[Congressional Record Volume 140, Number 58 (Thursday, May 12, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 12, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                          DEATH PENALTY CASES

  Mr. SPECTER. Mr. President, I have sought recognition to discuss 
briefly the action by the Senate yesterday to instruct its conferees to 
reject the statistical challenge to death penalty cases, and to 
discuss, in connection with that, a news report on an order entered by 
a Federal judge in Pennsylvania directing the Justice Department to 
disclose certain factors where the death penalty is requested, and 
those two items in conjunction with the overall utilization of the 
death penalty in our society.
  I believe, Mr. President, that the Senate was correct in its vote 
yesterday--58-41--to instruct the conferees on the House-Senate 
conference on the crime bill to reject the House provision to permit a 
statistical analysis to determine whether the death penalty should be 
imposed. Use of a statistical analysis to determine the legality of a 
sentence is inappropriate under our American judicial system. I say 
that because of my view that the application of the death penalty ought 
to turn on the individual circumstances of an individual case; that is, 
the nature and quality of the murder, the background of the defendant, 
whether the defendant has a prior criminal record and the extent of 
such a record; the defendant's educational background, his mental 
competency, which are all factors in the defendant's background, in 
accordance with exacting standards that have been established by the 
Supreme Court of the United States for juries to determine what are 
aggravating circumstances, which support imposition of the death 
penalty, and what are the mitigating circumstances, which work against 
or militate against the imposition of the death penalty. And that is 
the appropriate way to deal with the death penalty in our society.
  My experience as district attorney of Philadelphia for some 8 years, 
and as an assistant district attorney for that city for some 4 years, 
has convinced me that the death penalty is a deterrent. I have seen 
many cases where burglars and robbers will not carry weapons in the 
course of a robbery or burglary because of the fear that a death may 
result, and the individual defendant would then be charged with first-
degree murder, which could carry the death penalty.
  When I was an assistant district attorney many years ago in 
Philadelphia, when the death penalty was being imposed and carried out, 
my conclusion was that it was an effective deterrent. In order for a 
deterrent to be effective, however, it has to be certain and it has to 
be swift. The reality is that we have lost the effectiveness of the 
death penalty in our society today because of the enormous delays 
between the murder and the imposition of the death penalty.
  At the present time, there are approximately 2,800 inmates on death 
row. Last year, there were 38 cases where the death sentence was 
carried out. The average delay is approximately 9 years, and in some 
cases it lasts as long as 17 years. What has to be done, Mr. President, 
is to have a change in the appeals process, so that the habeas corpus 
review--which is the Latin name for producing the body, which gives a 
defendant a chance to test whether his conviction and sentence were 
constitutional--that appeals process has been vastly overdone.
  The great writ of habeas corpus is very important in our society. 
Under this writ, defendants have the right to challenge the legality of 
their conviction and sentence to make sure that constitutional 
standards were complied with. But it does not have to take a decade or 
17 years to provide such assurances.
  I have introduced legislation which would provide that that appeals 
process be completed fully within a 2- or 3-year period, granting 
review for the defendant's constitutional rights and providing adequate 
counsel, but stopping the complex issues of when the Federal court has 
jurisdiction, giving the Federal court immediate jurisdiction over all 
the issues once the direct appeal is concluded--that is, when the State 
supreme court has upheld the death penalty--and then establishing 
reasonable time limits, so that those cases are handled on a priority 
basis.
  It is unfair to victims' families to have these cases drawn out 
indefinitely. It is unfair to the defendants themselves, according to a 
decision by an international court of justice, where in a case the 
court ruled that they would not return someone from the United Kingdom 
to Virginia unless Virginia gave up the death penalty in the case, 
saying that it was unfair and cruel and barbarous treatment to the 
defendant to be kept on death row for more than 8 or 9 years.
  So you have a situation where these enormous delays are unfair to 
society, which is being deprived of a legitimate law-enforcement tool. 
It is unfair to the victims' families when the matter is never resolved 
and hangs over them as a constant reminder of a murder of a loved one, 
and it is unfair to the defendants themselves, according to the 
international tribunal.
  At the same time that the death penalty can be an effective 
deterrent, I believe that it has to be applied very carefully, or we 
are going to lose the death penalty. Even though some 70 percent of the 
American people favor the death penalty, there are many people who 
oppose it on grounds of conscientious scruples, and I respect that.
  But there are 37 States in the United States, including my home State 
of Pennsylvania, which have the death penalty, although in my State it 
has not been carried out for some 30 years--since 1962. The execution 
of a man in Illinois earlier this week was a celebrated matter, which 
drew a lot of public attention, and that was the first capital sentence 
carried out in Illinois in approximately some 30 years.
  When I was district attorney, on the some 500 homicides committed in 
Philadelphia every year I personally reviewed all the cases where the 
death penalty was going to be requested because I thought there has to 
be a very, very careful examination to reserve the use of the death 
penalty in only the most heinous and outrageous cases.
  The decision by the U.S. District Court for the Middle District of 
Pennsylvania, which was reported yesterday in the New York Times, I 
think is an important decision in pointing up the way the prosecuting 
attorney and the Department of Justice ought to be required to say why 
the Department of Justice is asking for the death penalty in a specific 
case.
  In this context, I think it is a very solid line of protection 
against a request for the death penalty and the imposition of the death 
penalty where the underlying facts do not warrant it from the 
prosecutor's point of view so that there will be certification that, to 
the extent we can make that certification realistic and practical, 
people are not being singled out for the death penalty because they are 
African-American or Hispanic or for some other reasons unrelated to the 
facts of the case.
  The New York Times reports the matter in this way:

       A Federal judge in Pennsylvania has ordered the Justice 
     Department to explain why it is seeking the death penalty 
     against a black defendant in a murder case.
       The order, issued on May 3, is believed to represent the 
     first time a Federal judge has tried to pry open one of the 
     agency's most closely guarded secrets: why the Justice 
     Department believes some murderers must die while others may 
     live.

  Some might say that is an intrusion into the discretion of the 
prosecuting attorney. It does limit the prosecuting attorney's 
discretion, but, I submit, in an appropriate way, especially in the 
context where there is considerable public concern that the death 
penalty is being imposed unfairly because of a racial factor.
  The district attorney has very broad discretion as a so-called quasi-
judicial official, which means the DA is part prosecutor and part 
judge, and has the obligation not to prosecute, not to approach the 
decision to prosecute from an advocate's point of view or adversary's 
point of view, but from a judicial point of view that the prosecution 
is warranted and typified by the motto over the Department of Justice 
that the Government wins its case whenever justice is done.
  Notwithstanding the very broad discretion that prosecuting attorneys 
traditionally have, it is my view that it is appropriate for the 
prosecuting attorney to state the reasons why the prosecuting attorney 
is asking for the death penalty
  I do believe that the order of the judge is somewhat broad--although 
I would not want to comment with finality on that in the course of the 
press account without studying the case in greater detail--where the 
order of the court calls for a list of all homicide cases since the 
passage of the 1988 law in which the defendant could be considered 
eligible for the death penalty and all requests and supporting 
documents submitted to the Justice Department by the U.S. attorneys who 
have sought permission to ask for the death penalty even if permission 
was granted.
  That looks to a statistical determination which I think does not 
really focus on the individual facts of a given case, but where the 
court's order calls for ``documents explaining the Justice Department's 
standards, policies, practices, or criteria governing the approval or 
disapproval of the death penalty prosecutions,'' that appears to me to 
be a reasonable standard.
  I think it is not inappropriate to ask the district attorney, the 
U.S. attorney, why he or she is asking for the death penalty in this 
case, to analyze the facts of the murder and the background of the 
defendant. That analysis would work to clarify the thinking, hone the 
thinking, of the prosecutors who are asking for the death penalty. 
There is nothing like having the standards written out, the standards 
carefully considered, the standards applied to the facts of an 
individual case, and the standards applied to the background of the 
defendant to make sure that justice is done.
  I believe that this sort of a procedure would undercut a good bit of 
the thought that there is unfairness in the imposition of the death 
penalty today on racial grounds. It is intolerable in our society to 
have the death penalty imposed for any reason other than the defendant 
in that case deserves it based on the facts of the case and the 
background of the defendant.
  Now, we have a conflict between the Senate and the House of 
Representatives where the House has voted narrowly 217 to 212 that the 
statistical standard should be applied; whereas, the Senate yesterday 
voted 58 to 41 that the statistical standard should not be applied and, 
interestingly, as a broader margin than the Senate vote in 1991, voting 
55 to 41 that the statistical standards should not be applied.
  So it is my recommendation when the conferees get together that this 
statistical approach will not be adopted as part of the crime bill, 
because I think it would, in effect, undercut, really gut the 
effectiveness of capital punishment. I do believe that there is 
validity to the argument and the conclusion that those who were 
favoring this statistical application really do so because they do not 
like the death penalty at all and that this is a way of defeating the 
death penalty.
  But if we are to retain the death penalty, then I think it has to be 
very carefully applied, and I think the standards proposed or the 
object imposed by the order from the Federal judge, Judge Sylvia H. 
Rambo, in Harrisburg, PA, calling for a statement of reasons by the 
Department of Justice is preeminently fair. It is a line of protection 
to ensure that there will not be any racial factors entering into 
consideration on whether to seek the death penalty. It still leaves the 
prosecuting attorney latitude to ask for the death penalty, and it will 
militate against the imposition of some statistical standard which 
would do away with individualized justice.
  Mr. President, I ask unanimous consent that the full text of the New 
York Times article explaining this decision be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the New York Times, May 11, 1994]

         U.S. Ordered to Tell How It Decides to Seek Executions

                         (By Steven A. Holmes)

       Washington, May 10--A Federal judge in Pennsylvania has 
     ordered the Justice Department to explain why it is seeking 
     the death penalty against a black defendant in a murder case.
       The order, issued on May 3, is believed to represent the 
     first time a Federal judge has tried to pry open one of the 
     agency's most closely guarded secrets; why the Justice 
     Department believes that some murderers must die while others 
     may live.
       The timing is particularly critical, since the order comes 
     as Congress makes its final push on a crime bill, the House 
     version of which would allow defendants to appeal their death 
     sentences by showing that judges and juries are racially 
     biased in calling for capital punishment. Four years ago, the 
     Senate defeated a similar measure.
       ``The timeliness of this ruling is important,'' said 
     Richard Dieter, director of the Death Penalty Information 
     Center, a nonprofit advocacy group that opposes capital 
     punishment. ``If this information comes out fairly soon, it 
     might influence a major piece of legislation.''
       Marty Carlson, an Assistant United States Attorney in 
     Harrisburg, Pa., said the Justice Department had not decided 
     whether to appeal the judge's order. The department has to 
     respond by Friday, and the judge wants the information before 
     trial starts on June 6.


                            drugs and death

       The order was issued by Sylvia H. Rambo, chief Federal 
     judge for the Middle District of Pennsylvania in a case 
     involving a New Yorker, Michael Murray, who is accused of 
     killing a minor drug dealer, Juan Carlos-Bacallo of 
     Harrisburg. Prosecutors said both men were part of a ring 
     that supplied crack in the Harrisburg area.
       Although almost all of the approximately 20,000 people 
     arrested in homicide cases every year are tried in state 
     courts, the number of Federal defendants who may be subject 
     to the death penalty will probably expand after the Federal 
     crime bill is approved. A House-Senate conference is to begin 
     work in the next few weeks on reconciling the versions of the 
     crime bill each chamber has passed.
       In March, a Congressional report found that of the 37 
     defendants the Justice Department has sought to execute for 
     drug-related murders since 1988, 33 are black or Hispanic. 
     During the Clinton Administration, all 10 of the defendants 
     whom Federal prosecutors have sought to put to death have 
     been black.
       In all of these cases, the defendants were prosecuted under 
     a 1988 law that allows the execution of drug kingpins who 
     have committed or ordered a murder.


                          Dislike of Scrutiny

       Justice Department officials deny that racial bias is a 
     factor in decisions to seek the death penalty. But officials 
     have refused to discuss the process or criteria used despite 
     repeated requests from Congress.
       ``That's the kind of information that they would like to 
     think of as internal,'' said Representative Melvin Watt, a 
     North Carolina Democrat who has been prodding the Justice 
     Department to provide data on capital punishment decisions. 
     ``Most people who deal in areas like this don't want to see 
     their decision scrutinized or second guessed.''
       Under Justice Department procedures, the United States 
     Attorneys around the country must obtain the approval of 
     senior Justice Department officials, including Attorney 
     General Janet Reno, to seek the death penalty.
       The far-reaching order by Judge Rambo, who was appointed by 
     President Jimmy Carter, came in response to a request by Mr. 
     Murray's lawyer, David Ruhnke. It requires that Justice 
     Department to turn over documents that cover virtually all 
     aspects of the decision to seek death, including:
       A list of all homicide cases since the passage of the 1988 
     law in which the defendant could be considered eligible for a 
     Federal death penalty prosecution.
       All requests and supporting documents submitted to the 
     Justice Department by United States Attorneys who have sought 
     permission to ask for the death penalty, even if permission 
     was denied.
       Documents explaining the Justice Department's ``standards, 
     policies, practices or criteria governing the approval or 
     disapproval'' of death penalty prosecutions.
       In some ways, Mr. Murray's case is emblematic of the 
     confusion surrounding the use by prosecutors of the drug 
     kingpin law.
       Even through Federal prosecutors are seeking the death 
     penalty against Mr. Murray under the 1988 law, Mr. Ruhnke 
     says his client has not been charged with controlling the 
     crack ring in Harrisburg. Federal prosecutors contend that 
     another man in the case, Jonathan Ray Bradley, was the 
     ringleader and that it was Mr. Bradley who ordered Mr. Murray 
     to kill Mr. Carlso-Bacallo.
       Yet, Federal prosecutors in Harrisburg prosecutors are not 
     seeking the death penalty against Mr. Bradley, who is also 
     black.

  Mr. SPECTER. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BAUCUS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. (Mr. Feingold). Without objection it is so 
ordered.

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