[Congressional Record Volume 146, Number 49 (Wednesday, April 26, 2000)]
[Senate]
[Pages S2940-S2941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself and Mr. Levin):
  S. 2463. A bill to institute a moratorium on the imposition of the 
death penalty at the Federal and State level until a National 
Commission on the Death Penalty studies its use and policies ensuring 
justice, fairness, and due process are implemented; to the Commission 
on the Judiciary.


             national death penalty moratorium act of 2000

  Mr. FEINGOLD. Mr. President, I rise today to introduce the National 
Death Penalty Moratorium Act of 2000. This bill would place an 
immediate pause on executions in the United States while a national, 
blue ribbon commission reviews the administration of the death penalty. 
Before one more execution is carried out, jurisdictions that impose the 
death penalty have an obligation to ensure that the sentence of death 
will be imposed with justice, fairness, and due process. I am pleased 
that my distinguished colleague from Michigan, Senator Levin, has 
joined me as a cosponsor of this important initiative.
  If a particular aircraft crashed one out of every eight flights, 
Congress would act immediately to ground it. But as New York public 
defender Kevin Doyle says in the book, Actual Innocence, that is about 
what is happening now with the death penalty in this country. Since the 
reinstatement of the modern death penalty, 87 people have been freed 
from death row because they were later proven innocent. That is a 
demonstrated error rate of 1 innocent person for every 7 persons 
executed. When the consequences are life and death, we need to demand 
the same standard for our system of justice as we would for our 
airlines.
  Both supporters and opponents of the death penalty should be 
concerned about the flaws in the system by which we impose sentences of 
death. More than 3,600 inmates sit on State and Federal death rows 
around the country, while it becomes increasingly clear that innocent 
people are being put to death.
  A 1987 study found that between 1900 and 1985, 350 people convicted 
of capital crimes in the United States were innocent of the crimes 
charged. Some escaped execution by minutes. Regrettably, according to 
researchers Radelet and Bedau, 23 had their lives taken from them in 
error.
  In Illinois, since 1973, 13 innocent people have been freed from 
death row in the time that 12 were executed. Governor George Ryan, a 
supporter of the death penalty, has done two things in response: He has 
effectively imposed a moratorium on executions and established a blue 
ribbon commission to review the administration of capital punishment in 
Illinois. Governor Ryan and I are from different political parties, but 
we both recognize that the system by which we impose the death penalty 
is broken.
  Modern DNA testing of forensic evidence led to the exoneration of 5 
of the 13 innocents freed from Illinois' death row and 8 of the 87 men 
and women who have been freed from death row nationwide since the 
1970's. But Illinois and New York are the only states that currently 
provide some measure of access to DNA testing for death row inmates. My 
distinguished colleague from Vermont, Senator Leahy, has introduced a 
bill, the Innocence Protection Act, of which I am a co-sponsor, that 
would ensure access to DNA testing for all inmates on death row in the 
Federal system and the 38 States that impose the death penalty. That 
bill is an important initiative to help ensure that innocents are not 
condemned to death. I hope my colleagues will join Senator Leahy in 
moving this bill forward.
  But, as Governor Ryan and others have recognized, flaws in our system 
unfortunately go well beyond access to DNA testing. As Barry Scheck, 
Peter Neufeld and Jim Dwyer note in their book, ``Actual Innocence,''

       Sometimes eyewitnesses make mistakes. Snitches tell lies. 
     Confessions are coerced or fabricated. Racism trumps truth. 
     Lab tests are rigged. Defense lawyers sleep.

  Indeed, Scheck and Neufeld note that eyewitness error is the single 
most important cause of wrongful convictions.

[[Page S2941]]

As important as DNA testing is, it is only the first step in addressing 
the host of problems in the administration of capital punishment.
  It is time for the Congress to take the lead and declare once and for 
all that it is unacceptable to execute an innocent man or woman. It is 
a central pillar of our criminal justice system that it is better that 
many guilty people go free than that one innocent should suffer. Sadly, 
history has demonstrated that time and again, America has brought 
innocence itself to the bar and condemned it to die. That history now 
demonstrates that even in America, innocence itself has provided no 
security from the ultimate punishment.
  Most insidiously, the ghosts of institutional racism still haunt our 
courthouses. They intrude when lawyers select jurors, during the 
presentation of evidence, when the prosecutor contrasts the race of the 
victim and defendant, and when juries deliberate. The evidence mounts 
that the United States applies the death penalty differently to people 
of different races.
  The numbers tell the story: Although African-Americans constitute 
only 13 percent of the American population, since the Supreme Court 
reinstated the death penalty in 1976, African-Americans account for 35 
percent of those executed, 43 percent of those who wait on death row 
nationwide, and 67 percent of those who wait on death row in the 
Federal system. Although only 50 percent of murder victims are white, 
fully 84 percent of the victims in death penalty cases were white. 
Since 1976, America has executed 11 whites for killing an African-
American, but has executed 144 African-Americans for killing a white.
  Governor Ryan and Illinois serve as a model for the Congress and the 
Nation. The flaws in the Illinois criminal justice system are not 
unique. Problems like convicting the innocent, racial disparities in 
the application of the death penalty, and inadequacy of defense counsel 
have plagued the administration of capital punishment across the 
Nation. That is why we need a national review of the death penalty and 
a suspension of executions until we can be sure that death row inmates 
across the country have been given the full protections of justice, 
fairness, and due process.
  Governor Ryan is not alone in questioning the state of the death 
penalty. In the last few months, people of all political stripes have 
been stepping forward to say there is a problem and it is time to do 
something about it.
  Columnist George Will recently wrote that serious defects exist in 
the criminal justice system by which we impose capital punishment. In a 
recent column in The Washington Post, George Will wrote that accounts 
of the wrongly convicted compel the conclusion that ``many innocent 
people are in prison, and some innocent people have been executed.'' He 
also wrote that even though he continues to believe that capital 
punishment may be a deterrent to crime, it can only be an effective 
deterrent if the criminal justice system operates properly to convict 
and sentence those who actually committed the offense, not innocent 
people.

  The Reverend Pat Robertson, a founder of the Christian Coalition and 
a long-time supporter of the death penalty, has also recognized that 
something is terribly amiss in the administration of the death penalty. 
At a recent conference at the College of William and Mary, Reverend 
Robertson noted that the death penalty has been administered in a way 
that discriminates against minorities and the poor who cannot afford 
high-priced defense attorneys. Reverend Robertson said, ``these are all 
reasons to at least slow down.'' He also said, ``I think a moratorium 
would indeed be very appropriate.''
  Around the country, other State and local legislative bodies have 
also urged pause and reflection. At least 17 city and county 
governments have now passed resolutions supporting a moratorium on 
executions. And resolutions have been offered in the legislatures of 
several states, including Alabama, Maryland, New Jersey, Oklahoma, 
Pennsylvania and Washington state. In 1997, the American Bar 
Association adopted a resolution calling for a nationwide moratorium on 
executions. Recently, the U.S. Catholic Conference, the Union of 
American Hebrew Congregations and a number of other religious 
organizations called on the President to suspend the scheduling of 
executions and initiate a review of the administration of capital 
punishment at the Federal level. These local governments and 
organizations have recognized that a little time and a little 
reflection are not much to ask when the lives of innocent people may 
hang in the balance.
  Congress, too, should recognize that a little time and reflection are 
not too much to ask. That is why I ask my colleagues to support the 
bill I introduce today. This bill simply calls on the Federal 
Government and all States that impose the death penalty to suspend 
executions while a national commission reviews the administration of 
the death penalty. The Commission would study all matters relating to 
the administration of the death penalty at the Federal and State levels 
to determine whether it comports with constitutional principles and 
requirements of fairness, justice, equality and due process. Congress 
would review the Commission's final report and then enact or reject its 
recommendations. Those jurisdictions that impose capital punishment 
could resume executions only after Congress considers the Commission's 
final report and repeals the suspension of executions provision of the 
bill.
  This means that before executing even one more person, the Federal 
Government and the States must ensure that not a single innocent person 
will be executed, eliminate discrimination in capital sentencing on the 
basis of the race of either the victim or the defendant, and provide 
for certain basic standards of competency of defense counsel.
  Questions about the administration of the death penalty can only be 
answered with an impartial, independent review.
  The blue-ribbon commission called for in my bill would include 
prosecutors, defense attorneys, judges, law enforcement officials, and 
other distinguished Americans with experience or expertise in the 
issue. It would be a balanced commission, not chock full of death 
penalty foes or death penalty supporters representing different 
viewpoints on the issue. Other nations, including some of our closest 
allies, have also established national commissions to review the death 
penalty.
  In the 1950s, Great Britain created the Royal Commission on Capital 
Punishment, and the Canadian Parliament established a joint committee 
of their Senate and House to review capital punishment. Now, almost 50 
years later, I believe it is time for the United States to undertake a 
national review. We should be the leader on issues of justice.
  It has been almost 25 years since the reinstatement of the death 
penalty, and we still don't know how innocent people got on death row 
or how to prevent it from happening again. That is embarrassing, at the 
least, for the world's greatest democracy. My bill is a step in the 
right direction. And the time is now. Our Nation has come to the point 
where the machinery of death is well greased, and the pace of 
executions has accelerated. Last year, our Nation hit an all-time high 
for total executions in any 1 year since 1976. We had 98 executions 
last year in America. This year, we are already on track to meet or 
exceed that same high rate.
  Before our Government takes the life of even one more citizen, it has 
a solemn responsibility to every American to prove that its actions are 
consistent with our Nation's fundamental principles of justice, 
equality, and due process. Before carrying out an irreversible 
punishment, the Government must carefully consider the tough questions 
surrounding capital punishment.
  Mr. President, let us slow the machinery of death to ensure we are 
being fair. Let us reflect to ensure that we are being just. Let us 
pause to be certain we do not kill a single innocent person. This is 
really not too much to ask for a civilized society. I urge my 
colleagues to join me and my distinguished colleague, Senator Levin, in 
sponsoring the National Death Penalty Moratorium Act of 2000.
                                 ______