Executing justice

Juan Raul Garza is a poster boy for the death penalty. A drug dealer convicted of three drug-related murders under a 1988 federal death-penalty statute, Mr. Garza is scheduled to be executed on Dec. 12. The only feature that makes his case unique is that his will be the first federal execution since 1963.

But Garza, a Hispanic man sentenced to death in Texas, is also a poster boy for what's wrong with the death penalty - and particularly with the federal death penalty. In a word, he fits the "profile."

A Justice Department study released in September found that the federal death penalty is disproportionately sought and obtained against black and Hispanic defendants, and disproportionately meted out in federal courts in a handful of states, Texas being the leader among them. Had Garza been white, or had he committed his crimes somewhere other than Texas, there is a strong probability that he would not be on death row today.

A fair federal death penalty should be applied uniformly, without regard to race, ethnicity, or geography. Fairness is particularly critical here, because since 1994, the federal death penalty has been available for nearly 50 crimes, and because the states look to the federal government for leadership on criminal law enforcement. In an attempt to achieve uniformity, the attorney general since 1995 has reviewed all potential capital cases in the federal system. And local federal prosecutors cannot seek the death penalty unless they get the attorney general's approval.

Yet the Justice Department study found that despite these safeguards, substantial unexplained racial and geographical disparities remain. Blacks and Hispanics, for example, make up about one-quarter of the general population, but more than 80 percent of those on federal death row. Together, blacks and Hispanics account for about 70 percent of those defendants against whom the attorney general has authorized the death penalty to be sought. And federal prosecutors are twice as likely to reach plea agreements avoiding death sentences with white than with black and Hispanic capital defendants.

Place, as well as race, plays a significant role in whether a defendant will be sentenced to die in the federal system. Texas, a single state, accounts for nearly one-third of all federal death-row inmates. No state has a higher percentage of minorities on death row. Federal prosecutors in only one other state, Virginia, seek the death penalty more often than do federal prosecutors in Texas. And in 21 states, US attorneys have never sought the death penalty.

When these disparities were reported in September, Attorney General Janet Reno admitted they could not be explained, and announced "an even broader analysis must therefore be undertaken to determine if bias does in fact play any role in the federal death-penalty system." Deputy Attorney General Eric Holder added "no one reading this report can help but be disturbed, troubled, by this disparity."

The Justice Department's "broader analysis" now is under way. But unless President Clinton steps in, Garza will be executed before the results are known. As long as we don't know whether race and geography unfairly contributed to Garza's death sentence, how can we in good conscience go forward with his execution?

The attorney general has argued the questions raised by the Justice Department study do not justify a moratorium on the federal death penalty, because the study did not find evidence of actual innocence among those sentenced to death in the federal system.

But innocence is not the only issue. A law that provided for the death penalty only for minority murderers would be wrong even if each of the murderers executed was factually guilty. A just death penalty requires a fair and reliable method for distinguishing, among the guilty, those who should live from those who should die.

Ms. Reno suggested concerns about disparities should be taken into account on a case-by-case basis in the clemency process, conveniently passing the buck to Clinton, who now must decide whether Garza should die. Clemency is certainly warranted for Garza, who so perfectly fits the federal death-penalty profile. But the fact that such disparities persist in the federal system despite the precautions that have been taken suggests a deeper problem. As Justice Harry Blackmun concluded after a lifetime of attempting to oversee a fair death penalty, the kind of fairness we should demand where we assume the power to take a person's life may well be beyond humankind's reach.

David Cole, a professor at Georgetown University Law Center, is author of 'No Equal Justice: Race and Class in the American Criminal Justice System' (New Press, 1999).

(c) Copyright 2000. The Christian Science Publishing Society