The New york Times

Friday, July 7, 2000

U.S. Plans Delay in First Execution in Four Decades

By RAYMOND BONNER and MARC LACEY

WASHINGTON, July 6 -- The Clinton administration is planning to postpone the first federal execution in nearly 40 years because of the absence of clemency procedures and concerns about racial and geographic disparities in death penalty cases, administration officials said today.

The White House is awaiting Justice Department regulations for death row inmates to follow in seeking clemency from the president.

Juan Raul Garza, who was convicted seven years ago of three drug-related murders, is scheduled to be executed on Aug. 5, and his lawyers said today that they would use the new procedures as soon as they have them to ask President Clinton to spare Mr. Garza's life.

Mr. Clinton has supported the death penalty since his days as governor of Arkansas, where he declined to commute several death sentences.

The department is also finishing a report on whether members of racial minorities or defendants in certain parts of the country are more likely to face the federal death penalty.

Data gathered so far by the Justice Department shows that members of minorities make up more than three-quarters of the defendants in federal capital cases and that federal prosecutors in five districts, including two in New York, have filed nearly half of the federal cases in which the death penalty was an option, officials said.

The Justice Department report, to be released this month, is certain to generate questions about the fairness of the federal death penalty beyond the Garza case, which would be the first federal execution since 1963, when John F. Kennedy was president, officials said. Twenty-one men now face the death penalty for federal crimes.

The new clemency procedures, the first in federal capital cases since the federal death penalty was reinstated in 1988, should be completed within a week or two, a Justice Department spokesman said.

They will allow the death row inmate's lawyer to make an oral presentation to a clemency panel, and the process, from filing to final decision, will take at least 90 days, officials said.

A White House official said Mr. Garza, who was convicted in 1993 in Federal District Court in Brownsville, Tex., would be allowed to take advantage of the new procedures. Thus, his execution will have to be postponed, officials said.

A Justice Department spokesman said that the department had no authority to grant a reprieve to Mr. Garza now and that the sole power for such a reprieve now lay with the president.

Under the Constitution, the president's pardon powers are absolute. Thus, options in the Garza case include a pardon, which would erase the criminal record, commutation to a life sentence or a temporary reprieve, allowing Mr. Garza to follow the new clemency procedures.

"We're cautiously optimistic," said Mr. Garza's lawyer, Gregory W. Wiercioch of the Texas Defender Service in Houston. Mr. Wiercioch added that he had not been given official notice of any reprieve.

"Until then, we have to move forward on other fronts," he said. Mr. Wiercioch was in Washington today looking for support for his client.

Mr. Garza has had his hopes dashed before. When Judge Filemon B. Vela first proposed setting an August execution date, United States Attorney Mervyn M. Mossbacker Jr. joined the defense in asking that he not do so. Noting that it would be the first federal execution in more than three decades, Mr. Mossbacker said the Justice Department was developing guidelines and procedures to ensure that it would be carried out "in an appropriate, dignified and expeditious manner."

Although declaring that he was "not a proponent of the death penalty," Judge Vela rejected the arguments and set the date, after which the United States attorney dropped further opposition.

Mr. Garza, a high school dropout who is the son of migrant farm workers, was the head of a drug-running operation that smuggled in tons of marijuana from Mexico, the federal charges said. He was convicted of ordering the execution of three people as part of his criminal enterprise.

Although Mr. Garza has declared that he was not responsible for the murders, his lawyers, in seeking clemency, do not intend to argue that he is innocent. Rather, they will argue that it is unfair to put Mr. Garza to death because the federal death penalty system, as it currently operates, discriminates against members of minorities and is unevenly applied across the nation.

The administration of the federal death penalty is like a "rigged lottery," with the outcome determined by "the color of your skin and where you purchased your ticket," Mr. Wiercioch said.

At a news conference last week, President Clinton said that he was concerned about "the disturbing racial composition" of the federal death penalty population, and that a handful of federal districts account for the majority of death penalty cases, "which raises the question of whether, even though there is a uniform law across the country, what your prosecution is may turn solely on where you committed the crime."

As a result, Mr. Clinton said, he had asked the Justice Department to undertake a review.

The Supreme Court declared in 1972 that the death penalty as it was then applied was unconstitutional. In 1988, Congress enacted legislation that allowed prosecutors to seek the death penalty for certain crimes. It was first applied to drug-related crimes, in what has become known as the "drug kingpin statute."

Over the course of his political career, Mr. Clinton has been a stalwart backer of the death penalty. In his 1992 campaign, Mr. Clinton, then governor of Arkansas, interrupted his campaign to deny clemency to two inmates who subsequently were executed by lethal injection. As president, he signed legislation in 1994 that expanded the federal death penalty to about 60 crimes. Two years later, after the Oklahoma City bombing, he backed a law streamlining the appeals process, which applied to both state and federal prisoners.

Twenty-one men have a death sentence hanging over them, said the Federal Death Penalty Resource Project, an organization in Columbia, S.C., that opposes the death penalty. Fourteen are African-American, three are Hispanic, one is Asian and three are white, including Timothy J. McVeigh, who was convicted in the Oklahoma City bombings.

With most of these men having only recently exhausted all their appeals, the Justice Department has not been under pressure to adopt federal rules for clemency, which is an inmate's last hope after all the courts have spoken. Even without formal procedures, however, federal inmates are able to petition the president for redress.

A United States attorney needs the approval of the attorney general before seeking the death penalty, and Attorney General Janet Reno has instituted a formal procedure for federal prosecutors to follow in seeking that approval.

In a case in which the death penalty is an option, the prosecutor is required to send a memorandum to the Justice Department, with a recommendation on whether or not it should be sought. A committee set up by Ms. Reno then reviews the file and makes a recommendation to her.

A defendant's lawyer is allowed to make a presentation to the federal prosecutor before the government seeks the death penalty, and then to the Justice Department review committee, two levels of protection that do not exist for a defendant in state capital cases.

Going back to 1988, the attorney general has authorized the death penalty against 199 defendants, according to the death penalty project. Three-fourths of these defendants have been members of minority groups, with 103 of them African-Americans, the project said.

A former member of the death penalty review committee, Rory K. Little, has described Ms. Reno's death-penalty case review system as "consciously race-blind."

The racial disparities creep into the system, said Mr. Little, who now teaches at Hastings College of Law in San Francisco, because of the wide discretion given to federal prosecutors. They decided in the first instance whether to charge a defendant with a crime that carries the death penalty and then whether to plea bargain for a life sentence.

This same discretion explains the geographic disparities in the system, he said. A chart published by Mr. Little in a law review article showed that for the years 1995 through 1998, United States attorneys submitted 471 death penalty cases to the Justice Department for review. Slightly more than 200 were from five judicial districts. Puerto Rico was at the top, with 59 submissions; the Eastern District of Virginia followed, with 52; the Eastern District of New York, 42; the Southern District of New York, 30; and Maryland, 24.

A Clinton administration official said that the numbers would be updated in the department's current report, but that the five districts still led in death penalty cases.