[Congressional Record Volume 141, Number 6 (Wednesday, January 11, 1995)]
[Senate]
[Pages S817-S818]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           THE DEATH PENALTY

  Mr. SPECTER. Madam President, within the past week, the State of 
Texas has executed a man named Jesse Jacobs for murder in a case which, 
in an unusual twist, will severely hamper law enforcement and thwart 
the use of the death penalty as a deterrent against murder.
  In this case, the State of Texas first convicted Jesse Jacobs on a 
murder charge and then convicted his sister, Bobbie Jean Hogan, for the 
same murder, articulating very different factual circumstances as to 
how the murder was committed.
  In the first trial involving Jesse Jacobs, the State of Texas 
contended that he had, in fact, committed the murder, based largely on 
his confession. At the time of trial, Jesse Jacobs recanted his 
confession and said, in fact, that he was trying to protect his sister. 
The jury convicted him of murder in the first degree with the death 
penalty, which was later imposed. Between that trial and the execution 
of Jesse Jacobs, which occurred within the past week, the State of 
Texas indicted his sister, Bobbie Jean Hogan, and said that she, in 
fact, had committed the murder, and she was convicted of homicide in 
the second trial.
  When the case reached the Supreme Court of the United States, the 
court refused to hear the appeal of Jesse Jacobs on the ground that 
Jacobs had presented no newly discovered evidence requiring Federal 
review, which is a very startling finding under the facts of this case.
  The decision by the Supreme Court not to review Jesse Jacobs' case 
was 6 to 3. And Justice John Paul Stevens said this in asking the 
Supreme Court to review the case: ``It would be fundamentally unfair to 
execute a person on the basis of a factual determination that the State 
has formally disavowed,'' because when Jacobs was convicted of murder, 
it was on the State's representation that he had, in fact, pulled the 
trigger. Later, the State found different facts, that it was not Jacobs 
who had pulled the trigger but that it was his sister, Bobbie Jean 
Hogan, whom he had sought to protect.
  I submit, Madam President, that this case poses a very material 
problem in a number of directions. First, on the facts, I think that 
Jacobs was entitled to have the case reviewed because of the very 
unusual circumstances where a later investigation disproved his 
confession and in fact showed that what he had said at trial when he 
recanted--that is took back his confession--that it was his sister, was 
true, because the State then proceeded to prosecutor the sister. Beyond 
the palpable unfairness to Jacobs, who was executed, without the 
Supreme Court even reviewing the case, this is a real threat to the 
continued use of the death penalty, which I believe is very important 
for law enforcement in the United States.
  I served as an assistant district attorney in Philadelphia for some 4 
years, tried many cases of violence, robbery, murder, rape, and later 
was district attorney of an office handling 30,000 prosecutions a year, 
including some 500 homicide cases. I have found in that experience that 
the death penalty is a very effective deterrent against violence.
  The death penalty has been imposed relatively little since 1972 when 
the Supreme Court of the United States in a case called Furman v. 
Georgia, said that the death penalty was unconstitutional, unless very 
stringent standards were set where the State proved a series of 
aggravating circumstances which overbalanced any mitigating 
circumstances which the defendant might produce--that is, that it was a 
very horrendous offense. And all the people on death row at that time 
had their convictions invalidated. During the course of the intervening 
years since 1972, there have been other Supreme Court decisions which 
further limited the applicability of the death penalty. So that in the 
most recent statistics available, with some 2,800 people on death row, 
only 38 cases had the sentence of death carried out.
  The statistics show that when the death penalty was being enforced, 
the homicide rate was much less than it is in the period since 1972 
when the death penalty had not been enforced. In my own State of 
Pennsylvania, there has been no carrying out of the death penalty since 
1962.
  My conclusion, as a former prosecuting attorney, that the death 
penalty is, in fact, a deterrent was based on many, many cases, where I 
saw professional burglars and robbers who were unwilling to carry 
weapons because of the fear that they might commit a killing in the 
course of a robbery or burglary, and that would constitute murder in 
the first degree, as a felony murder.
  There is a vast volume of evidence to support the conclusion that the 
death penalty is an effective deterrent, although I would say, at the 
same time, that many people disagree with the statistics, and there are 
many people who have conscientious scruples against the imposition of 
the death penalty, which I respect. But it is the law of 36 of the 
States of the United States that the death penalty is valid and in 
effect.
  There is a move in many other States--in New York now, with the newly 
elected Governor; in Iowa at the present time, and other States--to 
reinstitute the death penalty because of the conclusion of most people 
that it is an effective deterrent against violent crime and we should 
use every weapon at our disposal to try to curtail crimes of violence, 
which is the most serious problem facing the United States on the 
domestic scene.
  I submit, Madam President, that if we impose the death penalty in a 
callous or unreasonable fashion that we are going to lose the death 
penalty. The death penalty remains a penalty which the American people 
want enforced, as demonstrated by poll after poll, with more than 70 
percent of the American people favoring the death penalty. In the U.S. 
Senate during the recent votes, more than 70 United States Senators 
consistently voted in favor of the death penalty, as they did on my 
Terrorist Prosecution Act, for the imposition of the death penalty for 
terrorists anywhere in the world who murder a U.S. citizen.
  But if we are to retain the death penalty, we are going to have to 
use it in a very careful way. If we are to find cases like the Jacobs 
case, where a man is executed after the State represents, in an 
affirmative way, on the subsequent trial of his sister Hogan that, in 
fact, the materials presented to the jury in the Jacobs case, where the 
jury imposed the death penalty, were false, then that is going to 
undermine public confidence in what we are trying to do.
  For the past 5 years, I have tried to change the Federal procedures 
on Federal review of death penalty cases because today it is 
ineffective. There are some cases which go on in the Federal courts for 
up to 20 years, where the death penalty is not imposed because of 
arcane and illogical decisions in the appellate courts; where the case 
goes from the State courts to the Federal courts, back and forth on 
many occasions, because of the Federal procedural law which requires 
what is called exhaustion of State remedies. The case will go to the 
Federal court, which will send it back to the States, saying there has 
not been an exhaustion of State remedies, and back to the State and 
back to the Federal courts.
  So that the legislation which I have pushed would give the Federal 
court jurisdiction immediately, on the conclusion of the State supreme 
court that the death penalty is imposed with time limits providing 
fairness to the defendant, but an end to the ceaseless round of 
appeals.
  My bill was passed by the Senate in 1990, but was rejected by the 
House. I believe in this Congress, the 104th Congress, there is an 
excellent opportunity to have those changes made in the application of 
Federal procedures so that the death penalty will again be an effective 
deterrent. And it is effective only if it is certain and if it is 
swift, 
[[Page S818]] which is not the case at the present time. The death 
penalty is, in effect, a flagship of punishment under our criminal 
justice system. So, that the when the criminals know that the death 
penalty is a laughing stock, it impedes law enforcement in a very 
generalized way.
  So when I read about the execution of Jesse Jacobs in Texas under 
circumstances which are going to undermine public confidence in the 
death penalty, may make it harder to get a reform of Federal law to 
handle the cases in a timely way so that they are decided in 
approximately 2 years instead of 20 years, and where the use of the 
death penalty may be undermined generally, that is very counter to the 
interests of society and effective law enforcement.
  It is obviously fundamentally unfair, as Justice John Paul Stevens 
said and three Justices who wanted the Supreme Court of the United 
States to review this case.
  I believe that the Congress is going to have to enact legislation to 
correct what is happening in the Supreme Court on these procedural 
matters. When they hand down decisions on constitutional grounds, that 
is it, unless there is a constitutional amendment. But when they 
establish their own procedural rules as to when they will review a 
State case involving the death penalty, that is a matter where the 
Congress can legislate because we can establish the standards under 
which jurisdiction attaches and under which the Supreme Court and the 
other Federal courts will consider these cases.
  This case has not received the kind of attention which is really 
warranted. There are so many events that happen every day and so many 
matters which come across the television screens and in the newspapers 
and on the radio that there is not a great deal of opportunity to focus 
on this kind of a matter.
  I had been looking for a few minutes when the Senate was not 
otherwise engaged. I regret keeping people here for a few minutes, but 
I think this is an important matter which will require the attention of 
our Judiciary Committee so that there will be some realistic and 
reasonable standards by the Supreme Court of the United States in the 
interest of fundamental fairness to defendants, and also so that we can 
retain the death penalty and speed up the process so that it can be an 
effective weapon for law enforcement
  I thank the Chair and I thank the attending staff, and I yield the 
floor.

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