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the execution of Oklahoma City bomber Timothy McVeigh is carried
out, newly-powerful Democratic senators plan to launch a campaign
to stop — or at least delay indefinitely — executions
by the federal government, according to legislative sources. The
effort will begin in earnest next Wednesday, when Wisconsin Democrat
Russell Feingold, chairman of the Judiciary Committee's Subcommittee
on the Constitution, Federalism, and Property Rights, holds hearings
on allegations of racial disparity in the application of federal
capital punishment.
At issue will be a series of studies on alleged racial and geographic
bias in federal death penalty cases. For years, the issue seemed
moot, since the last federal execution was in 1963. Now, in addition
to McVeigh, another federal inmate, murderer and drug kingpin Juan
Raul Garza, is set to be put to death on June 19. Garza was originally
scheduled to die last year, but then-President Bill Clinton put
off the execution pending further study of the disparity issue.
Clinton's announcement, made in the heat of the 2000 presidential
campaign, came after Attorney General Janet Reno released a report
examining 682 cases submitted to the Justice Department's death
penalty review process between 1995 and 2000. Reno revealed that
20 percent of the cases involved white defendants, while 48 percent
involved black defendants and 29 percent involved Hispanic defendants
— numbers that might be interpreted to suggest bias in the
process. But in which cases did the Justice Department actually
decide to pursue the death penalty? Reno reported that prosecutors
authorized the death penalty 38 percent of the time for white defendants,
25 percent of the time for black defendants, and 20 percent of the
time for Hispanic defendants — results that did not support
the charge of bias against blacks or Hispanics.
Nevertheless, Clinton postponed the Garza execution until June 19
of this year, saying he wanted to give the Justice Department more
time to finish a more complete study of alleged death penalty disparities.
At the same time, the Clinton administration began yet another study,
a long-term review of the same subject by the Department's quasi-independent
National Institute of Justice.
That's where the issue stood when the new Republican administration
came to power in January. During Attorney General John Ashcroft's
confirmation hearing, Feingold asked whether Ashcroft would continue
the death penalty studies. Ashcroft said he would.
Now, with Garza's June 19 execution date approaching, the Justice
Department has completed its study. Examining a broader pool of
candidates, the Department found, according to a new report released
Wednesday, "no evidence of favoritism towards white defendants in
comparison with minority defendants." Rather, the report found:
Potential capital cases involving black or Hispanic defendants were
less likely to result in capital charges and submission of the case
to the review procedure. Specifically, capital charges were brought
and the case was submitted for review for 81 percent of the white
defendants; the corresponding figures for black defendants and Hispanic
defendants were 79 percent and 56 percent respectively.
Likewise, considering the process as a whole, potential capital
cases involving black or Hispanic defendants were less likely
to result in decisions to seek the death penalty. Specifically,
the Attorney General ultimately decided to seek the death penalty
for 27 percent of the white defendants (44 out of 166), 17 percent
of the black defendants (71 out of 408), and nine percent of the
Hispanic defendants (32 out of 350).
Although the study seems to strongly support the conclusion that
there is no racial or ethnic bias in the federal death penalty,
Sen. Feingold was quick to denounce it as inadequate. The report,
Feingold said on the Senate floor Thursday, "lacks credibility.
It is a case of 'we looked at ourselves and there's no evidence
of bias.'"
Feingold also suggested that since the long-term National Institute
of Justice study has not been completed — it was never intended
to be finished by now — Ashcroft should put off Garza's execution.
"I urge the attorney general to postpone Mr. Garza's execution until
these questions of fairness are fully answered," Feingold said.
Noting that Garza is a Hispanic and is from Texas — an apparent
attempt to connect the case to President Bush — Feingold continued,
"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."
Feingold's position has angered some Republicans on the Judiciary
Committee. "Ashcroft never agreed to a moratorium on the death penalty
until all studies were completed," says one frustrated staffer.
"This is just an anti-death penalty agenda looking for any reason
to delay."
Indeed, the more-study-is-needed argument represents a return to
the past for death penalty opponents. Many have long argued against
capital punishment on the grounds of alleged racial unfairness,
but in recent years have increasingly cited the danger of executing
innocent people as the most compelling reason to put an end to the
death penalty. Some have remained silent about McVeigh, given his
acknowledged guilt and the heinousness of his crime. But the Garza
case has none of the notoriety of the Oklahoma City bombing, and
death penalty opponents have been more willing to speak out against
the government's decision to sentence him to death. They have been
forced to employ the bias argument because, as some opponents of
the death penalty concede, there is no doubt about Garza's guilt,
nor is there any doubt that his case received full due process of
the law.
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