June 19, 2001
Are minority criminals more likely to be sentenced to the death penalty?
GWEN IFILL: Joining me now to discuss equal justice as it applies to the federal death penalty are Elisabeth Semel, a criminal defense attorney and director of the American Bar Association's death penalty representation project; and Andrew McBride, former assistant U.S. Attorney for the Eastern District of Virginia. He's now in private practice.
Mr. McBride, what are we to believe?
ANDREW McBRIDE: Well, I think the Garza case exemplifies the fact that people are singled out for the federal death penalty because they are particularly heinous crimes not because of their race. Mr. Garza himself, his victims, seven out of eight of the people that the jury found he was responsible for killing were themselves Hispanic. He was tried before an Hispanic judge. In fact, that district, the Southern District of Texas, has declined to seek the death penalty against numerous other Hispanic defendants.
So I think the evidence in the Garza case suggests that Mr. Garza was chosen for the death penalty because he was a very dangerous man who had been involved directly in three murders and his organization had been involved in numerous other homicides. And I think the death penalty was an appropriate penalty in his case.
GWEN IFILL: I've heard several times on this case people saying, well, because his victims were Hispanic and he is Hispanic, there couldn't have been any bias. Explain that. What is the connection?
ANDREW McBRIDE: Well, I think one thing as a prosecutor, you have to remember you don't pick your defendant. You pick the case, a homicide case, based on the victim. Most murder is still in this country intraracial. It generally, the defendant and the victim are of the same race. So when a prosecutor comes into a case, particularly a federal prosecutor, and in my experience it was in Richmond and Norfolk, we came into those cases at the request of state officials to assist them in solving homicides they couldn't solve. Sometimes those homicides were involving members of the minority community. So in a sense I object to the argument that the federal death penalty is applied in a racist manner. You're almost suggesting that federal prosecutors should not become involved in some of the inner city crimes where minorities are victims.
GWEN IFILL: Then Elisabeth Semel, why are minorities so overrepresented, at least appear to be overrepresented, on federal Death Row?
ELISABETH SEMEL: Let me address the number of falsehoods that have essentially been put forth in Mr. McBride's statements or misrepresentations, misleading statements. They are as follows: Never in the allegations that were made on behalf of Mr. Garza, never in the questions that were raised about the federal death penalty by Mr. Garza's lawyers or the Department of Justice under the Clinton administration was a finger pointed at individual prosecutors, nor was the finger ever pointed at Mr. Garza's jury or the judge who tried him. The issue is, who is being selected for the federal death penalty in the first instance?
Let's talk about the time during which Mr. Garza was prosecuted. Between 1988 and 1995, which is the year that Attorney General Reno put into place these protocols designed ostensibly to bring some equality to the administration of the federal death penalty every single individual for which the federal death penalty was sought in Texas was Hispanic. Now there are many individuals who have been convicted of killing many more people than Mr. Garza who are white, members of, for example, white mafia or mobs who were never selected for the federal death penalty.
GWEN IFILL: Why? That's the big question here.
ELISABETH SEMEL: The big question-- and I think that we need to go back to what it is that Attorney General Reno said when her study was released in September. She said the problem is that we know we have disparities. Eighty percent of the individuals coming in for federal death penalty prosecution are men, mostly men, of color -- either Hispanic or African- American. The question that was unanswered in September, the question that remains unanswered today -- nothing was added by the Ashcroft report is "where are those other individuals?" We have a thousand or more cases in the system that are eligible for prosecution under the federal death penalty but that aren't part of this narrow, small survey that's been conducted.
|A disproportionate racial balance?|
GWEN IFILL: Okay. Mr. McBride, maybe you can answer the question then of why.
ANDREW McBRIDE: I think the studies indicate -- and I think we have to be careful with the statistics here. Statistics can be manipulated. We don't expect any particular group of defendants or people who have been charged with a particular crime to mirror the population as a whole. Criminality can vary among groups. I think....
GWEN IFILL: You're saying it's not disproportionate?
ANDREW McBRIDE: Well, Im saying that let's take a look at what Attorney General Ashcroft said when he did release his study. I think one thing that he said -- and my opinion is that Attorney General Reno is to be commended for this -- that the system, once the cases enter the system, the system is more than fair, that there is no bias against minorities on the part of prosecutors when they decide to seek the death penalty. In fact, the cases that the Department of Justice takes, its statistically more likely that they will actually decide to seek the death penalty against a white defendant.
Now the question that is raised and that Liz raises is how do cases come into the federal system in the first place? That is a very complex enterprise that in my experience is based on cooperation with state officials. The federal government, contrary to what you might see on television, doesn't ride into town and take the case away.
GWEN IFILL: Well, let me ask you a specific set of facts here. In your Eastern District of Virginia between 1995 and the year 2000, there were 66 criminal defendant cases brought -- five of those were white those were all espionage cases. How did that happen? How did that imbalance, what looks like an imbalance happen?
ANDREW McBRIDE: I think, Gwen, that it happened because we were invited in, the feds were, in Richmond and Norfolk and Virginia Beach to address a particular problem. The problem was violence in the inner city, largely against African-American males and unsolved homicides in cities like Richmond. Richmond had at one point become the second city per capita in the homicide rate in the United States. And the majority of their homicides were young African- American males. We came in to assist with that problem.
And I think there's a danger here because the federal death penalty and federal law enforcement in general should be available to a locality like Richmond or Virginia Beach or Norfolk that has a particular problem and needs help; and we shouldn't be thinking about the race of the victim or the race of the defendant. We should be thinking about solving the problems.
ELISABETH SEMEL: There's an important distinction. It is one thing to say that when a locality doesn't have the resources to deal with a serious crime problem that is in essence multi-jurisdictional that federal resources ought to be available. That's a perfectly appropriate response. The difference is utilizing the federal death penalty in order to respond and singling out as it was in the Eastern District of Virginia where 35 individuals prosecuted were African-American -- singling those individuals out for the use of the death penalty.
If you were to scratch the surface of those 34 cases, something that the Ashcroft report does not do, you would find that many of the crimes actually committed were committed in the District of Columbia and there was a tangential or remote connection to the Eastern District of Virginia but because of the scope of federal prosecution, those cases were brought in the Eastern District of Virginia.
ANDREW McBRIDE: That's inaccurate as to the cases in Richmond and Norfolk. Many of those cases were generated in Richmond and Norfolk. And frankly we have successfully reduced the homicide rate in inner-city Richmond through federal involvement. I must say this involvement was welcomed by many of the African-American leaders in the city of Richmond.
GWEN IFILL: Well, then is there a geographic question, some districts where U.S. attorneys will seek the death penalty and others they won't, and is that something which lends itself to equal justice?
ELISABETH SEMEL: Absolutely. You have about 16 of the 94 districts responsible for seeking the death penalty, 50 percent of the time. If you were to take, for example, one of the... two of the districts in Missouri in the Western and I think the Eastern District of Missouri, five out of five times, eight out of eight times, they've sought the death penalty federally -- other 21, I believe, federal districts where the death penalty has never been sought. Those have both geographic and racial repercussions.
GWEN IFILL: What about plea bargains? One of the things that the attorney general alluded to in his report was that there was a disparity in white defendants who were able to take advantage of plea bargains, presumably, better lawyers-- I don't know-- and minority defendants who were able to take advantage of that. Is that a problem?
ANDREW McBRIDE: That was the most troubling, to my mind that was the most troubling part of the report. I think what the attorney general has done and what the deputy attorney general announced would be done at the hearing is that they're going to keep a tight control on these plea bargains and require that they be approved by the Justice Department. And you have to understand that a single federal prosecutor cannot decide on the death penalty. There's a committee at the Department of Justice that carefully reviews each case. Now this committee will carefully review each plea bargain as well to maintain control over the system.
I think the point that Liz raises is a good one, and the attorney general has also said we are going to require these jurisdictions that have never sought the death penalty to report to us about cases that they get...they receive guilty pleas on that might have been death penalty cases so we can look. But that to my mind is an argument that the death penalty is under-enforced and that we need to look at these jurisdictions and make sure appropriate cases are being brought.
|Debating a moratorium|
GWEN IFILL: What is the argument against opposing a moratorium on the death penalties until some of these serious questions are answered like some states have done?
ANDREW McBRIDE: I think Attorney General Ashcroft made the argument explicitly, which is of the people, the 20 on death row today, there is no doubt about the guilt of any of them. They are all guilty of heinous crimes. Each one of them, if they believe there is any racial bias in their particular case, can raise that issue before the courts.
ELISABETH SEMEL: This is one of the sorry statements that the attorney general has made and frankly that President Bush has made. The death penalty is not simply about whether an individual is guilty of his crimes. In Mr. Garza's case he was convicted of three murders. He took responsibility for three murders. The question was two-fold in his case. The death penalty also involves a sentencing phase. One of the issues at Mr. Garza's sentencing phase was the use against him of murders for which he was never charged for convicted by the government in order to obtain the death penalty. And additionally, we're talking as I think Mr. Ashcroft said when he granted a stay in Mr. McVeigh's case about a system that is supposed to be fair. That has to do with the entire system and its administration.
What we know is we have, as President Clinton said, glaring disparities -- troubling and disturbing disparities. The answer is, as the American Bar Association has said, put a stop to execution until we have an opportunity to fully study and understand what has happened and how to remedy it.
GWEN IFILL: Are there any other safeguards that could be employed?
ANDREW McBRIDE: Well, I have to say as a prosecutor, I commend Attorney General Reno for the protocol she put in place. And I think most defense attorneys believe it is one of the best innovations in the death penalty. They would love to see the states implement it. I believe that the changes that Attorney General Ashcroft has announced increase the effectiveness of the protocol. In making sure that the Justice Department itself, not any individual prosecutor, makes these decisions and there is control over prosecutors pleading cases out or deciding whether or not to take cases into the system.
GWEN IFILL: We're going to have to leave the argument there for tonight. Thank you both for joining us.
ANDREW McBRIDE: Thank you.
ELISABETH SEMEL: Thank you.