Department of Justice Seal

Testimony of Deputy Attorney General Larry Thompson

before the Subcommittee on Constitution, Federalism, and Property Rights
Committee on the Judiciary
United States Senate
Concerning the Enforcement of the Federal Death Penalty

June 13, 2001

Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to appear here today to consider this important issue. In the brief time I have enjoyed the privilege of serving as Deputy Attorney General, I have been involved in a number of matters involving the enforcement of the federal death penalty. I can assure you that I fully appreciate the magnitude of the Department's responsibility in this area.

I also appreciate and respect the devotion you bring to this issue, Mr. Chairman. And though we may disagree over the appropriateness of the death penalty, we share a deep commitment to the fair and impartial enforcement of the law. As you know, Attorney General Ashcroft has set a clear direction for the Department. We intend to act in a manner consistent with the highest standards of integrity and with an abiding respect for the constitutional rights of all persons.

Of course the mission of the Department of Justice is to enforce vigorously the laws passed by the Congress, including dozens of criminal prohibitions carrying the possibility of capital punishment. These death eligible offenses, nearly all of which were included in the 1994 crime bill, are the duly established laws of the land and they define the interests of the Federal Government. They reflect the unmistakable will of the American public as expressed through their elected representatives. Just as former Attorney General Reno put aside her own views on capital punishment and approved all of the federal capital cases we will be discussing here today, so too must the current Administration fulfill its duty to enforce the law.

This commitment is especially important to the victims of violent crime. When the lives of family members and friends are shattered by deadly violence, their one simple hope is that the perpetrators of their suffering might be caught and punished. We all witnessed the singular importance of such accountability two days ago when the victims of Timothy McVeigh's terrorist attack repeatedly explained how his execution brought closure to their long nightmare.

It is a fact that minorities are more likely to be victims of violent crime than the majority. My predecessor former Deputy Attorney General Eric Holder observed at a September press conference that African Americans are about 50 percent of the nation's homicide victims. In particular, all of America has been victimized for nearly two decades by drug trafficking violence. We have become accustomed to nightly news stories about drive-by shootings and execution style killings by ruthless drug gangs. We have been horrified by reports of stray bullets killing children who were simply standing in the wrong place at the wrong time. The criminal justice system itself has been threatened by violent intimidation and witness retaliation. Hundreds of law enforcement officers have sacrificed their very lives to rescue communities from the ravages of violent drug trafficking. This is why the Attorney General has pledged to reinvigorate the battle against drug trafficking and Congress has provided powerful tools to law enforcement, including the death penalty, to stop these violent criminals.

But as I said, Mr. Chairman, the fulfillment of our law enforcement mission must strengthen and not weaken the public's confidence in the fair administration of justice. Even the appearance of racial or ethnic bias in the enforcement of capital punishment is a serious concern.

To address this problem, last week Attorney General Ashcroft announced three important steps. First, we released a report containing additional statistical data on potential capital cases prosecuted by the Department since 1995. The report also included analysis of the Department's enforcement practices during this same period of time. Second, the Department announced that the protocols for reviewing death eligible charges have been revised to increase uniformity in the system and ensure greater scrutiny of cases in which a U.S. Attorney is recommending capital punishment. And third, the Attorney General announced that he is directing the National Institute of Justice to conduct a study of how capital cases are brought into the federal system.

Mr. Chairman, please allow me to briefly explain each of these three developments.

Survey Results and Analysis

With regard to the survey results and analysis, as you know last September Attorney General Reno released the results of a survey that included information on nearly 700 capital cases since 1995 that had been submitted to the Department for review pursuant to the capital case review protocol. (I will have more to say about this protocol in a moment.) Attorney General Reno directed the Department to collect additional data on cases that had not been submitted for review over the same period of time. The cases in this category were not submitted because, for example, U.S. Attorneys entered into plea agreements with defendants before indictment on a capital offense charge. She took this action in order to ensure that this additional information did not undermine the findings reached on the basis of the original data.

The new data consists of nearly 300 cases. It is similar to the original data of the Reno report in that it provides no evidence of favoritism towards White defendants in comparison with minority defendants. Rather, potential capital cases involving African American or Hispanic defendants were less likely to result in capital charges and submission of the case to the review procedure. The new data, in combination with the previously available data on submitted cases, shows specifically that capital charges were brought and the cases were submitted for review for 81% of the White defendants, 79% of the African American defendants, and 56% of the Hispanic defendants, in potential capital cases. A further specific finding was that the various actions taken by the U.S. Attorney offices resulted in non-capital treatment for 74% of the White defendants, 81% of the African American defendants, and 86% of the Hispanic defendants.

All in all, the Reno study and our analysis found that the proportion of minority defendants in federal capital cases exceeded the proportion of minority individuals in the general population. For example, in cases submitted to the Department's capital case review procedure, 20% of the defendants were White, 48% were African American, 29% were Hispanic, and 4% were "Other." Nevertheless, our reports confirmed that African American and Hispanic defendants were less likely at each stage of the Department's review process to be subjected to the death penalty than White defendants. In other words, United States Attorneys recommended the death penalty in smaller proportions of the submitted cases involving African American or Hispanic defendants than in those involving White defendants; the Attorney General's capital case review committee likewise recommended the death penalty in smaller proportions of the submitted cases involving African American or Hispanic defendants than in those involving White defendants; and the Attorney General made a decision to seek the death penalty in smaller proportions of the submitted cases involving African American or Hispanic defendants than in those involving White defendants.

In the cases considered by Attorney General Reno, she decided to seek the death penalty for 38% of the White defendants, 25% of the African American defendants, and 20% of the Hispanic defendants. The finding that the death penalty was sought at lower rates for African American and Hispanic defendants than for White defendants held true both in "intraracial" cases, involving defendants and victims of the same race and ethnicity, and in "interracial" cases, involving defendants and victims of different races or ethnicities.

Our study found abundant evidence that the statistical disparities observed in federal capital cases resulted from non-invidious factors rather than from racial or ethnic bias. A factor of particular importance was the focus of federal law enforcement efforts on drug trafficking enterprises and related criminal violence. In areas where large-scale, organized drug trafficking is largely carried out by gangs whose membership is drawn from minority groups, the active federal role in investigating and prosecuting these crimes results in a high proportion of minority defendants. This is particularly true where state laws are inadequate for effectively combating such crimes. This is not the result of any form of bias, but reflects the normal factors that affect the division of federal and state prosecutorial responsibility in both capital and non-capital cases.

In this connection, our analysis examines in detail several of the districts which generated the largest numbers of capital offense charges, accounting collectively for about half of the cases submitted to the Department's review procedure. For example, the Eastern District of Virginia submitted 66 cases, mostly involving African American defendants. The large number of cases involving charges of capital crimes, and the racial proportion in these cases, resulted mainly from the district's involvement in the investigation and prosecution of drug gangs carrying on large-scale trafficking activities in its geographic area, and from the district's jurisdiction over killings committed by inmates in the District of Columbia's prison in Lorton, Virginia. The district of Puerto Rico submitted 72 cases, all involving Hispanic defendants. This district had an unusually large number of homicide cases because of an agreement by the U.S. Attorney with local authorities to prosecute fatal carjacking cases, and the defendants in these cases were Hispanic because the population of Puerto Rico is generally Hispanic. The U.S. Attorney office in the District of Columbia submitted 23 cases, most involving drug-related killings by African American defendants. The racial composition of these cases reflected D.C.'s demographics and the decision to pursue federal charges (as opposed to charges under local D.C. law) reflected advantages of federal prosecution that were unrelated to the race of the defendants. Other districts with high numbers of capital case submissions were the District of Maryland (41 cases), the Eastern District of New York (58 cases), and the Southern District of New York (50 cases).

These districts recommended against seeking the death penalty in the vast majority of their submitted cases involving minority defendants, contravening any notion that their exercise of federal jurisdiction in a large number of potential capital cases reflected an invidious desire to secure capital sentences against minority defendants.

The Revised Protocols

Turning to the subject of protocol revision, Attorney General Reno instituted a protocol designed to ensure consistency in decisions concerning capital punishment. Under this protocol, in all cases involving charges of crimes legally punishable by death, the responsible United States Attorney submits the case and makes a recommendation about whether to seek the death penalty to the Department. The case is then reviewed by a committee of senior attorneys, who receive input from both the U.S. Attorney and defense counsel. The Committee evaluates the facts of the case, the federal interest in the case, the likelihood of success, and the aggravating and mitigating factors that Congress has identified as relevant in such cases. The Committee then makes a recommendation to the Attorney General. The case is then reviewed by attorneys in my office, the Attorney General's office, and finally by the Attorney General. The advantage of this approach is that a uniform, equal process governs, and ultimately one person reviews all of the cases to ensure a consistent treatment based on the alleged conduct of the defendants.

Even though Ms. Reno's study and ours have found no evidence of racial or ethnic bias in the Department's treatment of minorities in the system, we did note some statistical disparity in the treatment of plea agreements following a decision by the Attorney General to seek the death penalty. This is the one component of the process that is not subject to subsequent review under the current protocols.

In order to have greater consistency in all aspects of the application of the federal death penalty, we are changing the protocol to require prior approval by the Attorney General before a death penalty prosecution may be dropped in the context of a plea agreement. Another requirement of the revised protocol is that U.S. Attorneys must report all potential capital cases to the Department so that our data will be more complete.

The National Institute of Justice Study

Finally, Mr. Chairman, the Attorney General has directed the National Institute of Justice to go forward with a study of the relationship between the state and federal criminal justice systems and the policies and practices that result in a capital case being prosecuted by the Federal Government. Issues relating to the race and ethnicity of defendants and the location of prosecution will be included in the study. NIJ will also consider in the study the effectiveness of federal, state and local law enforcement in the investigation and prosecution of murder in America. The primary purpose of this study is the same as that which was contemplated by the Clinton Administration but which did not progress beyond the planning process. We expect the solicitation for independent research to be released in the near future.


In conclusion, Mr. Chairman, while the Justice Department continues forward with vigorous enforcement of the law we will do so with an equally vigorous commitment to fairness and impartiality. We look forward to working with you to achieve these critical goals.