U.S. Senator Russ Feingold on the Federal Death Penalty Abolition Act

Date: Feb. 13, 2003
Location: Washington, DC
Issues: Death Penalty

Mr. President, today I introduce the Federal Death Penalty Abolition Act of 2003. This bill would abolish the death penalty at the Federal level. It would put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law.

Since 1976, when the death penalty was reinstated by the Supreme Court, there have been 830 executions across the country, including two at the Federal level. At the same time, 103 people on death row were later found innocent and released from death row. Exonerated inmates are not only removed from death row, but they are usually released from prison altogether. Apparently, these people never should have been convicted in the first place. While death penalty proponents claim that the death penalty is fair, efficient, and a deterrent, the fact remains that our criminal justice system has failed and has resulted in at least 103 very grave mistakes.

Eight hundred and thirty executions, and 103 exonerations. Those are not good odds. It is an embarrassing statistic, one that should have us all questioning the use of capital punishment in this country.

Since January 25, 2001, when I last introduced this bill, the Federal Government resumed executions for the first time in almost 40 years, and 138 people have been executed nationwide. In this new year, we have begun our use of capital punishment at an alarming pace. We are only in the second week of February, and there have already been 10 executions this year. And yet this one-to-eight error rate looms. Is it possible that those 10 people are representative of the one-to-eight error rate that has plagued the death penalty since it was reinstated in 1976? Is it possible that in the last six weeks, as we have debated a war in Iraq, funding levels for Federal programs, and judicial nominations, our nation has killed an innocent person?

It is a difficult question to ask, but an even more difficult one to ignore.

While executions continue and the death row population grows, the national debate on the death penalty continues and has become even more vigorous. The number of voices joining in to express doubt about the use of capital punishment in America is growing. As evidence of the flaws in our system mounts, it has created an awareness that has not escaped the attention of the American people. Layer after layer of confidence in the death penalty system has been gradually peeling away, and the voices of those questioning its fairness are growing louder and louder. Now they can be heard from college campuses and court rooms and podiums across the Nation, to the Senate Judiciary Committee hearing room, to the Supreme Court. We must not ignore them.

That our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is that the States' and Federal Government's use of the death penalty is often not consistent with principles of due process, fairness, and justice. These principles are the foundation of our criminal justice system. It is more clear than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims.

After the death penalty was reinstated in 1976, the Federal Government first resumed death penalty prosecutions after enactment of a 1988 Federal law that provided for the death penalty for murder in the course of a drug-kingpin conspiracy. The Federal death penalty was then expanded significantly in 1994, when the omnibus crime bill allowed its use to apply to a total of some 60 Federal offenses. Since 1994, Federal prosecutions seeking the death penalty have now accelerated.

A survey on the Federal death penalty system from 1988 to early 2000 was released by the U.S. Department of Justice in September 2000. That report showed troubling racial and geographic disparities in the federal government's administration of the death penalty. In other words, who lives and who dies in the Federal system appears to relate to the color of the defendant's skin or the region of the country where the defendant is prosecuted. Attorney General Janet Reno was so disturbed by the results of that report that she ordered a further, in-depth study of the results. Attorney General John Ashcroft pledged to continue that study, but we still await the results of that further study. The Federal Government should do all that it can to ensure that no person is ever subject to harsher penalties, most importantly that of capital punishment, because of the color of the defendant's skin.

I am certain that not one of my colleagues here in the Senate, not a single one, would defend racial discrimination in this ultimate punishment. The most fundamental guarantee of our Constitution is equal justice under law, and equal protection of the laws.

While the Federal death penalty system is clearly plagued by flaws, there are 38 States across our Nation that also authorize the use of capital punishment. And like the Federal system, those systems are not free from error.

Over three years ago, Governor George Ryan took the historic step of placing a moratorium on executions in Illinois and creating an independent, blue ribbon commission to review the State's death penalty system. The Commission conducted an extensive study of the death penalty in Illinois and released a report with 85 recommendations for reform of the death penalty system. The Commission concluded that the death penalty system is not fair, and that the risk of executing the innocent is alarming real. Governor Ryan recently pardoned four death row inmates and commuted the sentences of all remaining Illinois death row inmates, after the State legislature failed to enact even one of the Commission's recommendations.

Illinois is not alone. Two years ago, then Governor Parris Glendening learned of suspected racial disparities in the administration of the death penalty in Maryland. Governor Glendening did not look the other way. He commissioned the University of Maryland to conduct the most exhaustive study of Maryland's application of the death penalty in history. Then last year, faced with the rapid approach of a scheduled execution, Governor Glendening acknowledged that it was unacceptable to allow executions to take place while the study he had ordered was not yet complete. So, in May 2002, he placed a moratorium on executions.

That study was released in January and the findings should startle us all. The study found that blacks accused of killing whites are simply more likely to receive a death sentence than blacks who kill blacks, or than white killers. According to the report, black offenders who kill whites are four times as likely to be sentenced to death as blacks who kill blacks, and twice as likely to get a death sentence as whites who kill whites.

Maryland and Illinois are not exceptions to a rule, nor anomalies in an otherwise perfect system. In fact, since reinstatement of the modern death penalty, 81 percent of capital cases across the country have involved white victims, even though only 50 percent of murder victims are white. Nationwide, more than half of the death row inmates are African Americans or Hispanic Americans.

There is evidence of racial disparities, inadequate counsel, prosecutorial misconduct, and false scientific evidence in death penalty systems across the country. While the research done in Maryland and Illinois has yielded shocking results, there are 36 other States that authorize the use of the death penalty, most of them far more frequently. Twenty-one of the 38 States that authorize capital punishment have executed more inmates than Maryland, and 13 of those States have carried out more executions than Illinois. So while we are closer to uncovering the unthinkable truth about the flaws in the Maryland and Illinois death penalty systems, there are 36 other states with systems that are most likely plagued with the same flaws. And yet, the killing continues.

At the beginning of 2003, at the beginning of a new century and millennium with hopes for great progress, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. We are one of the first nations to speak out against torture and killings by foreign governments. We should hold our own system of justice to the highest standard.

Over the last two years, some prominent voices in our country have done just that. And they are not just voices of liberals, or of the faith community. They are the voices of Justice Sandra Day O'Connor, Reverend Pat Robertson, George Will, former FBI Director William Sessions, Republican Governor George Ryan, and Democratic Governor Parris Glending. The voices of those questioning our application of the death penalty are growing in number, and they are growing louder.

And while we examine the flaws in our death penalty system, we cannot help but note that our use of the death penalty stands in stark contrast to the majority of nations, which have abolished the death penalty in law or practice. There are now 111 countries that have abolished the death penalty in law or in practice. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all states within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of a group of nations with which the United States enjoys the closest of relationships.

On February 5, 2003, the International Court of Justice, ICJ, ruled unanimously that the United States must temporarily stay the execution of three Mexican citizens on death row in Texas and Oklahoma. There are currently 112 foreign nationals on death row in this country. Under Article 36 of the 1963 Vienna Convention on Consular Relations, local authorities are required to notify all detained foreigners ``without delay'' of their right to have their consulate informed of their detention. In most cases, this international law is not being followed. In fact, only seven cases of 152 reported death sentences have been identified as meeting complete compliance with Article 36 requirements. The purpose of this law is to ensure that foreign nationals are allowed time to secure adequate counsel during the critical stages of their cases. The February ruling of the ICJ was based on the need for an investigation into whether the foreign nationals on death row were ever given their right to legal assistance from their home governments.

What is even more troubling in the international context is that the United States is now one of only seven countries that imposes the death penalty for crimes committed by juveniles. So, while a May 2002 Gallup poll found that 69 percent of Americans oppose the death penalty for those under the age of 18, we are one of only seven nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The other are Iran, the Democratic Republican of the Congo, Pakistan, Nigeria, Saudi Arabia and Yemen. In the last decade, the United States has executed more juvenile offenders than all other nations combined, and in the last three years, only four nations have executed juvenile offenders: Iran, the Congo, Pakistan, and the United States.

Iran, the Congo, and Pakistan are countries that are often criticized for human rights abuses. We should remove any grounds for charges that human rights violations are taking place on our own soil by halting the execution of people who were not even adults when they committed the crimes for which they were sentenced to die. No one can reasonably argue that executing child offenders is a normal or acceptable practice in the world community. And I do not think that we should be proud that the United States is the world leader in the execution of child offenders.

As we begin a new year and another Congress, our society is still far from fully just. The continued use of the death penalty shames us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' applies here. Our nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of suspected criminals. Just as our nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we seek justice in this new century. And it's not just a matter of morality. The continued viability of our justice system as a truly just system requires that we do so. And our Nation's striving to remain the leader and defender of freedom, liberty and equality demands that we do so.

Abolishing the death penalty will not be an easy task. It will take patience, persistence, and courage. As we work to move forward in a rapidly changing world, let us leave this archaic practice behind.

I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great Nation. I also call on each State that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system.