For a Moratorium on Federal Executions

Dear President Clinton:

As you know, the federal government is preparing to carry out the first federal execution in nearly forty years. The first of twenty-one individuals on death row, Juan Garza, is scheduled for execution on December 12, 2000. Unless you take action, executions will begin at a time when your own Attorney General has expressed concern about racial and other disparities in the federal death penalty process. Such a result would be an intolerable affront to the goals of justice and equality for which you have worked during your Presidency. Consequently, we urge you to put in place a moratorium until the Department of Justice completes its review of the federal death penalty process.

There is a compelling need for you to intervene: a recent Department of Justice survey documents racial, ethnic and geographic disparity in the charging of federal capital cases.

The survey of the death penalty authorization process by the Department of Justice reveals that, among all the federal capital defendants against whom the Attorney General has authorized seeking the death penalty, 69% have been Hispanic and African American (18% and 51% respectively), while only 25% have been white. The Department of Justice has no data concerning the potential pool of persons against whom federal capital cases might be filed and authorized. However, analogous data does exist concerning state prisoners. Only 12 % of all persons entering the state prisons after being convicted of homicide are Hispanic. Using similar data, 40% of all persons entering the state prisons after being convicted of homicide are white. As the Attorney General has recognized, these data indicate that minorities are over-represented in the federal death penalty system.

These disparities persist when the Department’s data is examined from other perspectives. For example, 47% of all white defendants for whom the Attorney General authorized seeking the death penalty subsequently entered into a plea bargain in exchange for a non-death sentence, as compared to only 27% of Hispanic defendants whose cases were authorized for death. And on death row itself, as of the time of the Department’s survey, 17 of the 21 persons on federal death row – 81 % – were racial or ethnic minorities.

The Justice Department survey also reveals inexplicable geographic disparities in the administration of the federal death penalty. In 16 states, prosecutors seek and obtain death penalty authorization in at least 50 % of the federal capital cases that are submitted for review by the Attorney General. On the other hand, there are eight states in which that rate is much lower, ranging from 8 - 30 %. And there are 21 states in which U.S. Attorneys have either never requested or never obtained authorization to seek the death penalty. These disparities in death penalty authorization rates are striking even among the states with the highest number of cases submitted for consideration. Among the eight states where U.S. Attorneys have submitted 20 or more cases for consideration, the death penalty authorization rate exceeds 50 % in only one state – Texas – and ranges from 15 - 38 % in the rest.

When the survey was made public by the Department of Justice on September 12, 2000, the Attorney General acknowledged that the survey shows “minorities are over-represented in the federal death penalty system.” She also noted that the Department could not explain the disparities and because of this, “[a]n even broader analysis must therefore be undertaken to determine if bias does in fact play any role in the federal death penalty system.”

The Deputy Attorney General added at the press conference on September 12 that “no one reading this report can help but be disturbed, troubled, by this disparity.” He then urged that the problem of race bias in the criminal justice system be confronted openly:

Ours is still a race-conscious society, and yet people are afraid to talk about race. At times, this issue seems to be one of  the last remaining ... topics of conversation that is taboo, but it is imperative, moral and legally, that we confront this problem.  Promoting an honest dialogue is essential to achieving a criminal justice system where race is never a factor.
When asked whether, in light of the disparities revealed by the survey, the federal death penalty system was fair, the Deputy Attorney General acknowledged some uncertainty:
 I am a little surprised. I thought that, seven months ago, when we got to this point we would have substantially greater numbers of answers than we now have, and one of the things that I’ve been struck by is the number of questions that these numbers have raised in my mind, and I think that’s one of the chief reasons why the attorney general has asked for further studies to be done....
The explanation for these extremely troubling disparities is unclear, but, as the Attorney General and the Deputy Attorney General recognized, the possibility of discrimination and bias cannot be ruled out. The Department of Justice is taking the responsible course and studying the matter further to see if the causes of disparity can be identified and, if appropriate, remedied. But, in the face of these unexplained findings, the Attorney General and the Deputy Attorney General have also suggested that the proper response, in relation to persons already sentenced to death, is to take this information into account in the clemency process. We fail to see how you as President can make an informed and just decision to deny clemency in a particular case without understanding the reasons for these extremely troubling disparities. When the Attorney General and the Deputy Attorney General cannot say with confidence that race and ethnic bias have not played a role in the application of the death penalty, and that they must have further studies to answer this question, there can be no question: No federal death sentence can be carried out until the studies and the “honest dialogue” that must follow from them have been completed.

Mr. Garza’s case reflects precisely the concerns over racial, ethnic and geographic disparities in capital cases that the Justice Department itself has raised. Mr. Garza is Hispanic and from Texas – two factors that appear to increase substantially the chances that the government will seek the death penalty in a potential capital case. What if, after further study, the Department itself determines that race or the arbitrary factor of geography does in fact influence who is prosecuted for death and who is not? We cannot bring Mr. Garza or others back if we decide that they were the victims of a death penalty system distorted by bias and arbitrariness.

We have heard voices from various quarters of society taking comfort from the lack of evidence that death row inmates are actually innocent. We recognize the moral difference between executing an innocent person and executing someone who is guilty of a horrible offense but is sentenced to death because of his racial or ethnic background or the happenstance of where he is tried. But we believe it would be wrong and unconscionable for society to make actual innocence the final test for who should live or die. This view would sanction the executions of defendants who, but for their race or ethnicity, might never have been sentenced to death, and it demeans human life by implying that, for defendants who cannot prove their innocence, there is no legal or moral distinction between executing them or imprisoning them. We reject that view.

Our plea to you comes at an historic moment. At no time since the death penalty was reinstated by the Supreme Court in 1976 have Americans voiced such grave doubts about the fairness and reliability of capital punishment. At the state level, those doubts are reflected in the unprecedented moratorium on executions put into place by Governor Ryan of Illinois, in death penalty moratorium bills introduced and enacted in state legislatures, and in studies commissioned by Governors in other states. At the national level, several bills have been introduced in the United States Congress calling for a moratorium for state and federal executions, or for greater protections for those prosecuted for capital crimes; diverse community and civil rights organizations from the National Urban League, to the NAACP, to the American Bar Association, have called on the Executive Branch to suspend federal executions; and religious organizations have intensified their long-standing calls for a death penalty moratorium. The international community echoes these concerns, as does public opinion, with recent polls suggesting that a majority of the American public supports a moratorium on executions until issues of fairness in capital punishment can be resolved.

The problems that we have highlighted here are problems that resonate profoundly with our nation’s historic struggle to secure equal justice under law for all our citizens. These problems are like the ones that have rumbled beneath the surface of state death penalty systems for years, which have finally erupted into the public consciousness and conscience and fueled the growing call for a moratorium.

Some of those who have signed this letter agree with you that capital punishment is appropriate in principle, provided that it is administered in a fair case-by-case manner. However, all of us agree that a moratorium should be adopted while these fairness issues are being resolved.

We believe that the step we ask you to take is squarely consistent with the power to grant reprieves that is given to you by Article II of the Constitution. We are aware of your support for the death penalty under some circumstances and we are not asking that you change your long-held position. We are asking only that you prevent an unconscionable event in American history — executing individuals while the government is still determining whether gross unfairness has led to their death sentences. Granting this delay would not only avoid the specter of fundamental injustice in individual cases, it would address the legitimate reservations about capital punishment that burden the hearts and minds of so many citizens.

Dr. Mary Frances Berry
Chair, U.S. Commission on Civil Rights

Cardinal Roger Mahony
Archbishop of the Roman Catholic Archdiocese of Los Angeles

Julian Bond
Chairman of the Board, National Association for the Advancement of Colored People (NAACP)

Irvin Nathan
Former Principal Associate Deputy Attorney General in the U.S. Department of Justice (DOJ)

Senator Alan Cranston
U.S. Senate 1969-1993; President, Global Security Institute

Angela E. Oh
Member, Advisory Board One America: The President’s Initiative on Race

Kerry Kennedy Cuomo
Human Rights Activist; Founder and Former Executive Director of the RFK Center for Human Rights
Mario G. Obledo
President, National Coalition of Hispanic Organizations

Lloyd Cutler
Former Counsel to President Clinton and to President Carter

Professor Robert Reich
Former U.S. Secretary of Labor

Tom Eagleton
U.S. Senate, 1968-1987

Arturo Rodriguez
President, United Farm Workers of America, AFL-CIO

Most Reverend Joseph A. Fiorenza
Bishop of Galveston-Houston; President, National Conference of Catholic Bishops
Michael Rosier
President-elect, National Bar Association

Dr. John Hope Franklin
Chair, Advisory Board One America: The President's Initiative on Race

Rabbi David Saperstein
Director, Religious Action Center of Reform Judaism

Bishop Thomas Gumbleton
Auxiliary Bishop, Archdiocese of Detroit

The Honorable H. Lee Sarokin
Retired Judge, U.S. Court of Appeals for the Third Circuit

Wade Henderson
Executive Director, Leadership Council on Civil Rights (LCCR)

Stanley Sheinbaum
Economist; Founding Publisher, New Perspectives Quarterly

Antonia Hernandez
President and General Counsel, Mexican-American Legal Defense and Education Fund (MALDEF)

Sidney Sheinberg
Former President and Chief Operating Officer of MCA, Inc./Universal Pictures

Rev. Theodore M. Hesburgh, C.S.C.
President Emeritus, University of Notre Dame

Senator Paul Simon
U. S. Senate, 1984-1997, U.S. House of Representatives, 1974-1984

Reverend Jesse Jackson
Civic and Political Leader; President and Founder, Rainbow Coalition/PUSH

George Soros
Philanthropist; President and Chairman of Soros Fund Management LLC.

Fred Korematsu
Japanese American Civil Rights Leader

Barbra Streisand
President, The Streisand Foundation

Dean Anthony Kronman
Dean of Yale Law School

John Van de Kamp
California Attorney General, 1983-1991

Reverend James Lawson, Jr.
Pastor Emeritus, Holman United Methodist Church, Los Angeles
Arturo Vargas
National Latino Leader

Norman Lear
Director and Founding Member of People for the American Way; Chairman, ACT III Communications

Reverend C.T. Vivian
Founder and Board Chair, Center for Democratic Renewal (formerly the National Anti-Klan Network); President, Black Action Strategies and Information Center (B.A.S.I.C.)

Jack Lemmon
Actor; President, Jalem Productions, Inc.

Reverend Jim Wallis
Editor-in-Chief/Executive Director, Sojourners magazine

Robert Litt
Former Principal Associate Deputy Attorney General in the United States Department of Justice (DOJ)
Bud Welch
Board Member, Murder Victims Family for Reconciliation

Reverend Dr. Joseph E. Lowery
Co-Founder and President Emeritus, Southern Christian Leadership Conference (SCLC)

Professor Elie Wiesel
Nobel Peace Laureate; Founder, The Elie Wiesel Foundation for Humanity