S. HRG. 110–743 

OVERSIGHT OF THE FEDERAL DEATH PENALTY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JUNE 27, 2007 

Serial No. J–110–43 

Printed for the use of the Committee on the Judiciary 

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47–297 PDF 2009

S. HRG. 110–743 

OVERSIGHT OF THE FEDERAL DEATH PENALTY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JUNE 27, 2007 

Serial No. J–110–43 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION

RUSSELL D. FEINGOLD, Wisconsin, Chairman 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SAM BROWNBACK, Kansas 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ROBERT F. SCHIFF, Chief Counsel 

AJIT PAI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

prepared statement .......................................................................................... 259 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 21 

prepared statement .......................................................................................... 261 

WITNESSES 

Bruck, David I., Esq., Federal Death Penalty Resource Counsel, Director, 

Virginia Capital Case Clearinghouse, Washington & Lee School of Law, 

Lexington, Virginia .............................................................................................. 26 

Charlton, Paul K., Former U.S. Attorney, District of Arizona, Phoenix, Arizona ....................................................................................................................... 13 

Mulhausen, David B., Senior Policy Analyst, Center for Data Analysis, The 

Heritage Foundation, Washington, D.C. ............................................................ 17 

Otis, William G., Former Chief, Appellate Division, U.S. Attorney’s Office, 

Eastern District of Virginia, Falls Church, Virginia ......................................... 24 

Sabin, Barry, Deputy Assistant Attorney General, U.S. Department of Justice, 

Washington, D.C. ................................................................................................. 3 

Sa ́nchez Ramos, Roberto J., Secretary of Justice, Commonwealth of Puerto 

Rico, San Juan, Puerto Rico ................................................................................ 15 

Shelton, Hilary O., Director, Washington Bureau, National Association for 

the Advancement of Colored People [NAACP], Washington, D.C. ................... 19 

PRE-HEARING QUESTIONS AND ANSWERS 

Responses of Department of Justice to questions submitted by Senator Feingold ........................................................................................................................ 38

QUESTIONS AND ANSWERS 

Responses of David I. Bruck to questions submitted by Senator Specter .......... 63 

Responses of Paul K. Charlton to questions submitted by Senator Specter ....... 68 

Responses of David Muhlhausen to questions submitted by Senator Specter ... 70 

Responses of William G. Otis to questions submitted by Senator Specter ......... 73 

Responses of Barry Sabin to questions submitted by Senators Specter and 

Kennedy ................................................................................................................ 79 

Responses of Roberto J. Sa ́nchez Ramos to questions submitted by Senator 

Specter .................................................................................................................. 154 

Responses of Hilary O. Shelton to questions submitted by Senator Specter ...... 166 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union, New York, New York, report ........................... 168 

Baldus, David, College of Law, University of Iowa, Iowa City, Iowa, letter 

and attachment .................................................................................................... 178 

Bruck, David I., Esq., Federal Death Penalty Resource Counsel, Director, 

Virginia Capital Case Clearinghouse, Washington & Lee School of Law, 

Lexington, Virginia, statement ........................................................................... 193 

Capital Crimes, report ............................................................................................. 210 

Page

IV 

Charlton, Paul K., Former U.S. Attorney, District of Arizona, Phoenix, Arizona, statement .................................................................................................... 221 

Fagan, Jeffrey, Columbia Law School, New York, New York, statement ........... 230 

Lungren, Hon. Daniel E., a Representative in Congress from the State of 

California, statement ........................................................................................... 263 

Mulhausen, David B., Senior Policy Analyst, Center for Data Analysis, The 

Heritage Foundation, Washington, D.C., statement ......................................... 271 

Otis, William G., Former Chief, Appellate Division, U.S. Attorney’s Office, 

Eastern District of Virginia, Falls Church, Virginia, statement ...................... 278 

Sabin, Barry, Deputy Assistant Attorney General, U.S. Department of Justice, 

Washington, D.C., statement .............................................................................. 294 

Sa ́nchez Ramos, Roberto J., Secretary of Justice, Commonwealth of Puerto 

Rico, San Juan, Puerto Rico, statement ............................................................. 301 

Shelton, Hilary O., Director, Washington Bureau, National Association for 

the Advancement of Colored People [NAACP], Washington, D.C., statement 322 

Zimring, Franklin E., Law Professor, University of California, Berkley, California, letter .......................................................................................................... 326 

(1) 

OVERSIGHT OF THE FEDERAL DEATH 

PENALTY 

WEDNESDAY, JUNE 27, 2007 

U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:32 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Russell D. Feingold, 

Chairman of the Subcommittee, presiding. 

Present: Senators Feingold and Leahy. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. I call the Committee to order. Good morning. Welcome to this hearing of the Constitution Subcommittee entitled ‘‘Oversight of the Federal Death Penalty.’’ We are honored to 

have with us this morning some very distinguished witnesses, and 

I appreciate the effort they have made to be here today. 

Let me start by making a few opening remarks, and then we will 

turn to the representative from the Department of Justice who will 

be our sole witness on our first panel. 

This is the first oversight hearing on the Federal death penalty 

that the Senate Judiciary Committee has held in 6 years. Until recently, Congress has asked few questions about how the Federal 

death penalty is being implemented, and we received little information as a result. Indeed, it is fitting that we will hear from some 

of the same organizations that testified at that last hearing in June 

2001. That is because in some respects, we know little more today 

than we did 6 years ago. 

That said, I do appreciate that the Justice Department has responded to written questions that I sent in advance of the hearing. 

Those responses begin the process of Congress obtaining the information it needs to conduct oversight in this area. 

And we do have a lot of ground to cover. There have been many 

developments in the last 6 years. In 2001, the Justice Department 

made controversial changes to the protocols for Justice Department 

review of death-eligible cases. The new protocols required U.S. Attorneys for the first time to get Attorney General approval to enter 

into plea bargains that take the death penalty off the table. This 

resulted, in one New York case, in Attorney General Ashcroft nullifying a plea agreement in which a defendant had agreed to cooperate with the Government in exchange for pleading guilty to a 

non-capital murder charge. This action was heavily criticized for 

2 

jeopardizing future cooperation agreements, and Ashcroft finally 

reversed his decision more than a year later. 

Those protocol changes also reversed the presumption against 

seeking the Federal death penalty in a local jurisdiction that has 

already chosen to outlaw capital punishment, and instead stated 

that a lack of ‘‘appropriate punishment’’ in the local jurisdiction 

should be a factor in deciding whether to bring a Federal capital 

case. 

And just this week, we received another set of newly revised 

death penalty protocols, which contain broad new confidentiality 

rules that appear to pull the curtain on how the DOJ death penalty 

review process is working. I am troubled by this trend toward secrecy. These are public prosecutions brought by the United States 

of America. Congress and the American people give immense power 

to the Department of Justice to act in our name and for our protection. We are entitled to know how decisions to seek the ultimate 

punishment are made. So I will pursue this topic with our witness 

today to better understand the scope and necessity of these new 

rules. 

What else has happened since 2001? A National Institute of Justice study ordered by Attorney General Reno at the end of the Clinton administration was delayed for years. It was supposed to examine whether there were racial disparities in application of the Federal death penalty, but when it was finally released in 2006, it did 

not tell us much. In addition to being criticized by a number of experts for a faulty peer review process, the report left out the most 

important part of the decisionmaking process: the point where defendants are brought into the Federal system in the first place. 

And, of course, that study only covered the years 1995 to 2000, so 

no study has been conducted to evaluate these issues from 2001 

forward. 

And now this Committee’s investigation into the Department of 

Justice’s firing of a number of well-respected, experienced U.S. Attorneys has revealed the inappropriate politicization of some of the 

Department’s most important functions. 

The American people should be able to trust fully the ability of 

the Justice Department, and the Attorney General, to make difficult and nuanced decisions about whether the Federal Government should pursue the ultimate sentence of death. We should be 

able to trust that the Attorney General seeks input from all sides 

and takes very seriously his decision whether to use the full weight 

of the U.S. Government to seek to put a person to death. 

That is why we are holding this hearing—because that trust has 

been shaken. We need to know whether these responsibilities are 

being treated with the seriousness they deserve. 

In particular, I am concerned that in the course of deciding 

whether to seek death in a case, neither the Deputy Attorney General nor the Attorney General meet personally with their own internal review committee that examines each case in detail. And according to what the Attorney General himself told this Committee 

earlier this year, a U.S. Attorney was fired, at least in part, because he asked the Attorney General to reconsider the decision to 

seek the death penalty. 

3 

I oppose the death penalty, but I recognize that reasonable people can differ on the question of capital punishment. And different 

administrations can take different views about when it is appropriate to seek the Federal death penalty. But I hope we can all 

agree that the decision whether to charge someone with a capital 

crime and seek to impose the death penalty is one of the most profound decisions our Government officials can make. That power 

must be wielded carefully and judiciously. If carefully considered, 

law enforcement-based judgments are not winning the day, we 

need to know about it, and we need to know why. The stakes are 

simply too high. 

There are no other Senators expected at this point. I was going 

to turn to the Ranking Member, but there is not one. So we will 

start with our first panel. Our first witness will be Deputy Assistant Attorney General Barry Sabin. A Federal prosecutor since 

1990, Mr. Sabin is now responsible for the Fraud Section, Criminal 

Section, Gang Squad, and Capital Case Unit of the Criminal Division. 

Mr. Sabin, welcome, and thank you for taking the time to be here 

this morning. I would ask that you limit your remarks to approximately 5 minutes. Your full written statement will be included in 

the record. And if you would please rise. Do you swear or affirm 

that the testimony you are about to give the Committee will be the 

truth, the whole truth, and nothing but the truth, so help you God? 

Mr. SABIN. I do. 

Chairman FEINGOLD. Thank you, sir, and you may be seated, and 

you may proceed with your testimony. 

STATEMENT OF BARRY SABIN, DEPUTY ASSISTANT ATTORNEY 

GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. SABIN. Good morning. Thank you, Mr. Chairman. I am 

pleased to appear before you today to testify about the Department 

of Justice’s implementation of the Federal death penalty statutes. 

The Justice Department relies upon rigorous procedural safeguards 

and highly experienced personnel to ensure a uniform decisionmaking structure that is respectful to victims and defendants. 

In connection with my written testimony, I emphasize the paramount importance the Department attaches to the review of capital 

cases and key elements that define this review process. These elements include: the capital case review process is centralized and 

the decision in every case is ultimately made by the Attorney General of the United States; second, the review of a capital matter is 

designed to respect the Federal law; third, the review of a capital 

matter treats each defendant as an individual, even as it evaluates 

the case within a national framework; fourth, discrimination and 

bias play no role in the capital review process; and, fifth, each review of a capital matter respects victims’ and defendants’ rights. 

I am a career prosecutor. I have served in the Justice Department for 17 years. I served as a trial prosecutor in South Florida 

and in a variety of supervisory positions in Miami. I ultimately 

served as the Criminal Chief and First Assistant United States Attorney. In those positions, I also served as a member of the district’s Death Penalty Review Committee. Although I was lead prosVerDate Nov 24 2008 12:18 Mar 09, 2009 Jkt 047297 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47297.TXT SJUD1 PsN: CMORC
4 

ecutor on over 50 Federal felony trials, many of them involving violent offenses, none of these matters involved capital offenses. 

In my present position, I have had the opportunity to work with 

experienced capital litigation practitioners in the Capital Case 

Unit. Thus, I have had the honor and privilege to work with dedicated, committed prosecutors, both in the field and at headquarters, on capital litigation. I want to underscore that the prosecutors at the Justice Department understand that implementation 

of the death penalty is the ultimate sanction, reserved for the worst 

offenders, and must only be applied in a fair and uniform manner. 

Pursuant to the Federal Death Penalty Act of 1994, Congress has 

authorized the Department of Justice to seek the death penalty for 

more than 50 serious Federal offenses. Consistent with congressional intent, the Justice Department strives to enforce Federal 

capital sentencing laws fairly and evenhandedly, uninfluenced by 

the locations of prosecutions or the races or ethnicities of defendants and victims. 

With the goal of fair and consistent application in mind, in June 

2001, the Justice Department implemented a protocol which further harmonized the capital review process. Earlier this week, the 

Department issued a revised protocol. Mr. Chairman, we appreciated the opportunity to discuss the protocol with members of your 

staff these past few days. 

The Department relies upon a core group of prosecutors experienced in capital litigation to effectuate the Department’s protocol. 

In addition to the extensive and considered review in the United 

States Attorney’s Office, these veteran prosecutors are located in 

the Criminal Division’s Capital Case Unit and the Attorney General’s Review Committee on Capital Cases. These entities are integral to ensuring the proper review of potential death penalty cases. 

The Attorney General, the committee, and other Department personnel involved in reviewing protocol submissions are not advised 

of the race or ethnicity of defendants or victims. The submissions 

are sanitized of any references to the races of victims or defendants. The result is a review process that is blind to the race and 

ethnicity of victims and defendants. 

There are multiple opportunities for defense counsel to provide 

information favorable to their client and argue against the Government seeking the death penalty. 

The death penalty protocol also advises the United States Attorney to consult with the family of the victim. There is, thus, a robust review with multiple procedural safeguards to ensure a fully 

informed decisionmaking process. 

The Justice Department’s review of capital cases is not aimed at 

maximizing or minimizing capital cases; it aims to apply the most 

faithful reading of Federal law to cases. Unless specified intent factors and aggravating circumstances can be found beyond a reasonable doubt, the death penalty is not authorized. The Attorney General will not authorize seeking the death penalty unless these statutory requirements are met. If they are met, the Department must 

follow the law and consider the death penalty as a possible sanction for these crimes. The Federal Government has an obligation 

to evenhandedly enforce Federal law, and the Department of Justice’s capital case review process ensures this outcome. 

5 

The review allows each potential case to be viewed in context of 

all other such cases, protecting against arbitrary decisionmaking. 

The review also ensures that individual characteristics are highlighted during this review. The Justice Department’s decision turns 

on what the defendant has done and the relevant aggravating and 

mitigating circumstances. Factors that are arbitrary or impermissible, such as race, ethnicity, gender, or religion, are not considered. In this way, the Justice Department is able to effectuate Congress’ intent that the death penalty be sought against the worst offenders, while simultaneously respecting statutory and constitutional principles that all defendants must be given individualized 

consideration. 

In conclusion, the Justice Department has established rigorous 

safeguards to ensure that capital cases are reviewed in a fair, 

transparent, and uniform manner. We have dedicated tremendous 

efforts and resources to ensure fairness in Federal capital litigation. I appreciate the opportunity to testify today and I look forward to your questions. 

Chairman FEINGOLD. Thank you very much, Mr. Sabin, for that 

testimony, and I want you to know that amid all the controversy 

currently embroiling the Department, I know that there are good 

and honorable people who work there every day and do their best 

to serve the interests of justice, and I do appreciate that. But, of 

course, as you have indicated as well, the issue of the death penalty is extremely important, and this Committee needs to ask 

tough questions to understand how it has been implemented in the 

last 6 years. 

Last week, the Department provided me with answers to questions I had sent in April in anticipation of this hearing, and I will 

put those responses in the record of this hearing, along with the 

revised protocols you provided earlier this week. I appreciate the 

effort that went into these responses. 

Mr. SABIN. Thank you, Senator. 

Chairman FEINGOLD. However, a lot of the data was difficult to 

decipher without more information. So I am sure I will have followup questions after this hearing, and I hope DOJ will do its best 

to respond expeditiously to those followup questions as well. 

Mr. SABIN. Yes. Absolutely, Mr. Chairman. 

Chairman FEINGOLD. Thank you. 

Prior to my asking for that information that I just mentioned, 

had the Department undertaken any effort to review its implementation of the Federal death penalty to look at issues like the total 

number of cases per year, U.S. Attorney overrule rates, and the 

race of defendants and victims? 

Mr. SABIN. We had not done a rigorous review of the data until 

the Congress had—you had posed the questions. 

Chairman FEINGOLD. Until you received our questions. 

Mr. SABIN. Correct. 

Chairman FEINGOLD. Do you think it has been a helpful process 

to look at these statistics? 

Mr. SABIN. Yes. 

Chairman FEINGOLD. Has the Department done any numbercrunching beyond what I specifically asked for? 

6 

Mr. SABIN. We wanted to get the information to you and the Subcommittee as expeditiously as possible. Obviously, in preparation 

for the hearing, I have had discussions with the capital case litigation attorneys so that I could be prepared to answer any questions 

that you may ask regarding those statistics. But it is an ongoing 

process, and as time passes, I am sure we will have more considered understanding of the data that we provided to you and that 

we now have at our disposal. 

Chairman FEINGOLD. Well, I would hope whatever efforts to engage in number-crunching that could not be done in time for this 

hearing would be done now, and that the fact that the hearing is 

over does not stop the process of getting the additional information. 

Mr. SABIN. We are in full agreement with that, Mr. Chairman. 

Chairman FEINGOLD. And would you be willing to share those 

additional statistics as you complete them? 

Mr. SABIN. To the extent that it is responsive to your questions 

or your followup questions, absolutely. 

Chairman FEINGOLD. All right. Do you think the Department 

should have considered looking at these statistical breakdowns and 

some of these issues earlier? 

Mr. SABIN. Should we have looked at— 

Chairman FEINGOLD. Should you have looked at some of these 

issues earlier? 

Mr. SABIN. We have a lot of operational activities relating to individual cases, and the staff was focused upon making sure that the 

matters proceeded in considered and thoughtful determination. It 

is helpful. Certainly we welcome the oversight, and I think it is a 

process that we can be more informed and take a step back to understand what we are doing over the last few years, compare that 

to what had occurred between 1995 and 2000, and then get a larger perspective. So I think it is helpful. 

Chairman FEINGOLD. I would suggest that these statistics are 

necessary for what you have described as ‘‘thoughtful determination.’’ So I think you agree, but— 

Mr. SABIN. I don’t disagree with that. I agree. 

Chairman FEINGOLD. As I am sure you know, in 2000 Attorney 

General Reno publicly issued a nearly 400-page report with every 

conceivable piece of data about Federal death penalty-eligible cases 

down to the district level. This included a breakdown by district of 

what the U.S. Attorney and Review Committee recommended and 

what the Attorney General decided. It also included breakdowns by 

race of the defendant and by race of each of the victims in a case. 

This comprehensive report was extremely helpful back in 2000. 

Now, I do appreciate that it would be a lot of work if the Department would issue a report, but a current report in the detailed 

form that was issued in 2000 would give this Committee and others 

an opportunity to understand how the Federal death penalty is implemented, and would give the Department an opportunity to demonstrate its commitment to transparency about its death penalty 

work. 

I would like the Department to prepare such a report, and I will 

ask that you get back to me in writing with the Department’s response to my request. 

7 

Mr. SABIN. I will get back to you in writing with respect to that 

request, sir. 

Chairman FEINGOLD. New Department protocols for reviewing 

death penalty cases go into effect next week. As I mentioned earlier, they contain a lengthy recitation of new confidentiality rules 

forbidding anyone at DOJ from disclosing their views on whether 

capital punishment should be sought in a case or any aspect of the 

review process, even within the Department. 

Now, I do understand the need for DOJ to be able to deliberate 

internally. But given the stakes in these cases, shouldn’t there be 

some level of transparency in how the decision is made whether to 

seek the death penalty? 

Mr. SABIN. Certainly we would welcome the opportunity to have 

transparency in the process, and we also, as you recognize, have internal deliberative processes to respect so that the robust and informed debate is not chilled, that all levels of the review can have 

frank and candid interaction, so that they can make the most informed decisions regarding the most severe of sanctions. 

So we want to ensure, as I stated in my written testimony, that 

we are accountable for those actions while protecting the ability of 

the considered decision makers and the reviewers to have a dialog 

that is full and frank. 

Chairman FEINGOLD. Well, the previous protocols, I assume, provided that opportunity. For some reason, these new protocols cloak 

the process in greater secrecy. Can you understand how some people might look at these new rules and think that the Department 

must be trying to hide something by changing these protocols? 

Mr. SABIN. And the Department is here today to say that we are 

not trying to hide something either from this Subcommittee or the 

American people. We are just trying to ensure that the debate in 

the Department is robust and considered and that individual opinions are not chilled as a result of congressional oversight or other 

factors. 

Chairman FEINGOLD. I appreciate that statement. This certainly 

has nothing to do with you, but we have had a lot of problems with 

the Department of Justice saying ‘‘Trust us’’ on other issues where 

there has not been sufficient openness, and it has led to very serious problems, such as the abuses in the area of national security 

letters. So I think you can see why there might be some concern 

when things become more closed rather than more open. And I 

want to ensure that these new rules will not be used to thwart legitimate oversight efforts. Do you agree that they would not cover 

the type of statistical information that I requested in advance of 

this hearing and that Congress might request in the future? 

Mr. SABIN. We certainly want to provide that transparency as to 

the statistical information that we have provided to you in response to your questions, and we continue to believe we have the 

trust of the American people and want to maintain that trust. So— 

Chairman FEINGOLD. But these new rules in no way specifically 

prohibit or stop you from giving me the information I have asked 

for, correct? The statistical information. 

Mr. SABIN. Correct. That is not the intent of the Section 9– 

10.040. It is to ensure that— 

Chairman FEINGOLD. Or any other part of the protocols? 

8 

Mr. SABIN. Correct. 

Chairman FEINGOLD. Specifically, would Attorney General Reno 

have been able to issue her 2000 report if these new confidentiality 

requirements had been in place? 

Mr. SABIN. Yes, I believe that that is consistent with what Attorney General Reno had published and what we consider to be in effect today. 

Chairman FEINGOLD. OK. I have another— 

Mr. SABIN. As of July 1st when the protocol goes into effect. 

Chairman FEINGOLD. I am sorry? 

Mr. SABIN. And as of next week when the protocol goes into effect on July 1st. 

Chairman FEINGOLD. Attorney General Reno could have issued a 

similar report under the new protocols? 

Mr. SABIN. Yes, that is my understanding. 

Chairman FEINGOLD. I have another question about the revised 

capital case protocols. These new protocols appear to delete the 

longstanding prohibition against seeking or threatening to seek the 

death penalty ‘‘solely for the purpose of obtaining a more desirable 

negotiating position.’’ 

Has the Department changed its policy on this issue? 

Mr. SABIN. Absolutely not. The sentence that you are referring 

to, the portion relating to plea agreements was expanded. The fact 

relating to prosecutors using the death penalty as some kind of 

threat or coercive manner is inconsistent with our prosecutorial 

ethics. And other portions of the U.S. Attorney’s manual which 

prosecutors are bound by, specifically 9–27.00 and going forward, 

capture that aspect. 

Chairman FEINGOLD. Then why was this provision removed from 

the protocols? 

Mr. SABIN. Because it was referenced elsewhere in the U.S. Attorney’s manual. It was not as a means to undermine or say that 

that portion of the ability for prosecutors to use it in any improper 

means is sanctioned. 

Chairman FEINGOLD. Well, I do not like redundancy in Government, but when we are talking about taking away somebody’s life, 

it seems to me a little certainty in keeping this in the protocols 

makes sense. Wasn’t this part of the protocols since they were first 

written in 1995? 

Mr. SABIN. Yes, it was part of it, and I am here today to say that 

it is not—that point has not been retracted or in any way undermined by the present protocol. 

Chairman FEINGOLD. I do not see why it should not be put back 

in the protocols. 

Mr. SABIN. I am sorry? 

Chairman FEINGOLD. I do not see why it should not be returned 

to the protocols, and I am submitting that to you as something to 

think about. 

Mr. SABIN. Yes, sir. Thank you. 

Chairman FEINGOLD. It just isn’t consistent with what you are 

saying. 

Two Federal judges have argued—one in a law review article and 

another in an op-ed—that pursuing a capital case takes a great 

deal of prosecutorial resources, so that bringing a capital case can 

9 

mean bringing fewer prosecutions overall. When evaluating whether to decide to seek the death penalty, does the Department consider these additional costs, in actual expenditures and staff, of 

pursuing a capital case? And is that a factor in the decisionmaking 

process? 

Mr. SABIN. The cost of a criminal prosecution is not a factor as 

to whether the prosecution should be going forward or not. 

Chairman FEINGOLD. Does the Department track the monetary 

costs of the death penalty in any way? 

Mr. SABIN. I am not aware of those numbers being tracked, to 

my knowledge. 

Chairman FEINGOLD. That surprises me. Can you tell me anything about the cost of maintaining the Capital Case Unit or the 

Internal Review Committee and the other staff who work on the internal DOJ review process? 

Mr. SABIN. You mean in terms of their salaries and the amount 

of— 

Chairman FEINGOLD. Overall costs of having that Capital Case 

Unit or the Internal Review Committee. 

Mr. SABIN. I mean, certainly you could compile the individual 

salaries of the trial attorneys in the Capital Case Unit as a slice 

of the overall expenditure of what the Department provides for its 

budget for capital litigation. But I did not understand that to be 

the nature of the question. 

As to an individual matter, what a U.S. Attorney—what the investigatory costs would be by the FBI agent and the like, that is 

the kind of information we thought that you were questioning 

whether the Department captures. 

Chairman FEINGOLD. Well, I would be interested in both types 

of information. I think it is relevant to this. 

Do you have any sense of what it costs—and this sort of gets to 

your last answer—an individual U.S. Attorney’s Office to pursue 

capital charges? 

Mr. SABIN. Do I, sitting here today? No, I do not. 

Chairman FEINGOLD. Do you think the DOJ should track these 

types of costs so that both DOJ and individual U.S. Attorney’s Offices understand what they are doing when they undertake to seek 

the death penalty? 

Mr. SABIN. I believe that we should spend the taxpayers’ money 

wisely. I believe that we should provide full support and resources 

for the prosecutions as they move forward in order to prove each 

and every element beyond a reasonable doubt. 

To the extent that that information can be captured, we will see 

if we can compile it. But I am not promising that that information 

is readily ascertainable. 

For example, a U.S. Attorney’s Office can submit a request to the 

Executive Office of United States Attorneys for complex matters if 

they need additional budget to pursue, you know, a large case, 

whether it is capital litigation or not capital litigation. So there is 

a mechanism for providing supplementary funding through the Executive Office. 

Chairman FEINGOLD. I think in making the overall decisions on 

how to most effectively use the Department’s limited resources to 

fight crime, that this cost of seeking the death penalty should be 

10 

a factor. It may be not the most important factor, but when you 

are looking at a series of factors, I would think that these costs 

would be something the Department should start to consider. And 

I hope you will take that back to the Department. 

Mr. SABIN. Yes, Mr. Chairman, I will. 

Chairman FEINGOLD. Let me ask you about a few of the statistics 

that we were able to extract from the data the Department provided us last week. It appears that one third of the total cases in 

which the Federal Government sought the death penalty from 2001 

to 2006 were the result of the Attorney General overruling a U.S. 

Attorney’s recommendation against seeking the death penalty. 

Now, does that percentage seem high to you? 

Mr. SABIN. In terms of the overruling, this is my understanding 

of the relevant statistics. And, again, this is an ongoing process, 

and we are happy to work with you and other members of the Subcommittee to have an informed understanding of what these numbers mean and what the answers are to your followup questions in 

regard to that. 

But as I understand it, between 1995 and 2000, U.S. Attorney’s 

Offices requested authorization to seek the death penalty for 27 

percent of the defendants that were submitted, and that between 

2001 and 2006 U.S. Attorney’s Offices requested authorization to 

seek the death penalty for approximately 13 percent—the total 

number of 1,200, approximately, where 156 requested authorization, or 13 percent. 

Between 1995 and 2000, the Attorney General authorized the 

death penalty for 27 percent of the defendants that were submitted, and then between 2001 and 2006, the Attorney General authorized the death penalty for approximately 13.6 percent of the 

defendants submitted. 

So the percentage of requests and authorization from the Attorney General was the same: 13 percent requested from the U.S. Attorney’s Office between 2001 and 2006, and the Attorney General 

authorizing the death penalty in 13 percent of the matters of total 

numbers submitted. 

In terms of the overrules and the success rate, the numbers, as 

I understand it, are as follows: Between 1995 and 2000, 43 percent 

were sentenced to death, 20 of 46 individuals that had been submitted. In 2001 to 2006, 33 percent were sentenced to death—that 

is, 24 individuals out of the 72 defendants requested—where the 

Attorney General concurred with the request of the United States 

Attorney. 

In terms of the overrules, between 1995 and 2000, 7.69 percent 

of the defendants were sentenced to death when the Attorney General overruled the United States Attorney request not to seek, so 

approximately 7 percent. In the 2001 to 2006 timeframe, 20 percent of the defendants were sentenced to death when the Attorney 

General overruled the U.S. Attorney’s Office request not to seek. 

So between the time period of 1995 to 2000, it was approximately 

7 percent, where the Attorney General overruled and you had a 

success rate. And it was 20 percent between 2001 and 2006, and 

that number is 6 individuals of the 30 that had been within the 

total pool. 

11 

Chairman FEINGOLD. Well, getting back to the question of the 

greater frequency of the overruling, do I understand you to be saying that because there were less requests for the death penalty percentage-wise, the fact that there was greater overruling of the U.S. 

Attorneys is something that needs to be factored in? Is that what 

you were saying? 

Mr. SABIN. No, I don’t think that is the point I was trying to 

make. I think the total number has increased from 685 to 1,200— 

Chairman FEINGOLD. Total number? 

Mr. SABIN. Of defendants that are within the potential for seeking the death penalty, to determine whether to seek or not to seek. 

So the total number in the pool has increased, but I think the percentages with respect to the overruling the success rate of the past 

half dozen years is greater than it had been in the preceding years. 

Chairman FEINGOLD. But isn’t that a separate question from why 

the Attorney General would be more frequently overruling an initial decision not to seek the death penalty? You are talking about 

the success rate, but that is not the only issue here. 

Mr. SABIN. Correct. That is true. 

Chairman FEINGOLD. It was surprising to me that in one out of 

every three Federal capital cases, the Attorney General had overruled a local recommendation. It is a lot higher than under Attorney General Reno from 1995 to 2000 when overrule cases accounted for 16 percent of cases in which the death was authorized. 

And let us keep in mind that this Justice Department here is overruling Republican U.S. Attorneys, so this is not just a political matter. 

So I am concerned about this. I would like to do some followup 

questions to further understand these statistics and what you just 

presented. 

Mr. SABIN. We are happy to engage in that dialog regarding the 

nature and extent and the meaning of those statistics, sir. 

Chairman FEINGOLD. Another striking statistic that emerged 

from that data is the difference in the Department’s likelihood of 

obtaining a death penalty verdict from 2001 to 2006 depending on 

whether the case resulted from an overrule, which I think you were 

alluding to. It appears that the Government obtains a death sentence in 33 percent of cases where the Attorney General approved 

a U.S. Attorney recommendation to seek death, but it then drops 

to 20 percent—it is actually significantly lower—when the Attorney 

General overrules a U.S. Attorney recommendation not to seek 

death. 

What is your explanation for that disparity? 

Mr. SABIN. These are tough cases, and tough decisions need to 

be made, and we will continue to evaluate what the information 

means. But we look at the facts, we look at the law, and apply the 

appropriate intent factors and the aggravating and mitigating circumstances in order to reach a just determination. These are difficult cases, and juries have to wrestle with the most severe sanctions. 

Chairman FEINGOLD. Now, let me suggest that U.S. Attorneys 

are a lot closer to the people in their area than Federal Government employees at the national level. The fact is that in the last 

few years a fair amount of skepticism has developed about the 

12 

death penalty, and this fact has an impact on how jurors feel about 

the death penalty. The deference to a U.S. Attorney’s judgment 

about this may affect the success rate because U.S. Attorneys are 

in a better position in many cases to determine not only the overall 

feelings of a jurisdiction about the death penalty, but also the likelihood of success. 

Mr. SABIN. Certainly it is a critical factor, the position of the line 

prosecutor and the United States Attorney in a particular community. There should be great respect and understanding of the particular position of those individuals that are most familiar with the 

facts and circumstances of the individual case, the co-defendants, 

and the local community. So that is considered as part of the thorough and robust review process. So that consistent with Federal 

law and the desire to have consistent and uniform application in 

a nationwide setting, you have that relationship and that dialog, 

which must be robust and considered, between the field office, 

where I had served, and headquarters. And you need to make sure 

that you get that balance and that dynamic correct. I absolutely 

agree with you in that, sir. 

Chairman FEINGOLD. Finally, there is a stark difference between 

the number of cases in which the Attorney General overruled U.S. 

Attorney recommendations not to seek the death penalty in 2005 

versus 2006. In 2005, he overruled recommendations against the 

death penalty three times. In 2006, it jumped to 21 times. 

Do you know why there was such a large jump? 

Mr. SABIN. As I sit here today, I don’t know and haven’t evaluated the circumstances relating to those numbers, and we can get 

back to you if there is any reason to draw from them. 

Chairman FEINGOLD. I would really appreciate that. I want to 

thank you for your patience and your responsiveness. It is not an 

accident that there has not been this kind of oversight for 6 years. 

Certainly it is obvious. It is because I was not Chairman of the 

Subcommittee. And as long as I am, there is going to be this kind 

of oversight. 

Mr. SABIN. We welcome the oversight. 

Chairman FEINGOLD. I look forward to it, and I appreciate your 

initial willingness to work with us. 

Mr. SABIN. Yes, we absolutely will continue to work with you, sir. 

Chairman FEINGOLD. Thank you very much. 

[The prepared statement of Mr. Sabin appears as a submission 

for the record.] 

Chairman FEINGOLD. We will go to the next panel. As the second 

panel comes forward, without objection, I will place some items in 

the hearing record. These include a 2007 letter from Professor 

David Baldus at the University of Iowa; a 2006 letter sent by Professor Baldus and several other researchers regarding the Rand 

study; and a report by the American Civil Liberties Union on racial 

disparities in the Federal death penalty. 

Now that the witnesses have come forward, will you all rise? 

Please raise your right hand to be sworn. Do you swear or affirm 

that the testimony you are about to give before the Committee will 

be the truth, the whole truth, and nothing but the truth, so help 

you God? 

Mr. CHARLTON. I do. 

13 

Mr. SA ́ NCHEZ RAMOS. I do. 

Mr. MULHAUSEN. I do. 

Mr. SHELTON. I do. 

Mr. OTIS. I do. 

Mr. BRUCK. I do. 

Chairman FEINGOLD. Thank you very much, and you may be 

seated. I want to welcome you and thank you for being here this 

morning. I ask that you each limit your remarks to 5 minutes, as 

we have a lot to discuss. Your full written statements will, of 

course, be included in the record. Our second panel begins with 

Paul Charlton, the former U.S. Attorney for the District of Arizona. 

Mr. Charlton served as U.S. Attorney from 2001 to January 2007. 

Before being a U.S. Attorney, he served as an Assistant U.S. Attorney in that office and worked in the Arizona Attorney General’s office before that. He currently is in private practice at the law firm 

of Gallagher & Kennedy. 

Mr. Charlton, you may proceed. 

STATEMENT OF PAUL K. CHARLTON, FORMER U.S. ATTORNEY, 

DISTRICT OF ARIZONA, PHOENIX, ARIZONA 

Mr. CHARLTON. Chairman Feingold, good morning, and thank 

you, sir, for the opportunity to speak with you about the death penalty and my experience with its implementation in the District of 

Arizona while I was the United States Attorney. 

As you indicated, I was a career prosecutor before leaving the 

United States Attorney’s Office in January of this year. I loved the 

job of being a prosecutor. It was a job that every morning gave you 

the opportunity to get up and know that you were going to do the 

right thing and every night go to bed with the understanding that 

you had done something to better society. 

I know there are a number of jobs that give people that opportunity, but what makes prosecutors unique is that they have a 

power and responsibility that goes beyond what other professions 

have. They have the ability to alter an individual’s career or reputation. When it is appropriate, they can take an individual from 

society and put them in prison for a number of years. But what 

perhaps is most unique about the profession of prosecution is their 

ability to seek the ultimate penalty. 

In every case, it is important that a prosecutor not only do right 

but be right. And nowhere is that more important than when a 

prosecutor seeks to impose the death penalty. 

Before a prosecutor seeks to impose the death penalty, a prosecutor should seek the input of all of those with special knowledge 

and take every factor into consideration. In order to illustrate that, 

Senator, I would like to talk about a case that I dealt with while 

United States Attorney, and that is the case of United States v. 

Rios Rico, which is currently set for trial. 

The facts as alleged by the Government in that case are that a 

methamphetamine dealer killed his supplier. Now, the majority of 

the Government’s case is based upon the testimony of individuals 

who have pled guilty in exchange for their testimony. The evidence 

is sufficient, I believe, that you can go forward in good faith and 

seek a conviction, and if you obtain a conviction, seek a sentence 

for a term of years or life. 

14 

But what removes this case from the arena of a death penalty 

case is the lack of forensic evidence. In this case, there is no ballistic evidence. In fact, there is no weapon. There is no DNA upon 

the defendant that matches the victim. There is no DNA upon the 

victim that matches the defendant. There are no hair samples. In 

fact, we do not have the body. 

Now, that in and of itself is for me sufficient to remove this case 

from consideration as a death penalty case because it is not only 

important to look at the aggravating factors and determine whether or not a case is a death penalty case or not. We should consider 

the quality of the evidence. And here that quality is lacking. 

Now, what underscores that point is this additional fact: We know where the body is. In fact, for the price of between $500,000 

and $1 million, we could go get the body. It is currently buried in 

a landfill in Mobile, Arizona. 

When I was United States Attorney, we asked the Department 

of Justice for those funds to exhume the body. That request was 

denied. It is inappropriate to seek the death penalty in a case 

where you can literally put your arms around evidence that will either support your contention that this is an appropriate death penalty case and allow you in good conscience to go forward with that 

prosecution and seek the death penalty, or perhaps, and just as importantly, show evidence that is inconsistent with the Government’s theory of the prosecution. 

Now, with this information, we went to the Death Penalty Review Committee and asked them not to recommend that we seek 

the death penalty. The line assistant who is in charge of this case, 

who is most fluent with the facts of the case, appeared personally 

before that committee and argued this point. I submitted a memorandum and argued this point. And we awaited the decision. 

Now, under Attorney General Ashcroft, I was notified along 

every step of the way—from the Review Committee to the Deputy 

Attorney General to the Attorney General—of their decisionmaking 

process. But in this instance, I was not. In fact, the first I heard 

of any inconsistency with my recommendation was a letter from 

the Attorney General ‘‘authorizing’’ me to seek the death penalty. 

I immediately began steps to ask the Attorney General to reconsider that decision. I went to his staff. I went to the staff of the 

Deputy Attorney General. I went to the Assistant Attorney General 

in charge of the Criminal Division. 

I spoke personally with the Deputy Attorney General, Paul 

McNulty, and I repeated the facts in greater detail than I have 

here about why it is I did not believe that this was a death penalty 

case. 

Mr. McNulty then went to the Attorney General. The facts as 

then reported to me by his chief of staff, Mr. Elston, were these: 

Mr. Elston indicated that he wanted me to be aware of two important factors, that Paul McNulty had personally instructed Elston to 

make me aware of two facts: First, that McNulty and the Attorney 

General had spent a significant amount of time, perhaps as much 

as 5 to 10 minutes, on this issue discussing it. The second issue 

that he wanted me to be aware of was that Paul McNulty had remained completely neutral on whether or not the death penalty 

should be imposed or not. 

15 

Chairman FEINGOLD. I am going to have to ask you to conclude 

soon. 

Mr. CHARLTON. I am sorry? 

Chairman FEINGOLD. I am going to have to ask you to conclude 

soon. 

Mr. CHARLTON. All right. My point is this, Senator: Before we 

seek to impose the death penalty, we need to consider the opinions 

of the line assistants. You need to consider the opinion of the 

United States Attorney. You need to consider the quality of the evidence that is involved. You cannot afford to be wrong in a death 

penalty case, because the ultimate decision in this case can never 

be corrected. 

[The prepared statement of Mr. Charlton appears as a submission for the record.] 

Chairman FEINGOLD. I thank you for your very interesting testimony. 

Our next witness is Puerto Rico’s Secretary of Justice, Roberto 

Sa ́nchez Ramos, who is here today on behalf of the Governor of 

Puerto Rico. Secretary Sa ́nchez Ramos has worked in the Department of Justice Civil Division and the Office of the Solicitor General for Puerto Rico. He holds degrees from MIT, the University of 

Puerto Rico, and Yale Law School. 

Secretary, thank you for joining us, and you may begin. 

STATEMENT OF HON. ROBERTO J. SA ́ NCHEZ RAMOS, SECRETARY OF JUSTICE, COMMONWEALTH OF PUERTO RICO, 

SAN JUAN, PUERTO RICO 

Mr. SA ́ NCHEZ RAMOS. Good morning, Chairman Feingold. I am 

appearing on behalf of our Governor, Hon. Anibal Acevedo Vila, to 

express our view that the death penalty should be abandoned as 

punishment for Federal offenses or, at the very least, that Congress 

should establish a rule of deference barring the imposition of this 

penalty within jurisdictions, such as Puerto Rico, that do not allow 

it locally. 

Puerto Rico’s special relationship with the United States, our 

constitutional prohibition of capital punishment, and lack of local 

consent to the Federal law authorizing the imposition of this most 

extreme of penalties raises profound questions as to the legitimacy 

and wisdom of seeking such punishment in Puerto Rico. 

The Commonwealth favors the total elimination of death as a 

form of punishment. As a democratic and developed society, we 

should demonstrate an absolute respect for human life, even for the 

life of a murderer. I believe that an overwhelming majority of 

Americans would strongly disapprove implementing the state-sanctioned torture of a torturer or rape of a rapist as forms of punishment. I see no reason why the moral calculus should vary when 

considering the state-sanctioned killing of a killer. 

In addition, the uniqueness of death as punishment, in that it is 

irrevocable, should give any government pause. The possibility of 

mistakes in the application of the death penalty is not theoretical; 

in fact, the evidence suggests it is not even remote. In this sense, 

it is worth noting that at least 14 inmates exonerated by DNA testing were at one time sentenced to death. 

16 

Short of completely eliminating death as punishment, Congress 

should at least reconsider whether the value of public policy uniformity at the Federal level is outweighed in this instance by significant political, social, and cultural differences, as well as by the 

problems and risks associated with the pursuit of the death penalty 

in jurisdictions that are opposed to it. 

The very non-existence of death as punishment in some jurisdictions makes it very difficult to validate a uniform process for all 

capital punishment cases. For example, defendants in jurisdictions 

without local capital punishment confront a greater challenge in 

obtaining proper legal representation by experienced lawyers. 

In Puerto Rico, this matter is aggravated by the fact that most 

of the population does not speak English fluently, which could affect the quality of representation that counsel from another jurisdiction may be able to provide. 

It should be clear that the majority of Puerto Rico’s population 

firmly opposes the death penalty. No execution has taken place in 

Puerto Rico since 1927, and our Constitution, ratified by the U.S. 

Congress in 1952, specifically prohibits capital punishment. 

The application of the Federal death penalty in Puerto Rico 

stands against our highest social, cultural, political, moral, and religious values, and such application violates the balance of power 

and comity that the people of Puerto Rico envision as transcendental to their relationship with the United States. 

To disregard this political reality, independently of strictly legal 

considerations, carries the risk of inviting the erosion of the important and mutually beneficial relationship between our peoples. 

It is also interesting to note that in defending its policy on capital punishment before the United Nations, the United States has 

relied on an argument based on the political representation that 

the people subject to such penalty have in Congress. However, 

Puerto Rico has an extremely limited participation in the Federal 

decisionmaking process. Therefore, the idea that our democracy has 

a self-correcting ability—that general dissatisfaction with Federal 

legislation will be channeled through the ballot box—does not 

apply to Puerto Rico. 

Furthermore, the unique cultural and social particularities of 

Puerto Rico present significant obstacles for the fair imposition of 

the death penalty in our island. 

First, as mentioned before, the use of English in all U.S. district 

courts, including Puerto Rico, negatively affects the quality of legal 

representation. 

Second, because a jury determines whether death will be imposed, it is critically important to ensure that the juries constitute 

a fair and representative cross-section of the defendants’ peers. 

However, an estimated 75 percent of the Puerto Rican population 

is automatically disqualified from serving as jurors on a Federal 

capital case because they are not proficient in the English language. When the situation regarding language is combined with 

the fact that many of the remaining potential jurors may be disqualified on account of their moral opposition to the death penalty, 

the jury selection process for Federal capital cases in Puerto Rico 

will rarely result in the selection of a true cross-section of the deVerDate Nov 24 2008 12:18 Mar 09, 2009 Jkt 047297 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47297.TXT SJUD1 PsN: CMORC
17 

fendants’ peers. Of course, this raises troubling issues of constitutional law and basic fairness. 

For all these reasons, Puerto Rico respectfully demands that this 

Congress intervene to restore the balance, mutual respect, and 

comity that the people of Puerto Rico envision as a fundamental 

part of their relationship with the United States. Puerto Rico’s 

longstanding prohibition of the death penalty, which is deeply rooted in its values and traditions, and the extraordinary political process from which it evolved, entitles our people to such consideration. 

I urge you to consider and pass legislation which would eliminate 

the possibility of the ultimate penalty of death being imposed in 

Puerto Rico. 

Finally, I wish to extend the people of Puerto Rico’s gratitude for 

allowing me to testify before you regarding an issue of such import 

and consequence. 

Thank you. 

[The prepared statement of Mr. Sa ́nchez Ramos appears as a 

submission for the record.] 

Chairman FEINGOLD. Mr. Secretary, I am very pleased you are 

here, and I agree with your statement about a jurisdiction that 

does not have the death penalty. I admire the judgment of the people in Puerto Rico on this, and my State, a long way away in a very 

different climate, made the judgment in the 1850s, after the public 

was reviled by a public execution, to not have the death penalty in 

Wisconsin. We have not had a single execution since. It is one of 

the longest jurisdictions to have this in American history. And I 

think we feel the same way about the Federal Government overriding that judgment, the considered and continuous judgment of 

the people of my State. 

Our next witness is David Mulhausen. He is a senior policy analyst at the Heritage Foundation Center for Data Analysis. Previously, Mr. Mulhausen worked for the Senate Judiciary Committee on crime and juvenile justice policy. Mr. Mulhausen earned 

a Ph.D. from the University of Maryland and a B.A. from 

Frostburg State University. 

Mr. Mulhausen, thank you for joining us, and you may proceed. 

STATEMENT OF DAVID B. MULHAUSEN, SENIOR POLICY ANALYST, CENTER FOR DATA ANALYSIS, THE HERITAGE FOUNDATION, WASHINGTON, D.C. 

Mr. MULHAUSEN. My name is David Mulhausen. I am a Senior 

Policy Analyst in the Center for Data Analysis at the Heritage 

Foundation. I thank Chairman Russell Feingold and the rest of the 

Subcommittee for the opportunity to testify today. The views I express in this testimony are my own and should not be construed 

as representing any official position of the Heritage Foundation. 

While opponents of capital punishment have been very vocal in 

their opposition, a recent Gallup opinion poll found that 67 percent 

of Americans favor the death penalty for those convicted of murder, 

while only 28 percent are opposed. 

Despite strong public support for capital punishment, Federal, 

State, and local officials must continually ensure that its implementation rigorously upholds constitutional protections, such as 

due process and equal protection of the law. However, the criminal 

18 

process should not be abused to prevent the lawful imposition of 

the death penalty in appropriate capital cases. 

As of December 2005, there were 37 prisoners under a sentence 

of death in the Federal system. Of these prisoners, 43 percent were 

white, while 54 percent were African-American. The fact that African-Americans are a majority of Federal prisoners on death row 

and a minority in the overall United States population may lead 

some to conclude that the Federal system discriminates against African-Americans. However, there is little rigorous evidence that discrimination exists in the Federal system. 

To review the Federal death penalty process, the National Institute of Justice awarded the Rand Corporation a grant to determine 

whether racial disparities exist in the Federal system. The resulting 2006 Rand study set out to determine what factors, including 

the defendant’s race, victim’s race, and crime characteristics, affect 

the decision to seek a death penalty case. To accomplish this mission, three independent research teams were tasked with developing their own methodologies to analyze the data. 

When first looking at the raw data without controlling for case 

characteristics, Rand found that the decision to seek the death penalty is more likely to occur when the defendants are white and 

when the victims are white. However, these disparities disappeared 

in each of the three studies when the seriousness of the crimes was 

taken into account. 

The Rand study concludes that the decisions to seek the death 

penalty are driven by characteristics of crimes rather than by race. 

Rand’s findings are very compelling because three independent research teams, using the same data but different methodologies, 

reached the same conclusions. 

In recent years, a growing number of sophisticated studies having consistently found that capital punishment saves lives, Federal, 

State, and local officials need to recognize this benefit. Three studies of professors at Emory University support the deterrent effect. 

The study found that each execution, on average, results in 18 

fewer murders. The second study found that implementation of 

State moratoria is associated with increased incidence of murders. 

A third study found that each execution prevents three murders 

and shorter waits on death row reduce murders as well. 

Studies by professors at the University of Colorado at Denver 

found that each additional execution deters five murders. In addition, each additional commutation resulted in five additional murders. And removal from death row by a court resulted in one additional murder. 

In summary, Americans support capital punishment for two good 

reasons: first, there is little evidence to suggest that minorities are 

treated unfairly; and, second, recent studies have confirmed what 

we learned decades ago: capital punishment does, in fact, save 

lives. Each additional execution appears to deter between 3 and 18 

murders. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Mulhausen appears as a submission for the record.] 

Chairman FEINGOLD. The Chairman of the full Committee, Senator Leahy, has just arrived, and he has asked that we hear from 

19 

the next witness, and then he will speak. And I want to thank Dr. 

Mulhausen for his testimony. 

Our next witness is Hilary Shelton, the Director of the NAACP’s 

Washington Bureau. Mr. Shelton runs the NAACP’s Legislative 

and Public Policy Advocacy Office and has a very long and distinguished record of advocating for civil rights. 

Thank you for joining us, and the floor is yours. 

STATEMENT OF HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE [NAACP], WASHINGTON, 

D.C. 

Mr. SHELTON. Thank you and good morning. As you mentioned, 

my name is Hilary Shelton. I am Director of the NAACP’s Federal 

legislative and national public policy arm of the Nation’s oldest, 

largest, and most widely recognized grassroots-based civil rights organization, with 2,200 membership units, and units literally in 

every State throughout the United States. 

After 98 years of fighting for full civil rights protections for all 

Americans, the NAACP remains resolutely opposed to the death 

penalty, and as such I would like to offer our sincere thanks to the 

Chairman, Senator Feingold, and Senator Leahy for their great 

work on these issues and for their unflinching efforts to end this 

discriminatory and immoral practice at the Federal level. You are 

indeed our champion and an inspiration to all on this issue. Thank 

you, sir. 

The Government’s claim to a moral authority to exact the ultimate punishment is based on the belief that the punishment will 

be administered fairly and evenhandedly. But even a cursory review of the death penalty at both the Federal and State levels indicate this is false. 

From the days of slavery through the years of lynchings and Jim 

Crow laws, to even today, capital punishment has always been 

deeply affected by race. This is true among the States as well as 

at the Federal level. Despite the fact that African-Americans make 

up only approximately 13 percent of our Nation’s population, almost 50 percent of those who currently sit on the Federal death 

row are African-American. And even though only three people have 

been executed under the Federal death penalty in the modern era, 

two of them have been racial and ethnic minorities. Furthermore, 

all six of the next scheduled executions are African-American. 

The race of the victim also appears to play a role in the implementation of the Federal death penalty. According to the report 

just released by the ACLU’s Capital Punishment Project, under the 

tenure of the last three Attorneys General, the death penalty was 

sought in 35 percent of the cases when the victim was white compared to 19 percent of the cases when the victim was a person of 

color. This means that the risk of Federal death penalty authorization is 1.8 times higher in the white victims’ cases than racial and 

ethnic minority cases. 

This disturbing trend is mirrored in the States. Across the Nation, about 80 percent of the victims in the underlying murder and 

death penalty cases are white, while less than 50 percent of murder victims overall are white. This statistic implies that white lives 

20 

are valued more than those of racial and ethnic minorities in our 

criminal justice system. 

Finally, the NAACP is deeply concerned about the implications 

demonstrated when reviewing the data surrounding the numbers of 

people who have been exonerated since being placed on death row. 

Since 1973, over 120 people have been released from State death 

rows with evidence of their innocence. When administered, the 

death penalty is the ultimate punishment, one that is impossible 

to reverse in light of new evidence. 

The American criminal justice system has been historically, and 

remains today, deeply and disparately impacted by race. It is difficult for African-Americans to have confidence in or be willing to 

work with an institution that is fraught with racial disparity. And 

the fact that African-Americans are so over represented on death 

row is alarming and disturbing, and certainly a critical element 

that leads to the distrust that exists in the African-American community of our Nation’s criminal justice system. 

It bears repeating that 49 percent of all the people, or almost 

half of all those currently sitting on the Federal death row, are African-American. Perhaps more disturbing is the fact that nobody at 

the Department of Justice can conclusively say that race is not a 

factor in determining which defendants are to be tried in Federal 

death penalty cases. 

According to DOJ’s own figures, 48 percent of the defendants in 

Federal cases in which the death penalty was sought between 2001 

and 2006 were African-American. 

What we don’t know, unfortunately, is whether or not this number is representative of the number of criminal defendants who are 

accused of crimes in which the death penalty may be sought. And 

since there are several layers that must be examined to even begin 

to assess this data, including whether a crime is tried at the local 

or Federal level, it is not an easy statistic to attain. 

What is clear, though, is that at several different points in the 

process of determining who is tried in a Federal death penalty case 

and who is not, a judgment is made by human beings in a process 

in which not everyone has similar views. This is born out in a new 

ACLU study which found that a far greater percentage of white defendants were able to avoid the death penalty through plea bargains, which can be attributed to the exercise of Federal prosecutorial discretion. This concern is mirrored at the State level where 

98 percent of the chief district attorneys in death penalty cases are 

white and only 1 percent is African-American. 

In addition to the factor of the race of the defendants, the 

NAACP is also deeply troubled by the role played in the race of the 

victim. Although at the Federal level the weight of the victim’s race 

appears to have changed over the last few years, at the state level 

the race of the victim still appears to play a big role. According to 

the Death Penalty Information Center, 79 percent of the murder 

victims in cases resulting in an execution were white, even though 

nationally only 50 percent of murder victims overall were white. A 

recent study in California found that those who killed whites were 

over 3 times more likely to be sentenced to death than those who 

killed African-Americans and more than 4 times more likely than 

those who killed Latinos. Another study in North Carolina found 

21 

that the odds of receiving a death penalty sentence rose by 3.5 

times among defendants whose victims were indeed white. 

These studies, along with the fluctuations we see in all death 

penalty jurisdictions including the Federal Government, speak 

again to the varying factors involved in determining who is eligible 

for the death penalty and who is not. The overwhelming evidence 

that a defendant is more likely to be executed if the victim is white 

is also incredibly problematic; it again sends a message that in our 

criminal justice system, white lives are more valuable than those 

of racial or ethnic minorities. 

Obviously with race being so problematic and such an overwhelming factor in the application of the death penalty, the 

NAACP is also concerned that there is no room for error. Yet errors 

do occur even today. Nationally, more than 120 people have been 

exonerated and freed from death row before they could be executed. 

Given the finality of the death sentence under which these people 

were living, they may, in fact, be considered the ‘‘lucky ones.’’ Furthermore, considering the disparities in the number of AfricanAmericans on death row, it is likely that more African-Americans 

are erroneously executed, a fact that once again contributes to the 

mistrust that is endemic among African-American communities of 

the American criminal justice system. 

There are several other very valid arguments against the death 

penalty that I will mention but not elaborate on now. The death 

penalty is not a cost-effective punishment. A 2005 study showed 

that in California, taxpayers paid $114 million per year beyond the 

costs of keeping convicts locked up for life; taxpayers have paid 

more than $250 million for each of the State’s executions. 

With that, I want to thank you very much for the opportunity to 

speak with you today, and I look forward to your questions. 

[The prepared statement of Mr. Shelton appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you, Mr. Shelton, for your testimony 

and for your tremendous leadership in this area. 

I am just delighted that the Chairman of the full Committee is 

here. I am delighted he is here; I am delighted he is Chairman. 

And most importantly today, I hope everyone understands the 

enormous role that the Chairman has played, long before I got here 

and since I have been here, on principled questioning in opposition 

to the death penalty not only at the Federal level but throughout 

the country. We have worked hand in glove on this issue, and I am 

grateful to him for his tremendous efforts over the years on this 

issue. 

Mr. Chairman. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Chairman LEAHY. Well, thank you. And I thank Senator Feingold 

for that because he has taken the same, I believe, principled 

stands, often difficult in political years, election years, but we both 

feel strongly about this. 

I recall, Mr. Shelton, the first time I ran for the Senate. Even 

though Vermont does not have a death penalty, the polls showed 

that about 85 percent of the people prefer it. My opponent said in 

22 

the debate, ‘‘How can you possibly oppose the death penalty? ’’ I 

said, ‘‘How many murder scenes have you gone to? How many murderers have you convicted? Let me tell you about some of the murderers I have convicted. Let me tell you about some of the murder 

scenes I have been to as a prosecutor.’’ 

It probably did not answer the basic question, but I wanted to 

make sure he understood that I speak from some real experience. 

Like Mr. Charlton, who is a prosecutor, you speak from real experience. 

I think what Senator Feingold is doing is bringing about this 

oversight that is long overdue. This Committee should have been 

having oversight hearings on this a great deal more, and I am glad 

that this year now with Senator Feingold chairing one of the major 

Subcommittees that we have it. 

Seven years ago, I came to the Senate floor, and I called attention to a national crisis in the administration of capital punishment. I noted that since the reinstatement of capital punishment 

in the 1970s, 85 people—now this was 7 years ago; 85 people had 

been found innocent and released from death row. Now, this tells 

you not only did you have the wrong person on death row who in 

some instances came within days of being executed, but it gave everybody a false sense of security. Some of these were serial murderers. They lock up the wrong person, everybody says, ‘‘Boy, are 

we safe. We put the guy away.’’ That means the murderer is still 

out there and you are not safe. 

I talked with one man who was convicted, Kirk Bloodsworth. I 

got to know him very well. I think, Mr. Shelton, you know him. I 

talked with him yesterday. It was his wedding anniversary. It was 

also a couple days after the 14th anniversary of being released. It 

was a heinous crime. I will not go into it here. He was accused of 

a heinous crime, declared his innocence. They would not even let 

him out of—he was on death row. They would not let him out of 

jail even to go to his mother’s funeral. And it turned out, oops, 

sorry, we should have checked that DNA that they kept asking 

them to check. They had the wrong person. Actually, the right person then confessed to the crime. It is hard to bring back those 

years when you sit there wondering if you are going to get executed. 

At that time, 7 years ago, I introduced the Innocence Protection 

Act of 2000. I worked for many years with others until its passage 

as part of the Justice For All Act of 2004. And we had a number 

of people join in it, both Republicans and Democrats, especially 

many people that had been former prosecutors. The legislation 

made key strides in ensuring that capital defendants had access to 

DNA testing and to effective counsel. You need both. DNA testing 

is not worth an awful lot unless you have effective counsel, and 

that greatly reduces the chance of innocent people being sentenced 

to death. It does not eliminate it; it reduces it. 

But, you know, since that time, like in so many other areas, the 

Bush administration has proceeded on its own path, and they have 

done it in secrecy. Surprise, surprise. I was struck by the testimony 

today—and I read your testimony today, Mr. Charlton, and I was 

getting briefed in the back room—you notice the people around 

me—about your testimony. He reported that he vigorously opposed 

23 

seeking the death penalty in one case with no forensic evidence, 

but that his opposition was dismissed without any opportunity for 

him to discuss the matter with the Attorney General. Even more 

troubling, as Deputy Attorney General McNulty’s chief of staff Michael Elston told Mr. Charlton at the time, Mr. McNulty and Attorney General Gonzales had spent considerable time on this issue, 

maybe 5 to 10 minutes-–5 to 10 minutes to decide whether somebody might end up with the death penalty. 

That is not sufficient to make a careful decision about whether 

to seek to execute a person in what was a difficult case, one where 

the evidence was very questionable. 

But I worry that the Attorney General and the Deputy Attorney 

General may also have taken no more than 5 or 10 minutes in deciding to accept the recommendation from the political arms of the 

White House or elsewhere that Mr. Charlton be fired in spite of his 

courageous and diligent service. 

I am reminded, Secretary Sa ́nchez Ramos, you have spoken of 

the same thing in Puerto Rico where you do not have a death penalty and being told you are going to have to have the death penalty 

in Federal cases. We had a similar thing in Vermont. A case where 

a carjacking ended tragically, the person crossed State lines so it 

is now in Federal court in Vermont, which does not have a death 

penalty. The U.S. Attorney, a highly qualified U.S. Attorney, 

sought and got a plea agreement, an ironclad plea agreement, 

where the person would get life with no chance of parole. And the 

court, a very good judge, was going to make sure it was going to 

be ironclad. 

But no, after one of those 4-minute, 5-minute phone calls from 

the Attorney General, we have got to have a death penalty. We will 

show those people in Vermont for not having a death penalty on 

the books. We will fix them. We will have a death penalty on this 

one. Instead of having a plea bargain, going to prison for life, with 

no chance of parole, we will spend millions of dollars both in the 

prosecution and defense in this case, and who knows where we will 

end up? But we will make a point. 

This, incidentally, was the same Justice Department when we 

asked them to put people after 9/11 to investigate the shipping containers, the ships coming into the port in New Orleans because of 

the possibility if they had a bomb and they exploded it—this is before Katrina—and it blew out the dikes, a lot of people could be 

killed. They did not have any people for that, but they spent a fortune for the prosecution by the Department of Justice and an investigation. And you know what they found? This is going to be 

very shocking. If you shock easily, please cover your ears. But they 

found two houses of ill repute in New Orleans. 

Now, I was shocked to even hear there were such things in New 

Orleans. I did suggest to the Attorney General that he probably 

could have had somebody do what one of our staff did: get out the 

Yellow Pages phone book in New Orleans. They advertised. They 

did not have to spend millions of dollars doing that. But it just 

shows the priorities. 

That in a way is almost humorous because of what happened, 

but what is not humorous is that the leadership of the Department 

of Justice has kept its decisionmaking on these life-or-death issues 

24 

quiet. They have kept them out of the light of day. They made sure 

that people do not know about it. They have done things like in 

Puerto Rico, which does not have a death penalty, they have basically imposed one in these private meetings, as they did in 

Vermont. 

So it is time to shine some light on it, and I cannot commend the 

Senator from Wisconsin enough for doing just that. I thank him for 

that. 

Chairman FEINGOLD. Well, again, thank you very much, Mr. 

Chairman, for your comments and for your participation in this. I 

am looking forward to working with you on this issue. 

Our next witness is William G. Otis. Mr. Otis is an adjunct professor at George Mason School of Law. Previously, he has served 

as counselor to the DEA Administrator, as an Assistant U.S. Attorney, and as an attorney in the Criminal Division of the Justice Department. 

Mr. Otis, thank you for joining us, and you may begin your testimony. 

STATEMENT OF WILLIAM G. OTIS, FORMER CHIEF, APPELLATE DIVISION, U.S. ATTORNEY’S OFFICE, EASTERN DISTRICT OF VIRGINIA, FALLS CHURCH, VIRGINIA 

Mr. OTIS. Mr. Chairman, thank you for inviting me to testify 

about issues relevant to the proposed Federal Death Penalty Abolition Act. Like the great majority of our citizens, I support keeping 

the death penalty for particularly gruesome and heinous murders. 

At the same time, Mr. Chairman, I want to thank you for your 

principled and forthright stand. You do not seek to disguise your 

views behind what some market as a death penalty ‘‘moratorium,’’ 

but what is actually intended for the most part to be simply the 

first phase of wholesale abolition. You support abolition, as you 

said at the outset of this hearing. This makes an honest debate 

possible. 

Today’s discussion of the death penalty cannot be divorced from 

the broader national debate about capital punishment. Indeed, if 

anything, the Federal Government’s death penalty procedures are 

more detailed and painstaking than those of most other jurisdictions. So if the Federal death penalty were to be abolished, it is difficult to see why capital punishment should exist anywhere in the 

country. 

But it should, in Federal law as elsewhere. The central reason 

for opposing abolition of the death penalty is that it is a one-sizefits-all proposition. It would tie the sentencing jury’s hands by intentionally turning a blind eye to the facts of the case before it, no 

matter how horrible the crime, how sinister the killer, how many 

the victims, or how grotesque their fate. Yet more remarkably, it 

would tie the jury’s hand even where the typical objections to the 

death penalty, including those that inspire this hearing, have no 

application. 

If the proposed legislation had been the law 10 years ago, for example, Timothy McVeigh would be with us today. Presumably he 

would still be seeking a national audience like the one he got on 

‘‘60 Minutes’’ to explain why he was justified in murdering 168 of 

25 

his fellow creatures, including 19 toddlers in the daycare center at 

the Murrah Building. 

It would be wrong to prohibit our juries—the conscience of our 

communities—from imposing the death penalty on a person like 

McVeigh, and to enforce this prohibition on the basis of issues that 

might arise in some cases some of the time, but that often will 

have nothing to do with the case at hand, would be incomprehensible. This was aptly explained by none other than Barry Scheck, 

the head of the Innocence Project, who told the Washington Post 

that, ‘‘in McVeigh’s case, ‘there’s no fairness issue. . . There’s no 

innocence issue. Millions of dollars were spent on his defense. You 

look at all the issues that normally raise concern about death penalty cases, and not one of them is present in this case, period.’ ’’ Mr. 

Scheck might have added explicitly what was implicit in his remarks, namely, that there was no racial issue either, a fact no serious person disputes. But today’s proposed bill would have prevented McVeigh’s execution, or the execution of others like him, 

notwithstanding the fact that the stated reasons for the bill, racial 

and otherwise, were irrelevant to his case, and will be irrelevant 

to dozens if not hundreds of future cases. 

Now, some will say it is unfair in the context of this hearing to 

use McVeigh as an example, but that is not so. There is nothing 

‘‘unfair’’ in discussing at a hearing about the death penalty one 

compelling illustration of why we should keep it. Beyond that, 

McVeigh is fairly representative. Over the last 50 years, two-thirds 

of those executed by the Federal Government have been, like 

McVeigh, white men. This largely mirrors the national experience: 

Since the death penalty was reinstated by the Supreme Court in 

1976, nearly three-fifths of executed criminals have been white. 

We speak this morning against the backdrop of a savage campaign of global terror, from Madrid to London to New York and Arlington right across the river. If today’s proposed legislation becomes law, the Federal Government’s ability merely to ask a jury 

to consider the death penalty for terrorists will cease to exist, even 

if Osama bin Laden himself is in the dock. Millions of Americans 

would consider that an outrage, and a huge majority would consider it unjust. It is noteworthy that a majority of even those who 

generally oppose the death penalty thought it was appropriate for 

our domestic terrorist, Timothy McVeigh. All told, slightly more 

than 80 percent of the public thought the death penalty was right 

in that case. This bill would tell that 80 percent majority that, unbeknownst to them, their views are the accomplice of racism. But 

that is not true, and it is not the American public I came to know 

in my years as a prosecutor. We are a fair-minded and conscientious people. When the moral compass of 80 percent of our fellow 

citizens says that the death penalty should be imposed, as it did 

for McVeigh and will for Osama and others, it is not for Congress 

to tell them that their sense of justice doesn’t count. 

To preserve our country’s heritage that justice must turn on the 

facts of each case individually considered, I respectfully submit 

that Federal juries should continue to have discretion, acting out 

of conscience in egregious cases, to impose the death penalty. 

Thank you. 

26 

[The prepared statement of Mr. Otis appears as a submission for 

the record.] 

Chairman FEINGOLD. Well, thank you, Mr. Otis. I appreciate 

your being here. I am confused by your testimony. I could not have 

been more clear that this was not a hearing about any piece of legislation, and I assume you were listening. This is a hearing about 

congressional oversight of the Federal death penalty, and if this 

Committee is not going to be doing the oversight of the Federal 

death penalty, I don’t know who is. So, yes, I do believe in certain 

pieces of legislation, but there are many who support the death 

penalty who share our concern about how the Federal death penalty is administered. But, again, I do thank you for being here. 

Our final witness is David Bruck— 

Chairman LEAHY. Could I add, Mr. Chairman, that Mr. Otis is 

a very well trained lawyer and all that, but we had enough red herrings thrown out by his testimony, we should probably all be getting a fishing license here. But the fact of the matter is not legislation. It is talking about the application of the Federal law enforcement and the utilization of the death penalty, and the facts are incontrovertible that we have had many, many people on death row 

who were innocent, who were there because there was not adequate counsel, there was not adequate evidence made available to 

them, exonerating evidence. And I would hope that everybody, 

whether they are for or against the death penalty, would feel that 

if somebody is being charged with a capital crime, that they would 

at least have the ability to see the evidence, all the evidence, that 

evidence would not be withheld, and that we not make a mistake. 

We do know from the number that have been released that there 

is an extremely high probability that innocent people have been executed. I would also hope that everybody, whether they are for or 

against the death penalty, would not condone having innocent people executed. 

Chairman FEINGOLD. Thank you, Mr. Chairman. 

Our final witness is David Bruck, a Federal death penalty resource counsel to the Federal defender system, and clinical professor of law at Washington & Lee. A death penalty litigator since 

1980, Mr. Bruck has represented capital defendants in some 20 

cases, argued seven death penalty cases before the Supreme Court, 

and handled over 60 appeals in the State and lower Federal courts. 

Mr. Bruck, thank you for joining us, and you may begin. 

STATEMENT OF DAVID I. BRUCK, ESQ., FEDERAL DEATH PENALTY RESOURCE COUNSEL DIRECTOR, VIRGINIA CAPITAL 

CASE CLEARINGHOUSE, WASHINGTON & LEE SCHOOL OF 

LAW, LEXINGTON, VIRGINIA 

Mr. BRUCK. Well, thank you, and thank you so much, Senator 

Feingold, for this hearing, which is long overdue. George Will has 

reminded conservatives, ‘‘The death penalty is a Government program, so skepticism is in order.’’ And I dare say oversight is also 

in order. 

We have seen a modest push to increase the reach of the Federal 

death penalty since this Committee last had the opportunity for 

oversight hearings. But even if success were judged by the number 

of extra death sentences that have resulted, it has been a failure. 

27 

Mr. Sabin says the Justice Department keeps no track of the financial cost, but we have just heard from Mr. Charlton and from General Sa ́nchez Ramos of some of the unquantifiable moral costs of 

this attempt to nationalize capital punishment, irrespective of the 

judgment of local prosecutors or the considered judgment of the 

people may be. 

To put all this in perspective: at least a couple of the witnesses 

seem to be debating the death penalty as such. Only 3.2 percent 

of all the death sentences imposed between 2001 and 2005 have 

been in the Federal system. Now, that is an increase from 1.4 percent in the last 5 years of the Clinton administration; that is, the 

Federal Government accounted for less than 1.5 percent of all the 

death sentences imposed in the country. But even that does not 

show that the Federal Government has been having more success. 

What it actually reflects is the fact that the number of death sentences in the country as a whole has dropped by more than half. 

As the country is beginning to reject this punishment, are seeing 

a last surge, if you will, from the Department of Justice under Attorney General Ashcroft and Attorney General Gonzales. 

Washington’s intervention has resulted in an average of one 

extra Federal death sentence a year. That is to say, of the 30 cases 

in which this Administration has forced U.S. Attorneys to seek the 

death penalty when they did not want to and which actually went 

to trial, the failure rate is 80 percent. Only six new death sentences 

are what we have to show for it, along with all of the unreckoned 

costs, and all of the division and all of the problems that are front 

and center in this hearing. 

I would like to say a couple of things about the revised protocol. 

Mr. Sabin seemed very modest about it. The details of the changes 

to the protocol were not even referred to in his prepared testimony, 

and it seems that but for your efforts, Mr. Chairman, that protocol 

would not have been disclosed until these hearings were over. 

The changes are striking. They basically attempt to create an 

airtight regime of secrecy over the entire deliberative process, so 

that prosecutions in Mr. Charlton’s position could be fired not 

merely for daring to disagree with the Attorney General, but for 

telling anybody that they did so. 

The secrecy provisions in this protocol even extend within the 

Government. It not only prohibits telling the public, but creates a 

‘‘need-to-know’’ restriction on disussing who recommended and who 

disagreed with whom in this process. And if you violate that, you 

have violated this new Department regulation. This is not openness. This is going in the wrong direction. 

The new protocol also intensifies to the level of micro management the Attorney General’s personal authority to implement a 

one-size-fits-all, Washington-knows-best approach to the Federal 

death penalty. It even requires a local U.S. Attorney to get the personal approval of the Attorney General before the Government is 

allowed to waive jury and allow capital sentencing by a Federal 

district judge. 

Then the protocol says over and over again that the point of this 

tremendously centralized structure is to achieve nationwide uniformity. It is time to look at that, Mr. Chairman. This is not a goal 

that is achievable, and even if it was, it is not a goal in keeping 

28 

with our Federal system or with our Nation’s values. The Sixth 

Amendment provides that the accused gets a jury of the vicinage, 

not one drawn from a venue chosen by Washington. There is also 

a grand jury requirement in the Fifth Amendment which allows 

charging decisions be evaluated by a local grand jury. The Framers 

believed that the power over life or death vested in the Federal 

Government should be moderated by local conditions and local 

views. And it is not written in stone—indeed, it does not even really make much constitutional sense—that a single appointed official 

in Washington far, from the reach of local control and local petition, should be the one to make these life-or-death decisions without regard to local experience and local wisdom. 

It is time for a tamping down of this nationwide bureaucratic 

death-selection system which has grown up in the last 6 years. And 

I certainly hope that this Committee will help to lead this administration in a more rational and cost-effective direction in the administration of the Federal death penalty. 

Thank you. 

[The prepared statement of Mr. Bruck appears as a submission 

for the record.] 

Chairman FEINGOLD. Thank you very much, Mr. Bruck, and 

thank you to all the members of the panel. In a minute we will 

begin with questions, but I understand that Congressman Lungren 

has asked that his statement be placed in the record of this hearing. Without objection, that will be done. 

Mr. Charlton, DOJ responded in writing last week to a question 

I asked about the internal process for evaluating possible death 

penalty cases. Here is what it said: ‘‘The review process permits 

and encourages communication between the U.S. Attorney’s Office 

and the reviewing officials within the Department.’’ It then recites 

a variety of contacts that might occur between a U.S. Attorney’s 

Office and Main Justice during consideration of death-eligible 

cases, and suggests that there is an ample opportunity for robust 

debate throughout the process. 

As a general matter, is it your view that that is an accurate portrayal of the Justice Department review process? 

Mr. CHARLTON. Senator, under Attorney General Ashcroft, that 

was my experience. On at least two occasions, I had just that experience where we spoke at every different level and debated whether 

or not the death penalty should be approved or not. But under Attorney General Gonzales and with the Rios Rico case, that was not 

my experience for the reasons that I stated earlier. 

Chairman FEINGOLD. Well, when Attorney General Gonzales testified before the Judiciary Committee earlier this year, he testified 

that you were asked to step down at least in part because of ‘‘his 

poor judgment in pushing for a recommendation on a death penalty 

case.’’ He specifically said that you came back to him 2 months 

after he had authorized the death penalty and asked him to reconsider. 

I would like to give you a chance to respond to that. 

Mr. CHARLTON. Well, that was this case, and I am fully satisfied 

that it was appropriate to seek the opportunity to visit with him 

personally about this issue. 

29 

No decision is more important for a prosecutor, as I have said 

earlier, than whether or not to seek the death penalty, and that 

same truth holds for the Attorney General. I can think of nothing 

else in the Attorney General’s day-to-day life, in his professional 

life, that would be more important than whether or not to intentionally and methodically take another person’s life. And he ought 

to give the U.S. Attorney who oversees that office the opportunity 

to visit with him personally. 

There has been some discussion here about the financial costs 

that are involved, but, Senator, I would like to very briefly talk 

about other costs—costs that may be even more important than 

money. When you go forward with a death penalty prosecution, you 

are telling jurors, you are telling the jurists, you are telling opposing counsel that we think this is an important enough case to take 

another person’s life. If, in fact, it is not, if, in fact, it is not an appropriate case for the death penalty, then you are spending your 

credibility. You are losing credibility. And it is not the Attorney 

General who is losing credibility alone. It is those prosecutors who 

have to stand before the jury. It is the United States Attorney’s Office that those prosecutors represent. And that credibility is everything, as you know, Senator. And that is a loss that you cannot afford as well. 

Chairman FEINGOLD. Thank you. Just an editorial. Obviously, I 

prefer Democrat Attorney Generals, but there is mounting evidence 

at these Judiciary Committee hearings that all Republican Attorney Generals are not the same. It is really quite a striking distinction in many instances that we have witnessed. 

Mr. Bruck, does the sort of transparency provided by former Attorney General Janet Reno’s detailed report in 2000 in any way 

compromise or undermine the fair and just implementation of the 

Federal death penalty? 

Mr. BRUCK. No. No one has ever suggested that any case was affected by her unprompted decision to throw sunlight on what the 

Department had been doing. And it is astounding to me that not 

only did the public not know the tally sheet of the last 6 years, but 

we have learned from Mr. Sabin today that until you made the request of the Department of Justice, they did not know either. So 

how could the Department be making intelligent assessments 

themselves of whether this wheel-spinning, and almost totally ineffective practice of overruling U.S. Attorneys and forcing them to 

seek the death penalty was being effective when the Department 

did not even know the numbers. 

I would also like to correct one statistic of Mr. Sabin’s. He said 

that the the death-sentencing rate in ‘‘overrule’’ cases under this 

administration was higher than under Attorney General Reno, because only 7 percent of cases where she required the death penalty 

to be sought ended in death sentences. The implication was that 

she was making even worse judgments than the current administration. That is misleading, because what he failed to point out is 

that under the Clinton administration, U.S. Attorneys retained the 

discretion to plead cases out, without the approval of the Attorney 

General even after the death penalty was authorized. That safety 

valve was cut off in the 2001 regulations. Starting in 2001, the system became like the case in Vermont that Chairman Leahy deVerDate Nov 24 2008 12:18 Mar 09, 2009 Jkt 047297 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47297.TXT SJUD1 PsN: CMORC
30 

scribed in Vermont where plea bargains had to be approved by the 

Attorney General and often were not. 

So the fact is that of the ‘‘overrule’’ cases under the Clinton administration, almost none of them ever ultimately went to trial. 

And that is why the death-sentence rate was only 7 percent, not 

because she was making poor decisions. 

Chairman FEINGOLD. Thank you for that. 

And, Mr. Charlton, as a former Federal prosecutor, do you think 

that this transparency has undermined your work in any way? 

Mr. CHARLTON. I cannot think of a reason why it is that transparency would not be beneficial. In running my own office, when 

we made decisions about whether or not to go forward with a case, 

whether or not to recommend the death penalty, whether or not to 

seek a term of life, we openly discussed those issues. And I think 

you fail the full process, you fail in allowing people to give full 

input when you limit their ability to discuss their opinions with 

others. 

Chairman FEINGOLD. Thank you, sir. 

Mr. Shelton, in your written testimony, you noted that law enforcement executives and rank-and-file officers agree that crimes 

cannot be prevented or solved without a basic community trust of 

the police. Can you elaborate on how the implementation of the 

Federal death penalty may have an effect on that level of trust? 

Mr. SHELTON. Much like the disparate effect of many other aspects of our criminal justice system, whether it is racial profiling 

on our Nation’s streets, or whether it is indeed our juvenile justice 

system in which even though African-American children commit 

crimes at the same rate as white children and other children but 

find themselves incarcerated at a much higher rate than their 

other counterparts in other racial groups, when we talk about the 

death penalty and its finality, we are hearing from people across 

the country that, No. 1, the lack of transparency, they are saying, 

in how these cases are being sought, why are they coming after African-Americans more often in death penalty cases, there is a lack 

of trust. 

Everyone we have talked to, whether it is the local street police 

officer or whether it is the Attorney General of the United States 

herself, has said to us on many occasions that very well they cannot prevent crime nor can they solve crimes without the trust of 

the communities these law enforcement officials are serving. 

Chairman FEINGOLD. Are potential disparities in the death penalty widely known or discussed in the black community? Would you 

characterize opposition to the death penalty in the black community as stronger than that in the Nation as a whole? 

Mr. SHELTON. I think that because I work for the NAACP, which 

is a predominantly African-American organization, and because we 

have 2,200 membership units throughout the country, and because 

these issues for us actually come up from our local communities 

through our democratic process of our conventions and other processes, indeed we know that they feel what is going, they see what 

is going on, they end up in the 200 black-owned newspapers across 

the country. The issues are being discussed, and everything we do 

here in Washington as it works its way into those units and as we 

move to try to change the status quo. 

31 

So the short answer is absolutely yes. I think there is a gut feeling that you hear about first, but then as we look at the statistics 

and see the actual effect, we see that very well it is quite true and 

our people do know it. 

Chairman FEINGOLD. Thank you. 

Mr. Secretary, I understand that Puerto Rico faces very difficult 

challenges in the area of criminal justice and that resources are 

scarce, and it is undisputed that it costs much more to bring a Federal capital case than it does to bring non-capital murder charges, 

although as we heard from DOJ, it has not even tried to determine 

how much more, so we do not really know how much. 

From your perspective, is seeking the death penalty the best use 

of the resources of the U.S. Attorney’s Office in Puerto Rico to help 

fight the crime problem that you face? 

Mr. SA ́ NCHEZ RAMOS. I definitely do not think that that is the 

best use or the most efficient use of resources. The U.S. Attorney’s 

Office in Puerto Rico has very limited resources. At least that is 

what the U.S. Attorney has told—the previous one and the current 

one have told me over the last few years. During the past year, 

quite a few of the most experienced AUSAs there have quit. The 

U.S. Attorney in Puerto Rico recently requested that our prosecutors, local prosecutors, be assigned to work federally, sort of deputized federally as special AUSAs to help them deal with the rising 

crime problem in Puerto Rico. And I, in fact, was glad to sort of 

lend her two of my prosecutors. She had requested three. 

So definitely there is a situation of limited resources at that office by all accounts, and I would definitely rather have that office 

spend the limited resources in being able to apprehend and get convictions for the highest number of criminals possible, and if the 

cost of not having the death penalty for a few of the persons that 

are caught is to have an increase in the total number of criminals 

that are taken off the streets and put in jail, then I definitely think 

that that is the preferable alternative. 

Chairman FEINGOLD. Thank you, sir. 

Mr. Bruck, based on information released from the Department, 

we know that the Attorney General has disapproved 15 plea agreements in death-eligible cases since 2001. What effect might this 

have on the willingness of defendants to cooperate with the Government in future cases? 

Mr. BRUCK. Well, it is very simple. The way the Federal criminal 

justice system works is that criminal organizations are dismantled 

by defendants’ lawyers proffering the testimony of their clients and 

giving up what the clients know in exchange for some consideration 

in plea bargaining. 

In capital cases, in cases where there are many dead bodies, the 

most serious of cases, it is now dangerous to do that because a defense lawyer can reach agreement with the United States Attorney 

based on a proffer where he has laid his client out and had him 

interviewed, only to have the agreement overruled by a distant decisionmaking process in Washington. And because it is so unpredictable, it is now much riskier to even initiate that process of providing information to federal law enforcement. 

It is just harder to engage in that process from the defense side, 

and I think that is going to mean less plea bargaining, less inforVerDate Nov 24 2008 12:18 Mar 09, 2009 Jkt 047297 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47297.TXT SJUD1 PsN: CMORC
32 

mation being made available to the government, and fewer convictions. The system just is not going to work as well. 

Chairman FEINGOLD. Thank you. 

Mr. Shelton and Mr. Bruck, can you respond to the arguments 

that the 2006 Rand study demonstrated there were no racial biases 

in the Federal death penalty prosecutions? And do you agree that 

that conclusion can be drawn from that study? Mr. Shelton. 

Mr. SHELTON. I think this is an extremely limited study. As a 

matter of fact, I believe you have this, and I would like to just lift 

this up for the record. It is a letter from a number of distinguished 

law professors and others that have taken a look at that study and 

seen just how limited that study is. It is very clear that a lot of 

information that should be available to give you benchmarks as we 

are trying to assess indeed the effectiveness are not clearly displayed in that Rand study. And I hope that people will take a good 

look at this report and see that indeed, coming from someone like 

a David Baldus and others that are cited in this particular letter, 

challenging the effectiveness and the thoroughness of that study, 

someone who has actually been accredited by the Supreme Court 

in a number of cases and done very thorough investigations along 

those lines, I think that are very well—with his position and the 

positions that we have looked at and the inconclusiveness of that 

study, you cannot really consider it. 

Chairman FEINGOLD. Thank you, Mr. Shelton. 

Mr. BRUCK. I would like to add a couple things. The letter from 

Professor Baldus is actually from five of the six members of the Advisory Committee for the Rand Corporation study itself, complaining not only about the way the study developed, but about the 

lack of openness in the way it developed. 

But the biggest thing to say about it is what you, Mr. Chairman, 

have already said. It is of archaeological interest. It is a study of 

the Clinton years, and there has been no study of the Bush years. 

On top of that it begs the question of how did an overwhelmingly 

minority pool come to be the group from which these cases are 

drawn? In other words, how is the Federalization decision made? 

Why are these cases the cases the end up in Federal court? 

I only want to add that this issue is about to become front and 

center before all of the people in this country, because as things 

stand now, the next six Federal executions are all going to be of 

African-American men. Every one of them. Mr. Shelton is talking 

about people wondering in the community. Well, they are sure 

going to wonder then. And we will still not have the answers. 

Chairman FEINGOLD. Thank you for that, Mr. Bruck. 

Mr. Secretary, let’s discuss the court battle several years ago 

about whether the Federal death penalty could be sought in Puerto 

Rico given the provision in the Puerto Rican Constitution outlawing capital punishment. Ultimately, the Federal Court of Appeals decided that Puerto Rico was subject to the Federal death 

penalty. Can you talk about the public reaction in Puerto Rico to 

that decision? I am not sure that many people are completely 

aware of the depth of public opposition to the death penalty in 

Puerto Rico. 

Mr. SA ́ NCHEZ RAMOS. Sure. The opposition to the death penalty 

in Puerto Rico is not only broad, but very deep. People are not casVerDate Nov 24 2008 12:18 Mar 09, 2009 Jkt 047297 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47297.TXT SJUD1 PsN: CMORC
33 

ually opposed to it but very firmly opposed to it. And so every time 

that the Federal Government announces that it is going to pursue 

death in a case in Puerto Rico, it generates public reaction that is 

massive and that is very strong. 

Specifically, the Acosta case is the one that you are referring to. 

In that case, the defense made the argument that the Federal statute providing for the death penalty could not legally be—was not 

applicable to Puerto Rico, using technical, legal arguments. The 

district court judge ruled in favor of the defense. However, the 

United States took it to the First Circuit Court of Appeals. The 

court of appeals held for the United States and concluded that the 

Federal statute was applicable to Puerto Rico. This was all before 

the trial happened. This all got a lot of publicity. It generated quite 

a bit of debate on the island. 

And what ended up happening was the Federal Government got 

its wish of having the death penalty authorized by—validated by 

the courts, and then when the trial occurred before the jury in the 

guilt phase of the trial, the jury ended up hearing the evidence and 

acquitting Acosta and the other co-defendant of all charges. 

Chairman FEINGOLD. Was that unusual or surprising? 

Mr. SA ́ NCHEZ RAMOS. It was very unusual, very surprising. I 

have been for about 7 years working on the prosecutor’s side, first 

as Solicitor General, now as Secretary of Justice, and I have been 

observing, of course, the behavior of—you know, how the Federal 

system works in Puerto Rico, and it is very, very unusual in a murder case of this magnitude and with the strength of the evidence 

that was presented there to have an acquittal. 

And, you know, basically the conclusion of most everyone that I 

have talked to and of most commentators was that this had to be 

a reaction by the jury, just sort of a protest by the jury against the 

Federal Government’s decision to seek death in that case. And so 

there is a risk in Puerto Rico because of the depth of feeling by the 

population against the death penalty and because of how strongly 

these beliefs are held that seeking the death penalty, you know, 

carries this risk that the Federal Government will not even get a 

conviction. And so this is— 

Chairman FEINGOLD. Given Puerto Rico’s longstanding opposition to capital punishment, why do you think the Federal Government ran the risk here? 

Mr. SA ́ NCHEZ RAMOS. Well, I am not sure. I mean, I think, you 

know, you would have to ask the Department of Justice. My speculation would be that, as they more or less stated today, they have 

this—they aspire to have national uniformity in an area where, as 

Mr. Bruck said, it is not an area where national uniformity is 

achievable. And even if it were constitutional, as he said, it is not 

something that might be desirable, even if in practical terms we 

were able to get it. 

You know, Puerto Rico presents, of course, unique problems not 

only in terms of how the population feels but also the language 

issues, which make it very hard to get good, adequate legal representation. Since locally you do not have any death penalty cases, 

there are no local lawyers who are sufficiently familiarized with 

the proceedings and the dynamics of this type of case. So you have 

34 

to go and get outside lawyers, which normally is going to be someone who does not speak Spanish, and that creates problems. 

The juries also, it is a very non-representative jury in practical 

terms. Although legally the courts have upheld the way the juries 

are selected in the Federal district courts in Puerto Rico right now, 

you know, the truth of the matter is that the pool from which these 

people can be selected is very, very small and biased toward more 

educated people who understand English. It is really a very small 

minority in Puerto Rico that can understand English well enough 

to serve in a jury. 

Chairman FEINGOLD. Thank you, Mr. Secretary. 

Mr. Charlton, everybody at the Justice Department, of course, ultimately works for the Attorney General and the President, and the 

employees have to follow instructions from their superiors. But 

what effect does it have on the morale of line prosecutors when 

they are directed to seek death in a case where they believe it is 

not warranted? Isn’t that decision somewhat qualitatively different 

from other decisions? 

Mr. CHARLTON. It is. And as I said earlier, it affects the morale 

because those Assistant U.S. Attorneys know that they are about 

to expend political good will, that they are about to waste their 

credibility in front of a jury that they don’t believe should impose 

the death penalty. 

I am also aware of another case from another district in which 

Assistant U.S. Attorneys specifically said that they did not wish to 

go forward with the death penalty and then refused to go forward 

with the death penalty once the Attorney General commanded that 

they do so. And I know that the Department of Justice sought to 

punish those Assistant U.S. Attorneys for their refusal to go forward, when I believe they were acting in good conscience. 

Chairman FEINGOLD. Thank you, Mr. Charlton. 

You know, I regret that there were no representatives of the minority here for this hearing. This is very important oversight, and 

normally they are the ones who would seek to elicit comments from 

their witnesses. But I am now going to give everyone a chance to 

very briefly, if they wish, make some concluding remarks, whoever 

would like to—if anyone. Mr. Mulhausen. 

Mr. MULHAUSEN. Thank you for this opportunity. I guess in conclusion I would just like to say that when you look at disparities 

in sentencing, if you just look at descriptive statistics, you will not 

get the real picture. As a trained social scientist, what we do is we 

take those disparities and you control for whether or not the individuals are charged with the same type of crimes, the severity of 

the crime, and other characteristics. And what the Rand study did 

was, after controlling for those factors, found that there are no disparities in the sentencing system for the Federal capital punishment. 

The second point I would like to make is that social science research is increasingly concluding—emerging to a consensus that 

capital punishment saves lives. Regular studies over the last 5 or 

6 years are showing that capital punishment prevents anywhere 

between 3 and 18 murders. So we need to recognize that there is 

a possible benefit here that needs to be in the discussion as well. 

That is all. Thank you. 

35 

Chairman FEINGOLD. Thank you, Doctor. 

Any others? Yes, Mr. Otis. 

Mr. OTIS. Thank you. I very much appreciate your giving the 

other side the opportunity to say something here. I think that 

speaks very well for your fairness as Chairman of this Committee. 

I have only two things to add. 

When you try to have justice by the numbers, by looking at tables and statistics, you will get numbers, but you will not get justice. I have found in my career, which was 18 years as a career Assistant U.S. Attorney—not a political appointee, but a career person—that you had to look at the facts of each case. It did not matter what happened in the case before or in ten cases before or what 

you thought was going to happen in the ten cases after. You have 

to look at the facts of each case and give that defendant and that 

victim and the public as potential future victims your best judgment. I have never believed in justice by the numbers. I think 

numbers are interesting for some purposes, but for deciding as a 

prosecutor what is the right thing to do, don’t look at the numbers, 

look at the facts. 

The second thing I would say is this: There have been some suggestions that by looking at these numbers, what we would discover 

is that there is racism in the Department of Justice. I was in the 

Department of Justice for a long time. I was in the U.S. Attorney’s 

Office from 1981 to 1999 under administrations of both parties. In 

my 18 years there, under both Democrats and Republicans, not one 

single time did I encounter a colleague of mine in the U.S. Attorney’s Office or at Main Justice who made a decision based on racial 

bigotry. Not one single time. Those are not my colleagues. That is 

not the service we granted. And if such a thing were to have happened and the person had been found out, he would have been run 

out of the building, and I would have been one of the people running him. 

Chairman FEINGOLD. Thank you, Mr. Otis. 

Anyone else? Mr. Shelton. 

Mr. SHELTON. Chairman Feingold, I want to thank you for holding this proceeding to raise these issues that are too often hidden 

in our society. As we talk about issues like the death penalty in 

the United States, we really are speaking to the values of the 

American people, and a value I think that can become misconstrued all too often, I think the American people value life. They 

value people having an opportunity to make their case, to prove 

their concerns, to raise the issues in the public forum. And very 

well if you put someone to death, indeed they don’t have that opportunity anymore. 

We know in cases like Gary Graham in Texas, we had an African-American man who was not able to even get a new trial, 

though it was proven that his attorney slept through much of the 

proceeding. And let us look at other places, making sure that we 

have good, qualified attorneys as counsel. Indeed, we know we do 

not have that in our country. 

It would be great if every American had the dream team that 

O.J. Simpson had when his life was being challenged, when indeed 

his life was on the line as he made his arguments in an American 

36 

court. But we know that that is not the case for most AfricanAmericans or other people of color in the United States. 

The death penalty is something that we can do without. It costs 

too much. It costs too much in not only the dollars that we could 

utilized for other things to prevent crimes from happening in the 

first place and advance quality of life throughout our Nation, but 

it costs to much to the very soul of Americans in being able to say 

that we will put someone to death even after they have been 

caught, even after they have been locked in a prison, even though 

we could very well leave them in there for the duration of their life. 

We still seek to spend the extra resources to put them to death. 

I think it is unnecessary, and indeed we need to reconsider this 

and move toward some change in our country. 

Chairman FEINGOLD. Thank you so much, Mr. Shelton. 

Let me thank all—did you want to say something, Mr. Secretary? 

Mr. SA ́ NCHEZ RAMOS. I just wanted to say briefly that deterrence, 

as Dr. Mulhausen has said, is definitely an important value, but 

it is not the only value in the calculus. I am sure we could devise 

or change the system to—even assuming that the death penalty 

has a deterrent effect, we could even increase its deterrence effect 

by maybe giving the defendants fewer rights, maybe having public 

executions, maybe painful executions. Maybe that would, in fact, 

statistically provide higher deterrence, but there are other principles and values that should be taken into consideration when one 

does this equation in terms of, you know, what kind of society we 

want to be and what value we ascribe to the problem, what cost 

we ascribe to the problem of having an innocent person be convicted and punished. 

And so, you know, in this sense, societies that have fewer liberties, such as, you know, communist societies throughout the 

years, they have had fewer crime. But at what cost? And so that 

is basically the point that I wanted to make. Deterrence is not the 

only value. You have to look at what the cost of that deterrence is 

in order to have the proper equation in balance to make a good policy determination. 

Chairman FEINGOLD. Thank you, Mr. Secretary. I would note 

that the issue of deterrence was, in fact, taken up in this Subcommittee in a hearing last year, and I will now place in the 

record, without objection, the testimony of Professor Jeffrey Fagin 

from that hearing. 

Mr. Shelton. 

Mr. SHELTON. I am sorry, Senator Feingold. I could not sit quietly as we talked about the issue of deterrence. I think it is very important to also consider that the States that utilize the death penalty also have the highest murder rates in our country. So, indeed, 

if there is some correlation between deterrence and the number of 

murders that are actually occurring, then indeed what we are seeing is that in States throughout the United States, those States 

that have the highest murder rate also have the death penalty. 

There is some cause and effect that is not being— 

Chairman FEINGOLD. We have always had that feeling in Wisconsin. 

37 

Thank you all for your testimony and a thoughtful discussion. 

We appreciate your taking the time to be here. We thank you for 

your insights. 

The hearing record will remain open for 1 week for additional 

materials to be submitted. Because of the upcoming recess, we will 

require written questions for the witnesses to be submitted by the 

close of business 2 weeks from today. We will ask the witnesses to 

respond to those questions promptly so the record of this hearing 

can be completed. 

I am concerned about some of the things we have learned today. 

I am concerned that the Justice Department is itself not tracking 

basic statistics about its Federal capital cases, including something 

as basic as what it costs to bring such a case. In this time of rising 

violent crime and limited Federal criminal justice resources, I 

would hope DOJ would be interested in knowing what it costs to 

bring a capital case and might consider whether those resources 

could be more effectively used elsewhere. 

I am also concerned about the death penalty becoming just another political tool. If the message is conveyed in whatever form to 

U.S. Attorneys that the Attorney General looks with disfavor on 

those who do not recommend frequently enough that the Government seek the death penalty, might some of these individuals end 

up making a recommendation to seek death in cases where that is 

not the best outcome from a law enforcement perspective or where 

it is against their better judgment? Such considerations have no 

place in the decision about whether the Government should take 

someone’s life. 

I remain concerned about racial disparities in the administration 

of the death penalty. This is an area where we need more information. And I believe the Justice Department should reconsider its 

policy of routinely seeking the death penalty in jurisdictions where 

that penalty is not usually available. At the very least, a very 

strong Federal interest in seeking death should be present, and 

perhaps of most concern is that it appears that the current Attorney General does not appreciate the gravity of his authority to decide whether to seek to execute an individual. And it appears that 

he discounts the views of his U.S. Attorneys on the ground who 

know the local judges and who know the local community. 

So this, as I have said, is not the end of our oversight work. We 

will continue to examine all of these issues. I want to again thank 

the Department of Justice for its cooperation in preparing for this 

hearing and, again, our witnesses for their contributions. 

Thank you, and the hearing is adjourned. 

[Whereupon, at 11:28 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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