Twenty-five years after the Supreme Court first addressed the arbitrary and biased manner in which the death penalty was used, there is ample evidence that despite these efforts the death penalty is used unfairly.
Concerns about fairness and accuracy of the death penalty have been raised in virtually every jurisdiction that uses the punishment. The most dramatic vote of no confidence in the current system came in January of 2000, when Governor Ryan of Illinois imposed a moratorium on executions in that state, calling the execution of an innocent person "the ultimate nightmare".
Similar concerns have been raised about the fairness of the federal death penalty. In September the Justice Department released a survey of federal death penalty prosecutions nationwide. This survey revealed the disturbing fact that the federal death penalty has been used overwhelmingly against African American and Latino or Hispanic defendants.
Eighty-five percent or 17 out of 20 of those on federal death row are people of color. In eighty percent or 548 out of 684 of the cases submitted to the Attorney General as a possible federal death penalty case, the defendant was not white.
In addition to concerns about race and ethnic bias, the survey revealed geographic disparities in the federal capital prosecutions sought. For example, most death penalty prosecutions were pursued by only a handful of federal prosecutors - 42% or 287 out of 682 of the federal cases submitted to the Attorney General for review came from just 5 of the 94 federal districts.
Racial and geographic disparities persist despite the Justice Department's efforts to design procedures to select capital cases for prosecution. The survey results prompted the Justice Department to undertake a more in-depth study of the federal death penalty system.
The racial, ethnic and geographic disparities revealed by the survey are presented starkly in the case of Juan Raul Garza. Juan Garza is one of three Latino defendants on federal death row and one of the three prosecutions that have come out of Texas. Overall, Texas accounts for 8% of the total federal prosecutions. Cases prosecuted in the southern states of Texas, Virginia, Oklahoma, Alabama, Florida, Louisiana and Georgia account for 65% of the total federal death penalty prosecutions. Garza would have been killed in December 2000 but received a stay until June 2001.
When the Supreme Court first addressed concerns about the fairness of the death penalty in Furman v. Georgia in 1972, it sealed a de facto moratorium on executions. Executions resumed in 1976 under revised death penalty statutes that were supposed to end arbitrariness and discrimination. It appears today that those statutes have yet to hit their mark.
Regardless of your views on the morality and legitimacy of the death penalty, we can all agree that the punishment should not be used unfairly. We need a moratorium on executions at the state and federal level, to provide an adequate opportunity to study the system. We must determine what changes are necessary to assure that arbitrary factors such as geography, race, national origin or poverty do not control who is sentenced to death.
Senator Feingold has introduced legislation that would impose a moratorium on federal executions and study the use of the death penalty, both federally and in the states.
Legislation has been proposed in 17 states for a moratorium on the death penalty.
States considering a moratorium in 2001:
Alabama, Connecticut, Indiana, Kentucky, Maryland, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Virginia and Washington.