[Congressional Record (Bound Edition), Volume 146 (2000), Part 7]
[Senate]
[Pages 9463-9465]
[From the U.S. Government Publishing Office, www.gpo.gov]


[[Page 9463]]

                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.
  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

[[Page 9464]]

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, 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

[[Page 9465]]

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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