[Congressional Record Volume 140, Number 63 (Thursday, May 19, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 19, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                         THE RACIAL JUSTICE ACT

  Ms. MOSELEY-BRAUN. Mr. President, once again, for the third time in 
as many weeks, the Senate is debating the Racial Justice Act. For the 
third time Members of the Senate have engaged in debate about whether 
or not we should provide safeguards to protect against a problem so 
prevalent--the problem of racial bias in the imposition of the death 
penalty--that even a study commissioned by this body, and conducted by 
the independent Government Accounting Office concluded that there is, 
and I quote:

       A pattern of evidence indicating racial disparities in the 
     charging, sentencing, and imposition of the death penalty.
  Now I do not understand why we in the Senate need to be on record in 
opposition to the evil of ending discrimination in the death penalty 
once again here today. We just voted on this last week, and those who 
oppose ending racial discrimination in the death penalty won. There is 
clearly no reason why we need to have this exact same conversation 1 
week later. But the fact of the matter is that there have always been 
individuals, including those in Congress, who will stand in repeated 
and immovable opposition to laws protecting our civil rights. And so 
those of us who believe in civil rights, who believe in ending 
discrimination in the death penalty, must come out and debate this with 
them every single time.
  The way opponents of the Racial Justice Act are behaving, you would 
think there was absolutely, positively no evidence of discrimination in 
the death penalty. You would think the authors of the Racial Justice 
Act just dreamed it up on a rainy day because they had nothing better 
to do.
  The fact of the matter is that the Racial Justice Act was developed 
after the U.S. Supreme Court explicitly stated in the case of McCleskey 
versus Kemp that the evidence of racial discrimination in that case 
was, and I quote, ``best presented to the legislative bodies,'' who 
could develop the appropriate solutions. McCleskey involved what is 
referred to as the ``Baldus study.'' The Baldus study was actually not 
one study, but two sophisticated statistical analyses of more than 
2,000 Georgia murder cases. What the Baldus studies showed was that, 
even after taking account of 39 nonracial factors, defendants charged 
with killing white victims were 4.3 times as likely to receive a death 
sentence as defendants charged with killing black victims. The capital 
sentencing rate for all white victim cases was almost 11 times greater 
than the rate for black victim cases. Blacks who killed whites were 
sentenced to death at nearly 22 times the rate of blacks who kill 
blacks, and more than 7 times the rate of whites who kill blacks. In 
addition, prosecutors sought the death penalty for 70 percent of black 
defendants with white victims, but for only 15 percent of black 
defendants with black victims. Keep in mind that during the period of 
time involved in the Baldus study only 9.2 percent of Georgia homicides 
involved black defendants and white victims. I know I just presented a 
lot of facts and statistics to be digested all at once. However, if 
those numbers do not evidence a gross pattern of discrimination, Mr. 
President, then I do not know what does.

  Now some listening to the debate today may think, well, the McCleskey 
case was decided 7 whole years ago. The problem documented by the 
Baldus study--the problem of discrimination in the death penalty--
surely must have been corrected by now, right? We do not need to worry 
about that old problem anymore, right? Wrong. Nothing, Mr. President, 
could be further from the truth. If we have ended discrimination in the 
death penalty, why is it that under the Federal death penalty for drug 
kingpins, 77 percent of those chosen for death penalty prosecutions 
have been black? Keep in mind that 75 percent of those charged under 
this same statute have been white. Yet 77 percent of the death penalty 
charges--including 10 out of 10 capital cases that have been brought 
under the Clinton Administration and Attorney General Janet Reno--have 
been made against African-Americans. If that does not convince my 
colleagues there is a problem that desperately needs to be corrected, 
what will?
  Another statistic that clearly demonstrates the continuation of 
racism in the death penalty is the fact that, of the 230 executions 
that have been carried out in the United States since 1976, only 1 of 
those--1--has involved a white person killing a black person. Think 
about that statistic for a second. Of 230 executions since 1976, only 1 
involves a white killing a black. Does that statistic shock and appall 
and disgust anyone else in this body as much as it does me? How could 
anyone who is aware of that statistic be against the Racial Justice 
Act?
  What do these statistics say about the value that is placed on a 
black life in this country? What does it say about the value that is 
placed on civil rights, on equal protection under the law, by this 
Senate, when we vote to say we reject the Racial Justice Act in light 
of such statistics. I submit, Mr. President, that our vote against 
racial justice says some pretty frightening things, things that the 
U.S. Senate, in 1994, ought not to be saying.
  Mr. President, I do not want to take up a great deal of time 
discussing this issue today. I know the distinguished chairman of the 
Judiciary Committee, the Senator from Delaware, does not want to debate 
anew the entire crime bill. That is what the conference committee is 
for. Besides, I do not know what more I can say to convince my 
colleagues that this--racial discrimination in the death penalty--is in 
fact a problem. Given the conclusive and overwhelming evidence of 
continued racial apartheid in the imposition of the death penalty, it 
boggles my mind that the U.S. Senate would, over the course of 3 weeks, 
continue to insist that the Senate state over and over that we do not 
care if there is racial bias in the death penalty, that we do not want 
to be bothered to craft a remedy that will give those who are sentenced 
to death solely on the basis of their race the simple right to 
challenge that sentence in court.

  For, once again that is all the Racial Justice Act does, Mr. 
President. It gives defendants the right to challenge a death sentence 
imposed on the basis of race, just as we in the this body have given 
renters the right to challenge a landlord who denies them an apartment 
based on race, or just as we have given employees the right to 
challenge an employer who fires them based on race. It does not mandate 
that the court accept the defendant's argument. In fact, the act 
provides numerous opportunities for a prosecutor to prove, by a mere 
preponderance of the evidence, that nonracial factors were responsible 
for the death sentence. Nor does the act give the defendant the right 
to overturn the underlying conviction for which the sentence was 
issued. It merely provides an avenue for the defendant to present a 
claim of discrimination. If the Senate wants to vote against racial 
justice for the second time, in light of this overwhelming evidence, it 
certainly can, and will, do so.
  Mr. President, this issue will not go away. I know the conference on 
the crime bill will be a 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 that death penalty sentences should be handed down in 
an unbiased manner. The Senate will once again have to decide if it is 
going to stand up for civil rights, if it is going to stand up for 
equal protection, if it is going to stand up to correct apartheid in 
the death penalty. That is what the Racial Justice Act is all about, 
and the issue will not go away.
  Mr. BROWN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Colorado [Mr. Brown] is 
recognized.

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