Questions of Racial Bias in Sentencing Occupy Capitol Hill

WASHINGTON – On Monday, Timothy McVeigh was put to death in the first federal execution in 38 years. Next Tuesday, barring a last-minute pardon by the president, it's Juan Raul Garza's turn.

Already, Garza's life was extended six months last December when former President Clinton issued a reprieve to await the results of a Justice Department study on racial bias in death penalty sentencing.

That study came out last week and Garza's lawyers aren't happy with the results.

The report concluded that a disproportionate number of minorities are on death row compared to their ratio in the general population.  The report went on to say that's not because of racial bias but because a disproportionate number of minorities are "in the pool of potential federal capital cases."

The report cited crime figures from 1999 showing that blacks commit homicides at a rate seven times higher than whites. And the report found that federal capital cases are primarily based on drug trafficking and related criminal violence, crimes that occur more frequently in urban and minority neighorhoods.

'But Such Evidence Does Exist'

Now, attorneys for Garza, a drug kingpin convicted of ordering three murders, are petitioning for clemency, arguing that the study itself is flawed. And they have the support of a small community of death penalty opponents who say the Justice Department should have collected new data rather than analyze five years of data already collected while Janet Reno was still attorney general.

"On June 6, 2001, the Department of Justice released a flawed study purporting to demonstrate that federal administration of the death penalty was bias-free," Julian Bond, chairman of the National Association for the Advancement of Colored People (NAACP), told a Senate Judiciary subcommittee Wednesday. "Attorney General Ashcroft claims that 'there is no evidence of favoritism towards white defendants in comparison with minority defendants.' But such evidence does exist, and its existence raises serious doubts about fairness in our criminal justice system."

The report's figures revealed that of the 682 cases submitted for Justice Department review, 20 percent involved white defendants, 48 percent involved black defendants, and 29 percent involved Hispanic defendants. The attorney general decided to seek the death penalty for 38 percent of the white defendants, 25 percent of the black defendants and 20 percent of the Hispanic defendants.

Opponents of the death penalty argue that even though federal prosecutors seek the death penalty less often on a percentage basis for blacks than white, the sheer numbers of minority criminals results in more blacks and Hispanics on death row.

But death penalty proponents say there is nothing racist about the application of death penalty sentencing and the report says that the committee asked to review death penalty-eligible cases, is not told the race or ethnicity of the defendants.

'The Fact Is, They're Committing the Crimes'

Andrew McBride, a former federal prosecutor in eastern Virginia, testified before the Senate panel Wednesday and said that there is no statistical data to back the charge that the punishment is disproportionately administered.

"African Americans make up approximately 13 percent of the nation's population. Yet, according to the FBI's 1999 uniform crime reports, there were 14,112 murder offenders in the United States in 1999, and of those offenders for whom race was known, 50 percent were black," McBride said.

James Fotis, executive director of the Law Enforcement Alliance of America, agreed. "How can 13 percent of the population occupy 40 percent of the jail cells? It sounds devastating but the fact is, they're committing the crimes. The minority community are committing many more crimes than the white community."

"If the numbers of federal capital defendants of each race precisely mirrored their representation in society as a whole, that would be truly a cause for alarm. It would suggest real racial profiling in the death penalty," McBride said.

But William Tucker, a crime journalist, said that the racial disparity is also evident when one looks at the frequency with which the death penalty is sought when the victim is a minority rather than white.

"A prosecutor, a judge, and a jury are six times less likely to seek and impose a death penalty if the victim is black. The system absolutely does discriminate in that respect," Tucker said.

Bond argued that the death penalty is used more often against blacks that commit interracial crimes. "It's disproportionately used when the accused is black and the victim is white," Bond said.

That's not so, argued McBride, who said that 47 percent of capital cases were black on black murders.

And deputy attorney general Larry Thompson said that race is not the issue at all. "In each of these cases, the law and the evidence warranted the invocation of the death penalty," Thompson said.

-- Fox News' Steve Centanni contributed to this report