[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]

 
                         THE RACIAL JUSTICE ACT

 Mr. DANFORTH. Mr. President, yesterday this body passed a 
resolution expressing the sense of the Senate that the conferees to the 
crime bill should strike the Racial Justice Act from the crime bill. I 
rise to explain my decision to vote for the resolution and against the 
Racial Justice Act. Most of the arguments made against this act assert 
that it is a devious attempt to do away with the death penalty. Well, I 
think we should do away with the death penalty. As a matter of personal 
conscience, I have always opposed the death penalty.
  But I do not believe in legislative evasion of this sort. We have had 
up or down votes on capital punishment. I always vote against it. But 
my disagreement with capital punishment does not dictate a vote for a 
mechanism designed to impede capital punishment by indirection. I agree 
that racial bias must be rooted out of the process by which Government 
metes out justice. Nowhere is this need more urgent than in capital 
cases, where the punishment is ultimate and final. So, I believed and 
still think that racial prejudice is anathema to justice.
  But I have looked at the latest legislative language of the Racial 
Justice Act. Its methods do not, in my opinion, accomplish its goals. 
Under this act, prejudice is inferred from statistics. It is inferred 
from a manipulation of numbers completely irrelevant to the case at 
hand, irrelevant to the murderer and irrelevant to the victim. There is 
no requirement that there be any evidence of bias in a particular 
sentence for the act to wipe it out.
  I am not persuaded that a statistical analysis like this will lead to 
more justice in sentencing. Are mass murders or serial killers to be 
let off the hook because their victims were white or because they were 
black? It is the supreme example of two wrongs trying to make a right.
  The act gives no guidance as to the relevant statistics for a 
successful claim. The only clue in the legislation and the committee 
report is that statistics would be drawn from proportions of minorities 
in the general population to proportions in which the death penalty is 
sought. I cannot imagine how that relates to the merits of seeking the 
ultimate punishment in any particular case. What statistics could be 
used? Do we look at the arrest rate in a jurisdiction? Do we look at 
the rate in a part of that jurisdiction? Do we look at a police 
precinct's record? Do we review the statistics of the prosecutor, or 
perhaps of the whole prosecutor's office? Perhaps we confine ourselves 
to the judge's sentencing history or the track record of local juries. 
Maybe we should come up with numbers depending on all the possible 
racial variables possible for a 6- or 8- or 12-person jury. Of course, 
if we do that, why not include educational variables, sex, religion, 
age, whatever? Maybe we have to consider the personal status of the 
witnesses. I don't know. This legislation offers no guidance on this 
issue.
  It is not just that the variables are literally infinite, which they 
are. It is also that they are not particularly helpful, in my mind, to 
determine whether there has been prejudice at work in a particular 
case. That is why we have human judges and juries and why we cannot 
simply load the facts of a case onto a computer and have it print out a 
sentence.
  There are situations in which we rely on statistics to suggest 
discrimination, such as title VII employment disputes and jury venire 
selections. They are different. The test for discrimination in title 
VII cases, with which I am very familiar, is very clear about the 
relevant statistics. It is particularized in order to disclose 
discrimination in each case. In McCleskey v Kemp, 481 U.S. 279 (1987), 
the Supreme Court drew a sharp distinction between the use of 
statistics to infer prejudice in those contexts and in criminal 
sentencing. I am persuaded by the Court's reasoning.
  As Justice Powell explained:

       The nature of the capital sentencing decision, and the 
     relationship of the statistics to that decision, are 
     fundamentally different from the corresponding elements in 
     the venire selection of Title VII cases. * * * Each jury is 
     unique in its composition, and the Constitution requires that 
     its decision rest on consideration of innumerable factors 
     that vary according to the characteristics of the individual 
     defendant and the facts of that particular capital offense. 
     Thus the application of an inference drawn from the general 
     statistics to a specific decision in a trial and sentencing 
     simply is not comparable to a specific venire-selection of 
     Title VI case. In those case, the statistics relate to fewer 
     entities and fewer variables are relevant to the challenged 
     decisions.

  The Court noted other important distinctions which also render 
statistics irrelevant and inappropriate to determine bias in 
sentencing.
  I am sure that there are defendants who are treated unfairly because 
of their race, or for other irrelevant and unfair reasons. I agree with 
the supporters of the Racial Justice Act that Congress should try to 
craft protections to weed out prejudice. But, by looking beyond the 
facts and merits of the individual cases, the approach taken by this 
act seems to me ill-suited to the problem we should be trying to 
solve.

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