June 15, 2001
The Honorable George W. Bush
Dear Mr. President:
On behalf of the American Bar Association, I write to urge you to impose an executive moratorium on executions until a thorough review of federal death penalty procedures can be undertaken.
With the exception of its unequivocal opposition to the imposition of the death penalty on individuals who committed their crimes while juveniles and on mentally retarded offenders, the American Bar Association has taken no position either supporting or opposing the death penalty. We do, however, support the application of all laws with equality, fairness, and due process of law. Adherence to this principle is especially critical when the ultimate penalty is to be imposed.
In 1997, the ABA issued a call for all capital punishment jurisdictions to impose a moratorium on executions until policies are adopted and implemented to ensure that jurisdictions administer capital cases fairly and equitably and minimize the risk that innocent persons would be put to death.
Although members of our House of Delegates differ in their views of the death penalty, the majority of our Delegates concluded that systemic problems, including charging decisions, federal habeas corpus limitations, and counsel competency issues, have undermined procedural safeguards essential to the fair administration of the death penalty.
On June 6, 2001, the U.S. Department of Justice released a report on the federal death penalty system as a supplement to the Department's report of September 12, 2000. The initial report disclosed troubling evidence of racial and regional disparities in the federal government's administration of the federal death penalty. The supplemental report does not alleviate the concerns of possible bias in the application of the federal death penalty. Currently, 17 of the 19 inmates on the federal death row are minorities. Yet the supplemental report contains no information on the entire pool of federal death eligible cases -- that is, the racial or ethnic composition of the group of death-eligible defendants who could have been selected for federal capital prosecution but were not. In addition, the initial report found that in the 675 cases where the U.S. attorneys recommended death sentences, only slightly less than 75 percent of the defendants were minorities, and that only five of the 94 U.S. attorney districts accounted for about 40 percent of the death penalty recommendations.
The report also fails to address the critical issue of plea agreements. Both reports disclosed that between 47-48 percent of white federal defendants avoid the death penalty by entering into a plea agreement with prosecutors, while only 25 percent of African-Americans and 28 percent of Hispanics enter into such agreements. This startling disparity raises the question, which is not answered, whether prosecutors offered plea agreements to African-Americans and Hispanic defendants, who rejected them, or whether they never offered pleas in cases involving minorities.
We are very pleased that Attorney General Ashcroft has announced that he has directed the National Institute of Justice to continue the comprehensive examination of the federal death penalty ordered by former U.S. Attorney General Reno. We join with other legal organizations in requesting that, to the fullest extent possible, this NIJ review be a public process, with an opportunity for criminal justice experts and lawyers who have experience in capital litigation to share their views during the study. The American people must be confident that the federal government has undertaken a thorough review of the death penalty to ensure that procedures and safeguards are in place that in fact guarantee fundamental fairness and due process for all.
Finally, but most important, I urge you to impose an executive moratorium on executions while this long-overdue examination is taking place. The American people understand that the system of capital punishment may never be perfect, but they also expect their government to ensure equal protection under the law for all citizens. With so many critical unanswered questions about the federal death penalty, it would be shameful to execute another defendant until we are absolutely confident that the system is scrupulously fair to all defendants and is free from the pervasive systemic flaws that have plagued the death penalty in several states.
Ordering a moratorium on executions pending a full and comprehensive review of federal death penalty procedures is the only way to guarantee that fairness and due process exist in fact as well as in law.