[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 5639-5640]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    PROBLEMS WITH THE DEATH PENALTY

  Mr. LAUTENBERG. Mr. President, I believe that the death penalty is 
ineffective, cruel, and unjust. Killing people convicted of criminal 
offenses under the color of State law is wrong; and the 
disproportionate execution of a certain class or race of people is 
utterly unconscionable.
  In the United States, although African Americans make up only 12 
percent of the overall population, 42 percent of the people currently 
on death row are Black. African Americans are also overrepresented in 
the number of people on death row who are later found to be innocent: 
38 percent of death row inmates freed since 1973 because of new 
evidence were African Americans, and 35 percent of those executed and 
later found to be innocent were Black.
  Despite these startling statistics, the State of Texas, President 
Bush's home State, is determined to execute Americans as fast as 
possible, even in light of potentially exculpatory evidence.
  In today's New York Times, columnist Bob Herbert writes about an 
American-African man who, in about 48 hours, may become the 300th 
person executed by the State of Texas since the resumption of capital 
punishment in 1982.
  As Mr. Herbert notes, this case is particularly disturbing because 
there is strong evidence that the accused, Mr. Delma Banks, Jr., did 
not commit the capital offense. But, in a blatant disregard for truth 
and the equitable administration of justice, Texas intends to proceed 
regardless.
  This senseless State-sanctioned killing must stop!

[[Page 5640]]

  I ask unanimous consent that Mr. Herbert's column in the New York 
Times dated March 10, 2003, be printed into the Record following my 
remarks.
  Thank you, Mr. President.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From The New York Times, Mar. 10, 2003]

                     Countdown to Execution No. 300

                            (By Bob Herbert)

       The war trumps all other issues, so insufficient attention 
     will be paid to the planned demise of Delma Banks, Jr., a 43-
     year-old man who is scheduled in about 48 hours to become the 
     300th person executed in Texas since the resumption of 
     capital punishment in 1982.
       Mr. Banks, a man with no prior criminal record, is most 
     likely innocent of the charge that put him on death row. 
     Fearing a tragic miscarriage of justice, three former federal 
     judges (including William Sessions, a former director of the 
     F.B.I.) have urged the U.S. Supreme Court to block 
     Wednesday's execution.
       So far, no one seems to be listening.
       ``The prosecutors in this case concealed important 
     impeachment material from the defense,'' said Mr. Sessions 
     and the other former judges, John J. Gibbons and Timothy K. 
     Lewis, in an extraordinary friend-of-the court brief.
       They said the questions raised by the Banks case ``directly 
     implicate the integrity of the administration of the death 
     penalty in this country.''
       Most reasonable people would be highly disturbed to have 
     the execution of a possibly innocent man on their conscience 
     or their record. But this is Texas we're talking about, a 
     state that prefers to shoot first and ask no questions at 
     all. Fairness and justice have never found a comfortable 
     niche in the Texas criminal justice system, and the fact that 
     the accused might be innocent is not considered sufficient 
     reason to call off his execution.
       (One of the most demoralizing developments of the past 
     couple of years is the fact that George W. Bush has been 
     striving so hard to make all of the United States more like 
     Texas.)
       Delma Banks was convicted and sentenced to death for the 
     murder of 16-year-old Richard Whitehead, who was shot to 
     death in 1980 in a town called Nash, not far from Texarkana. 
     There was little chance that this would have been a capital 
     case if both the accused and the victim had been of the same 
     race. Or if the accused had been white and the victim black.
       But Mr. Banks is black and Mr. Whitehead was white, and 
     that's the jackpot combination when it comes to the death 
     penalty. Blacks convicted of killing whites are the ones most 
     likely to end up in the execution chamber. In Texas this 
     principle has been reinforced for years by the ruthless 
     exclusion of jurors who are black.
       Just two weeks ago the Supreme Court handed down a ruling 
     that criticized courts in Texas for ignoring evidence of 
     racial bias in a death penalty case. Lawyers in the case 
     noted that up until the mid-1970's prosecutors in Dallas 
     actually had a manual that said, ``Do not take Jews, Negroes, 
     Dagos, Mexicans or a member of any minority race on a jury, 
     no matter how rich or well-educated.''
       The significant evidence against Mr. Banks was the 
     testimony of two hard-core drug addicts. One was a paid 
     informant. The other was a career felon facing a long prison 
     term who was told that a pending arson charge would be 
     dismissed if he performed ``well'' while testifying against 
     Mr. Banks.
       The prosecution deliberately suppressed information about 
     its arrangements with these witnesses--information that it 
     was obliged by law to turn over to the defense.
       And prosecutors made sure that all the jurors at Mr. 
     Banks's trial were white. That was routine. Lawyers handling 
     Mr. Banks's appeal have shown that from 1975 through 1980 
     prosecutors in Bowie County, where Mr. Banks was tried, 
     accepted more than 80 percent of qualified white jurors in 
     felony cases, while peremptorily removing more than 90 
     percent of qualified black jurors.
       The strongest evidence pointing to Mr. Banks's innocence 
     was physical. He was in Dallas, more than three hours away 
     from Texarkana, when Mr. Whitehead was killed, according to 
     the best estimates of the time of death, based on the autopsy 
     results.
       Prosecutorial misconduct. Racial bias. Drug-addicted 
     informants. ``This is one-stop shopping for what's wrong with 
     the administration of the death penalty,'' said George 
     Kendall, a lawyer with the NAACP Legal Defense and 
     Educational Fund who is handling Mr. Banks's appeal.
       If, despite all that is known about this case, the 
     authorities walk Mr. Banks into the execution chamber on 
     Wednesday, and strap him to a gurney, and inject the lethal 
     poison into his veins, we will be taking another Texas-sized 
     step away from a reasonably fair and just society, and back 
     toward the state-sanctioned barbarism we should be trying to 
     flee.

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