In 1994, I proudly served as counsel to Don Edwards (D-CA), House Judiciary Civil and Constitutional Rights Subcommittee Chair. I vividly recall an entire weekend spent in the House majority leader’s office helping negotiate the 1994 omnibus crime bill. Representative Edwards passionately argued that the bill’s “tough on crime” approach would do more harm than good. In so many ways, he was right.
One example was the bill’s expansion of the federal death penalty from 1 to approximately 60 offenses, substantially increasing capital prosecutions and causing much systemic damage.
First, there are the waste of resources and staggering costs needed to try the few federal capital cases ending with a death sentence. Since 1988 (when counting began, though prosecutions were non-existent till the 1994 bill’s enactment), the Justice Department authorized 493 capital prosecutions. Only 229 went to trial; 66% ended in a life sentence and only 34% produced a death sentence, resulting in three executions to date. A full 83% of authorized cases ended in dispositions other than death.
Second, the federal government has encroached on states’ rights by authorizing 97 cases in non-death penalty states. Today, seven defendants on death row are from non-death penalty states.
Third, and most troubling, are the racial disparities. Since 1988, 74% of all authorized federal capital cases have involved minorities. Equally troubling is the fact that 70% of all trials have involved minorities. Between 1995 and 2000, U.S. attorneys were twice as likely to recommend the death penalty for a minority defendant, as opposed to a white defendant, when the victim was not from the same race. Further, Whites were twice as likely as minorities to be given plea deals eliminating the death penalty. Not surprisingly, a hugely disproportionate number of minorities, 61%, are on death row.
Finally, geographic disparity enhances the system’s unfairness. Between 2001 and 2007, 40% of federal death penalty cases came from only six of 94 federal districts.
As The Constitution Project’s 2014 report, Irreversible Error, demonstrates, state capital systems are badly broken, producing 146 exonerations in recent years. The federal system is similarly broken, failing to produce uniformity across region and race, invading the states’ prerogatives, and costing enormous sums that fail to justify the low capital conviction rates. Representative Edwards was right to fear the bill’s approach, and especially the enormous increase in federal death penalty provisions.[i]
Virginia Sloan is president and founder of The Constitution Project and serves on its board of directors. Ms. Sloan previously served as executive director of the Task Force on Gender, Race, and Ethnic Bias of the US Court of Appeals, District of Columbia Circuit. For 14 years, she was a counsel to the US House Judiciary Committee.
[i] With thanks to the Death Penalty Information Center, Federal Death Penalty Resource Counsel, Department of Justice’s “Survey of the Federal Death Penalty System (1988-2000),”and Amnesty International.
Originally published by the National Council on Crime & Delinquency. Reprinted with permission.