CITIZENS FOR A MORATORIUM ON FEDERAL EXECUTIONS   November 29, 2000   Dear Mr. President: We, the undersigned law professors, are deeply concerned that our nation is on the eve of the first federal execution in almost forty years. As people who have dedicated our careers to teaching law, we are disturbed by the increasing evidence of grave injustices with the application of the death penalty throughout the country. Our nation’s death rows are filled not with the people who have committed the most heinous crimes, but with those who have the fewest resources to defend themselves. Unfortunately, the federal system is not immune from inequity. A recently released Department of Justice report shows evidence of racial and geographic disparity in the implementation of the federal death penalty. During a September 12th press conference, Attorney General Reno stated that “an even broader analysis must be undertaken to determine if bias does, in fact, play any role in the federal death penalty system.” She asked the National Institute for Justice to solicit research proposals from outside experts to analyze the data. To our knowledge, these outside reviews have not yet commenced, and certainly cannot be completed before the scheduled execution of Juan Garza on December 12,2000. We urge you in the strongest terms possible to forbid federal executions to take place with all these unanswered questions and strong evidence of serious unfairness in the federal system. The survey of the death penalty authorization process by the Department of Justice reveals disturbing patterns. Among all the federal capital defendants against whom the Attorney General has authorized seeking the death penalty, 69% have been Hispanic and African American (18% and 51% respectively), while only 25% have been white. The Department of Justice has no data concerning the potential pool of persons against whom federal capital cases might be filed and authorized. However, if one uses the data concerning persons entering the state prisons as a comparison, we know that only 12 % of all persons entering the state prisons after being convicted of homicide are Hispanic. On this basis, the federal capital process over-prosecutes Hispanics by a factor of 50%. Using similar data, 40% of all persons entering the state prisons after being convicted of homicide are white. The federal capital process thus under-prosecutes whites by a factor of 37.5%. These disparities persist when the Department’s data is examined from other perspectives. For example, 47% of all white defendants for whom the Attorney General authorized seeking the death penalty were subsequently allowed to plead guilty in exchange for a non-death sentence, as compared to only 27% of Hispanic defendants whose cases were authorized for death. And on death row itself, as of the time of the Department’s survey, 17 of the 21 persons on federal death row – 81 % – were racial or ethnic minorities. Moreover, we are concerned that the federal government is poised to begin executions at the very moment the nation is questioning the use of the death penalty. According to a recent bi-partisan poll, 64% of Americans support a temporary halt to executions while steps are taken to ensure that the system works fairly. Nearly a year ago, Governor Ryan from Illinois imposed an executive moratorium after13 innocent people had been released from death row. Governor Ryan announced that the Illinois capital punishment system is “fraught with error” and that he would permit no more executions in his state until the completion of a study by a special commission. An October 31st New York Times article discusses the extent to which, even at the local level, action is being taken to voice doubts about the administration of the death penalty. The story highlights Charlotte, North Carolina, a state in which eight city councils have now passed moratorium resolutions. Charlotte City Councilman Rod Autrey, himself a death penalty proponent, voted for the moratorium saying, “It’s apparent to me that those with little resources are not going to get the same treatment as others.” Dozens of other cities around the country have passed similar measures. The problems of incompetent counsel, prosecutorial misconduct, and the risk of wrongful convictions and death sentences that have galvanized public concern in many death penalty states have counterparts in the federal system. In addition to the troubling racial and regional disparities revealed by the Department of Justice survey, federal prosecutions are beset by other problems that create the risk of wrongful conviction and sentencing. Federal prosecutors rely heavily on bargained-for testimony from accomplices of the capital defendant, often obtained in exchange for not seeking the death penalty, which creates a serious risk of false testimony. Federal prosecutors are not required to provide meaningful discovery far enough ahead of trial to permit the defense to be prepared to test the prosecution case. The FBI refuses to record electronically interrogations that produce confessions, making the process of distinguishing reliable from unreliable confessions much more difficult than it need be. Federal prosecutors rely heavily on unreliable and misleading predictions of “future dangerousness” to secure death sentences. Together, these problems give rise to the same concerns about unfairness and wrongful conviction and sentencing that have moved many people in the country to call for a moratorium with respect to state capital sentencing schemes. The death penalty as practiced in the United States makes a mockery of due process -- the fundamental philosophy underpinning our justice system that everybody deserves a fair trial. Recognizing these problems, the American Bar Association called for a moratorium in 1997 until “we as a nation can ensure that policies are in place in every death penalty jurisdiction that guarantee fundamental fairness and due process free from racial or ethnic bias.” That day has not arrived, nor does it appear to be near at hand. Mr. President, we believe it would be unconscionable to execute Mr. Garza at a time when nagging questions about the federal death penalty system have been raised but are still unanswered. Article II, Section 2 of the Constitution gives you the exclusive power to “grant reprieves and pardons for Offenses against the United States.” We request that unless you grant Mr. Garza’s clemency application, his reprieve be extended to encompass the time within which racial disparities and other problems with the federal death penalty are thoroughly examined and potential remedies considered, and that a moratorium on further federal executions also be put into place pending this process of review and remediation. Thank you for your attention to this issue. We look forward to hearing from you.