies. They left the issue to Congress, and it is our 
responsibility to deal with it, not duck it.
  The pattern of racial disparities in sentencing described in 
McCleskey is repeated in jurisdiction after jurisdiction around the 
country.
  In Florida, a study published in the Stanford Law Review found that 
defendants convicted of killing whites were eight times more likely to 
receive a death sentence than those convicted of murdering blacks. 
Another study found that blacks who kill whites received the death 
penalty 22 percent of the time, while whites who kill whites received 
the death penalty only 4.6 percent of the time.
  In Georgia, blacks who kill whites received the death penalty 16.7 
percent of the time, while whites who killed whites received the death 
penalty only 4.2 percent of the time.
  In Illinois, that same study found that killers of whites were six 
times as likely to receive a death sentence as killers of blacks.
  In Maryland, defendants convicted of murdering whites received the 
death sentence eight times more frequently than killers of blacks.
  In Ohio, a study found that blacks who kill whites received the death 
penalty 25 percent of the time, while whites who kill whites received 
the death penalty only 4.6 percent of the time.
  In Texas, a 1985 study found that they were over four times more 
likely to do so. Blacks who kill whites received the death penalty 8.7 
percent of the time, while whites who killed whites received the death 
penalty only 1.5 percent of the time.
  Now, let us look at exactly what is in the House legislation. Let us 
take a moment and examine it. This is what it says:

       No person shall be put to death, under color of State or 
     Federal law, in the execution of a sentence that was imposed 
     based on race.

  Simple, clean, understandable language. Is there anybody in our 
society who would take a contrary position, that we ought to put people 
to death on the basis of race? There were such views at other times in 
our history. There were certain places where that was the rule, not the 
exception.
  All the House bill says is:

       No person shall be put to death, under color of State or 
     Federal law, in the execution of a sentence that was imposed 
     on the basis of race.

  Simple. People will take that language and misrepresent or distort 
it. That is a typical technique in this body. But the American people 
should not be fooled.
  The House provision continues:

       An inference that race was the basis of the 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 
     impose the sentence of death in the jurisdiction in question.

  Is that complicated? Is that language the courts do not understand? 
Of course it is not. We use that same concept, as the Senator from 
Delaware pointed out, with regard to employment, which was the basis of 
the civil rights bill last Congress. We use it with regard to housing, 
jury selection, and voting. We use it on every one of those civil 
rights laws; every one of them. Now we have the ultimate civil right: 
the right not to be put to death based on race. People say, ``Oh, no. 
We cannot do that. No, no, no. We cannot do that on this issue. We just 
cannot do it. It is just not right.''
  Well, some of the opponents of the Racial Justice Act have been 
reluctant to embrace those other civil rights causes. But if we have as 
a body decided that discrimination is unacceptable in employment, in 
housing, in jury selection, and in voting rights, it is unacceptable in 
the application of the death penalty.
  So now we go back to the House bill. If statistical evidence is 
presented to establish an inference that race was the basis of the 
sentence of death, the court shall determine the validity of the 
evidence, and if it provides the basis for the inference, they just 
review it. They just review the statistics that are provided. It is not 
terribly complicated to find out if that statistical information is 
valid. The courts make that judgment every single day. Every judge does 
in this country. It does not put an undue burden on them.
  The House bill says that if the inference was that race was the basis 
on which the death sentence was established, the death sentence may not 
be carried out unless the Government rebuts the inference by the 
preponderance of the evidence. That is what every law student learns in 
the first year; everyone understands what the preponderance of the 
evidence is. It is a low standard--lower than the standard included in 
the Racial Justice Act in previous years.
  There are many factors that the Government might rely on to rebut the 
inference created by the statistics. Defendants sentenced to death may 
have more serious criminal records. The courts can take a look at that. 
Defendants sentenced to death may commit crimes with greater planning, 
cause larger numbers of deaths, or may have committed their crimes with 
greater cruelty. OK. Those are understandable factors. The victims of 
the defendants may have been law enforcement officers or were 
particularly vulnerable. Or the defendants sentenced to death were 
organizers or ringleaders of the conspiracy.
  We can work those out, if the Senator from New York wants to work out 
these factors with greater specificity. They have been defined in some 
States. They have been upheld, and are beginning to have some impact.
  Madam President, this would be important if there were only one 
racially tinged execution to be prevented. But in this legislation we 
have created 50 new capital offenses, and the House has 66 new capital 
offenses. Hundreds of more individuals are going to be executed. How 
much longer will it take us to learn about this issue? What is it? Why 
are people so hungry and thirsty to try to execute individuals without 
considering evidence of discrimination? Why are they unwilling to 
consider that factor here when they will consider it on jobs or housing 
and permit the courts to make that assessment? Why do they say no, no, 
we have to execute the individual? We cannot take the time. We cannot 
take the time.
  All of us are concerned about the problems of violence in our 
society, and I yield to no one on that issue. But why cannot we, a 
society that should not, cannot, and must not be described as a 
bloodthirsty society, recognize what is happening and how the death 
penalty is being used? Why is it that the proponents of this amendment 
would deny the conference the opportunity to consider this? No. They 
will not do that. Special instructions to the conferees are certainly 
legal from the parliamentary point of view; but they are rarely 
utilized. Why is it that they are so hungry to clear the way for 
executions in our society? But they will not take the extra step to 
ensure that race is not a factor.
  I come from a part of the country where the death penalty was accused 
of being utilized on the basis of ethnicity as well as race. We had 
long debates and troublesome times over the Sacco-Vanzetti trial--these 
issues inflamed the ethnic tensions at that time.
  I just wonder why it is that when we are talking about the ultimate 
right, which is the right to live--we would deny those individuals the 
opportunity to have the issues of race considered.
  I am not making the argument about the wisdom of the death penalty, 
or about the number of innocent people who have been executed over the 
past century. To my regret, that issue has been basically resolved in 
this Senate and among the American people at this time. We are not 
making that argument.
  I hope that when we vote on this amendment it will be roundly 
defeated. We can try to do something about the crime in our society and 
still be true to the goal of racial justice.
  One of the reasons that I admire my friend and colleague from 
Delaware is that he is a supporter of the death penalty but understands 
that the application of the death penalty must be free from racial 
discrimination. I admire him for his courage in taking that position. I 
hope we will defeat this amendment next Wednesday.
  Mr. D'AMATO addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. D'AMATO. Madam President, first, let me say that the House 
provision is obnoxious. It is indeed the antithesis of what the society 
should be about. Our justice system should be colorblind. There should 
be no place for discrimination of any kind.
  Let me tell you something. I resent the implication that some come 
down here and say that, if anything, this is racial legislation. Since 
when do we say we are going to judge the guilt or innocence and what 
the Government's sentence should be on the basis of a person's race, 
color, or creed? It is preposterous. That is what is being done with 
this legislation.
  Let us look at the law itself because I have not heard anybody refer 
to the law: Prohibition against the execution of sentences of death 
imposed on the basis of race. There should be absolute prohibition on 
any kind of thing like that. Discriminatory sentences of any kind on 
the basis of a person's color or race should be rejected; should be 
stamped out. We have no place for it.
  But let me tell you what a mockery this legislation is. Let me tell 
you why. ``Section C, relevant evidence''--this is the act itself. This 
is not the rhetoric that refers to the past. This talks about what this 
act will do now and in the future.

       Evidence relevant to establish an inference that race was 
     the basis of a death sentence may include that the death 
     sentences were at the time pertinent under subsection B being 
     imposed significantly more frequently in the jurisdiction in 
     question; one, upon persons of one race than upon persons of 
     another race.

  Madam President, let me tell you what that section means. It says if 
you have more people of one race who have a sentence of death imposed 
upon them, that itself raises the inference that you have 
discrimination. That is wrong.
  I thought we had a society where we looked at the actual deed. You 
have effectively, with the adoption of this legislation, said that 
unless you apply the death penalty in equal numbers--by the way, not in 
statistical accuracy--equal numbers of blacks, whites, Hispanics, 
Asians; where does it talk about that we look to see the guilt or 
innocence of a party?
  By the way, under the Senate provision, we do take extraordinary 
lengths. Let me read to you what it says. The crime bill requires that 
the trial judge instruct the jury that they are not to consider race, 
and to return a certificate, wherever the death penalty is going to be 
applied, signed by each juror attesting to the fact that race was not 
involved in their judgment in the death penalty case.
  I want to tell you, this business will set back the justice system 
and bring about anarchy. If this provision in the House bill becomes 
law, it creates an inference of racial bias if certain statistical 
differences in past sentencing can be shown. It is wrong. I have to 
tell you, we start with the death penalty and say that is how we are 
going to apply it on the basis of race, color, and creed. Statistics 
equal numbers, so why not for people with life sentences? Do you think 
it is going to be long before people say it should apply to the whole 
criminal justice system? And then we will have anarchy, not a system 
based upon the guilt or innocence or the deed that person may have 
undertaken.
  It belittles a jury system and a system of justice that we have 
become proud of. Have there been abuses? Yes. But by simply going back 
and pointing to past abuses and discriminatory practices, that does not 
in any way--in any way--give us a better system. You do not correct 
past instances of racial bias by creating group-based justice, and that 
is what this bill does.
  I yield the floor.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington [Mr. Gorton], is 
recognized.
  Mr. GORTON. Madam President, I think even in the relatively brief 
period of time since the Senator from Washington introduced his 
amendment, the parameters of the debate have been quite considerably 
clarified.
  At this point, the distinguished chairman of the Judiciary Committee 
and the distinguished senior Senator from Massachusetts have made it 
very clear that they intend, at least, to deal very specifically with 
this amendment and that they oppose this amendment, rather than coming 
to an attempt to somehow or another change it and make less clear the 
direction of any vote which is ultimately taken on the amendment 
itself.
  (Mr. BRYAN assumed the chair.)
  Mr. GORTON. So the wind is blowing in a different direction, and I 
think from a more favorable direction, that we will have a vote on 
whether or not the Senate favors title IX of the House bill, without 
its retroactivity provisions in its present form, or in any form 
roughly similar to that in which it finds itself at the present time. 
That is healthy for the nature of this debate.
  There are certain other statements which were made by the 
distinguished chairman of the Judiciary Committee with which I know 
both the Senator from New York and I agree. The chairman of the 
Judiciary Committee pointed out that if a sentence for robbery or for 
drunk driving--a sentence to jail--is found to have been imposed on the 
wrong person, we can always make up for it in some fashion or another. 
But if we impose capital punishment on someone not deserving of that 
sentence, someone not guilty, then we have made a mistake which cannot 
be rectified. Neither the Senator from New York, nor I, nor any other 
proponent of this amendment, in any way, disputes that proposition.
  What we do point out, however, is that title IX has absolutely 
nothing to do with guilt or innocence, absolutely nothing to do with 
guilt or innocence. No one is going to be saved by title IX, who is 
innocent of the crime of which he is convicted. As a matter of fact, 
all of the facts--aggravating, mitigating, as well as those relating 
directly to guilt or innocence--are unchanged by any proceeding or any 
determination pursuant to title IX. So there is no difference on 
whether or not we wish to convict the not guilty, or even run the risk 
that a person not guilty will be found guilty and will be executed. In 
fact, one of the most emotional and perhaps occasionally valid 
arguments against capital punishment at all is that, in some 
circumstances, mistakes may be made as to matters of fact. Whatever the 
validity of that argument, it is irrelevant here today, because we are 
not talking about any factors which relate to guilt or innocence 
whatsoever in title IX of the House bill.
  An area in which we perhaps have a greater degree of contention than 
this, however, is one which--and this Senator copied what the 
distinguished chairman of the Judiciary Committee said. I think I 
paraphrased it with great accuracy.
  He said that we must acknowledge that the death penalty is not now 
imposed evenhandedly in all American States.
  I find that to be an interesting statement, though not a statement 
for which the chairman of the Judiciary Committee came up with any 
evidence. It is an important statement, there is no question about it. 
If, in fact, the death penalty is not today imposed fairly or 
evenhandedly, I strongly suggest that those who oppose this amendment 
cite chapter and verse. In what jurisdictions is the death penalty 
today not imposed evenhandedly or unfairly? What are the names of 
individuals? After, I think, several hundred executions, what are the 
names of the individuals who were wrongly executed, who somehow or 
another were the victims of either passion and prejudice on the part of 
juries convicting them in the first place, or of racial bias in 
connection with their sentences in the second place? If we are to 
accept that proposition, we need more than the surprising statement 
that in spite of all of the appeals, in spite of the Supreme Court of 
the United States, in spite of habeas corpus action after habeas corpus 
action in every case of capital punishment, nonetheless, States are 
imposing this sentence unfairly.
  This Senator finds that to be an astounding statement, given the 
protections which the Supreme Court of the United States itself has 
already placed on any capital punishment sentence.
  This Senator finds it particularly strange that the distinguished 
chairman of the Judiciary Committee went out of his way to assure the 
Senator from New York that retroactivity would be taken out of title IX 
if, in fact, States have been imposing capital punishment unfairly. How 
in the world can they agree to say that all of those unfair sentences 
which have already been handed down will be carried out? I cannot see 
how he can make such an assurance if, at the same time, he says that 
right now, under present circumstances, capital punishment is being 
imposed unfairly.
  To make that statement, it seems to me, one should be required to 
submit a very explicit outline to this body of the precise cases which 
have caused this title to be included and its importance to be so high.
  The first section of the title, eloquently quoted by the 
distinguished senior Senator from Massachusetts, reads:

       No person shall be put to death under color of State or 
     Federal law in the execution of the sentence which was 
     imposed based on race.

  That is an eloquent and accurate statement. And, Mr. President, this 
is the law of the United States of America today. The Supreme Court of 
the United States has not, since capital punishment has been reinvoked, 
found to be constitutional ever allowed capital punishment to be 
imposed based upon race.
  Again, if any Member on the other side of this debate can cite a 
particular instance in which the Supreme Court of the United States or 
any Federal court of the United States has permitted the death penalty 
to be carried out on the basis of race, I think it very important for 
the Members of this body to be informed of that situation.
  The first paragraph of title IX simply states the law as it exists 
today. The balance of title IX, however, does not state the status of 
the law today.
  The Supreme Court of the United States has been asked to impose these 
quotas and to engage at looking at these statistics, and it has 
rejected that kind of defense. That is why we are here debating.
  The House of Representatives wants to add to every proceeding leading 
up to an execution a set of factors which have never previously been 
included because they have nothing to do with the guilt or innocence of 
the defendant and nothing to do with the horrendous nature of the crime 
of which that defendant has been convicted. They have nothing to do 
with the individual as an individual. They are, in effect, saying that 
if one person gets off for one reason or another by reason of the 
sympathy of the jury, every other person under similar circumstances, 
if that person is of a different race, has to be excused from the death 
penalty as well. That is not justice. Justice is individual.
  This proposal would totally overturn that doctrine and require 
justice not to be individualized but to be collectivized and in the 
language so general, so vague, that it will allow any person of any 
race to make a challenge based upon these sections.
  In spite of what the distinguished chairman of the Judiciary 
Committee said, there is no restriction of rights under this Racial 
Justice Act to members of one race only. It is highly general. It 
applies to everyone.
  My prosecuting attorneys and attorney general think it applies to 
Charles Campbell, the individual to whom I referred in my previous 
remarks. We cannot be certain of that. But what we can be certain of is 
that he will clearly make that claim and almost certainly have his 
sentence delayed as a result of any such claim.
  This, Mr. President, is a radical change in American law from 
individual responsibility to collective responsibility, to a 
determination as to what ultimate sentences will be based on nothing 
that the individual has done himself but on the basis of various 
statistics about other individuals under other circumstances.
  It totally reverses the direction which most of the people of the 
United States want to move with respect to justice, and I simply repeat 
those who believe that this kind of section ought to be included in the 
law have a duty, it seems to this Senator, to come forth and say 
exactly and in what cases unfair or unjust sentences have been imposed 
to such an extent as to require so radical a change in the laws of the 
United States in a way which the Supreme Court of the United States has 
rejected, a Supreme Court which has been the bulwark of the protection 
against discrimination based on race under the 14th amendment to the 
Constitution of the United States.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Ms. MOSELEY-BRAUN. Thank you, Mr. President.
  Mr. President, in the past week the world witnessed the historic 
elections in South Africa where, for the first time, blacks were 
allowed to vote alongside whites to choose the individuals who would 
represent them in the government. That election represented the 
dismantling, at long last, of the system of apartheid and the beginning 
of a nation where all individuals, no matter what race, can live 
together and be treated equally under the law.
  America has made great strides in the past 30 years at doing just 
that. We have worked toward eliminating discrimination at the voting 
booth, in employment, in housing, and in schools.
  But unfortunately, there are still situations in this country where a 
persons race truly makes a difference in how that person is treated 
under the law. One of those situations is in the administration of the 
death penalty.
  The administration of the death penalty is truly one of last vestiges 
of apartheid left in our system. In far too many jurisdictions, race is 
the primary factor--perhaps even the sole factor--in determining 
whether a defendant in a capital case will, in fact, be sentenced to 
death.
  Now, whether anyone as an individual supports or opposes the death 
penalty, I think we can all agree that it should be imposed in a non-
discriminatory manner. I think we can also agree that, in many parts of 
the country, that simply is not the case.
  Consider the facts. The General Accounting Office recently evaluated 
28 studies of the effect of race on capital sentencing and found: ``A 
pattern of evidence indicating racial disparities in the charging, 
sentencing and imposition of the death penalty.''
  Take, for example, one judicial circuit in Georgia. Despite the fact 
that 65 percent of the murder victims in the jurisdiction were black, 
85 percent of the cases in which the death penalty was sought have been 
cases in which the victim was white.
  Or take a county in Florida. Blacks comprised 40 percent of the 
murder victims in the county. Yet, all 17 cases where the death penalty 
was sought between 1975 and 1987 involved white victims.
  We have even seen this problem under the Federal death penalty 
adopted in 1988 for drug kingpins. Since that time, the death penalty 
has been sought against 36 defendants. Four of those defendants have 
been white, 4 have been hispanic, and 28--77 percent--have been black.
  The fact is, in certain jurisdictions, a nonwhite person is more than 
four times as likely to receive a penalty of death for committing a 
heinous crime than a white person. In those same jurisdictions, 
defendants who have killed a white victim are far more likely to 
receive a penalty of death than those who have killed a non-white 
victim. This is not a matter of conjecture or opinion, it is a cold, 
hard, disgusting fact.
  The House of Representatives has taken action to address this 
disparity by including the Racial Justice Act in their crime bill. I 
think the Senate should be commending the House of Representatives, not 
condemning them. The Racial Justice Act makes it unlawful to carry out 
a sentence of death that was imposed on the basis of the race of either 
the defendant or the victim.
  In addition, the act will allow a defendant to challenge a death 
sentence by showing a pattern of racial bias in capital cases within 
the judicial circuit. The presumption can be met if a prosecutor shows, 
by a preponderance of the evidence, nonracial reasons for the penalties 
imposed in their courts. And the statistics must compare similar cases 
within the jurisdiction, and must take into account the aggravating 
factors in the cases being compared. The burden for collecting such 
data rests on the defendant.
  I would like to address, for 1 minute, what the Racial Justice Act 
does not do. Despite the claims of some opponents, the Racial Justice 
Act does not eliminate the capital punishment. Instead, it merely 
prohibits continued racial discrimination in the administration of the 
death penalty. So long as death sentences are imposed in a non-
discriminatory manner, they will not be affected under the bill.
  In other words, this legislation will only affect those death 
sentences where, taking into account the brutality of the offenses, the 
prior records of the offenders and other nonracial characteristics, 
race is left as the determining factor in the imposition of the death 
penalty.
  The only way this legislation could completely eliminate the death 
penalty is if every death penalty was imposed based on discriminatory 
factors.
  Nor will the legislation invalidate the death sentences of every 
single inmate now sitting on death row. It is true that the 
legislation, as now written, applies retroactively. But Representative 
Brooks has clearly stated his intention to modify the provision in 
conference so that it applies prospectively only.
  Finally, I would like to address the argument that the Racial Justice 
Act will impose a quota system in the death penalty. Nothing could be 
further from the truth. If death sentences were handed out on the basis 
of quotas, then they would by definition be handed down on the basis of 
race. That--imposing death sentences on the basis of race--is exactly 
what this bill is designed to prevent.
  Opponents of the Racial Justice Act like to point out the fact that 
the Supreme Court, in the case of McCleskey versus Kemp, held that 
courts could not accept evidence of discriminatory death sentencing 
patterns to prove the purposeful racial discrimination necessary to 
make out a claim under the 14th amendment. And that is true, the court 
did just that. But what opponents don't point out is that Justice 
Powell, at the end of his majority opinion, stated that evidence of 
discrimination in the death penalty was, and I quote, ``Best presented 
to the legislative bodies,'' who could develop the appropriate 
solutions.
  That is what the Racial Justice Act represents, the appropriate 
solution to the problem of discrimination in the imposition of the 
death penalty. Just as Congress has allowed the use of statistics to 
prove housing discrimination or employment discrimination or voting 
discrimination, the Racial Justice Act allows the use of statistics to 
prove discrimination in the handing down of death penalty sentences. 
Every civil rights law in modern times has allowed the use of 
statistics to prove discrimination. Shouldn't we in Congress extend 
that protection to those whose lives are quite literally on the line?
  Mr. President, I know the conference on the crime bill is going to be 
a very difficult process. Not everything that we put in the bill in the 
Senate will stay in the bill. Not everything that was inserted in the 
House of Representatives will remain in the final bill. But it seems to 
me that if there is anything Congress must agree on, it is the 
requirement that death penalty sentences be handed down in an unbiased 
manner. That is what the Racial Justice Act is all about.
  Mr. President, I voted for the crime bill which, among its other 
provisions, vastly expands the death penalty. I am a former Federal 
prosecutor. I come from a law enforcement family, and I am as concerned 
as any American about the violence in our society and people who commit 
heinous crimes. And I am as concerned as any American that punishment 
for violent crimes be appropriate for the severity of the act.
  Despite all that, Mr. President, I have to ask the question this 
afternoon, how can anybody be against racial justice in the application 
of the death penalty? How is it possible for someone to say ``I fully 
support killing people based on their color?'' How can anybody stand on 
this floor and say ``It does not matter to me that there is a long 
history of inequitable application of the death penalty based on color 
and I am for that history. I do not want to recognize what the facts 
and the truth and the statistics clearly show us.''
  Mr. President, I am shocked. I have to restrain the emotion of my 
remarks this afternoon because the amendment offered by the Senator 
from New York is so shocking. I cannot believe that he would propose 
that we dispense with racial justice in the application of the death 
penalty. And that is what this amendment is about.
  It is not about crime. Criminals who are sentenced to the death 
penalty in a fair and nondiscriminatory manner ought to get it. 
Frankly, I do not personally support the death penalty, even though I 
voted for this crime bill with all the new death penalties in it. But I 
think it is a fair statement to say that the issue we are debating 
today is not about crime, but is instead about racial justice.
  Mr. President, I say to you that the sole issue raised by the 
amendment of the Senator from New York is whether we as a society are 
prepared to say that we are as opposed to racial discrimination in the 
application of the death penalty as we are to racial discrimination in 
housing, racial discrimination in public accommodation, racial 
discrimination in education, and racial discrimination in employment.
  The Senator from Delaware was very eloquent in discussing what this 
amendment really does. All it says is we are going to apply the same 
rules when we decide to take someone's life as we do when dealing with 
housing discrimination issues, employment discrimination issues, and 
education discrimination issues. We are going to use the same rules.
  This is not new. This is not rocket science. It says we have made a 
commitment to the elimination of apartheid in the United States.
  Mr. President, between the Senator from Delaware and the Senator from 
Massachusetts I think the issue is clear. That is what this is about. 
This is not a vote about crime; this is a vote about color. This is not 
a vote about the death penalty; this is a vote about whether we are 
going to have apartheid in America or not.
  Curiously, Mr. President, I was sitting before the debate started 
trying to make a list for myself. I am going to the inauguration of 
Nelson Mandela in South Africa next week, and I have to tell you, I 
cannot describe to you the pride and the hope I feel now that South 
Africa is leaving behind its history of apartheid and racial injustice 
and coming together to build a new South Africa. I am going to get to 
attend the inauguration of this great freedom fighter as President of 
South Africa.
  But, Mr. President, I have to tell you it is really stunning to, on 
the one hand, make a list to go to South Africa, to see the dawn of a 
new day in South Africa, and then, on the other hand, to come here and 
listen to my colleague from New York saying it is perfectly OK to kill 
people because of their color. To hear my colleague from New York say 
we are not going to worry about racial discrimination in the 
application of the death penalty, that it does not bother us that the 
statistics from the GAO and everybody else who has even examined this 
issue positively state there is a disparate impact in the application 
of the death penalty based on color, based on race.
  Mr. President, I have to almost suspend disbelief that I am going to 
South Africa to see a new day dawning, and I see someone here in the 
U.S. Senate say we are just going to ignore altogether reality; we are 
going to pretend this is not a problem, and we are not even going to 
extend to people--criminals albeit--who are subject to the death 
penalty the kind of protection against discrimination we extend to 
someone trying to rent an apartment.
  Mr. President, I have to tell you it is beyond shocking. What does it 
say about us as a nation that South Africa, the last bastion of 
legalized apartheid, is turning the page forward, and we are turning 
the page back?
  I just cannot understand how somebody can be for racial justice in 
the application of the death penalty and against title IX of the Racial 
Justice Act.
  I would like to respond to my colleague from Washington State who 
said, ``Well, I have never heard of racial discrimination in the 
application of the death penalty. Where did this come from? How did 
this novel idea arise?''
  First off, Mr. President, it is counterintuitive for anybody, knowing 
what our history is and how far we have come in getting past that 
history, to say, ``I am not aware of any inequitable or differential 
application of the death penalty in the United States of America. Show 
me some statistics. Give me some specifics. What are their names?''
  Mr. President, here are some statistics about which there can be no 
argument. We can argue about opinion, but we cannot argue about facts. 
Our analysis, our evaluation of those facts may change, but the facts 
are what they are.
  To begin, Mr. President, look at the fact that 33 of the 37 
defendants charged under the 1988 Federal death penalty law are black 
or Hispanic. Eighty-nine percent of people charged with capital crimes 
under the Federal death penalty law since 1988 are black or Hispanic--
in this country, not in South Africa. Eighty-nine percent are black or 
Hispanic, in a nation in which, by definition, people who are black or 
Hispanic are called minorities.
  If these statistics are not enough for you, let us examine some 
others.
  Janet Reno is a fine Attorney General, a person I absolutely support. 
But, Mr. President, in 10 of the cases in which the Justice Department 
has sought the death penalty since she has been Attorney General, all 
of them have been black, all 10 people.
  Now, you could say for a moment, ``Well, OK. Let's see. Maybe because 
the only criminals that we can find that ought to get the death penalty 
are black ones.''
  That, Mr. President, defies imagination. That, Mr. President, is the 
problem. That is why title IX was included in the House crime bill, to 
ensure that we at least get courts to examine these statistics and give 
people a chance to say, ``Wait a minute. Hold on. The only people you 
could find to kill under this crime bill are black people or Hispanic 
people? Excuse me? Can we take another look at this? Can we see if, 
possibly, by some stretch of the imagination, my color and not the fact 
that I did something terrible might have something to do with this.''
  Mr. President, it seems to me that is a small concession to make to 
the history, to the statistics that look like this.
  Let us talk about further statistics. My colleague from Washington 
says, ``OK, give me some specifics.''
  Mr. President, 77 percent of the death penalties imposed in Georgia's 
middle district circuit have been against black defendants. Now, in 
Georgia, 40 percent of the population is black. There have been nine 
death sentences in total. Out of those nine sentences for the death 
penalty, seven of them have been black people. That is 77 percent.
  I mean it almost defies the imagination that someone in this day and 
time could say, ``Oh, I haven't got a clue that this might possibly be 
a problem in America; that we could conceivably have a racial 
differential in the application of the death penalty.''
  Some more statistics. Philadelphia--and my colleague from 
Pennsylvania is here, and I did not mean to hit on this, but this is 
one of the statistics I have in front of me. In Philadelphia, 
population about 20 percent African-American. Of the 26 death penalty 
sentences handed down by a single judge in that population, 92 percent 
of them were against African-Americans.
  Do you want some more statistics? I do not want to just pick on the 
South. But Alabama's population is 25 percent African-American, and yet 
43 percent of its 117 death row inmates are black; 43 percent.
  More startling is the fact that 70 percent of all people executed in 
Georgia since the resumption of capital punishment in the 1980's have 
been black.
  But, Mr. President, I think the really interesting statistic, and one 
that goes beyond whether or not people are themselves picked on because 
of their color--and this puts another spin on it that the Racial 
Justice Act also tries to address--is that the single most important 
determinant of whether an individual gets the death penalty is not just 
the race of the criminal, the single most important determinant, Mr. 
President, is the race of the victim.
  The race of the victim seems to play a larger role in the imposition 
of the death penalty than anything else. And so, let us use an example.
  If my assistant is killed by an African-American criminal, he or she 
is more likely to get the death penalty than if that person kills me. 
Now, this does not make a whole lot of sense to me. But that is what 
the statistics show us; that the life of an African-American victim 
seems to be valued less in our court system than the life of a 
nonminority victim.
  And so, we have the statistics, cutting both ways. On the one hand, 
the race of the criminal matters in the implication and imposition of 
the death penalty. But, guess what? The race of the victim also matters 
in the imposition of the death penalty.
  Now, I know that this is one of those issues that can inflame 
passions in people. And people who support the death penalty and want 
to see the folks sitting on death row fry are saying, ``Well, you know, 
we are a little nervous about this.''
  Senator Kennedy and Senator Biden made it clear: Nationwide, there 
are about 3,000 people on death row right now. If you want to see those 
folks put to death, that will still happen under the Racial Justice 
Act. Guess what? This legislation is not going to stop those 
executions. This legislation, as Senator Biden just said, is not going 
to be applied retroactively. And so if you have a specific person in 
your State that you want to see fried, guess what? The sentence is 
going to be imposed and we are going to pretend that we did not have 
this problem when he was sentenced, or she, as the case may be. We are 
going to pretend that.
  All that title IX of the House crime bill says is, ``Wait a minute, 
since we are going to expand the death penalty and the crimes we can 
kill you over, we are going to see that you are treated fairly in terms 
of the issue of race.''
  Mr. President, I do not see how anybody can be against being fair on 
the issue of race. I cannot. I am, in fact, stunned that anybody would 
say I am for racial injustice in the imposition of the death 
penalty. And that is what this, the amendment of the Senator from New 
York, says. ``It does not matter to me. It does not matter to me if we 
have racial injustice in the imposition of the death penalty. Because, 
guess what, I am so anxious to get those old, lethal injections going, 
boys, I do not want to stand back and see the switch not pulled for 
another second. I have been waiting all these years to show that the 
death penalty works to protect the innocent in America. I am so eager 
for the imposition of the death penalty, by golly it does not matter to 
me if we fry another 33 black kids or Hispanic kids. It does not matter 
to me, Mr. President, because guess what--when we go forward and we 
expand the death penalties, we are going to get some more of them to 
fry.''

  I find that conclusion to be absolutely shocking. I cannot imagine 
that my colleagues are going to come down in favor of killing people 
based on color. I just cannot imagine that.
  If we are talking about the crime, you know: ``If you can't do the 
time, don't do the crime,'' I support that concept. Coming from a law 
enforcement family--I do not have a problem with people being punished 
for their acts. In fact, I voted for this crime bill in spite of the 
fact that it expands the death penalty. I do not have a problem with 
people having a sincerely held belief that the only way we are going to 
stop heinous crime and stop the violence and stop the murder is if we 
reimpose the death penalty. Lord knows, they have been campaigning on 
the issue for years.
  Fine, so you won on that point. You won on that point. The death 
penalty is back in the law.
  But how can you argue with making it fair? How can you argue with a 
racial justice act? How can you argue with statistics like this that 
say, ``Guess what, we might have a problem and need to look at it. And 
guess what, we are going to put in a procedure that lets you look at it 
in the same way you look at housing discrimination, discrimination in 
employment, discrimination in education. If we are going to vastly 
expand the death penalty, we ought to have an opportunity to look at it 
the same way we do other kinds of discrimination.'' That is all that 
title IX does. So I have every hope that this issue can be worked out. 
It must be worked out. People who support the death penalty do not want 
to see it applied in a discriminatory way. People who support the death 
penalty do not want to see racial injustice in its application. And 
people who support the death penalty, I believe, will want to provide 
some mechanism for ensuring that the evil of racism does not infect 
this process. We do not want to be a society in which people go to 
their death because of their color and not what they did. We do not 
want to be a society like that. We want to be a society in which 
somebody of one race who commits a capital crime is going to be 
punished on the same basis as somebody of another race who committed 
that same crime. That is the essence of what we are trying to achieve 
as a country.
  Unfortunately, that has not been our history. There is nobody in this 
room or in this world, frankly, who does not know it. But we have come 
so far--we have come so far it just boggles the mind that we would turn 
the page back and say we are for racial injustice when it comes to the 
death penalty because we are so anxious to fry these people because 
they have been taking up too many tax dollars on death row.
  That is what this amendment says. That is what this amendment says. I 
have never supported the death penalty, even when I was in the State 
legislature. I just do not. I just have a problem with the whole idea 
of the State executing somebody. But I certainly understand, given the 
cries for crime control out of my community, why the death penalty was 
expanded in this legislation. Do you know what? Because of the 
community policing and the prevention efforts and other benefits in 
there, I said, OK, I will hold my nose on the death penalty part 
because, guess what, there is a racial justice act eventually going to 
be part of this.
  We had a commitment it was going to be part of it when the amendments 
went on here in the Senate. I said to myself, ``I know it is going to 
be OK. I know there is a problem now, but it is going to be OK because 
the people in this Congress are committed to fairness. The people in 
this Congress stand up for racial justice. And the people in this 
Congress do not want to send a signal to the States, to the prosecutors 
all over this country, that it is OK to prosecute differently based on 
the race of the perpetrator or it is OK to prosecute differently based 
on the race of the victim.''
  The people of this Congress should know better, care more, have 
better sense and certainly higher morality. And even though they may 
support a death penalty--and we may disagree about that--on one thing 
we must be together. This is the United States of America, this is not 
the old South Africa. And we have turned the page in terms of racial 
discrimination. We are overcoming discrimination, overcoming America's 
system of apartheid. We have not gotten there entirely. It would be 
dishonest to suggest that we have. But we are trying and we are moving 
in the right direction. Then on something as profound as putting 
somebody to death, we are going to take three steps back? I do not 
think so.
  Mr. President, I will provide a copy for the Record of this report 
for the edification of any of my colleagues who want to see it: 
``Racial Disparities in Federal Death Penalty Prosecutions, 1988 to 
1994.'' It is from the House side. I ask unanimous consent it be 
printed in the Record.
  There being no objection, the report was ordered to be printed in the 
Record, as follows:

 [Staff Report by the Subcommittee on Civil and Constitutional Rights, 
   Committee on the Judiciary, 103d Congress, 2d Session, March 1994]

    Racial Disparities in Federal Death Penalty Prosecutions 1988-94

       ``Twenty years have passed since this Court declared that 
     the death penalty must be imposed fairly, and with reasonable 
     consistency, or not at all, and, despite the effort of the 
     states and courts to devise legal formulas and procedural 
     rules to meet this daunting challenge, the death penalty 
     remains fraught with arbitrariness, discrimination, caprice, 
     and mistake.''--Justice Harry A. Blackmun, Feb. 22, 1994\1\
---------------------------------------------------------------------------
     Footnotes at end of article.
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                                summary

       Racial minorities are being prosecuted under federal death 
     penalty law far beyond their proportion in the general 
     population or the population of criminal offenders. Analysis 
     of prosecutions under the federal death penalty provisions of 
     the Anti-Drug Abuse Act of 1988\2\ reveals that 89 percent of 
     the defendants selected for capital prosecution have been 
     either African-American or Mexican-American. Moreover, the 
     number of prosecutions under this Act has been increasing 
     over the past two years with no decline in the racial 
     disparities. All ten of the recently approved federal capital 
     prosecutions have been against black defendants. This pattern 
     of inequality adds to the mounting evidence that race 
     continues to play an unacceptable part in the application of 
     capital punishment in America today. It confirms Justice 
     Blackmun's recent conclusion that ``the death penalty 
     experiment has failed.''


                       the federal death penalty

       Since the Supreme Court's 1972 decision in Furman v. 
     Georgia,\3\ the death penalty has been almost exclusively a 
     state prerogative. Congress has so far not adopted the 
     general sentencing procedures that would reinstate the 
     federal death penalty. No Federal executions have been 
     carried out since 1963 and, until very recently, prosecutions 
     under federal death penalty law were rare. But that began to 
     change over the past few years, and can be expected to change 
     dramatically if the House adopts pending legislation to 
     restore generally--and expand--the federal death penalty.
       In 1988, President Reagan signed the Anti-Drug Abuse Act. 
     This legislation included a provision, sometimes referred to 
     as the ``drug kingpin'' death penalty, which created an 
     enforceable federal death penalty for murders committed by 
     those involved in certain drug trafficking activities. The 
     death penalty provisions were added to the ``continuing 
     criminal enterprise'' statute first enacted in 1984, 21 
     U.S.C. Sec. 848. The drug trafficking ``enterprise'' can 
     consist of as few as five individuals, and even a low-ranking 
     ``foot soldier'' in the organization can be charged with the 
     death penalty if involved in a killing.
       As the first enforceable federal death penalty adopted 
     after Furman, Sec. 848 offers a forewarning as to how a 
     general federal death penalty might be applied. This report, 
     prepared with the assistance of the Death Penalty Information 
     Center in Washington, D.C. and with case data from the 
     Federal Death Penalty Resource Counsel Project, examines the 
     application of Sec. 848.
       Three-quarters of those convicted of participating in a 
     drug enterprise under the general provisions of Sec. 848 have 
     been white and only about 24 percent of the defendants have 
     been black.\4\ However, of those chosen for death penalty 
     prosecutions under this section, just the opposite is true: 
     78 percent of the defendants have been black and only 11 
     percent of the defendants have been white. Although the 
     number of homicide cases in the pool that the U.S. Attorneys 
     are choosing from is not known (the Justice Department has 
     not responded to Congressional inquiries for that data), the 
     almost exclusive selection of minority defendants for the 
     death penalty, and the sharp contrast between capital and 
     noncapital prosecutions under Sec. 848, indicate a degree of 
     racial bias in the imposition of the federal death penalty 
     that exceeds even pre-Furman patterns.
       Federal regulations require that local U.S. Attorneys 
     obtain the personal written authorization of the Attorney 
     General of the United States before proceeding with a capital 
     prosecution. So far, former Attorneys General Thornburgh and 
     Barr, and present Attorney General Reno have approved capital 
     prosecutions against a total of 37 defendants under the 1988 
     ``kingpin'' law. Twenty-nine of the defendants have been 
     black and 4 have been Hispanic. All ten of the defendants 
     approved by Attorney General Reno for capital prosecution 
     have been black. Judging by the death row populations of the 
     states, no other jurisdiction comes close to this nearly 90 
     percent minority prosecution rate.\5\


                    pace of prosecutions increasing

       The pace of these prosecutions has been substantially 
     increasing over the past two years. Although widely touted 
     during the 1988 election year as a ``tough'' response to drug 
     crime, there were only seven defendants prosecuted under this 
     Act in the first three years after its passage and only one 
     death sentence handed down. However, in 1992 alone, capital 
     prosecutions against fourteen defendants were announced and 
     another five death sentences resulted from these cases. Since 
     January, 1993, sixteen more prosecutions have been 
     announced.\6\
       The underlying crimes for which these defendants are being 
     prosecuted are not excusable because the offenders are 
     members of minorities. But the statistics raise the question 
     of why these cases were chosen out of the large number of 
     drug-related homicides over the past five years. By way of 
     comparison, the proportion of African-Americans admitted to 
     federal prison for all crimes has remained fairly constant 
     between 21 percent and 27 percent during the 1980s, while 
     whites accounted for approximately 75 percent of new federal 
     prisoners.\7\ Yet, when it comes to the federal death 
     penalty, the scales dramatically tip the other way.
       The federal government employed the death penalty for a 
     variety of crimes prior to the 1972 Furman decision. But the 
     racial breakdown was also just the opposite from current 
     death penalty prosecutions. Between 1930 and 1972, 85 percent 
     of those executed under federal law were white and 9 percent 
     were black. The dramatic racial turnaround under the drug 
     kingpin law clearly requires remedial action.
       Although challenged at a Congressional hearing to provide 
     an explanation for such racial disparities, and asked by the 
     Chairman of this Subcommittee for data on potentially capital 
     cases referred to Washington for approval by federal 
     prosecutors, the Justice Department has offered no 
     response.\8\
       It is worth noting that some of the death penalty 
     prosecutions under Sec. 848 have been against defendants who 
     do not seem to fit the expected ``drug kingpin'' profile. In 
     a number of cases, the U.S. Attorneys have sought the death 
     penalty against young inner-city drug gang members and 
     relatively small-time drug traffickers.\9\ In other cases, 
     the death penalty was returned against those directly 
     involved in a murder, while the bosses who ordered the 
     killings were given lesser sentences.\10\


                background on race and the death penalty

       Throughout American history, the death penalty has fallen 
     disproportionately on racial minorities. For example, since 
     1930 nearly 90 percent of those executed for the crime of 
     rape in this country were African-Americans.\11\ Currently, 
     about 50 percent of those on the nation's death rows are from 
     minority populations representing 20 percent of the country's 
     population.
       In 1972, the United States Supreme Court overturned 
     existing death penalty statutes in part because of the danger 
     that those being selected to die were chosen out of racial 
     prejudice. As the late Justice Douglas said in his 
     concurrence overturning the death penalty:
       ``[T]he discretion of judges and juries in imposing the 
     death penalty enables the penalty to be selectively applied, 
     feeding prejudices against the accused if he is poor and 
     despised, and lacking political clout, or if he is a member 
     of a suspect and unpopular minority, and saving those who, by 
     social position, may be in a more protected position.''\12\
       Following the Furman decision, legislatures adopted death 
     sentencing procedures that were supposed to eliminate the 
     influence of race from the death sentencing process. However, 
     evidence of racial discrimination in the application of 
     capital punishment continues. Nearly 40 percent of those 
     executed since 1976 have been black, even though blacks 
     constitute only 12 percent of the population. And in almost 
     every death penalty case, the race of the victim is white. 
     Last year alone, 89 percent of the death sentences carried 
     out involved white victims, even though 50 percent of the 
     homicides in this country have black victims.\13\ Of the 229 
     executions that have occurred since the death penalty was 
     reinstated, only one has involved a white defendant for the 
     murder of a black person.
       Race of the victim discrimination was singled out by the 
     U.S. General Accounting Office in its report ``Death Penalty 
     Sentencing'' which concluded that studies showed:
       ``[The] race of the victim was found to influence the 
     likelihood of being charged with capital murder or receiving 
     the death penalty, i.e., those who murdered whites were found 
     more likely to be sentenced to death than those who murdered 
     blacks.''\14\
       This record of racial injustice played a significant part 
     in Justice Harry Blackmun's recent decision to oppose the 
     death penalty in every case. ``Even under the most 
     sophisticated death penalty statutes,'' said Blackmun, ``race 
     continues to play a major role in determining who shall live 
     and who shall die.''\15\


                               conclusion

       Race continues to plague the application of the death 
     penalty in the United States. On the state level, racial 
     disparities are most obvious in the predominant selection of 
     cases involving white victims. On the federal level, cases 
     selected have almost exclusively involved minority 
     defendants.
       Under our system, the federal government has long assumed 
     the role of protecting against racially biased application of 
     the law. But under the only active federal death penalty 
     statute, the federal record of racial disparity has been even 
     worse than that of the states. So far, the number of cases is 
     relatively small compared to state capital prosecutions. 
     However, the numbers are increasing, and under legislation 
     currently being considered in Congress, the federal 
     government would play a much wider role in death penalty 
     prosecutions.


                               footnotes

     \1\Callins v. Collins, No. 93-7054 (1994) (Blackmun, J., 
     dissenting) (Supreme Court denial of review).
     \2\21 U.S.C. 848(e)-(q).
     \3\408 U.S. 238 (1972).
     \4\U.S. Dept. of Justice, Bureau of Justice Statistics, 
     Special Report: Prosecuting Criminal Enterprises, at 6, Table 
     10 (convictions 1987-90) (1993).
     \5\See NAACP Legal Defense Fund, Death Row, U.S.A., January 
     1994 (death rows by state with racial breakdowns).
     \6\Prosecutions against 10 defendants were approved by 
     Attorney General Reno, including at least one in 1994. 
     Prosecutions against 6 other defendants were approved in the 
     previous Administration, but were not announced until June, 
     1993.
     \7\Bureau of Justice Statistics, Sourcebook of Criminal 
     Justice Statistics, 1991, at table 6.78, p. 644 (1992).
     \8\On October 21, 1993, Rep. Melvin Watt (D-NC) asked then 
     Deputy Attorney General Philip Heymann for an explanation of 
     the racial disparities in capital prosecutions during the 
     course of a House Judiciary Subcommittee hearing on the 
     Administration's crime bill. Mr. Heymann promised a reply in 
     two weeks. To date, Rep. Watt has received no response to his 
     inquiry. Death Penalty Information Center phone conversation 
     with Rep. Watt's office, Feb. 28, 1994.
     During the same hearing. Rep. Craig Washington (D-Tex.) 
     remarked to Mr. Heymann that ``if some redneck county in 
     Texas had come up with figures like that, you'd been down 
     there wanting to know why.'' See Federal Death Penalty 
     Update, Newsletter of Federal Death Penalty Resource Counsel 
     Project, January, 1994.
     \9\See, e.g., United States v. Tipton et al., 3-92-CR68 (E.D. 
     Va.) (prosecution of four young black inner-city gang members 
     in Richmond, Va.); United States v. Bilal Pretlow, No. 90-CR-
     238 (D.N.J.) (a young black New Jersey gang member who 
     committed suicide during his trial); United States v. 
     Chandler, 996 F.2d 1073 (11th Cir. 1993) (prosecution of 
     rural Alabama marijuana grower in murder-for-hire scheme).
     \10\See, e.g., United States v. Hutching et al., No. CR-032-S 
     (E.C. Okl.) (two ``managers'' of the drug enterprise received 
     life sentences for murder while lower level defendant who was 
     present at the murder was sentenced to death); United States 
     v. Michael Murray, Cr. No. 1: CR-92-200 (M.D. Pa.) (Dept. of 
     Justice reportedly declined to approve the U.S. Attorney's 
     request to authorize the death penalty against the gang 
     leader, Jonathan Bradley, whom the indictment alleges ordered 
     the killing. A death sentence is being sought against Murray 
     who was 19 years old at the time of the incident.). 
     Information obtained from the Federal Death Penalty Resource 
     Counsel Project report, Feb. 15, 1994.
     \11\U.S. Dept. of Justice, Bureau of Justice Statistics, 
     Capital Punishment, 1981 (1982).
     \12\Furman v. Georgia, 92 S. Ct. 2726, 2735 (1972) (Douglas, 
     J., concurring).
     \13\See, e.g., S. LaFraniere, FBI Finds Major Increase in 
     Juvenile Violence in Past Decade, Washington Post, Aug. 30, 
     1992, at A13 (half of U.S. murder victims are black).
     \14\U.S. General Accounting Office, Death Penalty Sentencing 
     5 (Feb. 1990) (emphasis added).
     \15\Callins v. Collins, No. 93-7054 (1994) (Blackmun, J., 
     dissenting).

        Appendix--Federal Death Penalty Prosecutions, 1988-94\1\

       Following enactment of the first modern federal death 
     penalty statute on November 18, 1988, 21 U.S.C. Sec. 848(e)-
     (q) (the so-called ``drug kingpin'' murder provision), the 
     Bush and Clinton Administrations have approved death penalty 
     prosecutions under Sec. 848 against 37 defendants. Of these, 
     four defendants were white, four were Hispanic, and twenty-
     nine were black. All 10 of the defendants approved for 
     capital prosecution by Attorney General Reno, and all 15 
     defendants now awaiting federal death penalty trials or 
     currently on trial, are African-American.
---------------------------------------------------------------------------
     \1\Case data provided by the Federal Death Penalty Resource 
     Counsel Project, Columbia, SC.
---------------------------------------------------------------------------


                  federal capital cases tried to date

       The federal death penalty cases brought to trial during 
     1989-1994 by the Bush and Clinton Administrations are listed 
     below:
       A white Alabama marijuana grower named Ronald Chandler, was 
     sentenced to death for the murder for hire of a subordinate 
     in his drug ring. Chandler's convictions and death sentence 
     were affirmed by a panel of the Eleventh Circuit July 19, 
     1993; a petition for writ of certiorari is now pending before 
     the United States Supreme Court. Claiming innocence, Chandler 
     refused a pretrial plea bargain offer for life without 
     possibility of parole. United States v. Chandler, 996 F.2d 
     1073 (11th Cir. 1993).
       Three of four young black inner-city gang members in 
     Richmond, Virginia, were sentenced to death on February 16, 
     1993, for their roles in eleven crack-related murders. United 
     States v. Tipton et al., 3-92-CR68 (E.D. Va.). The trial of a 
     fourth defendant, Vernon Thomas, was severed. On April 23, 
     1993, moments before a scheduled hearing on Mr. Thomas's 
     motion to bar the death penalty due to his mental 
     retardation, the government withdrew its request for the 
     death penalty. Mr. Thomas was ultimately convicted and 
     sentenced to life imprisonment.
       A Hispanic drug distributor was sentenced to death by a 
     jury on August 2, 1993 in Brownsville, Texas, in connection 
     with the murders of three other drug traffickers in the 
     Brownsville area. United States v. Juan Raul Garza, No. CR 
     93-0009 (S.D. Tex.). Attorney General Barr authorized the 
     prosecution to seek the death penalty in December, 1992. Mr. 
     Garza's appeal is pending before the U.S. Court of Appeals 
     for the 5th Circuit.
       Two Hispanic defendants in Texas were sentenced to life 
     imprisonment and forty years, respectively, for the 
     marijuana-related murder of a state police officer after a 
     joint trial. The sentencing jury found no facts legally 
     warranting the death penalty. United States v. Reynaldo & 
     Baldemar Villarreal, No. 9:91CR4 (E.D. Tex. 1991), aff'd, 963 
     F.2d 725 (5th Cir.), cert. denied, 113 S.Ct. 353 (1992).
       Two black Chicago gang members received life sentences for 
     cocaine-related murders after separate trials. The Government 
     had offered one defendant, but not the other, a plea bargain 
     prior to trial. United States v. Alexander Cooper & Anthony 
     Davis, No. 89-CR-0580 (N.D. ILL. 1991).
       A white Mafia contract killer received a life sentence from 
     a Brooklyn, New York jury after being convicted of eight 
     murders, three of which qualified as capital crimes under 21 
     U.S.C. Sec. 848, United States v. Pitera, 5 F.3d 624 (2d Cir. 
     1993).
       A young black New Jersey gang member committed suicide 
     during his federal capital trial. United States v. Bilal 
     Pretlow, No. 90-CR-238 (D.N.J.).
       One Hispanic and two white defendants were tried jointly in 
     connection with the drug-related kidnap/murder of a Muskogee, 
     Oklahoma auto dealership employee. United States v. Hutching 
     et al., No. CR-032-S (E.D. Okl.). The two capitally-charged 
     ``managers'' of the drug enterprise received life sentences 
     from the jury, while the lowest-level defendant, John 
     McCullah (who, unlike the bosses, had been present at the 
     killing) was sentenced to death on March 23, 1993.


               federal capital prosecutions not yet tried

       Capital prosecutions initiated since early 1992 which are 
     still pending (either as capital or noncapital cases) in 
     federal district courts involve indictments charging:
       Two black New Orleans inner-city gang members, in 
     connection with an allegedly drug-related murder. United 
     States v. Green & Brown, E.D. La. No. 92-46. On November 24, 
     1992, the Government dropped its request for the death 
     penalty in this case.
       One black Tampa, Florida drug distributor, for having 
     allegedly ordered a murder in retaliation for the theft of 
     drugs. United States v. Mathias, (M.D. Fla. No. 91-301-CR-T-
     17(A)). Trial is set in this case for February 2, 1994.
       One black Atlanta drug distributor in connection with three 
     murders. United States v. Williams, No. 1:92-CR-142 
     (N.D.Ga.). No trial date is set as yet.
       Two black crack cocaine dealers in Macon, Georgia, in 
     connection with the murders of two other crack dealers. 
     United States v. Tony Chatfield and Arleigh Carrington, (M.D. 
     Ga. No. 92-82MAC-WDC). Attorney General Barr authorized this 
     death prosecution in his last week in office. On December 6, 
     1993, the government dropped its request for the death 
     penalty against these two defendants.
       United States v. Reginald Brown et al., (E.D. Mich.Cr. No. 
     92-81127). This case reportedly involved six death 
     authorizations against members of a cocaine distribution 
     organization alleged to be responsible for a total of twelve 
     murders over a 4-year period. The initial authorization 
     occurred during the Bush Administration, but the 
     authorizations were not announced until June, 1993. Only 
     three of the six defendants against whom the death penalty 
     has been authorized are currently in custody. One defendant, 
     Terrance Brown, has been found dead, apparently a homicide 
     victim.
       The Federal Death Penalty Resource Counsel Project is aware 
     of 7 cases, involving 16 defendants, in which the death 
     penalty is reported to have been authorized by Attorney 
     General Reno or announced since she took office. All 16 
     defendants are African-American. Three of the cases have been 
     brought in jurisdictions (New York, Michigan, and the 
     District of Columbia) which do not have capital punishment 
     statutes. The cases are:
       United States v. Darryl Johnson, (W.D.N.Y. Cr. No. 92-159-
     C-S), involving two alleged cocaine-related killings by a 
     Buffalo, New York group. Trial is not anticipated before the 
     fall of 1994.
       United States v. Wayne Anthony Perry (D.C.D.C. No. 92-CR-
     474), an alleged hitman for a D.C. cocaine distribution ring; 
     eight homicide counts. Trial is set for February 8, 1994.
       United States v. Michael Murray, (M.D.Pa. Cr. No. 1:CR-92-
     200), involves the killing of a Harrisburg, Pennsylvania drug 
     dealer by a gang headed by one Jonathan Bradley. DOJ 
     reportedly declined to approve the U.S. Attorney's request to 
     authorize the death penalty against Bradley, who allegedly 
     ordered the killing, and against another participant in the 
     shooting, Emmanuel S. Harrison.
       United States v. Edward Alexander Mack et al., (S.D. Fla. 
     93-0252-CR-Ungaro-Benages), involves two drug-related murders 
     in the course of a Miami drug trafficking operation. Three 
     defendants are facing the death penalty in this case; trial 
     is not anticipated until the latter part of 1994. Attorney 
     General Reno authorized this capital prosecution in early 
     January 1994.
       United States v. Jean Claude Oscar et al., (E.D.Va. 93 CR 
     131) involves three capitally charged defendants and two 
     crack-related murders in Norfolk, Va. Attorney General Reno 
     authorized this capital prosecution in November 1993.
       United States v. Todd Moore, (E.D. Va. 1994), the 
     prosecution of this black defendant in Norfolk, Va. was 
     announced March 8, 1994.

  Ms. MOSELEY-BRAUN. Mr. President, I think maybe sometimes people do 
not have the perspective to think about how initiatives here in the 
Senate may have a ripple effect out in the rest of the world. Vaclav 
Havel--I am fond of quoting the former President of Czechoslovakia--
talks about what he calls the butterfly effect. He said it is the 
notion that everything is so--and I am quoting as best I can without a 
copy--but it is the notion that everything in this world is so 
interconnected that the wave of a butterfly wing can unleash a typhoon 
of change in another part of the world.
  So I really call on my colleague, the Senator from New York, to take 
a look, a serious look, at what he is doing here. His motivation may be 
we do not want to hold up a process that we have been fighting for so 
long. If he is anxious on that score, I am sure he can be accommodated 
by whatever happens. But what he is doing here with this amendment is 
wrong. This amendment is a vote in favor of the worst elements--the 
worst elements in our society. And to talk about the butterfly effect--
if anything, this amendment has a butterfly effect I think that will 
shame--and I do mean shame--all of America. We have, I think, an 
obligation to be better, to be more. At a time when there is an 
inauguration of a President of South Africa and the first multiracial 
election there, for us in America to take a step backward on so highly 
visible and highly emotionally charged a matter as the imposition of a 
sentence of death, I think would be most unfortunate and would have a 
negative effect, a regrettable effect on a lot of fronts that we would 
not want to see.
  So, while this seems like a small, almost technical amendment, I say 
to my colleagues and I say to the Senator from New York, take a good 
look at what this really means and what it portends for our society as 
a whole to stand up and say we are for racial injustice in the 
administration of the death penalty. It says a lot more about what we 
should not be and where we used to be than it does about where we are 
going to be, where we can be, and what we can be.
  I hope that while the technicalities of the amendment having to do 
with retroactivity can be worked out in conference--Senator Biden has 
made a commitment on that score--that we can reach a consensus, reach 
some kind of agreement so as to meet the concerns that some of the many 
Members who are supporters of the death penalty may have.
  At the same time to take racial justice out of the crime bill, I 
think, makes the crime bill say things about America that none of us 
want it to say.
  I thank you and I yield the floor
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I believe that the focus of the American 
judicial system is on the individual, and I am convinced that the 
appropriate standard for the American criminal justice system is to 
focus on the individual, the charge which has been leveled against the 
individual, the nature of the offense--if, as and when proved--and the 
background of the individual. Sentencing is not a matter for 
statistical determination because I do not believe that statistics 
really bear on the underlying meaning or equities of the case.
  In my experience as an assistant district attorney and then as 
district attorney of the City of Philadelphia, the total of which was 
more than 12 years, I became convinced that the death penalty was an 
effective deterrent against violent crime.
  I saw many cases where professional burglars would not carry weapons 
for fear that a killing would result in the course of a burglary and 
that individual would face a first-degree felony murder charge.
  Similarly, I saw cases where young hoodlums would not carry guns on 
robberies because they, too, feared that a killing might result in the 
course of the robbery and there would be a first-degree murder charge.
  In the early sixties, when the death penalty was being carried out, 
Mr. President, I believe that it did have a deterrent effect on violent 
crime. But what has happened as of this year, 1994, with some 2,800 
individuals on death row and 38 applications of the death penalty last 
year, is that there has been a serious erosion of the deterrent effect 
of capital punishment.
  I agree totally with the Senator from Illinois that there has to be 
racial justice in America. That is the cornerstone of our system. When 
I was district attorney of Philadelphia, I refused to allow my 
assistants to question jurors on any item that related in any way, 
shape, or form to race, and had an office policy against striking 
African-Americans from juries on peremptory challenges.
  For those who do not know, a peremptory challenge is a challenge that 
can be made by either side against any potential juror without any 
cause shown. Under Pennsylvania law, there are 20 peremptory challenges 
available.
  Long before the Supreme Court of the United States ruled that it was 
unconstitutional to strike jurors on the basis of being African-
American, or any race, I adopted a policy in my office to prohibit 
that.
  There have been necessarily and appropriately very substantial 
restrictions on the application of the death penalty.
  In 1972, in the case captioned Furman versus Georgia, the Supreme 
Court of the United States struck down the death penalties in all 
States on the proposition that the death penalty could be 
constitutionally imposed only if there was consideration by the jury of 
aggravating circumstances and mitigating circumstances. It could not be 
left to the unchanneled discretion of the jury, to any generalized 
principle or any possibility of speculation. Instead, there had to be a 
specific enumeration of what constituted the aggravating circumstances, 
the coldheartedness, the callousness, the act of the killing, the 
background and the record of the defendant, and on the mitigating 
circumstances, for example any impairment of mental acuity or any 
background of other impairment had to be considered.
  We have made substantial strides on the adequacy of counsel since the 
1960s. I think adequate trial is an indispensable element in a fair and 
just application of any criminal sanction.
  But if death penalty cases turn on a statistical analysis--and there 
are many statistics which are available on this subject and many of the 
statistics which are quoted are erroneous--for example, Philadelphia 
does not have an African-American population of 20 percent, it is more 
than double that. To pick out a single judge and say that 92 percent of 
the death penalties handed down by that judge are against minorities is 
not really a telling factual matter as to what kind of cases that one 
judge had.
  When you take a look at crime in America today, there is no need for 
any extended discussion about the seriousness of crime in this country. 
There is no serious need for a discussion of the imperative nature of 
the Congress acting on this subject. The Congress has indicated its 
will on the Senate side with more than $22 billion and on the House 
side with some $28 billion to combat crime.
  There is a consensus in America, not only reflected in the votes in 
the Congress, with more than 70 percent of this body in favor of the 
death penalty, but in the percentage of the American people who believe 
that the death penalty is an effective deterrent.
  So much of the debate on this statistical analysis--and I do not call 
it the Racial Justice Act because that is another illustration where 
Senators who introduce bills and put titles on bills which argue a 
characterization or argue a conclusion. I take second place in this 
body and on this planet to no one in terms of my commitment to racial 
justice. If there is ever any element of a question about racial 
justice, I am among the first to question it.
  But what this proposal does is to say that there has to be some 
finding where there is a disproportionate share of one group or another 
that raises a question about the fairness as to what has gone on in the 
trial. I submit, Mr. President, that is not sensible or logical or in 
accordance with our American tradition that each individual should be 
judged on his or her own, and that each case should be judged on its 
own merits and what happened under the particular factual circumstances 
and what is the background of the individual defendant and victim.
  Only in this way, focusing on the facts of each individual case can 
we have a fair judicial system in America.
  We have rejected racial quotas on all categories--from admission of 
Jewish students to law schools and medical schools to an arbitrary 
definition as to how many of one group or another will be entitled to 
jobs, because Americans are opposed to the quota system and we are 
opposed to controlling people's lives by statistics.
  We are committed to a principle of individualized justice, and I 
think that is the only way that the system can work.
  I became convinced about the deterrent effect of capital punishment 
on many, many cases which I saw as a prosecuting attorney, and one is 
worth a moment or two. It was a case that I handled in the Supreme 
Court of the Commonwealth of Pennsylvania back in the early sixties, 
and it involved three young hoodlums named Williams, Cater, and Rivers, 
ages 19, 18, and 17. The two younger men, Rivers and Cater, saw a gun 
that Williams had and Cater and Rivers said: ``We're not going along on 
this robbery if you carry a gun.''
  How do we know that? We know that from the confessions of all three 
shortly after the incident occurred.
  Williams put the gun in the drawer, slammed it shut and, as they all 
left, unbeknownst to Cater and Rivers, Williams pulled the gun out, 
stuck it in his pocket and they went to a grocery store in north 
Philadelphia for a robbery. And there was a scuffle, and Williams 
pulled the gun and murdered the druggist. All three of those men were 
sentenced to death. I argued the case in the Supreme Court of 
Pennsylvania which upheld the death penalty.

  Ultimately, the two younger men, Cater and Rivers, had their death 
sentences commuted, that is, changed. I was district attorney at the 
time of the commutations, having been elected in 1965, and I took the 
position that they ought not to receive the death penalty even though 
as a matter of law they were equally guilty with Williams, having been 
coconspirators in the event. But it was my view that they did not have 
the same degree of culpability or intent that Williams did.
  One thing about criminal law that people need to understand, is that 
if a number of people join together in an offense and have a 
conspiracy, each one of them is liable for everything that the other 
one does. So that if you are in a robbery/murder and you do not pull 
the trigger, you are still liable for the murder. And if you are in a 
robbery/murder and you went along on the judgment that there would not 
be any gun taken along but one was taken, you are still equally 
responsible.
  While I support the death penalty, I have long believed that it has 
to be scrupulously, meticulously and carefully applied. In a day long 
before Furman versus Georgia, long before the kind of focus that is 
present today, my sense was that there ought not to be the death 
penalty for Cater and Rivers because they did not know that the gun was 
being taken along, just like I felt as an intuitive matter that 
African-Americans ought not be stricken from juries by peremptory 
challenges because of their race.
  Mr. President, I think what this disagreement really focuses on is 
those who are for the death penalty and those who are against the death 
penalty. I appreciate the conscientious and moral scruples of those who 
oppose the death penalty, and I understand their considerations and I 
respect them. But there has been a judgment made in the pending crime 
bill for the death penalty, and there has been a judgment made by 37 
States in the United States to have the death penalty carried out. I 
believe that it is an effective deterrent, and I think it ought to be 
carried out again in a very, very selective number of cases.
  During my days as district attorney of Philadelphia, with the 500 
homicide cases which we had a year, I would not allow an assistant to 
ask for the death penalty in any case without my own personal in-depth 
review to see what ought to be done.
  Mr. President, the reality is that the Congress has not moved with 
real vigor in the whole field of death penalty application because we 
have stripped from this bill the so-called habeas corpus reform, and 
that is the reform which would focus on the Federal court appeals which 
involve tremendous delay. At the present time, the average case takes 9 
years after the death penalty has been imposed before it is carried 
out, and some cases last as long as 17 years.
  I have introduced legislation which I brought to the floor to provide 
a procedure which would safeguard the rights of the defendants but 
would eliminate technicalities in habeas corpus procedures so that a 
constitutionally determined and imposed death penalty would be imposed 
promptly and in a meaningful way, because no deterrent is meaningful 
unless it is swift or certain. Regrettably, the Senate rejected that 
approach because many on one side did not want the death penalty at 
all, and many on the other side opposed my amendment because they did 
not like its provisions as to what is called retroactivity. That is 
where you take a new rule where it is a fundamental rule and apply it 
to pending cases.
  I am at an absolute loss as to how we could have any just provision 
of law on the death penalty which would not be retroactive. The 
arguments have been made in the Chamber today that this statistical 
provision under debate will not be retroactive. That is the kind of 
compromise which appears to me to be totally unjustified. When you are 
talking about the death penalty, if there is some principle of law 
which precludes its application to any case, a case in the future, it 
is just unconscionable not to have it apply to cases which are pending, 
if it is a meaningful principle of law.
  I suggest, Mr. President, that the willingness to have this 
statistical proposal apply only in the future, prospectively, is more 
than a compromise. It is really a concession that these cases really 
ought to be judged on their individual merits and not on any 
statistical analysis.
  So for these reasons, Mr. President, being firmly committed to 
individualized justice in this country, I believe that we should move 
ahead in a rational way, utilizing every legitimate weapon at the 
disposal of law enforcement, one of which is the death penalty, as 
sanctioned in some 37 States--seeing to it that there is adequate 
counsel, that there is an effective day in court for all the issues to 
be raised and decided, and that appropriate death sentences are carried 
out where the act and the actor warrant it, without any complex 
statistical analysis which really does not bear on what happened in any 
case and which would destroy a very fundamental principle of American 
justice which is individualized justice.
  Mr. METZENBAUM. Mr. President, a number of my colleagues have spoken 
this morning in favor of the Racial Justice Act which was included in 
the House version of the crime bill.
  Whether you favor or oppose the death penalty, all fair and right 
thinking people believe that a person's race should not determine 
whether someone is sentenced to death by the State. But despite our 
desire for a fair judicial system, the evidence that the death penalty 
is applied in this country in a racist manner is overwhelming.
  A 1990 GAO report documents a long standing pattern of racial 
discrimination in the charging, sentencing, and imposition of the death 
penalty. This discrimination takes two forms. One kind is based on the 
race of the victim, and the other is based on the race of the 
defendant. The report stated that since 1976, when the Supreme Court 
allowed the death penalty to be reinstituted, 85 percent of the 
executions involved the killing of a white person.
  Only 11 percent of the executions involved the killing of an African-
American and these only occurred where the defendant was also black. 
During this period only one white person has been executed for killing 
an Afircan-American. This GAO report reflects what is an unfortunate 
fact of life in America. Our Criminal Justice System does not value the 
life of an African-American as highly as it values that of a white.
  On the Federal level, a recently released report by the House.
  Subcommittee on Civil and Constitutional Rights tracks prosecutions 
under the Federal death penalty provisions of the Anti-Drug Abuse Act 
of 1988. The report reveals that 89 percent of the defendants selected 
for capital prosecution have either been African- or Mexican-Americans. 
Increasingly, all 10 of the defendants most recently approved for 
Federal capital prosecutions have been black. What does this say about 
our sense of justice about the quality of justice in America? The 
Racial Justice Act will help to eliminate racial discrimination in 
capital cases. It allows defendants to challenge only their death 
sentence, and not the underlying conviction. In other words, it does 
not have to do with whether the defendant is guilty or not guilty. It 
just gives the defendant the right to challenge the death sentence 
itself.

  To obtain relief under the act defendants must offer evidence of two 
things. The first is statistical evidence of a consistent pattern of 
racially biased sentences in death penalty cases. The second is that 
their own death sentence fits this discriminatory pattern.
  The defendant and not the State bears the burden of collecting the 
statistical evidence. This evidence must compare the sentences in 
similar cases and take into account any aggravating factors. For 
example, an African-American defendant cannot get relief under the act 
by simply showing that blacks get the death penalty more frequently 
than whites. Rather, the defendant must show that blacks get the death 
penalty significantly more frequently than whites for the same type of 
offenses and aggravating circumstances. If the court finds that there 
was discrimination in imposing a death sentence, the defendant would 
either be resentenced to death, but under a nondiscriminatory scheme or 
sentenced to life imprisonment.
  In an attempt to defeat the Racial Justice Act, some of its opponents 
have used inflammatory rhetoric and claimed that the act amounts to a 
quota bill. Clearly, the Racial Justice Act does not require compliance 
by the adoption of racial quotas. Rather, it urges States and 
prosecutors to eliminate the use of race in capital cases by adopting 
nonracial standards for bringing death penalty cases.

  The Racial Justice Act will help to ensure that similar crimes 
receive similar sentences. I urge my colleagues to support it.
  I would like to point out, Mr. President, that over a period of 
years, many of us on this floor have opposed capital punishment, many 
of us have felt very strongly about it, in addition to other reasons, 
the fact that capital punishment has been so unfairly meted out to 
African-Americans as compared to whites. Realistically speaking, there 
is no question about it. The evidence is irrefutable that blacks have 
paid a higher penalty with respect to the death sentence than have 
whites.
  It is not fair. It is not right. This is a country that prides itself 
in its sense of justice. And I think that if we really intend to be 
just, then it is imperative that we support inclusion of the Racial 
Justice Act in this legislation.
  Mr. HATFIELD. Mr. President, my position on the death penalty is well 
known. But, even if I were an ardent supporter of death sentences, I 
would be extremely concerned that the Government apply this punishment 
in an evenhanded manner. This is the least that we must demand, 
regardless of our position on the death penalty. This is why I oppose 
the sense of the Senate amendment calling for deletion of the Racial 
Justice Act during conference committee action on the crime bill.
  Each time that we discuss death penalty issues, we hear stories of 
brutal cold blooded murders. These are horrible crimes and should be 
punished severely. Spending one's life in prison without possibility of 
release is severe. But, this is not the issue today.
  If we must have this gruesome State sponsored killing--and I do not 
concede that we must have it--the very least we can do, the absolute 
minimum we should do, is ensure that the punishment is not being used 
in a racially discriminatory manner. In fact, I believe that we might 
take an even broader approach. I believe that the death penalty has 
been applied disproportionately upon the poor of all races because they 
do not have the resources to adequately defend themselves. Perhaps on 
another occasion we will examine whether discrimination based upon 
economics also should be considered in death penalty cases.
  This issue cuts to the heart of one of the fundamental reasons that 
the death penalty has been questioned by those who are very experienced 
in its application. Why do some people get killed by the State for 
committing the same crime that causes others to receive prison terms? 
How can we make sense of this?
  Justice Blackmun's recent description of the death penalty as 
``fraught with arbitrariness, discrimination, caprice, and mistake'' 
has become well publicized for good reason. He has struggled with these 
issues personally on the Highest Court in the land for 24 years.
  According to a recent House subcommittee report, 89 percent of death 
prosecutions under the Anti-Drug Abuse Act of 1988 have been against 
African-Americans or Mexican-Americans. The last 10 Federal death 
prosecutions have been against black defendants. In addition, a GAO 
report in 1990 showed serious racial disparities in death sentencing.
  These frightening statistics do not necessarily prove discrimination. 
They do, however, cry out for an explanation. While raw numbers of 
prosecutions brought against a particular race do not prove 
discrimination, comparisons of factually similar cases can prove it. 
This is the statistical proof required under the Racial Justice Act 
title of the House crime bill.
  Allowing proof of discrimination in death penalty cases does not 
eliminate the death penalty. And, it will not impose a quota system. It 
only attempts to ensure that we will not allow the State to kill based 
upon race. The imposition of death is a decision that cannot be undone. 
The least we can do is make sure that race is not a factor in making 
the horrible choice to ask for the death of another human being.
  Mr. President, I yield the floor and in the absence of any other 
Senator on the floor, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The absence of a quorum having been suggested, 
the clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  (Mr. PELL assumed the chair.)
  Mr. BRYAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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