[Congressional Record Volume 149, Number 43 (Tuesday, March 18, 2003)]
[Senate]
[Pages S3875-S3877]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 FEDERAL EXECUTION OF LOUIS JONES, JR.

  Mr. FEINGOLD. Mr. President, I want to take a moment to comment on 
the execution of Louis Jones, Jr., earlier today by the Federal 
Government.
  Louis Jones was a highly decorated 22-year Army veteran, including 
service to our nation as an Army Ranger.

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He rose through the ranks to reach the top of enlisted personnel and 
retired with an honorable discharge in 1993 as a Master Sergeant. After 
serving on active duty in the Persian Gulf during Operation Desert 
Storm/Desert Shield, Mr. Jones returned to the United States and began 
experiencing symptoms consistent with gulf war syndrome. He exhibited 
personality and behavior changes, including increased hostility, 
aggression, and a tendency to fixate irrationally.
  In 1995, in a Federal district court in Texas, Louis Jones, Jr., an 
African-American, was convicted and sentenced to death for the 
kidnaping and murder of an airwoman at Goodfellow Air Force Base in 
Lubbock, TX. There is no question that Mr. Jones committed this 
horrific crime. Mr. Jones did not dispute his guilt. But what Mr. Jones 
requested, and what I believed he should have had, was further 
examination of his medical condition and its potential role in the 
crime he committed.
  Evidence of his brain damage was not available at his trial, as 
scientific research about the effects of exposure to toxins during the 
gulf war was still in its early stages. Since his trial, however, 
extensive research on gulf war syndrome and its symptoms has revealed 
brain damage as one possible result of exposure to toxins during the 
gulf war. Dr. Robert Haley, one of the Nation's most renowned 
researchers and experts on gulf war syndrome, has now concluded that 
Mr. Jones's symptoms were consistent with those of a subset of gulf war 
syndrome patients who were exposed to particularly toxic chemical 
agents during the gulf war. Had the jury known of Mr. Jones mental 
condition and that his condition was the result of service in the gulf 
war, it is very possible that the jury would have returned a sentence 
other than death.
  It is unconscionable that the Federal Government would execute a gulf 
war veteran who displayed the symptoms of gulf war syndrome at the time 
of the crime, but was denied a fair opportunity to use this evidence to 
argue for a sentence other than death. On the eve of war, and 
especially on the eve of another war in the Persian Gulf region where 
more than 200,000 brave American men and women are prepared to make the 
ultimate sacrifice for their nation, President Bush could have taken a 
small step for fairness and justice. He could have stayed the execution 
to allow further medical testing and examination.
  I believe that President Bush should have done more. He should not 
have gone forward with this execution in the face of increasing 
concerns about the fairness of the Federal death penalty system.
  Today, more than 2 years after the U.S. Department of Justice 
released a survey showing geographic and racial disparities in the 
Federal death penalty system, we still do not have an explanation of 
why who lives and who dies in the Federal system appears to relate to 
the color of the defendant's skin or the region of the country where 
the defendant is prosecuted. Attorney General Janet Reno was so 
disturbed by the results of this survey that she ordered a further, in-
depth study of the results. Attorney General John Ashcroft pledged to 
continue that study, but we still await the results.
  And while we await the results of this study, we have also learned 
that the Justice Department appears to be seeking the death penalty 
more aggressively in Federal cases. Attorney General Ashcroft appears 
to be pursuing consistency in the application of the Federal death 
penalty nationwide by seeking it more aggressively in jurisdictions 
where Federal prosecutors have infrequently requested authorization 
from the Attorney General to seek the death penalty. In other words, he 
seems intent on making the Federal system replicative of States that 
aggressively pursue the death penalty States like Texas, which this 
week is scheduled to execute its 300th inmate in the modern death 
penalty era.
  I am very concerned that the Attorney General's apparent 
determination to increase death penalty prosecutions, including 
sometimes overriding decisions of local prosecutors, increases the risk 
that the Federal Government could execute an innocent person. Former 
Federal prosecutors have said that ``they need to take every last 
precaution to avoid the risk of condemning an innocent person to 
death.'' Last week I sent a letter to Attorney General Ashcroft 
expressing my grave concern about these issues and asking him to answer 
several questions about the Justice Department's decision-making 
process in death-eligible cases.
  There is no punishment in our criminal justice system more worthy of 
careful review and absolute certainty before we carry it out than 
capital punishment. Each time the Federal Government carries out the 
ultimate punishment while so many questions remain unanswered, it 
erodes confidence in the justice system. The case of Louis Jones, Jr., 
is no exception. His case is plagued by particularly troubling 
circumstances that also cast doubt on the fairness of the Federal death 
penalty system. The existing cracks in our Federal death penalty system 
seem to be widening, and new ones are appearing, further weakening the 
foundation of our justice system.
  Today, with the execution of Mr. Jones, our Federal criminal justice 
system has taken a step backward. Our goals of fairness and equal 
justice under law were not met, and the American people's reason for 
confidence in our Federal criminal justice system was diminished.
  I urge my colleagues to support a temporary freeze on executions to 
allow a thorough, nationwide review of the fairness of the 
administration of the death penalty. I urge my colleagues to support 
the National Death Penalty Moratorium Act.
  I ask unanimous consent to print a copy of the above-referenced 
letter in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:


                                                  U.S. Senate,

                                   Washington, DC, March 14, 2003.
     Hon. John D. Ashcroft,
     Attorney General of the United States,
     Department of Justice, Washington, DC.
       Dear Attorney General Ashcroft: I write to inquire about 
     the decision-making process for determining whether to seek 
     the death penalty in federal capital-eligible cases.
       I am concerned about the fairness of the decision-making 
     process, after reading recent news report that indicate you 
     have overridden the recommendation of local federal 
     prosecutors in at least 28 federal death-eligible cases. You 
     appear to be pursuing consistency in the application of the 
     federal death penalty nationwide by seeking it more 
     aggressively in jurisdictions where federal prosecutors have 
     infrequently requested authorization from the Attorney 
     General to seek the death penalty. In other words, you seem 
     intent on making the federal system replicative of states 
     that aggressively pursue the death penalty--states like 
     Texas, which next week is scheduled to execute its 300th 
     inmate in the modern death penalty era.
       I am concerned that your apparent determination to increase 
     death penalty prosecutions, including sometimes overriding 
     decisions of local prosecutors, increases the risk that the 
     federal government could execute an innocent person. Former 
     federal prosecutors have said that ``they need to take every 
     last precaution to avoid the risk of condemning an innocent 
     person to death.'' See ``In Brooklyn Murder Case, Doubts on 
     Identification,'' New York Times, Feb. 12, 2003. While you 
     and I may disagree on the fundamental question of whether the 
     federal government should be authorized to use capital 
     punishment, I hope that we can agree that the Constitution 
     and the integrity of our criminal justice system require the 
     fair administration of the death penalty and that only the 
     guilty are convicted.
       I join in Senator Leahy's request in a letter to you dated 
     February 7, 2003, for the following information about the 
     capital case review and decision-making process:
       (1) (A) What is the process by which the Department decides 
     whether to accept a U.S. Attorney's recommendation that the 
     death penalty should or should not be sought in a particular 
     case? (B) To what extent are the U.S. Attorney's 
     recommendations afforded deference? (C) In cases in which the 
     death penalty has been sought, does the Department follow the 
     same process and afford the same level of deference in 
     deciding whether to approve a plea or cooperation agreement 
     that requires withdrawal of the notice of intention to seek 
     the death penalty?
       (2) (A) Since you became Attorney General in February 2001, 
     how many capital-eligible cases have been submitted to the 
     Department for review? (B) In how many cases has the 
     Department rejected a U.S. Attorney's recommendation not to 
     seek the death penalty, and in what States? (C) In how many 
     cases has the Department rejected a U.S. Attorney's 
     recommendation to seek the death penalty, and in what States? 
     (D) In how many cases in which the death penalty was sought 
     has the Department authorized the U.S. Attorney to enter into 
     a plea or cooperation agreement that requires withdrawal of 
     the notice of intention to seek the death penalty? (E) In how 
     many cases in

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     which the death penalty was sought has the Department 
     overridden the judgment of local federal prosecutors and 
     rejected a plea or cooperation agreement that requires 
     withdrawal of the notice of intention to seek the death 
     penalty?
       In addition, I request that you provide responses to the 
     following questions:
       (a) (A) Since you became Attorney General in February 2001, 
     in how many cases and in which federal districts have you 
     directed the federal prosecutor to seek the death penalty, 
     even though both the U.S. Attorney and the Capital Case 
     Review Committee made recommendations to decline seeking the 
     death penalty? (B) In how many cases and in which federal 
     districts have you directed the U.S. Attorney to seek the 
     death penalty, where the U.S. Attorney recommended against 
     seeking the death penalty and the Capital Case Review 
     Committee recommended in favor of seeking the death penalty? 
     (C) In how many cases and in which federal districts have you 
     directed the U.S. Attorney to seek the death penalty, where 
     the U.S. Attorney recommended in favor of seeking the death 
     penalty and the Capital Case Review Committee recommended 
     against seeking the death penalty? I note that the Department 
     provided similar information as part of its 2000 survey of 
     the federal death penalty system, and I request that the 
     Department compile this information again and provide it 
     to me. See the Federal Death Penalty System: A Statistical 
     Survey (1988-2000), U.S. Dept. of Justice (Sept. 12, 
     2000).
       (4) ``The Attorney General will, of course, retain legal 
     authority as head of the Justice Department to determine in 
     an exceptional case that the death penalty is an appropriate 
     punishment, notwithstanding the United States Attorney's view 
     that it should not be pursued.'' The Federal Death Penalty 
     System: Supplementary Data, Analysis and Revised Protocols 
     for Capital Case Review, U.S. Dept. of Justice (June 6, 
     2001), p. 27 (emphasis added). I understand that, as of March 
     11, 2003, 30 of your 67 death penalty approvals have 
     apparently been such ``exceptional cases.'' (A) How do you 
     account for this amazingly high proportion of cases in which 
     you have forged ahead to seek death despite your own 
     prosecutors' recommendations to the contrary? (B) In how many 
     cases, in which federal districts, and under what 
     circumstances, have you concluded that the case was 
     ``exceptional'' and exercised your authority to direct U.S. 
     Attorneys to seek the death penalty?
       (5) In June 2001, you revised the ``death penalty 
     protocols,'' U.S. Attorneys Manual Sec. 9-10.000, et seq., by 
     changing the definition of ``substantial federal interest'' 
     so as to remove an earlier provision that forbade the 
     Department from relying on the fact that a state has chosen 
     through democratic means not to impose capital punishment. 
     U.S.A.M. Sec. 9-10.070. (A) In how many cases and in which 
     federal districts, have you directed U.S. Attorneys to seek 
     the death penalty where the death penalty would be 
     unavailable in a state prosecution? (B) For each of these 
     cases, please state whether the U.S. Attorneys, the Capital 
     Case Review Committee, or you accorded any weight to the 
     unavailability of the death penalty under state law as a 
     reason favoring federal prosecution, or federal pursuit of 
     the death penalty.
       (6) The June 2001 revisions to the ``death penalty 
     protocols'' included adding a provision under which proposed 
     plea bargains in death-eligible cases must be approved by you 
     rather than by the U.S. Attorney. U.S.A.M. Sec. 9-10.100. You 
     enacted this modification in an attempt to address the 
     concern that white defendants fare better in the plea 
     bargaining process and are almost twice as likely as African 
     American defendants to enter into plea bargains, thus saving 
     them from a death sentence. (A) In how many cases and in 
     which federal districts, have you denied requests to approve 
     plea bargains, after you have authorized the U.S. Attorney to 
     seek the death penalty? (B) In how many cases and in which 
     federal districts, have you granted requests for such 
     approval? (C) With respect to each of these cases, please 
     provide data on the race and ethnicity of the defendants. 
     (D) With respect to each of the above cases, how many of 
     the proposed plea bargains included a provision requiring 
     the defendant to provide cooperation to the government?
       (7) Concern that racial and geographic disparities exist 
     continue to plague the federal death penalty systems. See. 
     e.g., ``Death Penalty Cases Raise Race Questions,'' New York 
     Times, Feb. 13, 2003. In releasing the 2000 survey, then-
     Attorney General Reno directed the National Institute of 
     Justice to fund research about the use of the federal death 
     penalty. At your confirmation hearing in January 2001, and 
     again in testimony by Deputy Attorney General Larry Thompson 
     before the Senate Judiciary Subcommittee on the Constitution 
     in June 2001, you and the Department expressed your 
     commitment to pursuing such research. (A) Please provide an 
     update as to the status of that research project, including a 
     description of who is conducting the research and when it is 
     expected to be completed.
       (B) In your letter to me dated July 25, 2001, and the 
     Department's responses to my written questions following the 
     June 2001 Constitution Subcommittee hearing, you agreed to 
     support researchers in gaining access to the data they will 
     need to conduct this study and expressed your intention to 
     issue guidance to all U.S. Attorneys to cooperate with the 
     researchers, consistent with privacy and sensitive law 
     enforcement issues and grand jury secrecy rules. What 
     instructions have you provided to U.S. Attorneys or 
     Department employees about granting the researchers access to 
     information regarding the investigation and prosecution of 
     potential capital cases? Please provide me with copies of all 
     instructions or guidance you have issued to U.S. Attorneys 
     and Department employees about this issue.
       (8) ``U.S. Attorneys will be required to submit 
     information, including racial and ethnic data, about 
     potential capital cases, as well as those in which a capital 
     offense is actually being charged.'' The Federal Death 
     Penalty System: Supplementary Data, Analysis and Revised 
     protocols for Capital Case Review, U.S. Dept. of Justice 
     (June 6, 2001), p. 4. Specifically, the Department has stated 
     that ``more complete racial and ethnic data'' should be made 
     ``available for both actual and potential federal capital 
     cases on a continuing bases.'' Id. I am pleased that the 
     Department recognizes that there is a need for public 
     disclosure of information about the use of the federal death 
     penalty on a regular basis. I therefore request that the 
     Department publish data on the federal death penalty system 
     that updates the data contained in the survey published by 
     the Department in September 2000, The Federal Death Penalty 
     System: A Statistical Survey (1988-2000), in as complete a 
     form as the 2000 survey. Please let me know the time frame 
     for when this updated survey will be made available.
       I look forward to your response.
           Sincerely,
                                              Russell D. Feingold,
     United States Senator.

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