[Congressional Record Volume 140, Number 57 (Wednesday, May 11, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 11, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                     OPPOSITION TO DEATH ROW QUOTAS

  (Mr. HORN asked and was given permission to address the House for 1 
minute and to revise and extend his remarks.)
  Mr. HORN. Mr. Speaker, recently the California District Attorneys 
Association, an organization which includes all of the elected district 
attorneys of California's 58 counties unanimously adopted a resolution 
expressing adamant opposition to the Racial Justice Act provisions 
included by the House as part of the crime bill. If adopted, those 
provisions would effectively establish racial quotas for the death 
penalty. The 58 county prosecutors believe that these provisions will 
produce a number of damaging effects on California's and the Nation's 
ability to control crime.
  I agree.
  These officials--who have frontline responsibility for prosecuting 
California's criminals--oppose any version of this so-called racial 
justice legislation for the following reasons:
  First, enactment of these provisions would result in effectively 
abolishing capital punishment. The language requires that each State 
show that the death penalty was sought in all cases involving a capital 
offense.
  Second, there would be even further clogging of California's and 
other States' desperately overcrowded court system. The retroactive 
application of the Racial Justice Act would permit people already 
convicted of capital crimes to petition to have their cases reopened. 
In California alone, there are 376 such individuals on death row.
  Third, this Act disregards the fundamental principle of our criminal 
justice system that an individuals tried on the facts of his or her 
case.
  Fourth, it eliminates the traditional deference to State-court 
findings and places them under Federal guidelines.
  Fifth, most seriously, it encourages a quota system based on race for 
deciding capital punishment cases.
  Sixth, and finally, under this Racial Justice Act, the costs to 
taxpayers and to local governments would be absolutely exorbitant 
amounts of money to retry these cases, and the endless appeals that the 
habeas corpus system provides.
  I join with the California District Attorneys Association in the 
belief that the many positive elements of the crime bill are undermined 
by the inclusion of this racial justice provision. It opposes 
fundamental notions of our criminal justice system. It must not be 
included in the final conference report.
  Mr. Speaker, I include for the Record the following resolution of 
April 29, 1994, from the California District Attorneys Association:

  California District Attorneys Association--Adopted April 29, 1994, 
                   Concerning the Racial Justice Act

       Whereas, the California District Attorneys Association is 
     an organization composed of the elected District Attorneys of 
     California's fifty-eight counties and 3,000 deputy district 
     attorneys and city prosecutors;
       Whereas, on April 21, 1994, the U.S. House of 
     Representatives adopted the omnibus crime bill, H.R. 4092, 
     which included in Title IX legislation, referred to, and 
     known as, the Racial Justice Act (or the Racially 
     Discriminatory Capital Sentencing Act);
       Whereas, on April 20, 1994, the U.S. House of 
     Representatives narrowly defeated the McCollum Amendment to 
     strike the Racial Justice Act from the House crime bill and 
     substitute in its place the Equal Justice Act. [The vote was 
     an effective 212 to 212 tie, after the votes of the five 
     Delegate members were excluded under recent House Rules.];
       Whereas, the Racial Justice Act would, first, permit a 
     capital case defendant to make a statistical showing that 
     death sentences are being imposed or administered in a 
     disproportionate manner upon (1) persons of one race or (2) 
     as punishment for capital offenses against persons of one 
     race, and, second, require the prosecutor to rebut this 
     statistical showing ``by a preponderance of the evidence'';
       Whereas, in the 102d Congress, on June 20, 1991, the U.S. 
     Senate voted to strike a similar measure entitled the Racial 
     Justice Act out of the omnibus crime measure by a bipartisan 
     vote of 55 to 41 (this was the third successive Congress in 
     which the U.S. Senate rejected the Racial Justice Act), and 
     on October 22, 1991, the U.S. House of Representatives voted 
     to strike a similar measure by a bipartisan vote of 223 to 
     191;
       Whereas, the U.S. Supreme Court rejected a discrimination 
     claim founded solely upon statistics, in McCleskey v. Kemp, 
     481 U.S. 279 (1987).
       Now, therefore, be it resolved that in light of the urgency 
     and importance of this matter, all 58 California district 
     attorneys, having been polled, unanimously:
       (1) oppose any version of the Racial Justice Act, for the 
     following reasons:
       (a) The Racial Justice Act would result in the effective 
     abolition of capital punishment.
       This would result because of the inherent evidentiary 
     difficulties and inevitable vast expenditures of time and 
     money in litigation in every post-conviction capital case, to 
     prove by at least a preponderance of the evidence a negative, 
     to wit, that race was not the basis for any of the 
     prosecutor's, jury's, or judge's decisions. [The Racial 
     Justice Act contains a virtually impossible rebuttal burden: 
     ``Unless [the prosecutor or State] can show that the death 
     penalty was sought in all cases fitting the statutory 
     criteria for imposition of the death penalty, the government 
     cannot rely on mere assertions that it did not intend to 
     discriminate or that the cases in which death was imposed fit 
     the statutory criteria for imposition of the death penalty.];
       (b) moreover, as to adjudicated cases, the retroactive 
     application of the Racial Justice Act would permit convicted 
     capital defendants to reopen their cases by presenting 
     discrimination claims (regardless of whether such claims had 
     previously been rejected). In California, there are currently 
     376 individuals on death row. The retroactive provision in 
     the Racial Justice Act as passed by the House would 
     potentially affect these cases as well as others around the 
     nation;
       (c) the statistical premise of any version of the Racial 
     Justice Act is unsound, for several reasons, including:
       (i) it disregards the fundamental precept of our criminal 
     justice system that an individual is tried on the facts of 
     his or her case, not on the facts or circumstances or 
     statistics from unrelated cases;
       (ii) it overturns the U.S. Supreme Court's rejection of 
     such a statistical premise, where the Court noted with regard 
     to the Baldus study: ``Even Professor Baldus does not contend 
     that his statistics prove that race enters into any capital 
     sentencing decisions or that race was a factor in McCleskey's 
     particular case. Statistics at most may show only a 
     likelihood that a particular factor entered into some 
     decisions.'' McCleskey v. Kemp, 481 U.S. 279, 308 (1987) 
     (emphasis in original); and
       (iii) its statistical showing fails to establish that the 
     imposition of capital punishment in a particular case is 
     predicated on any bias; and
       (d) the Racial Justice Act would permit the ``second-
     guessing'' of capital case decisions by prosecutors, defense 
     counsel, judges and juries based upon the information and 
     statistics required to be maintained under the Act;
       (e) the Racial Justice Act eliminates the traditional 
     deference to state-court findings of fact, 28 U.S.C. 
     Sec. 2254(d); Sumner v. Mata, 449 U.S. 539 (1981), if the 
     state fails to collect or maintain adequate records required 
     under the Act, and causes the individual conviction, though 
     lawfully and justifiably imposed, to be unduly placed in 
     jeopardy;
       (f) the potential cost of compliance on states and local 
     entities would be exorbitant, as demonstrated by one 
     California case (In re Earl Jackson) which took three years 
     to prepare for an evidentiary hearing and cost more than 
     $1,000,000. The evidentiary hearing was never held, after the 
     McCleskey v. Kemp ruling was rendered;
       (g) the Racial Justice Act encourages a quota system for 
     capital punishment cases by in effect introducing ``race 
     consciousness'' into capital case decisions.
       (2) opposes any legislation which would undermine or 
     otherwise modify the holding in McCleskey v. Kemp, 481 U.S. 
     279 (1987);
       (3) calls upon the U.S. House of Representatives and U.S. 
     Senate to reject any version of the Racial Justice Act as 
     part of any package of federal habeas corpus reform or any 
     crime bill;
       (4) opposes any legislation, including the omnibus crime 
     bill to be reported by the conference committee, which 
     includes any version of the Racial Justice Act. Any 
     meaningful provisions contained in the crime bill are 
     completely undermined by inclusion of the Racial Justice Act, 
     which is antithetical to fundamental notions under our 
     criminal justice system. If the omnibus crime bill contains 
     any version of the Racial Justice Act, we recommend it be 
     voted down until this legislation is removed.
       Be it further resolved by the California District Attorneys 
     Association that its Executive Director shall transmit a copy 
     of this resolution to the U.S. Senators and Representatives 
     in the California delegation and to members of the Senate and 
     House Committees on the Judiciary.

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