John Whitehead's Commentary
Ashcroft Must Keep Nomination Promise To Review Federal Death Penalty
During his confirmation hearings for Attorney General, John Ashcroft was pressed on whether he would continue the review of the federal death penalty to ensure that it wasn't infected with racial bias or other systematic defects. He was asked, "Do you agree with President Clinton that there is a need for 'continuing study' of 'possible racial and regional bias' because 'in this area there is no room for error?'" He answered yes, without reservation. And he agreed that a "thorough study of the system" was necessary.
The time has come for Ashcroft to make good on his promise, but he doesn't appear ready to do so. In his petition to the Senate Appropriations Committee for funds in April, Ashcroft never mentioned the need for monies to research the flaws in the federal death penalty system. And before the House in early May, he indicated that any review would be nothing more than a second look at the statistical data already gathered by his predecessors.
This failure to follow through on the promised death penalty review comes as the latest federal death penalty scandal, the failure of the FBI to release thousands of pages of documents regarding the Oklahoma City bombing investigation, swirls through the halls of the Department of Justice. The most "anticipated" federal execution in history--that of Timothy McVeigh--had to be delayed because, in Ashcroft's words, "if any questions or doubts remain about this case, it would cast a permanent cloud over justice, diminishing its value and questioning its integrity."
But there is an obvious question raised with the FBI's mishandling of evidence in the McVeigh investigation--that is, if the government messed up this badly in the most high-profile federal prosecution in the past 50 years, what's happened in the cases that weren't conducted under the glare of the national media spotlight? Even assuming that the FBI is more careful in these other cases, the bare statistical analysis conducted by the Justice Department at the direction of former President Bill Clinton suggests there are serious deficiencies in the way the death penalty is doled out at the federal level.
There are very few inmates on federal death row--approximately 20. But of those, almost 80 percent are from minority groups. In addition, between 1995 and 2000, federal prosecutors sought the death penalty in 159 cases. Of those, 72 percent involved minority defendants.
Further, when the victim was white, federal prosecutors were almost twice as likely to seek the death penalty as when the victim was black. And white defendants received plea agreements not to seek the death penalty twice as often as black defendants.
Attorney General Ashcroft has seen these numbers. He told the committee during his nomination hearings that the evidence of racial disparity in the federal death penalty system troubled him "deeply." He also told the committee that race shouldn't factor at all when deciding whether someone should face capital punishment.
But that was the easy part. Now comes the time to back up his words with action. Ashcroft could start by pledging to launch a fully funded study to determine why federal prosecutors are so much more likely to target minorities in death penalty cases. Are there other factors to account for the apparent racial bias?
If the McVeigh fiasco does nothing else, it should at least make Ashcroft aware of the potential for executing someone whose guilt or innocence has not been determined by all the available evidence. McVeigh let the FBI off the hook by proudly claiming responsibility for the gruesome crime. But dozens of other defendants may be facing the twin hurdles of a federal investigative bureau that overlooks crucial evidence, while at the same time overwhelmingly targeting minorities for its harshest punishment.
John Ashcroft has promised to help fix the system. Now it's time for him to keep his word.
The time has come for Ashcroft to make good on his promise, but he doesn't appear ready to do so. In his petition to the Senate Appropriations Committee for funds in April, Ashcroft never mentioned the need for monies to research the flaws in the federal death penalty system. And before the House in early May, he indicated that any review would be nothing more than a second look at the statistical data already gathered by his predecessors.
This failure to follow through on the promised death penalty review comes as the latest federal death penalty scandal, the failure of the FBI to release thousands of pages of documents regarding the Oklahoma City bombing investigation, swirls through the halls of the Department of Justice. The most "anticipated" federal execution in history--that of Timothy McVeigh--had to be delayed because, in Ashcroft's words, "if any questions or doubts remain about this case, it would cast a permanent cloud over justice, diminishing its value and questioning its integrity."
But there is an obvious question raised with the FBI's mishandling of evidence in the McVeigh investigation--that is, if the government messed up this badly in the most high-profile federal prosecution in the past 50 years, what's happened in the cases that weren't conducted under the glare of the national media spotlight? Even assuming that the FBI is more careful in these other cases, the bare statistical analysis conducted by the Justice Department at the direction of former President Bill Clinton suggests there are serious deficiencies in the way the death penalty is doled out at the federal level.
There are very few inmates on federal death row--approximately 20. But of those, almost 80 percent are from minority groups. In addition, between 1995 and 2000, federal prosecutors sought the death penalty in 159 cases. Of those, 72 percent involved minority defendants.
Further, when the victim was white, federal prosecutors were almost twice as likely to seek the death penalty as when the victim was black. And white defendants received plea agreements not to seek the death penalty twice as often as black defendants.
Attorney General Ashcroft has seen these numbers. He told the committee during his nomination hearings that the evidence of racial disparity in the federal death penalty system troubled him "deeply." He also told the committee that race shouldn't factor at all when deciding whether someone should face capital punishment.
But that was the easy part. Now comes the time to back up his words with action. Ashcroft could start by pledging to launch a fully funded study to determine why federal prosecutors are so much more likely to target minorities in death penalty cases. Are there other factors to account for the apparent racial bias?
If the McVeigh fiasco does nothing else, it should at least make Ashcroft aware of the potential for executing someone whose guilt or innocence has not been determined by all the available evidence. McVeigh let the FBI off the hook by proudly claiming responsibility for the gruesome crime. But dozens of other defendants may be facing the twin hurdles of a federal investigative bureau that overlooks crucial evidence, while at the same time overwhelmingly targeting minorities for its harshest punishment.
John Ashcroft has promised to help fix the system. Now it's time for him to keep his word.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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