Analysis of June 6 Justice Department Report of Federal Death Penalty

Federal Death Row: Is it Really Color-blind?

Analysis of June 6 Department of Justice Report on the Federal Death Penalty 

I. Introduction 

On June 6, 2001 the Department of Justice released a report entitled "The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review" (hereinafter the Ashcroft Report). This report was a follow-up to a September 2000 report released by the Clinton administration (hereinafter the Reno Report). 
Attorney General Ashcroft mentioned this report in testimony he gave before the House Judiciary Committee in a Department of Justice reauthorization hearing that same day. At the hearing, Mr. Ashcroft stated that there is "substantial basis for confidence" that there is an "absence of any evidence of bias or racial discrimination in the federal death penalty." This statement is in stark contrast to remarks made by former Attorney General Janet Reno and Deputy Eric Holder who nine months earlier said that there was reason to be deeply concerned about evidence of possible racial and geographic disparities in the federal death penalty system. 
The issue of racial disparity in the federal system moved from rhetoric to reality in December of 2000, the month in which Juan Raul Garza, a Mexican-American from Texas, was scheduled to be executed. The Reno Report revealed that both Hispanics, and persons in Texas were disproportionately subjected to the federal death penalty as compared to Whites and people living in other parts of the country. For example, at the time that Mr. Garza was prosecuted, US Attorneys in Texas had only brought federal capital cases against Hispanics - no other ethnic or racial group. This sobering fact suggested that bias based on ethnicity or national origin might have played a role in Mr. Garza being sentenced to death. President Clinton granted Mr. Garza a six-month reprieve postponing his execution until June 19, 2001, stating, "the examination of possible racial and regional bias should be completed before the United States goes forward with an execution in a case that may implicate the very questions raised by the Justice Department's continuing study." Attorney General Ashcroft's report fails to answer these troubling questions. 
What is of primary concern regarding the DOJ's Ashcroft Report is not so much the data that is included in the report as much as the data that is not included. The data Attorney General Ashcroft relied upon are incomplete for a variety of reasons outlined below. Even though some procedural and data collection issues are the result of decisions made by the previous administration and do not reflect on Attorney General Ashcroft, instead of acknowledging the methodological weaknesses and the need for a more complete study, he has concluded prematurely, that racial bias has not played a role in who is on federal death row in America. This remarkable conclusion is not only inaccurate, but also dangerous, because it seeks to give Americans the impression that our justice system is fair when in fact there is substantial evidence that it is not. 
The Ashcroft Report is fatally flawed for a number of reasons: 
  • It does not include any data explaining why U.S. Attorneys prosecute cases in the federal system or defer to the states;            
  • The data does not reflect all potentially eligible federal capital defendants;            
  • Relying on incomplete data, the Ashcroft Report makes sweeping conclusions about the lack of racial bias in the federal system;            

  • Missing information about each case makes it impossible to determine whether charging and plea decisions were fair; and            
  • Because the Ashcroft Report does not provide the detailed underlying data it used to draw its conclusions from there is no way to understand if there are any national patterns requiring further analysis. 

The remainder of this special report more fully discusses the problems with the Ashcroft Report and concludes with recommendations about how the Justice Department should move forward with carrying out the federal death penalty. 

  • II. Methodological Issues and Implications 

    U.S. Attorneys have vast discretion to determine the murder cases in which the U.S. government will seek the death penalty. In order to understand the federal survey, it is necessary to understand how these decisions are made. 

    After a murder suspect is arrested, state and federal prosecutors must decide whether the suspect will be prosecuted in the state system or in the federal system. Usually, suspects are only prosecuted under one system even in cases where the crime could be prosecuted under both federal and state systems. These prosecutorial decisions can result in racial and ethnic disparities in the administration of the federal death penalty. The Ashcroft Report does not address this issue. 

    The first step in the process is determining if a case is a capital eligible case. If it is, the next stage is to determine if it will be prosecuted in the state or federal system. If the U.S. Attorney decides to prosecute in the federal system, he or she next decides whether to charge the case as a capital case. The fact that a case is capital eligible does not require the U.S. Attorney to charge it as a capital case. 

    If the U.S. Attorney decides to charge the case as a capital case, he or she must submit the case to the Attorney General who makes the final decision. For purposes of illustration, assume the following facts: 

    • In a particular U.S. district in one year there are 50 homicides.
      Twenty do not violate any federal laws and are prosecuted in the state system.
    • Ten are death-eligible federal cases, such as espionage or international terrorism cases, that can only be prosecuted in the federal system;
    • The remaining 20 cases could be prosecuted in either the federal or state system. Whether or not the case becomes a federal or state case is determined by the resources of the local district or the interests of the U.S. Attorney in aggressively pursuing a particular type of case. Assume 10 of the 20 are prosecuted by the state and 10 by the U.S. Attorney. This process resulted in a total of 20 of the 50 cases that the U.S. Attorney decided to charge as federal capital cases. 

    Under this system, there are three places where U.S. Attorneys' have broad discretion: the decision to prosecute a case in the federal system, the decision whether to charge the case as a capital case, and the decision to enter into a plea agreement with the defendant. 

    1. The Ashcroft Report does not include any data explaining why U.S. Attorneys prosecute cases in the federal system or defer to the states. 

  • The statistics relied upon in the Ashcroft Report are incomplete. In the first instance, there is no information provided about how the decision to prosecute a case in the state or federal system is made. This first point of discretion is the most important one. The Reno Report revealed striking differences throughout the country as to when U.S. Attorneys choose to use the federal death penalty. Most of the persons on federal death row come from three states: Texas, Missouri and Virginia. The Reno Report found that in 16 states prosecutors sought and obtained authorization in at least 50% of all capital cases compared to 21 states where the U.S. Attorneys either never sought or obtained authorization. In the absence of information about all potential capital eligible cases that might have been handled by each U.S. Attorney, we are not getting the total picture. 

    The decision as to whether to prosecute a potential capital case in the federal system may depend on many factors. The Ashcroft Report explained how some districts make those decisions. For example, the report explains that major drug cases in Virginia are brought in the federal instead of the state system because of state court rules that make it more difficult to bring cases in the state system. As a result, a large number of drug cases are prosecuted in federal court in Virginia when they would not be prosecuted in federal court in other states. The Ashcroft Report concludes that the reason why so many Black defendants are prosecuted in Virginia is not because they are Black but because they are in charge of the drug gangs in that state.1 However, if White people are in charge of the drug gangs in Nebraska, Nevada, the Dakotas and Washington State, and the U.S. Attorneys there choose not to bring the cases in the federal system, a report that fails to account for this discrepancy presents a distorted view about the race of the people who actually commit federal drug crimes. The Ashcroft Report fails to consider these circumstances. 

    2. The data does not reflect all potentially eligible federal capital defendants. 

    The Department of Justice protocol for the report did not require U.S. Attorneys to submit to the Attorney General all potentially eligible capital cases, but rather, only required them to submit those in which he or she decided to charge the case as a capital case. Under Attorney General Janet Reno, the Department of Justice considered and rejected a requirement that U.S. Attorneys submit information on all potential capital cases in the federal system. By deciding not to collect data on all capital eligible cases, the Department significantly limited its ability to analyze racial disparity in how capital cases are handled. 

    For the purposes of its follow-up study, the Department of Justice asked U.S. Attorneys' offices to submit supplemental data. Because information regarding the pre-protocol cases proved very difficult to track down, the supplemental data collection efforts focused only on post-protocol cases that had not previously been referred to the Attorney General. Attorney General Ashcroft requested that the U.S. Attorneys provide him with information about cases that could have been charged capitally, but were not. However, because this data had not been collected all along, it was difficult for U.S. Attorneys to go back through their cases and retrieve it. Most offices have very high turn over rates and new U.S. Attorneys do not necessarily know the history of cases that occurred before their tenure. 

    For the purposes of the report Attorney General Ashcroft obtained information on an additional 291 cases, however, his report does not explain if the supplemental data came from each U.S. district, or only from some districts. In fact, unlike the Reno report, there are no attached tables explaining which districts submitted supplemental cases, how many districts actually did so, and the characteristics of those supplemental cases (e.g. previously overlooked early pleas, insufficient evidence, cases that could have been charged capitally and were not, etc.). 

    Even if U.S. Attorneys wanted to provide accurate supplemental information to the Department of Justice, there are many reasons why it would be difficult to do so. There is high turn-over in U.S. Attorneys offices and it is difficult to reconstruct the history of what happened in earlier cases. Many offices simply might not have been able to provide the supplemental information requested by the Justice Department. It is impossible to know if the additional 291 cases represent all possible supplementary information.2 Therefore, we do not know how many of these cases were cases that could have been, but were not charged, as capital cases. Regardless, it is unlikely that these cases represent all of the capital eligible cases from 1995 to 2000. Again, without the entire universe of cases, we do not have an accurate baseline to use as a benchmark for making comparisons. 

    3. Relying on incomplete data, the Ashcroft Report makes sweeping conclusions about the lack of racial bias in the federal system. 

    The Reno Report raised concerns about racial and ethnic bias and geographical disparities in the administration of the federal death penalty. Of paramount concern was the fact that more than 80% of the persons on federal death row at that time were people of color. (The current federal death row population is 17 out of 19 inmates are people of color, or more than 89%.) The report also cited statistics showing that Whites were more likely to enter into plea agreements. For example, 47% of all White defendants for whom the Attorney General authorized capital prosecution subsequently entered into a plea bargain in exchange for a non-death sentence, as compared to only 27% of Hispanic defendants. 

    The Ashcroft Report found that U.S. Attorneys were actually less likely to submit cases of Black and Hispanic defendants to the Attorney General to be considered for seeking the death penalty. Of the total universe of 973 capital eligible cases considered, 17% were White, 42% were Black and 36% were Hispanic. The Attorney General decided to seek the death penalty for 27% of the White defendants, 17% of the Black defendants and 9% of the Hispanic defendants. Based on this finding, the Ashcroft Report concluded that U.S. Attorneys pursue death cases against Whites even more vigorously than Blacks and Hispanics. While this may in fact be true, these numbers do not show us any information about other points of discretion within the process. They do not tell us if race played a role in the initial decision to prosecute the case in the federal system nor do they tell us if race played a role in determining whether to enter into plea agreements. Without information regarding the decision making process at these other two points of discretion, Attorney General Ashcroft cannot rule out the possibility that racial bias infected the process. 

    4. Missing information about each case makes it impossible to determine whether charging and plea decisions were fair. 

    Simply comparing the percentage of cases charged as capital cases by racial or ethnic group does not give a complete picture as to whether the federal death penalty is employed disproportionately against members of ethnic and racial minority groups. What is necessary is to compare the level of culpability based on the seriousness of the crime. For example, it is possible that all of the cases submitted for White defendants were very serious, clearly federal cases (e.g. terrorism, espionage or killing a federal official) and that the cases submitted against Blacks and Hispanics were less serious (e.g. more typically within the purview of the states or less heinous in nature). To adequately compare how each racial group is treated, one must compare cases with similar fact patterns and assess the ultimate outcomes of these cases. 

    One particularly disturbing aspect of the Reno Report is that following the Attorney General's decision to seek the death penalty, more Whites than non-Whites resolved their cases by plea agreements. The Ashcroft Report does not adequately address this issue. It dismissively states: 

    [T]he decision about pleas is not under the control of the U.S. Attorney's office. It takes two to make a plea agreement. Inferring bias from disparities in such agreements would not be justified unless non-invidious causes could be excluded, including possible differences in the inclination of defendants from different groups to seek or accept plea agreements. Indeed since the actions of U.S. Attorney offices at all earlier stages of the process carry no suggestion of bias against racial or ethnic minorities - but rather involve seeking the death penalty with less frequency in cases involving Black or Hispanic defendants - it would be an odd assumption that such bias suddenly springs into existence at the end of the process, and becomes an operative factor at that point. . . 

    The Ashcroft Report draws the conclusion that the plea agreement process is unbiased without any objective analysis. Without knowing the racial breakdown of how many plea agreements were offered, which U.S. Attorneys offered the agreements, or the details of those agreements, there is no basis to conclude that the process is unbiased. Such dismissive treatment of such an important issue is disturbing, and must be addressed. 

    5. Because the Ashcroft Report does not provide the detailed underlying data it used to draw its conclusions there is no way to understand if there are any national patterns requiring further analysis. 

    Setting aside the above criticisms, it remains clear that there are two or three times as many cases out there that have not been considered. Even the statistics presented on page 10 of the new report -- indicating that U.S. Attorneys were less likely to seek the death penalty in potential capital cases involving Black or Hispanic defendants -- are unconvincing. It is not at all clear that Whites and Blacks for example, enter the federal system for equally heinous crimes or with similar situations regarding evidence. Furthermore, it is troubling that as stated in the Reno Report, Whites have much higher plea rates after decisions to seek the death penalty are made. 

    The sweeping discretion of US Attorneys, as well as the uneven geographic implementation of the death penalty in America, raises serious questions of fairness and consistency. 

    III. Recommendations 

    To better ascertain how capital punishment is being applied throughout the country, it is crucial that Attorney General Ashcroft begin to collect, prospectively, information on all capital murder cases in each federal district. However, doing so will not provide a picture of what has happened in the past. 

    In order to truly determine whether racial bias has occurred in the implementation of the federal death penalty to date, independent research that involves reviewing all potential federal death penalty cases in each U.S. district must be conducted to provide a true picture of what happened. This is not an impossible task. 

    The Ashcroft Report stated that a group of academics meeting in January of this year concluded that such a follow-up study "could not be expected to yield definitive answers concerning the reasons for disparities in federal death penalty cases." However, two people who attended that meeting dispute that claim. Even if academics cannot get a definitive picture, it is possible to get the best possible information that would set the stage for better analyses and help determine what kind of data should be collected in the future. 

    This review should be conducted by an outside entity to ensure that the information is as accurate as possible. President Clinton ordered this type of independent study and Attorney General Ashcroft pledged during his confirmation that he would continue such a study. Unfortunately, before even beginning to conduct the independent study, he concluded and announced that racial bias does not play a role in the implementation of the federal death penalty. 

    Attorney General Ashcroft should not implement any death sentences until an independent analysis of the necessary data is complete. In particular, the execution of Juan Garza, the only person on federal death row currently scheduled for execution, should be postponed at least until this analysis is complete. The public knows no more about how possible racial bias may have impacted Mr. Garza's case now than we did last December when President Clinton granted him a reprieve. However, to kill Mr. Garza at this time would send the message that this administration does not take seriously the very real concern that bias against members of racial and ethnic minority groups infects our federal capital punishment system. 

    Furthermore, if the Executive Branch refuses to act, Congress should act to impose a moratorium on federal executions. The Ashcroft Report may be an unfortunate indication that we cannot rely on the Attorney General to ensure racial equality within the criminal justice system. Legislation pending before Congress, S. 233 and H.R. 1038, would suspend executions by the Federal Government and establish a National Commission on the Death Penalty to review the fairness of the administration of the death penalty at both the federal and the state levels. We urge Congress to act quickly and ensure that "Equal Justice Under Law" become an active concept for all Americans. 


     1 -- The Ashcroft Report relies on "common experience" to make the assertion that Blacks run the drug gangs in Virginia. It does not cite any statistics to back up this assertion. 

    2 -- According to the Protocol, almost all of these cases should have been submitted for inclusion in the Reno. Report but for reasons that are not explained, they were not. U.S. Attorneys may not have originally submitted the data because they forgot to, they did not want to, or there was a plea agreement made early in the proceedings that obviated the reporting requirement.

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