[Senate Hearing 110-743] [From the U.S. Government Publishing Office] S. Hrg. 110-743 OVERSIGHT OF THE FEDERAL DEATH PENALTY ======================================================================= HEARING before the SUBCOMMITTEE ON THE CONSTITUTION of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION ---------- JUNE 27, 2007 ---------- Serial No. J-110-43 ---------- Printed for the use of the Committee on the Judiciary S. Hrg. 110-743 OVERSIGHT OF THE FEDERAL DEATH PENALTY ======================================================================= HEARING before the SUBCOMMITTEE ON THE CONSTITUTION of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION __________ JUNE 27, 2007 __________ Serial No. J-110-43 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 47-297 PDF WASHINGTON : 2009 ---------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa DIANNE FEINSTEIN, California JON KYL, Arizona RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma Bruce A. Cohen, Chief Counsel and Staff Director Michael O'Neill, Republican Chief Counsel and Staff Director ------ Subcommittee on the Constitution RUSSELL D. FEINGOLD, Wisconsin, Chairman EDWARD M. KENNEDY, Massachusetts SAM BROWNBACK, Kansas DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas Robert F. Schiff, Chief Counsel Ajit Pai, Republican Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin...................................................... 1 prepared statement........................................... 259 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 21 prepared statement........................................... 261 WITNESSES Bruck, David I., Esq., Federal Death Penalty Resource Counsel, Director, Virginia Capital Case Clearinghouse, Washington & Lee School of Law, Lexington, Virginia............................. 26 Charlton, Paul K., Former U.S. Attorney, District of Arizona, Phoenix, Arizona............................................... 13 Mulhausen, David B., Senior Policy Analyst, Center for Data Analysis, The Heritage Foundation, Washington, D.C............. 17 Otis, William G., Former Chief, Appellate Division, U.S. Attorney's Office, Eastern District of Virginia, Falls Church, Virginia....................................................... 24 Sabin, Barry, Deputy Assistant Attorney General, U.S. Department of Justice, Washington, D.C.................................... 3 Sanchez Ramos, Roberto J., Secretary of Justice, Commonwealth of Puerto Rico, San Juan, Puerto Rico............................. 15 Shelton, Hilary O., Director, Washington Bureau, National Association for the Advancement of Colored People [NAACP], Washington, D.C................................................ 19 PRE-HEARING QUESTIONS AND ANSWERS Responses of Department of Justice to questions submitted by Senator Feingold............................................... 38 QUESTIONS AND ANSWERS Responses of David I. Bruck to questions submitted by Senator Specter........................................................ 63 Responses of Paul K. Charlton to questions submitted by Senator Specter........................................................ 68 Responses of David Muhlhausen to questions submitted by Senator Specter........................................................ 70 Responses of William G. Otis to questions submitted by Senator Specter........................................................ 73 Responses of Barry Sabin to questions submitted by Senators Specter and Kennedy............................................ 79 Responses of Roberto J. Sanchez Ramos to questions submitted by Senator Specter................................................ 154 Responses of Hilary O. Shelton to questions submitted by Senator Specter........................................................ 166 SUBMISSIONS FOR THE RECORD American Civil Liberties Union, New York, New York, report....... 168 Baldus, David, College of Law, University of Iowa, Iowa City, Iowa, letter and attachment.................................... 178 Bruck, David I., Esq., Federal Death Penalty Resource Counsel, Director, Virginia Capital Case Clearinghouse, Washington & Lee School of Law, Lexington, Virginia, statement.................. 193 Capital Crimes, report........................................... 210 Charlton, Paul K., Former U.S. Attorney, District of Arizona, Phoenix, Arizona, statement.................................... 221 Fagan, Jeffrey, Columbia Law School, New York, New York, statement...................................................... 230 Lungren, Hon. Daniel E., a Representative in Congress from the State of California, statement................................. 263 Mulhausen, David B., Senior Policy Analyst, Center for Data Analysis, The Heritage Foundation, Washington, D.C., statement. 271 Otis, William G., Former Chief, Appellate Division, U.S. Attorney's Office, Eastern District of Virginia, Falls Church, Virginia, statement............................................ 278 Sabin, Barry, Deputy Assistant Attorney General, U.S. Department of Justice, Washington, D.C., statement........................ 294 Sanchez Ramos, Roberto J., Secretary of Justice, Commonwealth of Puerto Rico, San Juan, Puerto Rico, statement.................. 301 Shelton, Hilary O., Director, Washington Bureau, National Association for the Advancement of Colored People [NAACP], Washington, D.C., statement.................................... 322 Zimring, Franklin E., Law Professor, University of California, Berkley, California, letter.................................... 326 OVERSIGHT OF THE FEDERAL DEATH PENALTY ---------- WEDNESDAY, JUNE 27, 2007 U.S. Senate, Subcommittee on the Constitution, Committee on the Judiciary, Washington, DC. The Subcommittee met, pursuant to notice, at 9:32 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Russell D. Feingold, Chairman of the Subcommittee, presiding. Present: Senators Feingold and Leahy. OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Chairman Feingold. I call the Committee to order. Good morning. Welcome to this hearing of the Constitution Subcommittee entitled ``Oversight of the Federal Death Penalty.'' We are honored to have with us this morning some very distinguished witnesses, and I appreciate the effort they have made to be here today. Let me start by making a few opening remarks, and then we will turn to the representative from the Department of Justice who will be our sole witness on our first panel. This is the first oversight hearing on the Federal death penalty that the Senate Judiciary Committee has held in 6 years. Until recently, Congress has asked few questions about how the Federal death penalty is being implemented, and we received little information as a result. Indeed, it is fitting that we will hear from some of the same organizations that testified at that last hearing in June 2001. That is because in some respects, we know little more today than we did 6 years ago. That said, I do appreciate that the Justice Department has responded to written questions that I sent in advance of the hearing. Those responses begin the process of Congress obtaining the information it needs to conduct oversight in this area. And we do have a lot of ground to cover. There have been many developments in the last 6 years. In 2001, the Justice Department made controversial changes to the protocols for Justice Department review of death-eligible cases. The new protocols required U.S. Attorneys for the first time to get Attorney General approval to enter into plea bargains that take the death penalty off the table. This resulted, in one New York case, in Attorney General Ashcroft nullifying a plea agreement in which a defendant had agreed to cooperate with the Government in exchange for pleading guilty to a non-capital murder charge. This action was heavily criticized for jeopardizing future cooperation agreements, and Ashcroft finally reversed his decision more than a year later. Those protocol changes also reversed the presumption against seeking the Federal death penalty in a local jurisdiction that has already chosen to outlaw capital punishment, and instead stated that a lack of ``appropriate punishment'' in the local jurisdiction should be a factor in deciding whether to bring a Federal capital case. And just this week, we received another set of newly revised death penalty protocols, which contain broad new confidentiality rules that appear to pull the curtain on how the DOJ death penalty review process is working. I am troubled by this trend toward secrecy. These are public prosecutions brought by the United States of America. Congress and the American people give immense power to the Department of Justice to act in our name and for our protection. We are entitled to know how decisions to seek the ultimate punishment are made. So I will pursue this topic with our witness today to better understand the scope and necessity of these new rules. What else has happened since 2001? A National Institute of Justice study ordered by Attorney General Reno at the end of the Clinton administration was delayed for years. It was supposed to examine whether there were racial disparities in application of the Federal death penalty, but when it was finally released in 2006, it did not tell us much. In addition to being criticized by a number of experts for a faulty peer review process, the report left out the most important part of the decisionmaking process: the point where defendants are brought into the Federal system in the first place. And, of course, that study only covered the years 1995 to 2000, so no study has been conducted to evaluate these issues from 2001 forward. And now this Committee's investigation into the Department of Justice's firing of a number of well-respected, experienced U.S. Attorneys has revealed the inappropriate politicization of some of the Department's most important functions. The American people should be able to trust fully the ability of the Justice Department, and the Attorney General, to make difficult and nuanced decisions about whether the Federal Government should pursue the ultimate sentence of death. We should be able to trust that the Attorney General seeks input from all sides and takes very seriously his decision whether to use the full weight of the U.S. Government to seek to put a person to death. That is why we are holding this hearing--because that trust has been shaken. We need to know whether these responsibilities are being treated with the seriousness they deserve. In particular, I am concerned that in the course of deciding whether to seek death in a case, neither the Deputy Attorney General nor the Attorney General meet personally with their own internal review committee that examines each case in detail. And according to what the Attorney General himself told this Committee earlier this year, a U.S. Attorney was fired, at least in part, because he asked the Attorney General to reconsider the decision to seek the death penalty. I oppose the death penalty, but I recognize that reasonable people can differ on the question of capital punishment. And different administrations can take different views about when it is appropriate to seek the Federal death penalty. But I hope we can all agree that the decision whether to charge someone with a capital crime and seek to impose the death penalty is one of the most profound decisions our Government officials can make. That power must be wielded carefully and judiciously. If carefully considered, law enforcement-based judgments are not winning the day, we need to know about it, and we need to know why. The stakes are simply too high. There are no other Senators expected at this point. I was going to turn to the Ranking Member, but there is not one. So we will start with our first panel. Our first witness will be Deputy Assistant Attorney General Barry Sabin. A Federal prosecutor since 1990, Mr. Sabin is now responsible for the Fraud Section, Criminal Section, Gang Squad, and Capital Case Unit of the Criminal Division. Mr. Sabin, welcome, and thank you for taking the time to be here this morning. I would ask that you limit your remarks to approximately 5 minutes. Your full written statement will be included in the record. And if you would please rise. Do you swear or affirm that the testimony you are about to give the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Sabin. I do. Chairman Feingold. Thank you, sir, and you may be seated, and you may proceed with your testimony. STATEMENT OF BARRY SABIN, DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. Mr. Sabin. Good morning. Thank you, Mr. Chairman. I am pleased to appear before you today to testify about the Department of Justice's implementation of the Federal death penalty statutes. The Justice Department relies upon rigorous procedural safeguards and highly experienced personnel to ensure a uniform decisionmaking structure that is respectful to victims and defendants. In connection with my written testimony, I emphasize the paramount importance the Department attaches to the review of capital cases and key elements that define this review process. These elements include: the capital case review process is centralized and the decision in every case is ultimately made by the Attorney General of the United States; second, the review of a capital matter is designed to respect the Federal law; third, the review of a capital matter treats each defendant as an individual, even as it evaluates the case within a national framework; fourth, discrimination and bias play no role in the capital review process; and, fifth, each review of a capital matter respects victims' and defendants' rights. I am a career prosecutor. I have served in the Justice Department for 17 years. I served as a trial prosecutor in South Florida and in a variety of supervisory positions in Miami. I ultimately served as the Criminal Chief and First Assistant United States Attorney. In those positions, I also served as a member of the district's Death Penalty Review Committee. Although I was lead prosecutor on over 50 Federal felony trials, many of them involving violent offenses, none of these matters involved capital offenses. In my present position, I have had the opportunity to work with experienced capital litigation practitioners in the Capital Case Unit. Thus, I have had the honor and privilege to work with dedicated, committed prosecutors, both in the field and at headquarters, on capital litigation. I want to underscore that the prosecutors at the Justice Department understand that implementation of the death penalty is the ultimate sanction, reserved for the worst offenders, and must only be applied in a fair and uniform manner. Pursuant to the Federal Death Penalty Act of 1994, Congress has authorized the Department of Justice to seek the death penalty for more than 50 serious Federal offenses. Consistent with congressional intent, the Justice Department strives to enforce Federal capital sentencing laws fairly and evenhandedly, uninfluenced by the locations of prosecutions or the races or ethnicities of defendants and victims. With the goal of fair and consistent application in mind, in June 2001, the Justice Department implemented a protocol which further harmonized the capital review process. Earlier this week, the Department issued a revised protocol. Mr. Chairman, we appreciated the opportunity to discuss the protocol with members of your staff these past few days. The Department relies upon a core group of prosecutors experienced in capital litigation to effectuate the Department's protocol. In addition to the extensive and considered review in the United States Attorney's Office, these veteran prosecutors are located in the Criminal Division's Capital Case Unit and the Attorney General's Review Committee on Capital Cases. These entities are integral to ensuring the proper review of potential death penalty cases. The Attorney General, the committee, and other Department personnel involved in reviewing protocol submissions are not advised of the race or ethnicity of defendants or victims. The submissions are sanitized of any references to the races of victims or defendants. The result is a review process that is blind to the race and ethnicity of victims and defendants. There are multiple opportunities for defense counsel to provide information favorable to their client and argue against the Government seeking the death penalty. The death penalty protocol also advises the United States Attorney to consult with the family of the victim. There is, thus, a robust review with multiple procedural safeguards to ensure a fully informed decisionmaking process. The Justice Department's review of capital cases is not aimed at maximizing or minimizing capital cases; it aims to apply the most faithful reading of Federal law to cases. Unless specified intent factors and aggravating circumstances can be found beyond a reasonable doubt, the death penalty is not authorized. The Attorney General will not authorize seeking the death penalty unless these statutory requirements are met. If they are met, the Department must follow the law and consider the death penalty as a possible sanction for these crimes. The Federal Government has an obligation to evenhandedly enforce Federal law, and the Department of Justice's capital case review process ensures this outcome. The review allows each potential case to be viewed in context of all other such cases, protecting against arbitrary decisionmaking. The review also ensures that individual characteristics are highlighted during this review. The Justice Department's decision turns on what the defendant has done and the relevant aggravating and mitigating circumstances. Factors that are arbitrary or impermissible, such as race, ethnicity, gender, or religion, are not considered. In this way, the Justice Department is able to effectuate Congress' intent that the death penalty be sought against the worst offenders, while simultaneously respecting statutory and constitutional principles that all defendants must be given individualized consideration. In conclusion, the Justice Department has established rigorous safeguards to ensure that capital cases are reviewed in a fair, transparent, and uniform manner. We have dedicated tremendous efforts and resources to ensure fairness in Federal capital litigation. I appreciate the opportunity to testify today and I look forward to your questions. Chairman Feingold. Thank you very much, Mr. Sabin, for that testimony, and I want you to know that amid all the controversy currently embroiling the Department, I know that there are good and honorable people who work there every day and do their best to serve the interests of justice, and I do appreciate that. But, of course, as you have indicated as well, the issue of the death penalty is extremely important, and this Committee needs to ask tough questions to understand how it has been implemented in the last 6 years. Last week, the Department provided me with answers to questions I had sent in April in anticipation of this hearing, and I will put those responses in the record of this hearing, along with the revised protocols you provided earlier this week. I appreciate the effort that went into these responses. Mr. Sabin. Thank you, Senator. Chairman Feingold. However, a lot of the data was difficult to decipher without more information. So I am sure I will have followup questions after this hearing, and I hope DOJ will do its best to respond expeditiously to those followup questions as well. Mr. Sabin. Yes. Absolutely, Mr. Chairman. Chairman Feingold. Thank you. Prior to my asking for that information that I just mentioned, had the Department undertaken any effort to review its implementation of the Federal death penalty to look at issues like the total number of cases per year, U.S. Attorney overrule rates, and the race of defendants and victims? Mr. Sabin. We had not done a rigorous review of the data until the Congress had--you had posed the questions. Chairman Feingold. Until you received our questions. Mr. Sabin. Correct. Chairman Feingold. Do you think it has been a helpful process to look at these statistics? Mr. Sabin. Yes. Chairman Feingold. Has the Department done any number- crunching beyond what I specifically asked for? Mr. Sabin. We wanted to get the information to you and the Subcommittee as expeditiously as possible. Obviously, in preparation for the hearing, I have had discussions with the capital case litigation attorneys so that I could be prepared to answer any questions that you may ask regarding those statistics. But it is an ongoing process, and as time passes, I am sure we will have more considered understanding of the data that we provided to you and that we now have at our disposal. Chairman Feingold. Well, I would hope whatever efforts to engage in number-crunching that could not be done in time for this hearing would be done now, and that the fact that the hearing is over does not stop the process of getting the additional information. Mr. Sabin. We are in full agreement with that, Mr. Chairman. Chairman Feingold. And would you be willing to share those additional statistics as you complete them? Mr. Sabin. To the extent that it is responsive to your questions or your followup questions, absolutely. Chairman Feingold. All right. Do you think the Department should have considered looking at these statistical breakdowns and some of these issues earlier? Mr. Sabin. Should we have looked at-- Chairman Feingold. Should you have looked at some of these issues earlier? Mr. Sabin. We have a lot of operational activities relating to individual cases, and the staff was focused upon making sure that the matters proceeded in considered and thoughtful determination. It is helpful. Certainly we welcome the oversight, and I think it is a process that we can be more informed and take a step back to understand what we are doing over the last few years, compare that to what had occurred between 1995 and 2000, and then get a larger perspective. So I think it is helpful. Chairman Feingold. I would suggest that these statistics are necessary for what you have described as ``thoughtful determination.'' So I think you agree, but-- Mr. Sabin. I don't disagree with that. I agree. Chairman Feingold. As I am sure you know, in 2000 Attorney General Reno publicly issued a nearly 400-page report with every conceivable piece of data about Federal death penalty- eligible cases down to the district level. This included a breakdown by district of what the U.S. Attorney and Review Committee recommended and what the Attorney General decided. It also included breakdowns by race of the defendant and by race of each of the victims in a case. This comprehensive report was extremely helpful back in 2000. Now, I do appreciate that it would be a lot of work if the Department would issue a report, but a current report in the detailed form that was issued in 2000 would give this Committee and others an opportunity to understand how the Federal death penalty is implemented, and would give the Department an opportunity to demonstrate its commitment to transparency about its death penalty work. I would like the Department to prepare such a report, and I will ask that you get back to me in writing with the Department's response to my request. Mr. Sabin. I will get back to you in writing with respect to that request, sir. Chairman Feingold. New Department protocols for reviewing death penalty cases go into effect next week. As I mentioned earlier, they contain a lengthy recitation of new confidentiality rules forbidding anyone at DOJ from disclosing their views on whether capital punishment should be sought in a case or any aspect of the review process, even within the Department. Now, I do understand the need for DOJ to be able to deliberate internally. But given the stakes in these cases, shouldn't there be some level of transparency in how the decision is made whether to seek the death penalty? Mr. Sabin. Certainly we would welcome the opportunity to have transparency in the process, and we also, as you recognize, have internal deliberative processes to respect so that the robust and informed debate is not chilled, that all levels of the review can have frank and candid interaction, so that they can make the most informed decisions regarding the most severe of sanctions. So we want to ensure, as I stated in my written testimony, that we are accountable for those actions while protecting the ability of the considered decision makers and the reviewers to have a dialog that is full and frank. Chairman Feingold. Well, the previous protocols, I assume, provided that opportunity. For some reason, these new protocols cloak the process in greater secrecy. Can you understand how some people might look at these new rules and think that the Department must be trying to hide something by changing these protocols? Mr. Sabin. And the Department is here today to say that we are not trying to hide something either from this Subcommittee or the American people. We are just trying to ensure that the debate in the Department is robust and considered and that individual opinions are not chilled as a result of congressional oversight or other factors. Chairman Feingold. I appreciate that statement. This certainly has nothing to do with you, but we have had a lot of problems with the Department of Justice saying ``Trust us'' on other issues where there has not been sufficient openness, and it has led to very serious problems, such as the abuses in the area of national security letters. So I think you can see why there might be some concern when things become more closed rather than more open. And I want to ensure that these new rules will not be used to thwart legitimate oversight efforts. Do you agree that they would not cover the type of statistical information that I requested in advance of this hearing and that Congress might request in the future? Mr. Sabin. We certainly want to provide that transparency as to the statistical information that we have provided to you in response to your questions, and we continue to believe we have the trust of the American people and want to maintain that trust. So-- Chairman Feingold. But these new rules in no way specifically prohibit or stop you from giving me the information I have asked for, correct? The statistical information. Mr. Sabin. Correct. That is not the intent of the Section 9-10.040. It is to ensure that-- Chairman Feingold. Or any other part of the protocols? Mr. Sabin. Correct. Chairman Feingold. Specifically, would Attorney General Reno have been able to issue her 2000 report if these new confidentiality requirements had been in place? Mr. Sabin. Yes, I believe that that is consistent with what Attorney General Reno had published and what we consider to be in effect today. Chairman Feingold. OK. I have another-- Mr. Sabin. As of July 1st when the protocol goes into effect. Chairman Feingold. I am sorry? Mr. Sabin. And as of next week when the protocol goes into effect on July 1st. Chairman Feingold. Attorney General Reno could have issued a similar report under the new protocols? Mr. Sabin. Yes, that is my understanding. Chairman Feingold. I have another question about the revised capital case protocols. These new protocols appear to delete the longstanding prohibition against seeking or threatening to seek the death penalty ``solely for the purpose of obtaining a more desirable negotiating position.'' Has the Department changed its policy on this issue? Mr. Sabin. Absolutely not. The sentence that you are referring to, the portion relating to plea agreements was expanded. The fact relating to prosecutors using the death penalty as some kind of threat or coercive manner is inconsistent with our prosecutorial ethics. And other portions of the U.S. Attorney's manual which prosecutors are bound by, specifically 9-27.00 and going forward, capture that aspect. Chairman Feingold. Then why was this provision removed from the protocols? Mr. Sabin. Because it was referenced elsewhere in the U.S. Attorney's manual. It was not as a means to undermine or say that that portion of the ability for prosecutors to use it in any improper means is sanctioned. Chairman Feingold. Well, I do not like redundancy in Government, but when we are talking about taking away somebody's life, it seems to me a little certainty in keeping this in the protocols makes sense. Wasn't this part of the protocols since they were first written in 1995? Mr. Sabin. Yes, it was part of it, and I am here today to say that it is not--that point has not been retracted or in any way undermined by the present protocol. Chairman Feingold. I do not see why it should not be put back in the protocols. Mr. Sabin. I am sorry? Chairman Feingold. I do not see why it should not be returned to the protocols, and I am submitting that to you as something to think about. Mr. Sabin. Yes, sir. Thank you. Chairman Feingold. It just isn't consistent with what you are saying. Two Federal judges have argued--one in a law review article and another in an op-ed--that pursuing a capital case takes a great deal of prosecutorial resources, so that bringing a capital case can mean bringing fewer prosecutions overall. When evaluating whether to decide to seek the death penalty, does the Department consider these additional costs, in actual expenditures and staff, of pursuing a capital case? And is that a factor in the decisionmaking process? Mr. Sabin. The cost of a criminal prosecution is not a factor as to whether the prosecution should be going forward or not. Chairman Feingold. Does the Department track the monetary costs of the death penalty in any way? Mr. Sabin. I am not aware of those numbers being tracked, to my knowledge. Chairman Feingold. That surprises me. Can you tell me anything about the cost of maintaining the Capital Case Unit or the Internal Review Committee and the other staff who work on the internal DOJ review process? Mr. Sabin. You mean in terms of their salaries and the amount of-- Chairman Feingold. Overall costs of having that Capital Case Unit or the Internal Review Committee. Mr. Sabin. I mean, certainly you could compile the individual salaries of the trial attorneys in the Capital Case Unit as a slice of the overall expenditure of what the Department provides for its budget for capital litigation. But I did not understand that to be the nature of the question. As to an individual matter, what a U.S. Attorney--what the investigatory costs would be by the FBI agent and the like, that is the kind of information we thought that you were questioning whether the Department captures. Chairman Feingold. Well, I would be interested in both types of information. I think it is relevant to this. Do you have any sense of what it costs--and this sort of gets to your last answer--an individual U.S. Attorney's Office to pursue capital charges? Mr. Sabin. Do I, sitting here today? No, I do not. Chairman Feingold. Do you think the DOJ should track these types of costs so that both DOJ and individual U.S. Attorney's Offices understand what they are doing when they undertake to seek the death penalty? Mr. Sabin. I believe that we should spend the taxpayers' money wisely. I believe that we should provide full support and resources for the prosecutions as they move forward in order to prove each and every element beyond a reasonable doubt. To the extent that that information can be captured, we will see if we can compile it. But I am not promising that that information is readily ascertainable. For example, a U.S. Attorney's Office can submit a request to the Executive Office of United States Attorneys for complex matters if they need additional budget to pursue, you know, a large case, whether it is capital litigation or not capital litigation. So there is a mechanism for providing supplementary funding through the Executive Office. Chairman Feingold. I think in making the overall decisions on how to most effectively use the Department's limited resources to fight crime, that this cost of seeking the death penalty should be a factor. It may be not the most important factor, but when you are looking at a series of factors, I would think that these costs would be something the Department should start to consider. And I hope you will take that back to the Department. Mr. Sabin. Yes, Mr. Chairman, I will. Chairman Feingold. Let me ask you about a few of the statistics that we were able to extract from the data the Department provided us last week. It appears that one third of the total cases in which the Federal Government sought the death penalty from 2001 to 2006 were the result of the Attorney General overruling a U.S. Attorney's recommendation against seeking the death penalty. Now, does that percentage seem high to you? Mr. Sabin. In terms of the overruling, this is my understanding of the relevant statistics. And, again, this is an ongoing process, and we are happy to work with you and other members of the Subcommittee to have an informed understanding of what these numbers mean and what the answers are to your followup questions in regard to that. But as I understand it, between 1995 and 2000, U.S. Attorney's Offices requested authorization to seek the death penalty for 27 percent of the defendants that were submitted, and that between 2001 and 2006 U.S. Attorney's Offices requested authorization to seek the death penalty for approximately 13 percent--the total number of 1,200, approximately, where 156 requested authorization, or 13 percent. Between 1995 and 2000, the Attorney General authorized the death penalty for 27 percent of the defendants that were submitted, and then between 2001 and 2006, the Attorney General authorized the death penalty for approximately 13.6 percent of the defendants submitted. So the percentage of requests and authorization from the Attorney General was the same: 13 percent requested from the U.S. Attorney's Office between 2001 and 2006, and the Attorney General authorizing the death penalty in 13 percent of the matters of total numbers submitted. In terms of the overrules and the success rate, the numbers, as I understand it, are as follows: Between 1995 and 2000, 43 percent were sentenced to death, 20 of 46 individuals that had been submitted. In 2001 to 2006, 33 percent were sentenced to death--that is, 24 individuals out of the 72 defendants requested--where the Attorney General concurred with the request of the United States Attorney. In terms of the overrules, between 1995 and 2000, 7.69 percent of the defendants were sentenced to death when the Attorney General overruled the United States Attorney request not to seek, so approximately 7 percent. In the 2001 to 2006 timeframe, 20 percent of the defendants were sentenced to death when the Attorney General overruled the U.S. Attorney's Office request not to seek. So between the time period of 1995 to 2000, it was approximately 7 percent, where the Attorney General overruled and you had a success rate. And it was 20 percent between 2001 and 2006, and that number is 6 individuals of the 30 that had been within the total pool. Chairman Feingold. Well, getting back to the question of the greater frequency of the overruling, do I understand you to be saying that because there were less requests for the death penalty percentage-wise, the fact that there was greater overruling of the U.S. Attorneys is something that needs to be factored in? Is that what you were saying? Mr. Sabin. No, I don't think that is the point I was trying to make. I think the total number has increased from 685 to 1,200-- Chairman Feingold. Total number? Mr. Sabin. Of defendants that are within the potential for seeking the death penalty, to determine whether to seek or not to seek. So the total number in the pool has increased, but I think the percentages with respect to the overruling the success rate of the past half dozen years is greater than it had been in the preceding years. Chairman Feingold. But isn't that a separate question from why the Attorney General would be more frequently overruling an initial decision not to seek the death penalty? You are talking about the success rate, but that is not the only issue here. Mr. Sabin. Correct. That is true. Chairman Feingold. It was surprising to me that in one out of every three Federal capital cases, the Attorney General had overruled a local recommendation. It is a lot higher than under Attorney General Reno from 1995 to 2000 when overrule cases accounted for 16 percent of cases in which the death was authorized. And let us keep in mind that this Justice Department here is overruling Republican U.S. Attorneys, so this is not just a political matter. So I am concerned about this. I would like to do some followup questions to further understand these statistics and what you just presented. Mr. Sabin. We are happy to engage in that dialog regarding the nature and extent and the meaning of those statistics, sir. Chairman Feingold. Another striking statistic that emerged from that data is the difference in the Department's likelihood of obtaining a death penalty verdict from 2001 to 2006 depending on whether the case resulted from an overrule, which I think you were alluding to. It appears that the Government obtains a death sentence in 33 percent of cases where the Attorney General approved a U.S. Attorney recommendation to seek death, but it then drops to 20 percent--it is actually significantly lower--when the Attorney General overrules a U.S. Attorney recommendation not to seek death. What is your explanation for that disparity? Mr. Sabin. These are tough cases, and tough decisions need to be made, and we will continue to evaluate what the information means. But we look at the facts, we look at the law, and apply the appropriate intent factors and the aggravating and mitigating circumstances in order to reach a just determination. These are difficult cases, and juries have to wrestle with the most severe sanctions. Chairman Feingold. Now, let me suggest that U.S. Attorneys are a lot closer to the people in their area than Federal Government employees at the national level. The fact is that in the last few years a fair amount of skepticism has developed about the death penalty, and this fact has an impact on how jurors feel about the death penalty. The deference to a U.S. Attorney's judgment about this may affect the success rate because U.S. Attorneys are in a better position in many cases to determine not only the overall feelings of a jurisdiction about the death penalty, but also the likelihood of success. Mr. Sabin. Certainly it is a critical factor, the position of the line prosecutor and the United States Attorney in a particular community. There should be great respect and understanding of the particular position of those individuals that are most familiar with the facts and circumstances of the individual case, the co-defendants, and the local community. So that is considered as part of the thorough and robust review process. So that consistent with Federal law and the desire to have consistent and uniform application in a nationwide setting, you have that relationship and that dialog, which must be robust and considered, between the field office, where I had served, and headquarters. And you need to make sure that you get that balance and that dynamic correct. I absolutely agree with you in that, sir. Chairman Feingold. Finally, there is a stark difference between the number of cases in which the Attorney General overruled U.S. Attorney recommendations not to seek the death penalty in 2005 versus 2006. In 2005, he overruled recommendations against the death penalty three times. In 2006, it jumped to 21 times. Do you know why there was such a large jump? Mr. Sabin. As I sit here today, I don't know and haven't evaluated the circumstances relating to those numbers, and we can get back to you if there is any reason to draw from them. Chairman Feingold. I would really appreciate that. I want to thank you for your patience and your responsiveness. It is not an accident that there has not been this kind of oversight for 6 years. Certainly it is obvious. It is because I was not Chairman of the Subcommittee. And as long as I am, there is going to be this kind of oversight. Mr. Sabin. We welcome the oversight. Chairman Feingold. I look forward to it, and I appreciate your initial willingness to work with us. Mr. Sabin. Yes, we absolutely will continue to work with you, sir. Chairman Feingold. Thank you very much. [The prepared statement of Mr. Sabin appears as a submission for the record.] Chairman Feingold. We will go to the next panel. As the second panel comes forward, without objection, I will place some items in the hearing record. These include a 2007 letter from Professor David Baldus at the University of Iowa; a 2006 letter sent by Professor Baldus and several other researchers regarding the Rand study; and a report by the American Civil Liberties Union on racial disparities in the Federal death penalty. Now that the witnesses have come forward, will you all rise? Please raise your right hand to be sworn. Do you swear or affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth, so help you God? Mr. Charlton. I do. Mr. Sanchez Ramos. I do. Mr. Mulhausen. I do. Mr. Shelton. I do. Mr. Otis. I do. Mr. Bruck. I do. Chairman Feingold. Thank you very much, and you may be seated. I want to welcome you and thank you for being here this morning. I ask that you each limit your remarks to 5 minutes, as we have a lot to discuss. Your full written statements will, of course, be included in the record. Our second panel begins with Paul Charlton, the former U.S. Attorney for the District of Arizona. Mr. Charlton served as U.S. Attorney from 2001 to January 2007. Before being a U.S. Attorney, he served as an Assistant U.S. Attorney in that office and worked in the Arizona Attorney General's office before that. He currently is in private practice at the law firm of Gallagher & Kennedy. Mr. Charlton, you may proceed. STATEMENT OF PAUL K. CHARLTON, FORMER U.S. ATTORNEY, DISTRICT OF ARIZONA, PHOENIX, ARIZONA Mr. Charlton. Chairman Feingold, good morning, and thank you, sir, for the opportunity to speak with you about the death penalty and my experience with its implementation in the District of Arizona while I was the United States Attorney. As you indicated, I was a career prosecutor before leaving the United States Attorney's Office in January of this year. I loved the job of being a prosecutor. It was a job that every morning gave you the opportunity to get up and know that you were going to do the right thing and every night go to bed with the understanding that you had done something to better society. I know there are a number of jobs that give people that opportunity, but what makes prosecutors unique is that they have a power and responsibility that goes beyond what other professions have. They have the ability to alter an individual's career or reputation. When it is appropriate, they can take an individual from society and put them in prison for a number of years. But what perhaps is most unique about the profession of prosecution is their ability to seek the ultimate penalty. In every case, it is important that a prosecutor not only do right but be right. And nowhere is that more important than when a prosecutor seeks to impose the death penalty. Before a prosecutor seeks to impose the death penalty, a prosecutor should seek the input of all of those with special knowledge and take every factor into consideration. In order to illustrate that, Senator, I would like to talk about a case that I dealt with while United States Attorney, and that is the case of United States v. Rios Rico, which is currently set for trial. The facts as alleged by the Government in that case are that a methamphetamine dealer killed his supplier. Now, the majority of the Government's case is based upon the testimony of individuals who have pled guilty in exchange for their testimony. The evidence is sufficient, I believe, that you can go forward in good faith and seek a conviction, and if you obtain a conviction, seek a sentence for a term of years or life. But what removes this case from the arena of a death penalty case is the lack of forensic evidence. In this case, there is no ballistic evidence. In fact, there is no weapon. There is no DNA upon the defendant that matches the victim. There is no DNA upon the victim that matches the defendant. There are no hair samples. In fact, we do not have the body. Now, that in and of itself is for me sufficient to remove this case from consideration as a death penalty case because it is not only important to look at the aggravating factors and determine whether or not a case is a death penalty case or not. We should consider the quality of the evidence. And here that quality is lacking. Now, what underscores that point is this additional fact: We know where the body is. In fact, for the price of between $500,000 and $1 million, we could go get the body. It is currently buried in a landfill in Mobile, Arizona. When I was United States Attorney, we asked the Department of Justice for those funds to exhume the body. That request was denied. It is inappropriate to seek the death penalty in a case where you can literally put your arms around evidence that will either support your contention that this is an appropriate death penalty case and allow you in good conscience to go forward with that prosecution and seek the death penalty, or perhaps, and just as importantly, show evidence that is inconsistent with the Government's theory of the prosecution. Now, with this information, we went to the Death Penalty Review Committee and asked them not to recommend that we seek the death penalty. The line assistant who is in charge of this case, who is most fluent with the facts of the case, appeared personally before that committee and argued this point. I submitted a memorandum and argued this point. And we awaited the decision. Now, under Attorney General Ashcroft, I was notified along every step of the way--from the Review Committee to the Deputy Attorney General to the Attorney General--of their decisionmaking process. But in this instance, I was not. In fact, the first I heard of any inconsistency with my recommendation was a letter from the Attorney General ``authorizing'' me to seek the death penalty. I immediately began steps to ask the Attorney General to reconsider that decision. I went to his staff. I went to the staff of the Deputy Attorney General. I went to the Assistant Attorney General in charge of the Criminal Division. I spoke personally with the Deputy Attorney General, Paul McNulty, and I repeated the facts in greater detail than I have here about why it is I did not believe that this was a death penalty case. Mr. McNulty then went to the Attorney General. The facts as then reported to me by his chief of staff, Mr. Elston, were these: Mr. Elston indicated that he wanted me to be aware of two important factors, that Paul McNulty had personally instructed Elston to make me aware of two facts: First, that McNulty and the Attorney General had spent a significant amount of time, perhaps as much as 5 to 10 minutes, on this issue discussing it. The second issue that he wanted me to be aware of was that Paul McNulty had remained completely neutral on whether or not the death penalty should be imposed or not. Chairman Feingold. I am going to have to ask you to conclude soon. Mr. Charlton. I am sorry? Chairman Feingold. I am going to have to ask you to conclude soon. Mr. Charlton. All right. My point is this, Senator: Before we seek to impose the death penalty, we need to consider the opinions of the line assistants. You need to consider the opinion of the United States Attorney. You need to consider the quality of the evidence that is involved. You cannot afford to be wrong in a death penalty case, because the ultimate decision in this case can never be corrected. [The prepared statement of Mr. Charlton appears as a submission for the record.] Chairman Feingold. I thank you for your very interesting testimony. Our next witness is Puerto Rico's Secretary of Justice, Roberto Sanchez Ramos, who is here today on behalf of the Governor of Puerto Rico. Secretary Sanchez Ramos has worked in the Department of Justice Civil Division and the Office of the Solicitor General for Puerto Rico. He holds degrees from MIT, the University of Puerto Rico, and Yale Law School. Secretary, thank you for joining us, and you may begin. STATEMENT OF HON. ROBERTO J. SANCHEZ RAMOS, SECRETARY OF JUSTICE, COMMONWEALTH OF PUERTO RICO, SAN JUAN, PUERTO RICO Mr. Sanchez Ramos. Good morning, Chairman Feingold. I am appearing on behalf of our Governor, Hon. Anibal Acevedo Vila, to express our view that the death penalty should be abandoned as punishment for Federal offenses or, at the very least, that Congress should establish a rule of deference barring the imposition of this penalty within jurisdictions, such as Puerto Rico, that do not allow it locally. Puerto Rico's special relationship with the United States, our constitutional prohibition of capital punishment, and lack of local consent to the Federal law authorizing the imposition of this most extreme of penalties raises profound questions as to the legitimacy and wisdom of seeking such punishment in Puerto Rico. The Commonwealth favors the total elimination of death as a form of punishment. As a democratic and developed society, we should demonstrate an absolute respect for human life, even for the life of a murderer. I believe that an overwhelming majority of Americans would strongly disapprove implementing the state- sanctioned torture of a torturer or rape of a rapist as forms of punishment. I see no reason why the moral calculus should vary when considering the state-sanctioned killing of a killer. In addition, the uniqueness of death as punishment, in that it is irrevocable, should give any government pause. The possibility of mistakes in the application of the death penalty is not theoretical; in fact, the evidence suggests it is not even remote. In this sense, it is worth noting that at least 14 inmates exonerated by DNA testing were at one time sentenced to death. Short of completely eliminating death as punishment, Congress should at least reconsider whether the value of public policy uniformity at the Federal level is outweighed in this instance by significant political, social, and cultural differences, as well as by the problems and risks associated with the pursuit of the death penalty in jurisdictions that are opposed to it. The very non-existence of death as punishment in some jurisdictions makes it very difficult to validate a uniform process for all capital punishment cases. For example, defendants in jurisdictions without local capital punishment confront a greater challenge in obtaining proper legal representation by experienced lawyers. In Puerto Rico, this matter is aggravated by the fact that most of the population does not speak English fluently, which could affect the quality of representation that counsel from another jurisdiction may be able to provide. It should be clear that the majority of Puerto Rico's population firmly opposes the death penalty. No execution has taken place in Puerto Rico since 1927, and our Constitution, ratified by the U.S. Congress in 1952, specifically prohibits capital punishment. The application of the Federal death penalty in Puerto Rico stands against our highest social, cultural, political, moral, and religious values, and such application violates the balance of power and comity that the people of Puerto Rico envision as transcendental to their relationship with the United States. To disregard this political reality, independently of strictly legal considerations, carries the risk of inviting the erosion of the important and mutually beneficial relationship between our peoples. It is also interesting to note that in defending its policy on capital punishment before the United Nations, the United States has relied on an argument based on the political representation that the people subject to such penalty have in Congress. However, Puerto Rico has an extremely limited participation in the Federal decisionmaking process. Therefore, the idea that our democracy has a self-correcting ability--that general dissatisfaction with Federal legislation will be channeled through the ballot box--does not apply to Puerto Rico. Furthermore, the unique cultural and social particularities of Puerto Rico present significant obstacles for the fair imposition of the death penalty in our island. First, as mentioned before, the use of English in all U.S. district courts, including Puerto Rico, negatively affects the quality of legal representation. Second, because a jury determines whether death will be imposed, it is critically important to ensure that the juries constitute a fair and representative cross-section of the defendants' peers. However, an estimated 75 percent of the Puerto Rican population is automatically disqualified from serving as jurors on a Federal capital case because they are not proficient in the English language. When the situation regarding language is combined with the fact that many of the remaining potential jurors may be disqualified on account of their moral opposition to the death penalty, the jury selection process for Federal capital cases in Puerto Rico will rarely result in the selection of a true cross-section of the defendants' peers. Of course, this raises troubling issues of constitutional law and basic fairness. For all these reasons, Puerto Rico respectfully demands that this Congress intervene to restore the balance, mutual respect, and comity that the people of Puerto Rico envision as a fundamental part of their relationship with the United States. Puerto Rico's longstanding prohibition of the death penalty, which is deeply rooted in its values and traditions, and the extraordinary political process from which it evolved, entitles our people to such consideration. I urge you to consider and pass legislation which would eliminate the possibility of the ultimate penalty of death being imposed in Puerto Rico. Finally, I wish to extend the people of Puerto Rico's gratitude for allowing me to testify before you regarding an issue of such import and consequence. Thank you. [The prepared statement of Mr. Sanchez Ramos appears as a submission for the record.] Chairman Feingold. Mr. Secretary, I am very pleased you are here, and I agree with your statement about a jurisdiction that does not have the death penalty. I admire the judgment of the people in Puerto Rico on this, and my State, a long way away in a very different climate, made the judgment in the 1850s, after the public was reviled by a public execution, to not have the death penalty in Wisconsin. We have not had a single execution since. It is one of the longest jurisdictions to have this in American history. And I think we feel the same way about the Federal Government overriding that judgment, the considered and continuous judgment of the people of my State. Our next witness is David Mulhausen. He is a senior policy analyst at the Heritage Foundation Center for Data Analysis. Previously, Mr. Mulhausen worked for the Senate Judiciary Committee on crime and juvenile justice policy. Mr. Mulhausen earned a Ph.D. from the University of Maryland and a B.A. from Frostburg State University. Mr. Mulhausen, thank you for joining us, and you may proceed. STATEMENT OF DAVID B. MULHAUSEN, SENIOR POLICY ANALYST, CENTER FOR DATA ANALYSIS, THE HERITAGE FOUNDATION, WASHINGTON, D.C. Mr. Mulhausen. My name is David Mulhausen. I am a Senior Policy Analyst in the Center for Data Analysis at the Heritage Foundation. I thank Chairman Russell Feingold and the rest of the Subcommittee for the opportunity to testify today. The views I express in this testimony are my own and should not be construed as representing any official position of the Heritage Foundation. While opponents of capital punishment have been very vocal in their opposition, a recent Gallup opinion poll found that 67 percent of Americans favor the death penalty for those convicted of murder, while only 28 percent are opposed. Despite strong public support for capital punishment, Federal, State, and local officials must continually ensure that its implementation rigorously upholds constitutional protections, such as due process and equal protection of the law. However, the criminal process should not be abused to prevent the lawful imposition of the death penalty in appropriate capital cases. As of December 2005, there were 37 prisoners under a sentence of death in the Federal system. Of these prisoners, 43 percent were white, while 54 percent were African-American. The fact that African-Americans are a majority of Federal prisoners on death row and a minority in the overall United States population may lead some to conclude that the Federal system discriminates against African-Americans. However, there is little rigorous evidence that discrimination exists in the Federal system. To review the Federal death penalty process, the National Institute of Justice awarded the Rand Corporation a grant to determine whether racial disparities exist in the Federal system. The resulting 2006 Rand study set out to determine what factors, including the defendant's race, victim's race, and crime characteristics, affect the decision to seek a death penalty case. To accomplish this mission, three independent research teams were tasked with developing their own methodologies to analyze the data. When first looking at the raw data without controlling for case characteristics, Rand found that the decision to seek the death penalty is more likely to occur when the defendants are white and when the victims are white. However, these disparities disappeared in each of the three studies when the seriousness of the crimes was taken into account. The Rand study concludes that the decisions to seek the death penalty are driven by characteristics of crimes rather than by race. Rand's findings are very compelling because three independent research teams, using the same data but different methodologies, reached the same conclusions. In recent years, a growing number of sophisticated studies having consistently found that capital punishment saves lives, Federal, State, and local officials need to recognize this benefit. Three studies of professors at Emory University support the deterrent effect. The study found that each execution, on average, results in 18 fewer murders. The second study found that implementation of State moratoria is associated with increased incidence of murders. A third study found that each execution prevents three murders and shorter waits on death row reduce murders as well. Studies by professors at the University of Colorado at Denver found that each additional execution deters five murders. In addition, each additional commutation resulted in five additional murders. And removal from death row by a court resulted in one additional murder. In summary, Americans support capital punishment for two good reasons: first, there is little evidence to suggest that minorities are treated unfairly; and, second, recent studies have confirmed what we learned decades ago: capital punishment does, in fact, save lives. Each additional execution appears to deter between 3 and 18 murders. Thank you, Mr. Chairman. [The prepared statement of Mr. Mulhausen appears as a submission for the record.] Chairman Feingold. The Chairman of the full Committee, Senator Leahy, has just arrived, and he has asked that we hear from the next witness, and then he will speak. And I want to thank Dr. Mulhausen for his testimony. Our next witness is Hilary Shelton, the Director of the NAACP's Washington Bureau. Mr. Shelton runs the NAACP's Legislative and Public Policy Advocacy Office and has a very long and distinguished record of advocating for civil rights. Thank you for joining us, and the floor is yours. STATEMENT OF HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE [NAACP], WASHINGTON, D.C. Mr. Shelton. Thank you and good morning. As you mentioned, my name is Hilary Shelton. I am Director of the NAACP's Federal legislative and national public policy arm of the Nation's oldest, largest, and most widely recognized grassroots-based civil rights organization, with 2,200 membership units, and units literally in every State throughout the United States. After 98 years of fighting for full civil rights protections for all Americans, the NAACP remains resolutely opposed to the death penalty, and as such I would like to offer our sincere thanks to the Chairman, Senator Feingold, and Senator Leahy for their great work on these issues and for their unflinching efforts to end this discriminatory and immoral practice at the Federal level. You are indeed our champion and an inspiration to all on this issue. Thank you, sir. The Government's claim to a moral authority to exact the ultimate punishment is based on the belief that the punishment will be administered fairly and evenhandedly. But even a cursory review of the death penalty at both the Federal and State levels indicate this is false. From the days of slavery through the years of lynchings and Jim Crow laws, to even today, capital punishment has always been deeply affected by race. This is true among the States as well as at the Federal level. Despite the fact that African- Americans make up only approximately 13 percent of our Nation's population, almost 50 percent of those who currently sit on the Federal death row are African-American. And even though only three people have been executed under the Federal death penalty in the modern era, two of them have been racial and ethnic minorities. Furthermore, all six of the next scheduled executions are African-American. The race of the victim also appears to play a role in the implementation of the Federal death penalty. According to the report just released by the ACLU's Capital Punishment Project, under the tenure of the last three Attorneys General, the death penalty was sought in 35 percent of the cases when the victim was white compared to 19 percent of the cases when the victim was a person of color. This means that the risk of Federal death penalty authorization is 1.8 times higher in the white victims' cases than racial and ethnic minority cases. This disturbing trend is mirrored in the States. Across the Nation, about 80 percent of the victims in the underlying murder and death penalty cases are white, while less than 50 percent of murder victims overall are white. This statistic implies that white lives are valued more than those of racial and ethnic minorities in our criminal justice system. Finally, the NAACP is deeply concerned about the implications demonstrated when reviewing the data surrounding the numbers of people who have been exonerated since being placed on death row. Since 1973, over 120 people have been released from State death rows with evidence of their innocence. When administered, the death penalty is the ultimate punishment, one that is impossible to reverse in light of new evidence. The American criminal justice system has been historically, and remains today, deeply and disparately impacted by race. It is difficult for African-Americans to have confidence in or be willing to work with an institution that is fraught with racial disparity. And the fact that African-Americans are so over represented on death row is alarming and disturbing, and certainly a critical element that leads to the distrust that exists in the African-American community of our Nation's criminal justice system. It bears repeating that 49 percent of all the people, or almost half of all those currently sitting on the Federal death row, are African-American. Perhaps more disturbing is the fact that nobody at the Department of Justice can conclusively say that race is not a factor in determining which defendants are to be tried in Federal death penalty cases. According to DOJ's own figures, 48 percent of the defendants in Federal cases in which the death penalty was sought between 2001 and 2006 were African-American. What we don't know, unfortunately, is whether or not this number is representative of the number of criminal defendants who are accused of crimes in which the death penalty may be sought. And since there are several layers that must be examined to even begin to assess this data, including whether a crime is tried at the local or Federal level, it is not an easy statistic to attain. What is clear, though, is that at several different points in the process of determining who is tried in a Federal death penalty case and who is not, a judgment is made by human beings in a process in which not everyone has similar views. This is born out in a new ACLU study which found that a far greater percentage of white defendants were able to avoid the death penalty through plea bargains, which can be attributed to the exercise of Federal prosecutorial discretion. This concern is mirrored at the State level where 98 percent of the chief district attorneys in death penalty cases are white and only 1 percent is African-American. In addition to the factor of the race of the defendants, the NAACP is also deeply troubled by the role played in the race of the victim. Although at the Federal level the weight of the victim's race appears to have changed over the last few years, at the state level the race of the victim still appears to play a big role. According to the Death Penalty Information Center, 79 percent of the murder victims in cases resulting in an execution were white, even though nationally only 50 percent of murder victims overall were white. A recent study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed African-Americans and more than 4 times more likely than those who killed Latinos. Another study in North Carolina found that the odds of receiving a death penalty sentence rose by 3.5 times among defendants whose victims were indeed white. These studies, along with the fluctuations we see in all death penalty jurisdictions including the Federal Government, speak again to the varying factors involved in determining who is eligible for the death penalty and who is not. The overwhelming evidence that a defendant is more likely to be executed if the victim is white is also incredibly problematic; it again sends a message that in our criminal justice system, white lives are more valuable than those of racial or ethnic minorities. Obviously with race being so problematic and such an overwhelming factor in the application of the death penalty, the NAACP is also concerned that there is no room for error. Yet errors do occur even today. Nationally, more than 120 people have been exonerated and freed from death row before they could be executed. Given the finality of the death sentence under which these people were living, they may, in fact, be considered the ``lucky ones.'' Furthermore, considering the disparities in the number of African-Americans on death row, it is likely that more African-Americans are erroneously executed, a fact that once again contributes to the mistrust that is endemic among African-American communities of the American criminal justice system. There are several other very valid arguments against the death penalty that I will mention but not elaborate on now. The death penalty is not a cost-effective punishment. A 2005 study showed that in California, taxpayers paid $114 million per year beyond the costs of keeping convicts locked up for life; taxpayers have paid more than $250 million for each of the State's executions. With that, I want to thank you very much for the opportunity to speak with you today, and I look forward to your questions. [The prepared statement of Mr. Shelton appears as a submission for the record.] Chairman Feingold. Thank you, Mr. Shelton, for your testimony and for your tremendous leadership in this area. I am just delighted that the Chairman of the full Committee is here. I am delighted he is here; I am delighted he is Chairman. And most importantly today, I hope everyone understands the enormous role that the Chairman has played, long before I got here and since I have been here, on principled questioning in opposition to the death penalty not only at the Federal level but throughout the country. We have worked hand in glove on this issue, and I am grateful to him for his tremendous efforts over the years on this issue. Mr. Chairman. STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Well, thank you. And I thank Senator Feingold for that because he has taken the same, I believe, principled stands, often difficult in political years, election years, but we both feel strongly about this. I recall, Mr. Shelton, the first time I ran for the Senate. Even though Vermont does not have a death penalty, the polls showed that about 85 percent of the people prefer it. My opponent said in the debate, ``How can you possibly oppose the death penalty? '' I said, ``How many murder scenes have you gone to? How many murderers have you convicted? Let me tell you about some of the murderers I have convicted. Let me tell you about some of the murder scenes I have been to as a prosecutor.'' It probably did not answer the basic question, but I wanted to make sure he understood that I speak from some real experience. Like Mr. Charlton, who is a prosecutor, you speak from real experience. I think what Senator Feingold is doing is bringing about this oversight that is long overdue. This Committee should have been having oversight hearings on this a great deal more, and I am glad that this year now with Senator Feingold chairing one of the major Subcommittees that we have it. Seven years ago, I came to the Senate floor, and I called attention to a national crisis in the administration of capital punishment. I noted that since the reinstatement of capital punishment in the 1970s, 85 people--now this was 7 years ago; 85 people had been found innocent and released from death row. Now, this tells you not only did you have the wrong person on death row who in some instances came within days of being executed, but it gave everybody a false sense of security. Some of these were serial murderers. They lock up the wrong person, everybody says, ``Boy, are we safe. We put the guy away.'' That means the murderer is still out there and you are not safe. I talked with one man who was convicted, Kirk Bloodsworth. I got to know him very well. I think, Mr. Shelton, you know him. I talked with him yesterday. It was his wedding anniversary. It was also a couple days after the 14th anniversary of being released. It was a heinous crime. I will not go into it here. He was accused of a heinous crime, declared his innocence. They would not even let him out of--he was on death row. They would not let him out of jail even to go to his mother's funeral. And it turned out, oops, sorry, we should have checked that DNA that they kept asking them to check. They had the wrong person. Actually, the right person then confessed to the crime. It is hard to bring back those years when you sit there wondering if you are going to get executed. At that time, 7 years ago, I introduced the Innocence Protection Act of 2000. I worked for many years with others until its passage as part of the Justice For All Act of 2004. And we had a number of people join in it, both Republicans and Democrats, especially many people that had been former prosecutors. The legislation made key strides in ensuring that capital defendants had access to DNA testing and to effective counsel. You need both. DNA testing is not worth an awful lot unless you have effective counsel, and that greatly reduces the chance of innocent people being sentenced to death. It does not eliminate it; it reduces it. But, you know, since that time, like in so many other areas, the Bush administration has proceeded on its own path, and they have done it in secrecy. Surprise, surprise. I was struck by the testimony today--and I read your testimony today, Mr. Charlton, and I was getting briefed in the back room--you notice the people around me--about your testimony. He reported that he vigorously opposed seeking the death penalty in one case with no forensic evidence, but that his opposition was dismissed without any opportunity for him to discuss the matter with the Attorney General. Even more troubling, as Deputy Attorney General McNulty's chief of staff Michael Elston told Mr. Charlton at the time, Mr. McNulty and Attorney General Gonzales had spent considerable time on this issue, maybe 5 to 10 minutes--5 to 10 minutes to decide whether somebody might end up with the death penalty. That is not sufficient to make a careful decision about whether to seek to execute a person in what was a difficult case, one where the evidence was very questionable. But I worry that the Attorney General and the Deputy Attorney General may also have taken no more than 5 or 10 minutes in deciding to accept the recommendation from the political arms of the White House or elsewhere that Mr. Charlton be fired in spite of his courageous and diligent service. I am reminded, Secretary Sanchez Ramos, you have spoken of the same thing in Puerto Rico where you do not have a death penalty and being told you are going to have to have the death penalty in Federal cases. We had a similar thing in Vermont. A case where a carjacking ended tragically, the person crossed State lines so it is now in Federal court in Vermont, which does not have a death penalty. The U.S. Attorney, a highly qualified U.S. Attorney, sought and got a plea agreement, an ironclad plea agreement, where the person would get life with no chance of parole. And the court, a very good judge, was going to make sure it was going to be ironclad. But no, after one of those 4-minute, 5-minute phone calls from the Attorney General, we have got to have a death penalty. We will show those people in Vermont for not having a death penalty on the books. We will fix them. We will have a death penalty on this one. Instead of having a plea bargain, going to prison for life, with no chance of parole, we will spend millions of dollars both in the prosecution and defense in this case, and who knows where we will end up? But we will make a point. This, incidentally, was the same Justice Department when we asked them to put people after 9/11 to investigate the shipping containers, the ships coming into the port in New Orleans because of the possibility if they had a bomb and they exploded it--this is before Katrina--and it blew out the dikes, a lot of people could be killed. They did not have any people for that, but they spent a fortune for the prosecution by the Department of Justice and an investigation. And you know what they found? This is going to be very shocking. If you shock easily, please cover your ears. But they found two houses of ill repute in New Orleans. Now, I was shocked to even hear there were such things in New Orleans. I did suggest to the Attorney General that he probably could have had somebody do what one of our staff did: get out the Yellow Pages phone book in New Orleans. They advertised. They did not have to spend millions of dollars doing that. But it just shows the priorities. That in a way is almost humorous because of what happened, but what is not humorous is that the leadership of the Department of Justice has kept its decisionmaking on these life-or-death issues quiet. They have kept them out of the light of day. They made sure that people do not know about it. They have done things like in Puerto Rico, which does not have a death penalty, they have basically imposed one in these private meetings, as they did in Vermont. So it is time to shine some light on it, and I cannot commend the Senator from Wisconsin enough for doing just that. I thank him for that. Chairman Feingold. Well, again, thank you very much, Mr. Chairman, for your comments and for your participation in this. I am looking forward to working with you on this issue. Our next witness is William G. Otis. Mr. Otis is an adjunct professor at George Mason School of Law. Previously, he has served as counselor to the DEA Administrator, as an Assistant U.S. Attorney, and as an attorney in the Criminal Division of the Justice Department. Mr. Otis, thank you for joining us, and you may begin your testimony. STATEMENT OF WILLIAM G. OTIS, FORMER CHIEF, APPELLATE DIVISION, U.S. ATTORNEY'S OFFICE, EASTERN DISTRICT OF VIRGINIA, FALLS CHURCH, VIRGINIA Mr. Otis. Mr. Chairman, thank you for inviting me to testify about issues relevant to the proposed Federal Death Penalty Abolition Act. Like the great majority of our citizens, I support keeping the death penalty for particularly gruesome and heinous murders. At the same time, Mr. Chairman, I want to thank you for your principled and forthright stand. You do not seek to disguise your views behind what some market as a death penalty ``moratorium,'' but what is actually intended for the most part to be simply the first phase of wholesale abolition. You support abolition, as you said at the outset of this hearing. This makes an honest debate possible. Today's discussion of the death penalty cannot be divorced from the broader national debate about capital punishment. Indeed, if anything, the Federal Government's death penalty procedures are more detailed and painstaking than those of most other jurisdictions. So if the Federal death penalty were to be abolished, it is difficult to see why capital punishment should exist anywhere in the country. But it should, in Federal law as elsewhere. The central reason for opposing abolition of the death penalty is that it is a one-size-fits-all proposition. It would tie the sentencing jury's hands by intentionally turning a blind eye to the facts of the case before it, no matter how horrible the crime, how sinister the killer, how many the victims, or how grotesque their fate. Yet more remarkably, it would tie the jury's hand even where the typical objections to the death penalty, including those that inspire this hearing, have no application. If the proposed legislation had been the law 10 years ago, for example, Timothy McVeigh would be with us today. Presumably he would still be seeking a national audience like the one he got on ``60 Minutes'' to explain why he was justified in murdering 168 of his fellow creatures, including 19 toddlers in the daycare center at the Murrah Building. It would be wrong to prohibit our juries--the conscience of our communities--from imposing the death penalty on a person like McVeigh, and to enforce this prohibition on the basis of issues that might arise in some cases some of the time, but that often will have nothing to do with the case at hand, would be incomprehensible. This was aptly explained by none other than Barry Scheck, the head of the Innocence Project, who told the Washington Post that, ``in McVeigh's case, `there's no fairness issue. . . There's no innocence issue. Millions of dollars were spent on his defense. You look at all the issues that normally raise concern about death penalty cases, and not one of them is present in this case, period.' '' Mr. Scheck might have added explicitly what was implicit in his remarks, namely, that there was no racial issue either, a fact no serious person disputes. But today's proposed bill would have prevented McVeigh's execution, or the execution of others like him, notwithstanding the fact that the stated reasons for the bill, racial and otherwise, were irrelevant to his case, and will be irrelevant to dozens if not hundreds of future cases. Now, some will say it is unfair in the context of this hearing to use McVeigh as an example, but that is not so. There is nothing ``unfair'' in discussing at a hearing about the death penalty one compelling illustration of why we should keep it. Beyond that, McVeigh is fairly representative. Over the last 50 years, two-thirds of those executed by the Federal Government have been, like McVeigh, white men. This largely mirrors the national experience: Since the death penalty was reinstated by the Supreme Court in 1976, nearly three-fifths of executed criminals have been white. We speak this morning against the backdrop of a savage campaign of global terror, from Madrid to London to New York and Arlington right across the river. If today's proposed legislation becomes law, the Federal Government's ability merely to ask a jury to consider the death penalty for terrorists will cease to exist, even if Osama bin Laden himself is in the dock. Millions of Americans would consider that an outrage, and a huge majority would consider it unjust. It is noteworthy that a majority of even those who generally oppose the death penalty thought it was appropriate for our domestic terrorist, Timothy McVeigh. All told, slightly more than 80 percent of the public thought the death penalty was right in that case. This bill would tell that 80 percent majority that, unbeknownst to them, their views are the accomplice of racism. But that is not true, and it is not the American public I came to know in my years as a prosecutor. We are a fair-minded and conscientious people. When the moral compass of 80 percent of our fellow citizens says that the death penalty should be imposed, as it did for McVeigh and will for Osama and others, it is not for Congress to tell them that their sense of justice doesn't count. To preserve our country's heritage that justice must turn on the facts of each case individually considered, I respectfully submit that Federal juries should continue to have discretion, acting out of conscience in egregious cases, to impose the death penalty. Thank you. [The prepared statement of Mr. Otis appears as a submission for the record.] Chairman Feingold. Well, thank you, Mr. Otis. I appreciate your being here. I am confused by your testimony. I could not have been more clear that this was not a hearing about any piece of legislation, and I assume you were listening. This is a hearing about congressional oversight of the Federal death penalty, and if this Committee is not going to be doing the oversight of the Federal death penalty, I don't know who is. So, yes, I do believe in certain pieces of legislation, but there are many who support the death penalty who share our concern about how the Federal death penalty is administered. But, again, I do thank you for being here. Our final witness is David Bruck-- Chairman Leahy. Could I add, Mr. Chairman, that Mr. Otis is a very well trained lawyer and all that, but we had enough red herrings thrown out by his testimony, we should probably all be getting a fishing license here. But the fact of the matter is not legislation. It is talking about the application of the Federal law enforcement and the utilization of the death penalty, and the facts are incontrovertible that we have had many, many people on death row who were innocent, who were there because there was not adequate counsel, there was not adequate evidence made available to them, exonerating evidence. And I would hope that everybody, whether they are for or against the death penalty, would feel that if somebody is being charged with a capital crime, that they would at least have the ability to see the evidence, all the evidence, that evidence would not be withheld, and that we not make a mistake. We do know from the number that have been released that there is an extremely high probability that innocent people have been executed. I would also hope that everybody, whether they are for or against the death penalty, would not condone having innocent people executed. Chairman Feingold. Thank you, Mr. Chairman. Our final witness is David Bruck, a Federal death penalty resource counsel to the Federal defender system, and clinical professor of law at Washington & Lee. A death penalty litigator since 1980, Mr. Bruck has represented capital defendants in some 20 cases, argued seven death penalty cases before the Supreme Court, and handled over 60 appeals in the State and lower Federal courts. Mr. Bruck, thank you for joining us, and you may begin. STATEMENT OF DAVID I. BRUCK, ESQ., FEDERAL DEATH PENALTY RESOURCE COUNSEL DIRECTOR, VIRGINIA CAPITAL CASE CLEARINGHOUSE, WASHINGTON & LEE SCHOOL OF LAW, LEXINGTON, VIRGINIA Mr. Bruck. Well, thank you, and thank you so much, Senator Feingold, for this hearing, which is long overdue. George Will has reminded conservatives, ``The death penalty is a Government program, so skepticism is in order.'' And I dare say oversight is also in order. We have seen a modest push to increase the reach of the Federal death penalty since this Committee last had the opportunity for oversight hearings. But even if success were judged by the number of extra death sentences that have resulted, it has been a failure. Mr. Sabin says the Justice Department keeps no track of the financial cost, but we have just heard from Mr. Charlton and from General Sanchez Ramos of some of the unquantifiable moral costs of this attempt to nationalize capital punishment, irrespective of the judgment of local prosecutors or the considered judgment of the people may be. To put all this in perspective: at least a couple of the witnesses seem to be debating the death penalty as such. Only 3.2 percent of all the death sentences imposed between 2001 and 2005 have been in the Federal system. Now, that is an increase from 1.4 percent in the last 5 years of the Clinton administration; that is, the Federal Government accounted for less than 1.5 percent of all the death sentences imposed in the country. But even that does not show that the Federal Government has been having more success. What it actually reflects is the fact that the number of death sentences in the country as a whole has dropped by more than half. As the country is beginning to reject this punishment, are seeing a last surge, if you will, from the Department of Justice under Attorney General Ashcroft and Attorney General Gonzales. Washington's intervention has resulted in an average of one extra Federal death sentence a year. That is to say, of the 30 cases in which this Administration has forced U.S. Attorneys to seek the death penalty when they did not want to and which actually went to trial, the failure rate is 80 percent. Only six new death sentences are what we have to show for it, along with all of the unreckoned costs, and all of the division and all of the problems that are front and center in this hearing. I would like to say a couple of things about the revised protocol. Mr. Sabin seemed very modest about it. The details of the changes to the protocol were not even referred to in his prepared testimony, and it seems that but for your efforts, Mr. Chairman, that protocol would not have been disclosed until these hearings were over. The changes are striking. They basically attempt to create an airtight regime of secrecy over the entire deliberative process, so that prosecutions in Mr. Charlton's position could be fired not merely for daring to disagree with the Attorney General, but for telling anybody that they did so. The secrecy provisions in this protocol even extend within the Government. It not only prohibits telling the public, but creates a ``need-to-know'' restriction on disussing who recommended and who disagreed with whom in this process. And if you violate that, you have violated this new Department regulation. This is not openness. This is going in the wrong direction. The new protocol also intensifies to the level of micro management the Attorney General's personal authority to implement a one-size-fits-all, Washington-knows-best approach to the Federal death penalty. It even requires a local U.S. Attorney to get the personal approval of the Attorney General before the Government is allowed to waive jury and allow capital sentencing by a Federal district judge. Then the protocol says over and over again that the point of this tremendously centralized structure is to achieve nationwide uniformity. It is time to look at that, Mr. Chairman. This is not a goal that is achievable, and even if it was, it is not a goal in keeping with our Federal system or with our Nation's values. The Sixth Amendment provides that the accused gets a jury of the vicinage, not one drawn from a venue chosen by Washington. There is also a grand jury requirement in the Fifth Amendment which allows charging decisions be evaluated by a local grand jury. The Framers believed that the power over life or death vested in the Federal Government should be moderated by local conditions and local views. And it is not written in stone--indeed, it does not even really make much constitutional sense--that a single appointed official in Washington far, from the reach of local control and local petition, should be the one to make these life-or-death decisions without regard to local experience and local wisdom. It is time for a tamping down of this nationwide bureaucratic death-selection system which has grown up in the last 6 years. And I certainly hope that this Committee will help to lead this administration in a more rational and cost- effective direction in the administration of the Federal death penalty. Thank you. [The prepared statement of Mr. Bruck appears as a submission for the record.] Chairman Feingold. Thank you very much, Mr. Bruck, and thank you to all the members of the panel. In a minute we will begin with questions, but I understand that Congressman Lungren has asked that his statement be placed in the record of this hearing. Without objection, that will be done. Mr. Charlton, DOJ responded in writing last week to a question I asked about the internal process for evaluating possible death penalty cases. Here is what it said: ``The review process permits and encourages communication between the U.S. Attorney's Office and the reviewing officials within the Department.'' It then recites a variety of contacts that might occur between a U.S. Attorney's Office and Main Justice during consideration of death-eligible cases, and suggests that there is an ample opportunity for robust debate throughout the process. As a general matter, is it your view that that is an accurate portrayal of the Justice Department review process? Mr. Charlton. Senator, under Attorney General Ashcroft, that was my experience. On at least two occasions, I had just that experience where we spoke at every different level and debated whether or not the death penalty should be approved or not. But under Attorney General Gonzales and with the Rios Rico case, that was not my experience for the reasons that I stated earlier. Chairman Feingold. Well, when Attorney General Gonzales testified before the Judiciary Committee earlier this year, he testified that you were asked to step down at least in part because of ``his poor judgment in pushing for a recommendation on a death penalty case.'' He specifically said that you came back to him 2 months after he had authorized the death penalty and asked him to reconsider. I would like to give you a chance to respond to that. Mr. Charlton. Well, that was this case, and I am fully satisfied that it was appropriate to seek the opportunity to visit with him personally about this issue. No decision is more important for a prosecutor, as I have said earlier, than whether or not to seek the death penalty, and that same truth holds for the Attorney General. I can think of nothing else in the Attorney General's day-to-day life, in his professional life, that would be more important than whether or not to intentionally and methodically take another person's life. And he ought to give the U.S. Attorney who oversees that office the opportunity to visit with him personally. There has been some discussion here about the financial costs that are involved, but, Senator, I would like to very briefly talk about other costs--costs that may be even more important than money. When you go forward with a death penalty prosecution, you are telling jurors, you are telling the jurists, you are telling opposing counsel that we think this is an important enough case to take another person's life. If, in fact, it is not, if, in fact, it is not an appropriate case for the death penalty, then you are spending your credibility. You are losing credibility. And it is not the Attorney General who is losing credibility alone. It is those prosecutors who have to stand before the jury. It is the United States Attorney's Office that those prosecutors represent. And that credibility is everything, as you know, Senator. And that is a loss that you cannot afford as well. Chairman Feingold. Thank you. Just an editorial. Obviously, I prefer Democrat Attorney Generals, but there is mounting evidence at these Judiciary Committee hearings that all Republican Attorney Generals are not the same. It is really quite a striking distinction in many instances that we have witnessed. Mr. Bruck, does the sort of transparency provided by former Attorney General Janet Reno's detailed report in 2000 in any way compromise or undermine the fair and just implementation of the Federal death penalty? Mr. Bruck. No. No one has ever suggested that any case was affected by her unprompted decision to throw sunlight on what the Department had been doing. And it is astounding to me that not only did the public not know the tally sheet of the last 6 years, but we have learned from Mr. Sabin today that until you made the request of the Department of Justice, they did not know either. So how could the Department be making intelligent assessments themselves of whether this wheel-spinning, and almost totally ineffective practice of overruling U.S. Attorneys and forcing them to seek the death penalty was being effective when the Department did not even know the numbers. I would also like to correct one statistic of Mr. Sabin's. He said that the the death-sentencing rate in ``overrule'' cases under this administration was higher than under Attorney General Reno, because only 7 percent of cases where she required the death penalty to be sought ended in death sentences. The implication was that she was making even worse judgments than the current administration. That is misleading, because what he failed to point out is that under the Clinton administration, U.S. Attorneys retained the discretion to plead cases out, without the approval of the Attorney General even after the death penalty was authorized. That safety valve was cut off in the 2001 regulations. Starting in 2001, the system became like the case in Vermont that Chairman Leahy described in Vermont where plea bargains had to be approved by the Attorney General and often were not. So the fact is that of the ``overrule'' cases under the Clinton administration, almost none of them ever ultimately went to trial. And that is why the death-sentence rate was only 7 percent, not because she was making poor decisions. Chairman Feingold. Thank you for that. And, Mr. Charlton, as a former Federal prosecutor, do you think that this transparency has undermined your work in any way? Mr. Charlton. I cannot think of a reason why it is that transparency would not be beneficial. In running my own office, when we made decisions about whether or not to go forward with a case, whether or not to recommend the death penalty, whether or not to seek a term of life, we openly discussed those issues. And I think you fail the full process, you fail in allowing people to give full input when you limit their ability to discuss their opinions with others. Chairman Feingold. Thank you, sir. Mr. Shelton, in your written testimony, you noted that law enforcement executives and rank-and-file officers agree that crimes cannot be prevented or solved without a basic community trust of the police. Can you elaborate on how the implementation of the Federal death penalty may have an effect on that level of trust? Mr. Shelton. Much like the disparate effect of many other aspects of our criminal justice system, whether it is racial profiling on our Nation's streets, or whether it is indeed our juvenile justice system in which even though African-American children commit crimes at the same rate as white children and other children but find themselves incarcerated at a much higher rate than their other counterparts in other racial groups, when we talk about the death penalty and its finality, we are hearing from people across the country that, No. 1, the lack of transparency, they are saying, in how these cases are being sought, why are they coming after African-Americans more often in death penalty cases, there is a lack of trust. Everyone we have talked to, whether it is the local street police officer or whether it is the Attorney General of the United States herself, has said to us on many occasions that very well they cannot prevent crime nor can they solve crimes without the trust of the communities these law enforcement officials are serving. Chairman Feingold. Are potential disparities in the death penalty widely known or discussed in the black community? Would you characterize opposition to the death penalty in the black community as stronger than that in the Nation as a whole? Mr. Shelton. I think that because I work for the NAACP, which is a predominantly African-American organization, and because we have 2,200 membership units throughout the country, and because these issues for us actually come up from our local communities through our democratic process of our conventions and other processes, indeed we know that they feel what is going, they see what is going on, they end up in the 200 black- owned newspapers across the country. The issues are being discussed, and everything we do here in Washington as it works its way into those units and as we move to try to change the status quo. So the short answer is absolutely yes. I think there is a gut feeling that you hear about first, but then as we look at the statistics and see the actual effect, we see that very well it is quite true and our people do know it. Chairman Feingold. Thank you. Mr. Secretary, I understand that Puerto Rico faces very difficult challenges in the area of criminal justice and that resources are scarce, and it is undisputed that it costs much more to bring a Federal capital case than it does to bring non- capital murder charges, although as we heard from DOJ, it has not even tried to determine how much more, so we do not really know how much. From your perspective, is seeking the death penalty the best use of the resources of the U.S. Attorney's Office in Puerto Rico to help fight the crime problem that you face? Mr. Sanchez Ramos. I definitely do not think that that is the best use or the most efficient use of resources. The U.S. Attorney's Office in Puerto Rico has very limited resources. At least that is what the U.S. Attorney has told--the previous one and the current one have told me over the last few years. During the past year, quite a few of the most experienced AUSAs there have quit. The U.S. Attorney in Puerto Rico recently requested that our prosecutors, local prosecutors, be assigned to work federally, sort of deputized federally as special AUSAs to help them deal with the rising crime problem in Puerto Rico. And I, in fact, was glad to sort of lend her two of my prosecutors. She had requested three. So definitely there is a situation of limited resources at that office by all accounts, and I would definitely rather have that office spend the limited resources in being able to apprehend and get convictions for the highest number of criminals possible, and if the cost of not having the death penalty for a few of the persons that are caught is to have an increase in the total number of criminals that are taken off the streets and put in jail, then I definitely think that that is the preferable alternative. Chairman Feingold. Thank you, sir. Mr. Bruck, based on information released from the Department, we know that the Attorney General has disapproved 15 plea agreements in death-eligible cases since 2001. What effect might this have on the willingness of defendants to cooperate with the Government in future cases? Mr. Bruck. Well, it is very simple. The way the Federal criminal justice system works is that criminal organizations are dismantled by defendants' lawyers proffering the testimony of their clients and giving up what the clients know in exchange for some consideration in plea bargaining. In capital cases, in cases where there are many dead bodies, the most serious of cases, it is now dangerous to do that because a defense lawyer can reach agreement with the United States Attorney based on a proffer where he has laid his client out and had him interviewed, only to have the agreement overruled by a distant decisionmaking process in Washington. And because it is so unpredictable, it is now much riskier to even initiate that process of providing information to federal law enforcement. It is just harder to engage in that process from the defense side, and I think that is going to mean less plea bargaining, less information being made available to the government, and fewer convictions. The system just is not going to work as well. Chairman Feingold. Thank you. Mr. Shelton and Mr. Bruck, can you respond to the arguments that the 2006 Rand study demonstrated there were no racial biases in the Federal death penalty prosecutions? And do you agree that that conclusion can be drawn from that study? Mr. Shelton. Mr. Shelton. I think this is an extremely limited study. As a matter of fact, I believe you have this, and I would like to just lift this up for the record. It is a letter from a number of distinguished law professors and others that have taken a look at that study and seen just how limited that study is. It is very clear that a lot of information that should be available to give you benchmarks as we are trying to assess indeed the effectiveness are not clearly displayed in that Rand study. And I hope that people will take a good look at this report and see that indeed, coming from someone like a David Baldus and others that are cited in this particular letter, challenging the effectiveness and the thoroughness of that study, someone who has actually been accredited by the Supreme Court in a number of cases and done very thorough investigations along those lines, I think that are very well-- with his position and the positions that we have looked at and the inconclusiveness of that study, you cannot really consider it. Chairman Feingold. Thank you, Mr. Shelton. Mr. Bruck. I would like to add a couple things. The letter from Professor Baldus is actually from five of the six members of the Advisory Committee for the Rand Corporation study itself, complaining not only about the way the study developed, but about the lack of openness in the way it developed. But the biggest thing to say about it is what you, Mr. Chairman, have already said. It is of archaeological interest. It is a study of the Clinton years, and there has been no study of the Bush years. On top of that it begs the question of how did an overwhelmingly minority pool come to be the group from which these cases are drawn? In other words, how is the Federalization decision made? Why are these cases the cases the end up in Federal court? I only want to add that this issue is about to become front and center before all of the people in this country, because as things stand now, the next six Federal executions are all going to be of African-American men. Every one of them. Mr. Shelton is talking about people wondering in the community. Well, they are sure going to wonder then. And we will still not have the answers. Chairman Feingold. Thank you for that, Mr. Bruck. Mr. Secretary, let's discuss the court battle several years ago about whether the Federal death penalty could be sought in Puerto Rico given the provision in the Puerto Rican Constitution outlawing capital punishment. Ultimately, the Federal Court of Appeals decided that Puerto Rico was subject to the Federal death penalty. Can you talk about the public reaction in Puerto Rico to that decision? I am not sure that many people are completely aware of the depth of public opposition to the death penalty in Puerto Rico. Mr. Sanchez Ramos. Sure. The opposition to the death penalty in Puerto Rico is not only broad, but very deep. People are not casually opposed to it but very firmly opposed to it. And so every time that the Federal Government announces that it is going to pursue death in a case in Puerto Rico, it generates public reaction that is massive and that is very strong. Specifically, the Acosta case is the one that you are referring to. In that case, the defense made the argument that the Federal statute providing for the death penalty could not legally be--was not applicable to Puerto Rico, using technical, legal arguments. The district court judge ruled in favor of the defense. However, the United States took it to the First Circuit Court of Appeals. The court of appeals held for the United States and concluded that the Federal statute was applicable to Puerto Rico. This was all before the trial happened. This all got a lot of publicity. It generated quite a bit of debate on the island. And what ended up happening was the Federal Government got its wish of having the death penalty authorized by--validated by the courts, and then when the trial occurred before the jury in the guilt phase of the trial, the jury ended up hearing the evidence and acquitting Acosta and the other co-defendant of all charges. Chairman Feingold. Was that unusual or surprising? Mr. Sanchez Ramos. It was very unusual, very surprising. I have been for about 7 years working on the prosecutor's side, first as Solicitor General, now as Secretary of Justice, and I have been observing, of course, the behavior of--you know, how the Federal system works in Puerto Rico, and it is very, very unusual in a murder case of this magnitude and with the strength of the evidence that was presented there to have an acquittal. And, you know, basically the conclusion of most everyone that I have talked to and of most commentators was that this had to be a reaction by the jury, just sort of a protest by the jury against the Federal Government's decision to seek death in that case. And so there is a risk in Puerto Rico because of the depth of feeling by the population against the death penalty and because of how strongly these beliefs are held that seeking the death penalty, you know, carries this risk that the Federal Government will not even get a conviction. And so this is-- Chairman Feingold. Given Puerto Rico's longstanding opposition to capital punishment, why do you think the Federal Government ran the risk here? Mr. Sanchez Ramos. Well, I am not sure. I mean, I think, you know, you would have to ask the Department of Justice. My speculation would be that, as they more or less stated today, they have this--they aspire to have national uniformity in an area where, as Mr. Bruck said, it is not an area where national uniformity is achievable. And even if it were constitutional, as he said, it is not something that might be desirable, even if in practical terms we were able to get it. You know, Puerto Rico presents, of course, unique problems not only in terms of how the population feels but also the language issues, which make it very hard to get good, adequate legal representation. Since locally you do not have any death penalty cases, there are no local lawyers who are sufficiently familiarized with the proceedings and the dynamics of this type of case. So you have to go and get outside lawyers, which normally is going to be someone who does not speak Spanish, and that creates problems. The juries also, it is a very non-representative jury in practical terms. Although legally the courts have upheld the way the juries are selected in the Federal district courts in Puerto Rico right now, you know, the truth of the matter is that the pool from which these people can be selected is very, very small and biased toward more educated people who understand English. It is really a very small minority in Puerto Rico that can understand English well enough to serve in a jury. Chairman Feingold. Thank you, Mr. Secretary. Mr. Charlton, everybody at the Justice Department, of course, ultimately works for the Attorney General and the President, and the employees have to follow instructions from their superiors. But what effect does it have on the morale of line prosecutors when they are directed to seek death in a case where they believe it is not warranted? Isn't that decision somewhat qualitatively different from other decisions? Mr. Charlton. It is. And as I said earlier, it affects the morale because those Assistant U.S. Attorneys know that they are about to expend political good will, that they are about to waste their credibility in front of a jury that they don't believe should impose the death penalty. I am also aware of another case from another district in which Assistant U.S. Attorneys specifically said that they did not wish to go forward with the death penalty and then refused to go forward with the death penalty once the Attorney General commanded that they do so. And I know that the Department of Justice sought to punish those Assistant U.S. Attorneys for their refusal to go forward, when I believe they were acting in good conscience. Chairman Feingold. Thank you, Mr. Charlton. You know, I regret that there were no representatives of the minority here for this hearing. This is very important oversight, and normally they are the ones who would seek to elicit comments from their witnesses. But I am now going to give everyone a chance to very briefly, if they wish, make some concluding remarks, whoever would like to--if anyone. Mr. Mulhausen. Mr. Mulhausen. Thank you for this opportunity. I guess in conclusion I would just like to say that when you look at disparities in sentencing, if you just look at descriptive statistics, you will not get the real picture. As a trained social scientist, what we do is we take those disparities and you control for whether or not the individuals are charged with the same type of crimes, the severity of the crime, and other characteristics. And what the Rand study did was, after controlling for those factors, found that there are no disparities in the sentencing system for the Federal capital punishment. The second point I would like to make is that social science research is increasingly concluding--emerging to a consensus that capital punishment saves lives. Regular studies over the last 5 or 6 years are showing that capital punishment prevents anywhere between 3 and 18 murders. So we need to recognize that there is a possible benefit here that needs to be in the discussion as well. That is all. Thank you. Chairman Feingold. Thank you, Doctor. Any others? Yes, Mr. Otis. Mr. Otis. Thank you. I very much appreciate your giving the other side the opportunity to say something here. I think that speaks very well for your fairness as Chairman of this Committee. I have only two things to add. When you try to have justice by the numbers, by looking at tables and statistics, you will get numbers, but you will not get justice. I have found in my career, which was 18 years as a career Assistant U.S. Attorney--not a political appointee, but a career person--that you had to look at the facts of each case. It did not matter what happened in the case before or in ten cases before or what you thought was going to happen in the ten cases after. You have to look at the facts of each case and give that defendant and that victim and the public as potential future victims your best judgment. I have never believed in justice by the numbers. I think numbers are interesting for some purposes, but for deciding as a prosecutor what is the right thing to do, don't look at the numbers, look at the facts. The second thing I would say is this: There have been some suggestions that by looking at these numbers, what we would discover is that there is racism in the Department of Justice. I was in the Department of Justice for a long time. I was in the U.S. Attorney's Office from 1981 to 1999 under administrations of both parties. In my 18 years there, under both Democrats and Republicans, not one single time did I encounter a colleague of mine in the U.S. Attorney's Office or at Main Justice who made a decision based on racial bigotry. Not one single time. Those are not my colleagues. That is not the service we granted. And if such a thing were to have happened and the person had been found out, he would have been run out of the building, and I would have been one of the people running him. Chairman Feingold. Thank you, Mr. Otis. Anyone else? Mr. Shelton. Mr. Shelton. Chairman Feingold, I want to thank you for holding this proceeding to raise these issues that are too often hidden in our society. As we talk about issues like the death penalty in the United States, we really are speaking to the values of the American people, and a value I think that can become misconstrued all too often, I think the American people value life. They value people having an opportunity to make their case, to prove their concerns, to raise the issues in the public forum. And very well if you put someone to death, indeed they don't have that opportunity anymore. We know in cases like Gary Graham in Texas, we had an African-American man who was not able to even get a new trial, though it was proven that his attorney slept through much of the proceeding. And let us look at other places, making sure that we have good, qualified attorneys as counsel. Indeed, we know we do not have that in our country. It would be great if every American had the dream team that O.J. Simpson had when his life was being challenged, when indeed his life was on the line as he made his arguments in an American court. But we know that that is not the case for most African-Americans or other people of color in the United States. The death penalty is something that we can do without. It costs too much. It costs too much in not only the dollars that we could utilized for other things to prevent crimes from happening in the first place and advance quality of life throughout our Nation, but it costs to much to the very soul of Americans in being able to say that we will put someone to death even after they have been caught, even after they have been locked in a prison, even though we could very well leave them in there for the duration of their life. We still seek to spend the extra resources to put them to death. I think it is unnecessary, and indeed we need to reconsider this and move toward some change in our country. Chairman Feingold. Thank you so much, Mr. Shelton. Let me thank all--did you want to say something, Mr. Secretary? Mr. Sanchez Ramos. I just wanted to say briefly that deterrence, as Dr. Mulhausen has said, is definitely an important value, but it is not the only value in the calculus. I am sure we could devise or change the system to--even assuming that the death penalty has a deterrent effect, we could even increase its deterrence effect by maybe giving the defendants fewer rights, maybe having public executions, maybe painful executions. Maybe that would, in fact, statistically provide higher deterrence, but there are other principles and values that should be taken into consideration when one does this equation in terms of, you know, what kind of society we want to be and what value we ascribe to the problem, what cost we ascribe to the problem of having an innocent person be convicted and punished. And so, you know, in this sense, societies that have fewer liberties, such as, you know, communist societies throughout the years, they have had fewer crime. But at what cost? And so that is basically the point that I wanted to make. Deterrence is not the only value. You have to look at what the cost of that deterrence is in order to have the proper equation in balance to make a good policy determination. Chairman Feingold. Thank you, Mr. Secretary. I would note that the issue of deterrence was, in fact, taken up in this Subcommittee in a hearing last year, and I will now place in the record, without objection, the testimony of Professor Jeffrey Fagin from that hearing. Mr. Shelton. Mr. Shelton. I am sorry, Senator Feingold. I could not sit quietly as we talked about the issue of deterrence. I think it is very important to also consider that the States that utilize the death penalty also have the highest murder rates in our country. So, indeed, if there is some correlation between deterrence and the number of murders that are actually occurring, then indeed what we are seeing is that in States throughout the United States, those States that have the highest murder rate also have the death penalty. There is some cause and effect that is not being-- Chairman Feingold. We have always had that feeling in Wisconsin. Thank you all for your testimony and a thoughtful discussion. We appreciate your taking the time to be here. We thank you for your insights. The hearing record will remain open for 1 week for additional materials to be submitted. Because of the upcoming recess, we will require written questions for the witnesses to be submitted by the close of business 2 weeks from today. We will ask the witnesses to respond to those questions promptly so the record of this hearing can be completed. I am concerned about some of the things we have learned today. I am concerned that the Justice Department is itself not tracking basic statistics about its Federal capital cases, including something as basic as what it costs to bring such a case. In this time of rising violent crime and limited Federal criminal justice resources, I would hope DOJ would be interested in knowing what it costs to bring a capital case and might consider whether those resources could be more effectively used elsewhere. I am also concerned about the death penalty becoming just another political tool. If the message is conveyed in whatever form to U.S. Attorneys that the Attorney General looks with disfavor on those who do not recommend frequently enough that the Government seek the death penalty, might some of these individuals end up making a recommendation to seek death in cases where that is not the best outcome from a law enforcement perspective or where it is against their better judgment? Such considerations have no place in the decision about whether the Government should take someone's life. I remain concerned about racial disparities in the administration of the death penalty. This is an area where we need more information. And I believe the Justice Department should reconsider its policy of routinely seeking the death penalty in jurisdictions where that penalty is not usually available. At the very least, a very strong Federal interest in seeking death should be present, and perhaps of most concern is that it appears that the current Attorney General does not appreciate the gravity of his authority to decide whether to seek to execute an individual. And it appears that he discounts the views of his U.S. Attorneys on the ground who know the local judges and who know the local community. So this, as I have said, is not the end of our oversight work. We will continue to examine all of these issues. I want to again thank the Department of Justice for its cooperation in preparing for this hearing and, again, our witnesses for their contributions. Thank you, and the hearing is adjourned. [Whereupon, at 11:28 a.m., the Subcommittee was adjourned.] [Questions and answers and submissions for the record follow.] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]