[Congressional Record Volume 146, Number 68 (Tuesday, June 6, 2000)]
[Senate]
[Pages S4508-S4510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE NEED FOR A MORATORIUM ON EXECUTIONS
Mr. FEINGOLD. Mr. President, the Federal Government has not executed
a person in the name of people of the United States of America since
1963. For 37 years, we as a people have not taken that fateful,
irreversible step. I rise today because all that is apparently about to
change.
Since January, I have come to the Senate floor several times to urge
my colleagues to support a moratorium on executions and a review of the
administration of capital punishment. Mr. President, the need for that
moratorium has now become more urgent.
During the Senate recess just ended, a Federal judge in Texas set a
date for the execution of Juan Raul Garza. In only two months, on
August 5, he could become the first prisoner that the Federal
Government has put to death since 1963.
In the early hours of a Saturday morning, when most Americans will be
sleeping, Federal authorities will strap Mr. Garza to a gurney at a new
Federal facility in Terre Haute, Indiana. They will put the needle in
his vein. And they will deliver an injection that will kill him.
Mr. President, I rise today to invite my colleagues to consider the
wisdom of this action.
More and more Americans, including prosecutors, police, and those
fighting on the front lines of the battle against crime, are rethinking
the fairness, the efficacy, and the freedom from error of the death
penalty. Senator Leahy, a former federal prosecutor, has introduced the
Innocence Protection Act, of which I am proud to be a cosponsor.
Congressman Delahunt and Congressman LaHood have introduced the same
bill in the House. Congressman Delahunt, also a former prosecutor, is
concerned that our current system of administering the death penalty is
far from just. He has said: ``If you spent 20 years in the criminal
justice system, you would be very concerned about what goes on.''
In my own home state of Wisconsin, at least eleven active and former
state and Federal prosecutors have said that executions do not deter
crime and could result in executing the innocent. Michael McCann, the
well-respected District Attorney of Milwaukee County, has said that
prosecution is a human enterprise bound to have mistakes.
Mr. President, police--the people on the front lines of the battle
against crime--are coming out against the death penalty. They are
finding that it is bad for law enforcement. Recently, when police
chiefs were asked about the death penalty, they said that it was
counterproductive. Capital cases are incredibly resource-intensive.
They do not yield a reduction in crime proportional to other, more
moderate law-enforcement activities.
A former police chief of Madison, Wisconsin, for example, has said
that he fears that the death penalty would make police officers' jobs
more dangerous, not less so. He expressed concern that a suspect's
incentive to surrender peacefully is diminished when the government has
plans to execute.
Ours is a system of justice founded on fairness and due process. The
Framers of our democracy had a healthy distrust for the power of the
state when arrayed against the individual. Many of the lawyers in the
early United States of America had on their shelf a copy of William
Blackstone's Commentaries on the Laws of England, where it is written:
``For the law holds, that it is better that ten guilty persons escape,
than that one innocent suffer.'' And Benjamin Franklin wrote, ``That it
is better 100 guilty Persons should escape than that one innocent
Person should suffer. . . .''
Our Constitution and Bill of Rights reflect this concern for the
protection of the individual against the might of the state. The fourth
amendment protects: ``The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures. . . .'' The fifth amendment protects against being ``deprived
of life, liberty, or property, without due process of law. . . .'' The
sixth amendment guarantees that ``the accused shall enjoy the right . .
. to have the assistance of counsel for his defense.'' And the eighth
amendment prohibits ``cruel and unusual punishments.''
Our system of government is deeply grounded in the defense of the
individual against the power of the government. Our Nation has a proud
tradition of safeguarding the rights of its citizens.
But more and more, we are finding that when a person's very life is
at stake, our system of justice is failing to live up to the standards
that the American people demand and expect. More and more, Americans
are finding reason to believe that we have a justice system that can,
and does, make mistakes.
Americans' sense of justice demands that if new evidence becomes
available that could shed light on the guilt or innocence of a
defendant, then the defendant should be given the opportunity to
present it. Unfortunately, apparently, the people of New York and
Illinois are the only ones who understand this. They have enacted laws
allowing convicted offenders access to the biological evidence used at
trial and modern DNA testing.
If you are on death row in a state other than Illinois or New York,
you might be able to show a court evidence of your guilt or innocence
based on new DNA tests. But your ability to do so rests on whether
you're lucky enough to get a prosecutor to agree to the test or
convince a court that it should be done. Or, as we have seen very
recently, your ability to show your innocence may rest with the
decision of the governor. And that raises the risk of a political
decision, not necessarily one that is based solely on fairness or
justice.
Mr. President, I am not surprised that both Texas Governor George
Bush and Virginia Governor James Gilmore are no longer confident that
every prisoner on death row in their states is guilty and has had full
access to the courts. Allowing death row inmates the benefit of a
modern DNA test is the fair and just thing to do. But scores of other
death row inmates, in Texas, in Virginia, and around the country, may
also have evidence exonerating them. They may have DNA evidence. Or
they may have other exonerating evidence. We must ensure that all
inmates with meritorious claims of innocence have their day in court.
But, among problems in our criminal justice system, the lack of full
access to DNA testing is, unfortunately, just the tip of the iceberg.
[[Page S4509]]
Americans' sense of justice demands fair representation and adequate
counsel. In the landmark 1963 case of Gideon v. Wainwright, the Supreme
Court held that ``in our adversary system of criminal justice, any
person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him.'' The Court in
Gideon wrote:
From the very beginning, our state and national
constitutions and laws have laid great emphasis on procedural
and substantive safeguards designed to assure fair trials
before impartial tribunals in which every defendant stands
equal before the law. This noble ideal cannot be realized if
the poor man charged with crime has to face his accusers
without a lawyer to assist him.
And, in cases since then, for example the 1988 case of McCoy v. Court
of Appeals, the Supreme Court has ruled that: ``It is . . . settled law
that an indigent defendant has the same right to effective
representation by an active advocate as a defendant who can afford to
retain counsel of his or her choice.''
But, Mr. President, more and more, we are finding counsel that fail
the standard of adequacy. Drunk lawyers. Sleeping lawyers. Lawyers who
never cross-examined. Lawyers whose first trial is a trial where the
client's life is on the line. Lawyers who have been subsequently
disbarred.
We would never allow a podiatrist to perform heart surgery. And we
would never allow a surgeon to perform surgery while drunk, or to fall
asleep during surgery. But courts, over and over again, have upheld
convictions where the defendants' lawyers were not qualified to
represent them, slept through trial, or were drunk in court.
Take the case of the lawyer Joe Cannon. In 1979, one Mr. Carl Johnson
was convicted of murder and sent to death row by a Texas state court.
During trial, his lead counsel, Joe Cannon, was often asleep. Cannon's
co-counsel, Philip Scardino, was two years out of law school and
recalls the whole experience as ``frightening.'' He said, ``All I could
do was nudge him sometimes and try to wake him up.'' Johnson's
appellate attorney, David Dow, said the trial transcript gives the
impression that there was no one in the courtroom defending Johnson. It
``goes on for pages and pages, and there is not a whisper from anyone
representing him.'' Mr. Johnson was executed in 1995, the 12th
execution under Governor Bush's watch.
Now as ``frightening'' as this sounds, the same attorney continued to
work capital cases.
Like the majority of inmates on Texas' death row, Calvin Burdine
could not afford an attorney, so the court paid a lawyer to represent
him, and that lawyer again was Joe Cannon. Five years after Johnson's
trial, and this time without co-counsel, Cannon represented Burdine,
and again slept through crucial moments of the trial. The clerk for the
trial judge said Cannon ``was asleep for long periods of time during
the questioning of witnesses.'' Three jurors noted he did most of his
nodding off in the afternoon, following lunch. Burdine's appellate
attorneys contend that highly incriminating hearsay testimony was
introduced and reached the jury because the attorney was sleeping. In
1995, the Texas Court of Criminal Appeals rejected his claim of
ineffective assistance. Burdine's case is now before the U.S. Court of
Appeals for the Fifth Circuit.
As Texas State Senator Rodney Ellis said of the Burdine case on ABC's
This Week this past Sunday, ``That is a national embarrassment.''
Incredulously, Senator Ellis lamented: ``[T]he Texas Court of Criminal
Appeals ruled apparently that you can be Rip Van Winkle and still be a
pretty good attorney.''
Two years after his death, lawyer Joe Cannon remains a courthouse
legend. In a span of about 10 years, twelve of his indigent clients
went to death row.
Americans' sense of justice demands that the poor, as well as the
rich, should get their day in court. Even death penalty supporters like
Reverend Pat Robertson recognize that this ultimate punishment appears
reserved for the poor.
The machinery of death is badly broken. Since the 1970s, 87 people
sitting on death row were later proven innocent. That means that for
every seven executions, we've found one person innocent. But remember,
this is after they were on death row. Eight of the 87 people later
proven innocent relied on modern DNA testing to prove their innocence.
But access to DNA testing plainly tells only a small part of the story
of the mistakes in our criminal justice system. The remaining 79
innocent people gained their release based on other kinds of evidence--
evidence like recanted witness testimony.
Sometimes, it is evidence that an ineffective attorney fails to
introduce at trial. Take the case of Gregory Wilhoit. In 1987, an
Oklahoma court sentenced Wilhoit to die for the murder of his estranged
wife. The key evidence for the prosecution was expert testimony that a
bite mark on the victim matched Wilhoit's. The defense never called an
expert to challenge the prosecution's dental expert. The court of
appeals granted a new trial, recognizing that Wilhoit had ineffective
legal representation. The appellate court noted that his counsel was
``suffering from alcohol dependence and abuse, and brain damage during
his representation.'' Wilhoit describes his former attorney as ``a
drunk'' and recalls several occasions when the attorney threw up in the
judge's chambers. After spending six years on death row, Wilhoit was
exonerated after 11 experts--11 experts--testified that the teeth marks
did not match.
Mr. President, I hate to say it, but this is the worst of government
gone amok. People understand that the government can make mistakes in
other areas. They can only expect as much here. Columnist George Will
recently wrote that conservatives, especially, should be concerned.
George Will wrote: ``Capital punishment, like the rest of the criminal
justice system, is a government program, so skepticism is in order.''
When we do not exercise that skepticism, when we rush to execute with
ever growing speed, we contribute to, rather than detract from, a
culture of violence. It deprives us of the greatness that is America.
We are better than this.
And so, Mr. President, the time has come to pause. That is why today,
in the light of the scheduling of the first Federal execution in almost
40 years, and in light of the growing awareness that there are
fundamental flaws in our system of justice, I urge my Colleagues to
join me in the National Death Penalty Moratorium Act, which I
introduced along with Senators Levin and Wellstone.
This bill is a common sense, modest proposal. It merely calls a
temporary halt to executions while a national, blue ribbon commission
thoroughly examines the administration of capital punishment. The bill
simply calls for a pause and a study. That is not too much to ask, when
the lives of innocent people hang in the balance.
When an airplane careens off a runway, the Federal government steps
in to review what went wrong. This Nation's system of capital
punishment has veered seriously off-course. It is now clear that it is
replete with errors.
The time has come to pause and study what is wrong. The time has come
to pause and ensure that our system is fair and just.
Our American tradition of fairness and due process demands it.
Reverence for our democracy's protection of the individual against the
state compels as much. The American people's love of justice deserves
no less.
Mr. DURBIN. Mr. President, I commend my colleague from the State of
Wisconsin. He is a person of principle. He comes to the floor of the
Senate and reminds Members, whether in support of or in opposition to
the death penalty, it is fundamental to the American system of justice
that we insist on fairness.
In my State of Illinois, some 13 people who were on death row
preparing to be executed by the State of Illinois were found by
scientific testing to be innocent and were released. Because of that,
the Governor of our State, a Republican, George Ryan, made what I
consider to be an important and courageous decision. He suspended the
death penalty in my home State of Illinois.
The Senator from Wisconsin, Mr. Feingold, reminds Members that the
experience in Illinois is not unique. In State after State, we have
found people who have been called to justice and have received
virtually no representation before the court of law. In the most
serious possible cases under our system of justice, these men have been
sentenced to death. In many cases,
[[Page S4510]]
that sentence was carried out with inadequate defense and
representation.
For example, I think the decision by Governor Bush of Texas to at
least suspend the execution of an individual for 30 days while DNA
testing is underway is a thoughtful decision. I commend him for that.
The State of Texas, I believe, leads the Nation in the number of
executions, and the State of Texas has no public defender system. So in
the State of Texas, if you are a criminal defendant facing a capital
crime which could result in execution, it is literally a gamble, a
crapshoot as to the person who will represent you to defend your life.
In cases that have been cited by Senator Feingold, some of the most
incompetent attorneys in America have been assigned this
responsibility. In our State of Illinois, we found these attorneys to
be not well versed in law; we found them to be lazy; we found them to
be derelict in their duty, and in some cases, a person's life was at
stake.
Again, I commend my colleague from the State of Wisconsin for his
statement. It is a reminder to all, whether we support the death
penalty--as I do--or we oppose it, that we in this country believe in a
system that is based on fairness and justice.
I have introduced legislation to give to all Federal prisoners who
were subjected to capital punishment the same right for DNA testing
that exists in my State of Illinois. There are similar bills introduced
by my colleagues. I hope that all, conservative and liberals alike,
Democrats and Republicans, will at least adhere to the basic standard
of justice when it comes to cases of this seriousness and this
magnitude.
Mr. FEINGOLD. Will the Senator yield?
Mr. DURBIN. I am happy to yield to the Senator.
Mr. FEINGOLD. I thank the Senator and take my hat off to him and to
our neighbor to the south, the State of Illinois. Without the
leadership of Illinois, which had the courage to admit that it had a
problem, this entire issue would not be receiving the kind of
examination occurring across the country. That is to the Senator's
credit, to that of the Governor, and to all the people of your State.
The bill I have introduced is modeled exactly after the pattern
followed in Illinois; that is, the calling of a moratorium by a
Governor who is, or at least has been, a death penalty supporter, and
then the appointing of a very distinguished blue-ribbon commission,
including our former wonderful colleague, Paul Simon, and including
both pro- and anti-death penalty people.
Under Illinois' leadership, there will be this kind of pause and
examination that is open to people of any view on the death penalty, to
simply make sure that system is fixed.
As the Senator pointed out, Illinois could not possibly be the only
State that has this problem. In fact, I predict it will not turn out to
be the one with the worst problem in this area.
The other States need to join it on this, the Federal Government
needs to join, and I compliment your State, as I did in my earlier
remarks, as being one of the only two States to recognize the right to
have guaranteed DNA testing.
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