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SENATE RECORD VOTE ANALYSIS
103d Congress
2d Session
May 11, 1994, 5:01 p.m.
Page S-5526
Temp. Record
Vote No. 106
GIFT BAN/Racial Statistics in
Death Penalty
Cases
SUBJECT:
Congressional Gifts Reform Act . . . S. 1935. D'Amato amendment
No. 1685.
AMENDMENT AGREED TO,
58-41
SYNOPSIS:
Pertinent votes on this legislation include Nos. 101-105
and 107.
As reported with an amendment in the nature of a
substitute, S. 1935, the
Congressional Gifts Reform Act, will bar Members, congressional
employees, and
family members thereof from receiving gifts from lobbyists or
representatives of
foreign interests. It will also generally bar them from receiving
gifts worth
more than $20 from anyone else. Members will be allowed to
participate for free
in charity events, but will not be allowed to accept payment for
their travel
expenses. Meals and entertainment will generally be subject to the
above gift
limits. Other areas addressed include political events, honoraria,
conferences,
legal defense funds, and charitable foundations.
The D'Amato amendment would add the
following, "It
is the sense of the Senate that the conferees to the upcoming
Senate-House
conference on omnibus crime legislation should totally reject the
so-called
Racial Justice Act provisions contained in the crime bill passed by
the House of
Representatives on April 21, 1994."
NOTE: Title IX of the House-passed crime bill, entitled the
Racial
Justice Act, provides that a stay of execution must be granted if
a condemned
criminal can make a statistical "inference" that, in the
jurisdiction
in which he or she was sentenced to death, death sentences were
imposed
"significantly" more frequently on either individuals of
one race than
individuals of another race, or on individuals whose victims were
individuals of
one race than individuals of another race. The court will determine
the validity
of any such statistical inference. If an inference is established,
the government
will have to rebut it with a preponderance of evidence in order to
carry out the
execution. Rebuttals will not rely on testimony by State officials
that they did
not intend to discriminate unless they can show that in all similar
cases the
death penalty was sought. The Act will be retroactive. Officials
will have to
make all data collected relevant to a death sentence publicly
available. Any
criminal asserting that executions were not proceeding on a
racially
proportionate basis will be afforded rights to counsel and any
investigative,
expert, or other services necessary to develop his or her claim.
Those favoring the
amendment
contended:
The "Racial Justice Act" is a nasty,
mean-spirited,
death-by-racial-quota requirement that will effectively repeal the
death penalty
in America if enacted, and that is deliberately titled so as to
coerce Senators
into voting for it or risk being branded racist. The ugly truth is
that it will
require the courts to refute with a preponderance of evidence any
statistical
inference a guilty felon raises that shows a racial discrepancy in
death
sentencing. No other evidence will be required; not the slightest
question will
need to be raised about the particular facts surrounding the crime
or crimes that
led to his own death sentence. Courts will be put in the position
of comparing
the facts of one case against the facts of other cases, arguing
over which cases
are relevant, and arguing over the causes of any discrepancies.
They will be tied
in knots, unable to disprove the negative, and no one in America
will be executed
again. Even if no one disputes that a felon committed some heinous
crime and
fully deserves his death sentence, if too many people of his own
race have
already been put to death, or if too many other felons who have
been put to death
had victims who were of the same race as his victim, then he may
not be executed.
This premise makes a sick mockery of our criminal justice
system, which
is based on individual, not collective, responsibility. We ask
Senators how they
think parents would feel if their young daughter was raped and
murdered, and the
criminal was sentenced to death, but then, because of this bill,
had his sentence
overturned because too many white, black, hispanic, or oriental
rapists had
already been executed in the relevant jurisdiction? It is
simplistic and
insulting to attempt to reduce all the variables involved in a
capital case to
a few "relevant" variables that can be compared between
cases. Every
capital case is an exercise in individual judgment where juries
deliberate at
length first on guilt and second on sentence. After literally years
of arguments
and appeals where every possible nuance of a capital case is
thoroughly aired,
including the possibility of racial motivations by police,
prosecutors, juries,
and judges, executions are finally carried out. If we are going to
impose the
death sentence by such statistical comparisons, we may as well
dispense with
juries as unnecessary. There is little point in making them
determine the
sentence based on the facts in a case if we are going to throw out
their decision
because of the race of the criminal.
Cases cannot be fairly compared unless every nuance of each
case is
thoroughly understood, but in capital cases especially, which are
extremely
complex, that type of comparison is impossible. The fact that
approximately 50
percent of all murders are committed by blacks, but 60 percent of
all criminals
on death row are white, for example, does not mean that juries are
biased against
whites. Similarly, the fact that murderers of whites are far more
likely to be
executed than murderers of blacks does not mean that juries value
the lives of
blacks less than they do whites. Without looking at any other
variables, though,
those two statistics clearly draw an inference of discrimination.
If other
variables are controlled for, depending on which variables are
controlled, those
inferences and any other inference that can be raised can be either
strengthened
or weakened. With the loose definitions in this bill, a case can be
literally
made for every single prisoner on death row that his or her
sentence was
influenced by racism.
Whatever the facts of any case, some type of statistic will
be found, and
the meaning of that statistic will be in dispute. Perhaps the most
famous study
that purportedly shows racism in capital sentencing is the Baldus
study of 2,000
murders in Georgia, which was used in McClesky v.
Kemp. Our
colleagues have said that study irrefutably proves bias in capital
sentencing.
However, they have not bothered to mention that it rather
convincingly has been
refuted. Joseph Katz, a professor of statistics at Georgia State
University, took
the same data from the Baldus study and divided it into four
groups--whites
killing whites, whites killing blacks, blacks killing whites, and
blacks killing
blacks. He then looked for patterns within those groups, and found
that when
other variables were controlled for, the racial bias supposedly
found by Mr.
Baldus disappeared. For instance, he pointed out that the supposed
proof that
whites who killed blacks were not punished was untenable because
the number of
such crimes was so small as to be statistically irrelevant. He also
noted that
the murders of whites usually involved other felonies such as
robbery, which are
more likely to result in a death penalty. He further found that
most of the
black-on-black murders involved crimes that were not even eligible
for the death
penalty. Mr. Baldus countered that when other variables were
controlled for, the
inference of racism reappeared.
Studies by the Rand Corporation, the State of California,
the Justice
Department, and others conclude that there is not any racism in
capital
sentencing or any other sentencing; studies by Mr. Baldus and the
General
Accounting Office conclude that there is. Both sides prove that the
point can be
argued endlessly. That result, we believe, is the ulterior motive
of this Act.
Before the Supreme Court's decision in McClesky v.
Kemp, California
spent more than 3 years and $1 million trying to disprove a felon's
assertion
that statistical racism existed in the imposition of the death
penalty. We think
our colleagues want that type of expensive endless litigation to
multiply across
the country until States give up even trying to impose the death
penalty.
Senators have honest disagreements over the effectiveness
and the
morality of the death penalty. We respect those Senators who are
willing to argue
with us on the merits of this issue, but we have little patience
for Senators who
express support for the death penalty at the same time as they
propose
restrictions on it like this quota requirement that will make it
100 percent
unenforceable. In this case, though, our dissatisfaction is far
deeper, because
we believe that at least the majority of our colleagues understand
the
duplicitous nature of this "Racial Justice Act." They and
we know that
it will eliminate the death penalty in endless squabbling over the
relevance of
any statistical inference that can be dredged up by death penalty
attorneys, who
are masters at abusing the criminal justice system with frivolous
delays. They
and we also know that the mindlessly liberal press will read the
words
"Racial Justice Act" and will slander any Senators who
dare to vote
against this death penalty quota bill. Some Senators have privately
told us they
know we are right, but they do not dare be accused of racism. We,
for our part,
will take the unjust criticism and vote in favor of the D'Amato
amendment.
Those opposing the amendment contended:
The Racial Justice Act is not about injecting racial
considerations into
death penalty deliberations; it is about removing them. To our
great shame as a
Nation, we have had a history of applying harsher punishments to
black men and
women then we have to white men and women. That history, in some
jurisdictions,
continues today.
Not one single Senator favors differential treatment by
race in the
imposition of the ultimate of penalties. We all sincerely and
honestly want to
ensure that it is applied fairly in every case. Our dispute is over
whether we
believe that statistics can show that racism plays a part in
sentencing. In other
areas of Federal law it is already clearly established that
statistics can be
used to show discrimination. For example, in employment or housing,
if an
employer has 100 job openings and 500 applicants, half of whom are
white and half
of whom are black, and only whites are hired, one does not have to
be a rocket
scientist to figure out that racism may have been a factor in
hiring. The case
is not made by that statistic, but the employer is given the burden
of proving
that other factors besides racism led to hiring. The notion that
there is somehow
something novel about deciding if a person has been discriminated
against because
of race by looking to see if there is a pattern of discrimination
is nonsense.
We frankly find it hard to fathom how some Senators can say that
they oppose
using this tried and true concept, which courts have had no
difficulty enforcing,
in death penalty cases. After all, in other cases, if a mistake is
made
restitution can be made; however, if we find out years from now
that we
mistakenly executed people based on racism, there is no way we can
bring those
people back to life.
We believe that racism is not as prevalent in America as it
has been in
the past, and where it does still exist it is far more covert than
before. When
blacks are discriminated against, the guilty parties usually hide
behind other
reasons. Sometimes the only way to show that racism exists is to
show that a
pattern of discrimination is being followed that cannot be
explained by any other
factors. In most death penalty cases we do not expect that racism
will be found.
For instance, in the most brutal of murders we know of no studies
that indicate
any bias. Thus, our colleagues' contention that this bill could be
used by John
Wayne Gacy (who raped, tortured, and murdered 33 boys and young
men) to appeal
his case successfully is untrue--he could appeal, and he would
lose. However, we
are quite certain that in some jurisdictions appeals would be
successful, because
we have seen studies that show strong evidence of racism. For
example, we know
that since 1988, 33 of 37 defendants charged under the Federal
death penalty law
have been either black or hispanic. We know that the General
Accounting Office
has conducted a comprehensive review that found pervasive racism in
death penalty
cases. We know that the Baldus study used in McCleskey v.
Kemp
which looked at 2,040 murders in Georgia found that blacks were far
more likely
to be sentenced to death than were whites. Interestingly, the
Supreme Court did
not dispute the fact that this study showed racism, but held
instead that if
statistics were to be used to remove this repugnant practice from
our criminal
justice system it was up to the legislature to say so.
We are saying so. We are saddened that at the same time we
see apartheid
ending in South Africa, we still have a form of apartheid in
America, where
blacks are punished more severely, and their lives valued less,
than whites. We
need to end this system, by voting against the D'Amato amendment
and signing the
Racial Justice Act into law.
VOTING YEA:
Republicans:
(38 or 86%) Bennett Bond Brown Burns
Coats Cochran
Coverdell Craig D'Amato Danforth Dole Domenici Faircloth Gorton
Gramm Grassley
Gregg Hatch HelmsHutchison Kassebaum Kempthorne Lott Lugar Mack
McCain McConnell
Murkowski Nickles Pressler Roth Simpson Smith Specter Stevens
Thurmond Wallop
Warner
Democrats:
(20 or 36%) Baucus Bingaman Bryan Bumpers
Byrd Conrad
DeConcini Dorgan Exon Feinstein Ford Graham Heflin Hollings
Johnston Lieberman
Nunn Pryor Reid Wofford
VOTING NAY:
Republicans:
(6 or 14%) Chafee Cohen Durenberger
Hatfield Jeffords
Packwood
Democrats:
(35 or 64%) Akaka Biden Boren Boxer Bradley
Breaux
Campbell Daschle Dodd Feingold Glenn Harkin Inouye Kennedy Kerrey
Kerry Kohl
Lautenberg Leahy Levin Mathews Metzenbaum Mikulski Mitchell
Moseley-Braun
Moynihan Murray Pell Riegle Robb Rockefeller Sarbanes Sasser Simon
Wellstone
NOT VOTING:
Republicans:
(0)
Democrats:
(1) Shelby-3
ABSENCE CODE: 1-Official Business 2-Nec. absent 3-Illness
4-Other
Symbols: AY-Announced Yea AN-Announced Nay PY-Paired Yea
PN-Paired Nay
Compiled and written by the staff of the Republican
Policy
Committee
Don Nickles, Chairman
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