[Congressional Record (Bound Edition), Volume 147 (2001), Part 7]
[Senate]
[Pages 10191-10193]
[From the U.S. Government Publishing Office, www.gpo.gov]



                    THE FEDERAL DEATH PENALTY SYSTEM

  Mr. FEINGOLD. Madam President, I rise today to speak with grave 
concern about a report released by the Justice Department yesterday on 
our Federal Government's administration of the death penalty. In that 
report and in his testimony before the House Judiciary Committee 
yesterday, Attorney General John Ashcroft said that he now concludes 
that ``there is no evidence of racial bias in the administration of the 
federal death penalty.'' I am seriously, seriously concerned about and, 
frankly, disappointed by the Attorney General's statements. The report 
he released yesterday is not the in-depth analysis of the federal death 
penalty ordered by

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his predecessor, Attorney General Reno, and President Clinton.
  This is a very urgent matter because the Federal Government, in a 
matter of days, is about to resume executions for the first time in 
decades, including that of Juan Raul Garza. He is scheduled to be 
executed by the United States of America on June 19. Mr. Garza's case 
has not received the level of intense scrutiny or legal representation 
that his more notorious death row colleague, Timothy McVeigh, has 
received. But Mr. Garza's case, and his possible execution, should 
cause the Attorney General, President Bush, and our Nation even deeper 
soul-searching than that which has begun with respect to the scheduled 
execution of Mr. McVeigh.
  A survey on the Federal death penalty system was released by the U.S. 
Department of Justice in September 2000. That report showed racial and 
regional disparities in the Federal Government's administration of the 
death penalty. In other words, 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 Reno, Deputy Attorney General Holder, and President Clinton all 
said they were ``troubled'' or ``disturbed'' by the results of that 
report.
  In fact, Attorney General Reno was so troubled by the report that she 
immediately ordered the collection of additional data from U.S. 
attorney offices and, most importantly, the National Institute of 
Justice to conduct an in-depth examination in cooperation with outside 
experts.
  I would like to take a moment to read what Attorney General Reno said 
that day in September:

       There are important limitations on the scope of our survey. 
     The survey only captures data currently available beginning 
     when a U.S. attorney submits a capital eligible case to the 
     review committee and to me for further review. This survey, 
     therefore, does not address a number of important issues that 
     arise before the U.S. attorney submits a case: Why did the 
     defendant commit the murder? Why did the defendant get 
     arrested and prosecuted by Federal authorities rather than by 
     state authorities? Why did the U.S. attorney submit the case 
     for review rather than enter a plea bargain? . . . More 
     information is needed to better understand the many factors 
     that effect how homicide cases make their way into the 
     Federal system, and once in the Federal system, why they 
     follow different paths. An even broader analysis must 
     therefore be undertaken to determine if bias does, in fact, 
     play any role in the Federal death penalty system.
       I've asked the National Institute of Justice to solicit 
     research proposals from outside experts, to study the reasons 
     why, under existing standards, homicide cases are directed to 
     the state or Federal systems, and charged either as capital 
     cases or non-capital cases, as well as the factors accounting 
     for the present geographic pattern of submissions by the U.S. 
     Attorney's Offices. The department will also welcome related 
     research proposals that outside experts may suggest.

  In December, President Clinton, citing this ongoing review by the 
Justice Department, then delayed the execution of Mr. Garza until June 
19 to allow the Justice Department time to complete its review. 
President Clinton also ordered the Justice Department to report to the 
President by April of this year on the results of its further review. 
President Clinton anticipated that this would have been sufficient time 
for the President to review the results of the review before deciding 
whether to proceed with Mr. Garza's execution on June 19.
  On January 10 of this year, before the new administration took 
office, the NIJ began its in-depth analysis by convening a meeting of 
outside experts, defense counsel and prosecutors to discuss the 
questions that should form the basis for the research proposals.
  Later in January, during his confirmation hearing, Attorney General 
Ashcroft promised to continue and not terminate the NIJ study.
  At that hearing, I asked him if he would support the effort of the 
National Institute of Justice already underway to undertake the study 
of racial and regional disparities in the Federal death penalty system 
that President Clinton deemed necessary.
  Attorney General Ashcroft said, unequivocally and emphatically, 
``yes.''
  I then asked him whether he would continue and support all efforts 
initiated by Attorney General Reno's Justice Department to undertake a 
thorough review and analysis of the Federal death penalty system.
  Attorney General Ashcroft said, ``. . . the studies that are under 
way, I'm grateful for them. When the material from those studies comes, 
I will examine them carefully and eagerly to see if there are ways for 
us to improve the administration of justice.''
  I then followed up with yet a third question on this subject: ``So 
those studies will not be terminated?''
  Attorney General Ashcroft responded: ``I have no intention of 
terminating those studies.''
  In response to written questions I provided to him following his live 
testimony, I asked the Attorney General a number of related questions 
about the need to eliminate racial or regional bias from our system of 
justice. He replied that he believed the Department of Justice should 
undertake ``all reasonable and appropriate research necessary to 
understand the nature of the problem.''
  It is clear that Attorney General Ashcroft said he would continue and 
not terminate the NIJ study initiated by the Reno administration. I was 
pleased to hear him make this commitment.
  But, since the new administration took office, no steps have been 
taken to move forward with the NIJ study. Rather, the Attorney General 
now believes it would take much too long to conduct this in-depth 
analysis of disparities and that it would provide indefinite answers. 
To say that the NIJ research should not be undertaken because it may 
take more than a year and provide inconclusive answers is just 
baffling. I am absolutely confounded by the Attorney General's 
unwillingness to take such a simple step to ensure fairness and to 
promote public confidence in the Federal system.
  Now, Attorney General Ashcroft did say yesterday that he would order 
the National Institute of Justice to study the effectiveness of 
Federal, state and local law enforcement in the investigation and 
prosecution of murder in American and how death penalty cases are 
brought into the Federal system. While this review may provide some 
additional insight into the functioning of our criminal justice system, 
it is not the NIJ review of racial and geographic disparities ordered 
by Attorney General Reno.
  The supplemental report released yesterday lacks credibility: it is a 
case of ``we looked at ourselves and there's no evidence of bias.'' 
Instead of completing a thorough analysis of the racial and regional 
disparities with outside experts, as outlined by Attorney General Reno, 
Attorney General Ashcroft collected the additional data--also ordered 
separately by Attorney General Reno--threw in some statements that 
there is no evidence of bias and released it as a supplemental report. 
This report does not dig behind the raw data in the way that an in-
depth research and analysis could do.
  To her credit, Attorney General Reno recognized the need for input 
from outside experts. That is why she ordered the National Institute of 
Justice to undertake the review of racial and regional disparities. 
While I commended Attorney General Reno for her action in ordering 
further studies, I thought she should have gone one step further and 
establish an independent, blue ribbon commission to review the Federal 
system. That's what Governor George Ryan did in Illinois, and the 
independent panel there has been doing some goodwork. I've introduced a 
bill that applies Governor Ryan's example to the Federal Government, 
the National Death Penalty Moratorium Act. We should demand the highest 
standards of fairness and credibility in our Nation's administration of 
the ultimate punishment.
  Attorney General Ashcroft's actions are wholly unsatisfactory and 
inconsistent with the promises he made to the Senate and the Nation 
during his confirmation hearing.
  I was pleased to hear Attorney General Ashcroft say on Friday, May 
11:

       Our system of justice requires basic fairness, 
     evenhandedness and dispassionate

[[Page 10193]]

     evaluate of the evidence and the facts. These fundamental 
     requirements are essential to protecting the constitutional 
     rights of every citizen and to sustaining public confidence 
     in the administration of justice. . . . It is my 
     responsibility to promote the sanctity of the rule of law and 
     justice. It is my responsibility and duty to protect the 
     integrity of our system of justice.

  The basic fairness, evenhandedness and dispassionate evaluation of 
the evidence and facts, about which he spoke, extend to the troubling 
racial and regional disparities in the Federal system, as documented by 
the Department of Justice September 2000 report.
  As my colleagues are aware, I oppose the death penalty. I have never 
made any bones about that. But this is not really about just being 
opposed to the death penalty. This is about bias-free justice in 
America. I am certain that not one of my colleagues in the Senate--not 
a single one--no matter how strong a proponent of the death penalty, 
would defend racial discrimination in the administration of that 
ultimate punishment. The most fundamental guarantee of our Constitution 
is equal justice under law, equal protection of the laws. To be true to 
that central precept of our national identity, we have to take 
extremely seriously allegations that the death penalty is being 
administered in a discriminatory fashion.
  So I urge the Attorney General, in the strongest possible terms, to 
reconsider his actions and direct the National Institute of Justice to 
continue its study, with outside experts, of the racial and regional 
disparities in the Federal death penalty system. I also urge him to 
provide the NIJ whatever resources may be needed to complete this 
study. This is the only course consistent with the promises he made 
during his confirmation hearing.
  Furthermore, with Mr. Garza's execution still scheduled to take place 
and the NIJ study at a standstill, I urge the Attorney General to 
postpone Mr. Garza's execution until these questions of fairness are 
fully answered. The case of Mr. Garza--a Hispanic and convicted in 
Federal court in Texas--implicates the very issues at the center of the 
unfairness reflected in the DOJ report. It would be wholly illogical 
and unjust to go forward with plans for the execution of Mr. Garza and 
subsequent executions until the NIJ's study is completed and fully 
reviewed. It would be a great travesty of justice, as well as a great 
diminution in the public's trust in the Federal criminal justice 
system, if the Federal Government executed Mr. Garza and the NIJ later 
completed its study, which corroborated racial or regional bias in the 
administration of the Federal death penalty.
  The integrity of our system of justice demands no less.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.

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