Opening Statement of U.S. Senator Russ Feingold
Senate Judiciary Subcommittee on the Constitution Hearing
On “Oversight of the Federal Death Penalty”
As Prepared for Delivery
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June 27, 2007
Good morning, and welcome to this hearing of the Constitution
Subcommittee entitled “Oversight of the Federal Death Penalty.”
We are honored to have with us this morning some very distinguished
witnesses. I appreciate the effort they have made to be here today.
Let me start by making a few opening remarks and then
we will turn to the representative from the Department of Justice
who will be the sole witness on our first panel.
This is the first oversight hearing on the federal death
penalty that the Senate Judiciary Committee has held in six years.
Until recently, Congress has asked few questions about how the federal
death penalty is being implemented, and we received little information
as a result. Indeed, it is fitting that we will hear from some of
the same organizations that testified at that last hearing in June
2001. That is because in some respects, we know little more today
than we did six years ago.
That said, I appreciate that the Justice Department
has responded to written questions that I sent in advance of this
hearing. Those responses begin the process of Congress obtaining the
information it needs to conduct oversight in this area.
And we have a lot of ground to cover. There have been
many developments in the last six years. In 2001, the Justice Department
made controversial changes to the protocols for Justice Department
review of death-eligible cases. The new protocols required U.S. Attorneys
for the first time to get Attorney General approval to enter into
plea bargains that take the death penalty off the table. This resulted,
in one New York case, in Attorney General Ashcroft nullifying a plea
agreement in which a defendant had agreed to cooperate with the government
in exchange for pleading guilty to a non-capital murder charge. This
action was heavily criticized for jeopardizing future cooperation
agreements, and Ashcroft finally reversed his decision more than a
year later.
Those protocol changes also reversed the presumption
against seeking the federal death penalty in a local jurisdiction
that had already chosen to outlaw capital punishment, and instead
stated that a lack of “appropriate punishment” in the
local jurisdiction should be a factor in deciding whether to bring
a federal capital case.
And just this week, we received another set of newly
revised death penalty protocols, which contain broad new confidentiality
rules that appear to pull the curtain on how the DOJ death penalty
review process is working. I am troubled by this trend toward secrecy.
These are public prosecutions brought by the United States of America.
Congress and the American people give immense power to the Department
of Justice to act in our name and for our protection. We are entitled
to know how decisions to seek the ultimate punishment are made. So
I will pursue this topic with our witness today to better understand
the scope and necessity of these new rules.
What else has happened since 2001? A National Institute
of Justice study ordered by Attorney General Reno at the end of the
Clinton Administration was delayed for years. It was supposed to examine
whether there were racial disparities in application of the federal
death penalty, but when it was finally released in 2006, it didn’t
tell us much. In addition to being criticized by a number of experts
for a faulty peer review process, the report left out the most important
part of the decision-making process: the point where defendants are
brought into the federal system in the first place. And of course,
that study only covered 1995 to 2000, so no study has been conducted
to evaluate these issues from 2001 forward.
And now, this Committee’s investigation into the
Department of Justice’s firing of a number of well-respected,
experienced U.S. Attorneys has revealed the inappropriate politicization
of some of the department’s most important functions.
The American people should be able to trust fully the
ability of the Justice Department, and the Attorney General, to make
difficult and nuanced decisions about whether the federal government
should pursue the ultimate sentence of death. We should be able to
trust that the Attorney General seeks input from all sides, and takes
very seriously his decision whether to use the full weight of the
United States Government to seek to put a person to death.
That is why we are holding this hearing – because
that trust has been shaken. We need to know whether these responsibilities
are being treated with the seriousness they deserve.
In particular, I am concerned that in the course of
deciding whether to seek death in a case, neither the Deputy Attorney
General nor the Attorney General meet personally with their own internal
review committee that examines each case in detail. And according
to what the Attorney General himself told this Committee earlier this
year, a U.S. Attorney was fired, at least in part, because he asked
the Attorney General to reconsider the decision to seek the death
penalty.
I oppose the death penalty, but I recognize that reasonable
people can differ on the question of capital punishment. And different
Administrations can take different views about when it is appropriate
to seek the federal death penalty. But I hope we can all agree that
the decision whether to charge someone with a capital crime and seek
to impose the death penalty is one of the most profound decisions
our government officials can make. That power must be wielded carefully
and judiciously. If carefully considered, law enforcement-based judgments
are not winning the day, we need to know about it, and we need to
know why. The stakes are simply too high.
