[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 12828-12829]
[From the U.S. Government Publishing Office, www.gpo.gov]



       ON THE FAIRNESS OF THE ADMINISTRATION OF THE DEATH PENALTY

  Mr. FEINGOLD. Mr. President, ``The system may well be allowing some 
innocent defendants to be executed.''
  Were these the words of Governor George Ryan, the Illinois Governor 
who placed a moratorium on executions last year? They could have been, 
but they were not. Were these the words of an attorney defending 
someone facing the death penalty? They could have been, but they were 
not. Rather, these were the remarkable words of Supreme Court Justice 
Sandra Day O'Connor--the same Justice O'Connor who has generally 
supported the death penalty during her twenty years on the Court, the 
same Justice O'Connor who has championed states' rights, including the 
right to carry out executions, the same Justice O'Connor who joined or 
wrote key opinions that made it more difficult for defendants facing 
the death penalty to have their state sentences overturned in federal 
court, and the same Justice O'Connor who voted in favor of allowing 
executions of teenage children who committed crimes at age 16 or 17.
  Justice O'Connor said, ``After 20 years on the high court, I have to 
acknowledge that serious questions are being raised about whether the 
death penalty is being fairly administered in this country.'' She 
uttered these words at a meeting before the Minnesota Women Lawyers in 
Minneapolis last Monday. Coincidentally, Justice O'Connor made these 
remarks on the 25th anniversary of the Supreme Court's 1976 Gregg v. 
Georgia decision, which reinstated the death penalty as we know it 
today. Only four years earlier, in 1972, the Court had found the death 
penalty unconstitutional. But in Gregg, the Court found that sufficient 
safeguards had been implemented to allow states to resume use of the 
death penalty.
  Since the Gregg decision, over 700 people have been executed in the 
United States and today over 3,700 people sit on death row awaiting 
execution. Since the Gregg decision, the rate of executions have 
increased: from one execution in 1981 to 98 executions in 1999, 85 in 
2000, and 39 so far this year.
  Justice O'Connor also said, ``Unfortunately, as the rate of 
executions have increased, problems in the way which the death penalty 
has been administered have become more apparent.''

[[Page 12829]]

She also said, ``Perhaps most alarming among these is the fact that if 
statistics are any indication, the system may well be allowing some 
innocent defendants to be executed.''
  Justice O'Connor now joins Supreme Court Justices Harry Blackmun and 
Lewis Powell, who also late in their lives came to reconsider their 
support of the death penalty.
  But most importantly Justice O'Connor now joins the growing chorus of 
Americans who are concerned about the risk of executing the innocent 
and the fairness of the administration of the death penalty.
  Congress can and should play a role in ensuring fairness. We can 
create an independent, blue ribbon panel to review the fairness of the 
administration of the death penalty at the state and federal levels. 
With so many serious concerns about how the death penalty is applied by 
the States and Federal Government, a simple, yet necessary, step is to 
create a commission to review these concerns. In addition, the Federal 
Government and all States that authorized the use of capital punishment 
should suspend executions while a thorough review of the death penalty 
system is undertaken.
  I am pleased to be a cosponsor of legislation introduced by Senator 
Leahy that will take some important steps towards reducing the risk of 
executing the innocent, the Innocence Protection Act. But more can be 
done and Congress should do more. Congress should create a national 
commission on the death penalty and support a moratorium on executions 
while the commission conducts its work.
  If we can agree that the system is flawed and runs the risk of 
executing innocent people, then we can also agree that we should 
undertake a thorough top-to-bottom review of the death penalty system. 
And while we do so, it is simply unjust to proceed with executions. I 
urge my colleagues to sponsor the National Death Penalty Moratorium 
Act. Congress should do everything it can to prevent even one innocent 
person from being sentence to death.
  I yield the floor.

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