By Bill Dunne

Federal authorities announced on July 6, 2000, a plan to delay the execution of Juan Raul Garza, previously scheduled for August 5, 2000. Garza was convicted in 1993 in Brownsville, TX, of ordering three drug-related murders, for which he denies responsibility. His execution would have been the first federal execution in 37 years.

Clinton administration officials cited both lack of death penalty clemency procedures and concerns about racial and geographic disparities in imposition of the federal death penalty as reasons for the postponement. Responsibility for the delay in the clemency procedures' regulations is disputed. The White House faults the Justice Department, but Justice contends it sent draft procedures to the White House months ago. Both sides (as well as Garza's defense) agree race and geography unduly influence death penalty decisions. The role of class in death sentences was completely ignored.

The new clemency procedures for federal capital cases will allow prisoners' lawyers to make a presentation to a clemency panel. The Justice Department's Office of the Pardon attorney then makes a recommendation to the president, in whom the constitution vests sole authority to grant clemency. The regulations set no time limits on the president's decision. The full process is estimated to require 90-120 days from filing to decision. Garza's reprieve is thus likely to be at least 90 days and probably longer, considering the appointment of panelists and preparation and shuffling of documents.

According to an unreleased Justice Department report, the Federal Death Penalty Resource Project of Columbia, South Carolina, and facts widely known to anyone even vaguely familiar with the criminal justice system, federal death penalties fall grossly disproportionately on members of racial minorities. From the effective date of the federal death penalty statute in 1988, the attorney general has authorized seeking the death penalty against 199 defendants. Of those, 75% have been members of racial minorities, 52% of them black. Of the 21 prisoners currently facing federal death sentences, 14 (67%) are black, three (14%) Hispanic, three (14%) white, and one (5%) Asian. In contrast, those groups' respective representation in the population is roughly 13%, 11%, 72%, and 4%.

Geography also plays an apparent role in the decision to pursue federal death sentences. Only five federal judicial districts (out of 92) accounted for some 42% of prosecutors' requests since 1988 to pursue the death penalty (PR,EDVA,EDNY,SDNY,and MD in descending order of number of authorization requests).

Garza's lawyer, Gregory W. Wiercioch of the Texas Defender Service in Houston, characterized the situation as a "rigged lottery" in which "the color of your skin and where you purchased your ticket" determine the result. At a news conference a week before the announcement of the postponement of Garza's execution, even President Clinton acknowledged concern about "the disturbing racial composition" of federal death row and that "what your prosecution is may turn solely on where you committed your crime" (failing to acknowledge the possibility of prosecution without such commission). Those sentiments, he also said, prompted him to ask the Justice Department to undertake a review. Coming from a guy who demonstrated willingness to kill for power as governor of Arkansas by taking time off from his '92 presidential campaign to preside over executions, that argues for a longer rather than a shorter reprieve for Garza.

Vice-President Gore said the day after the announcement, "I do support the decision to put these clemency procedures in place, and pending that, to hold off on this particular case." He was, however, at pains to portray himself as a death penalty proponent and by implication disparaged the racial and geographic concerns of his boss. "I have not yet seen the evidence," he said, "that would, to me, justify a nationwide moratorium" on imposing or carrying out the federal death penalty.

Speculation is that softening public support for the death penalty amid widespread concerns about unfairness and error in its use will make it a contentious issue in the upcoming elections. Democrats would like to position themselves to excoriate Bush as an incautious executioner too bloodthirsty to be president on the basis of the speed and volume of executions during his tenure as Texas governor. Doing so will require toning down their own pro-death penalty rhetoric in favor of a more deliberate approach emphasizing

fairness and caution. They will undoubtedly be too craven to call for abolition of, or even a moratorium on, the death penalty. Liberalization rather than abolition will also let Gore both distance himself from and position himself to the right of the scandal-tainted and supposedly liberal Clinton White House. Executing Garza three months before the election with all the questions unresolved would expose the Democrats as hypocrites and deny them the death penalty challenge to Bush.

Any progress against the death penalty, especially one such as preventing the irremediable error of executing Juan Raul Garza, is positive. However, given election politics, Garza and all those similarly situated will still be in a tough spot after the election, given the "choices."

Sources: New York Times, Wall Street Journal, Newsweek

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