The racial and geographic disparities in the federal death penalty system indicate potential discrimination in the life and death issue of who gets charged, convicted and executed under the federal death penalty system. The federal government's planned execution of Juan Raul Garza must not proceed under these circumstances. The United States Justice Department, under the direction of Attorney General Janet Reno, undertook a study of the decision-making process used in the federal death penalty system and released initial results in September 2000 that showed geographic and racial disparities that warranted further study. The current Justice Department, under Attorney General John Ashcroft, has released a follow-up study that tries to explain away the shocking statistical results of the earlier report. The results of the September report were so troubling to President Clinton that he granted a six month reprieve to Juan Raul Garza to have a further study done. But now Attorney General John Ashcroft has dismissed those imbalances and hides behind the assertion that all of the federal death row defendants are guilty. Due Process is about more than simple guilt or innocence.

The Department of Justice has utterly failed to explain the gross racial and geographic disparities in the application of the federal death penalty and on that basis alone a moratorium is necessary. Racial disparities and arbitrariness have infected the federal system. The death penalty authorization system utilized by the Justice Department resulted in the following racial disparity as revealed in a Justice Department Study of the system that was released in September, 2000: Among the capital defendants that Attorney General Janet Reno for authorized death penalty prosecutions, 69 percent were ethnic minorities, including 18 percent Hispanic and 51 percent African American. Seventeen of the 21 persons of federal death row, a stunning 81 percent, were racial or ethnic minorities. It should be noted that these statistics mirror those of Illinois' death row. 67 percent of those currently under sentence of death in Illinois are minority, in a state with a 35 percent minority population. And of the ten death sentences handed out in the first year of the moratorium in Illinois, eight were members of racial minorities.

There are also geographic disparities to which jurisdictions seek death penalty authorization which raise the same specter of arbitrariness that we have seen in Illinois. In 16 states, U. S. attorneys seek and obtain authorization in at least 50 percent of their cases. By contrast, 21 states have never sought nor obtained authorization to seek the federal death penalty. Evidence of arbitrariness has been seen in Illinois as well. The wide disparity among Illinois counties in the use of capital punishment is clearly shown in the record for 2000. Macon County, for instance, sentenced two men to death and has at least four capital cases awaiting trial. Kane County sentenced one man and has at least five trials pending. Yet many other relatively large counties issued no death sentences in 2000 and have not announced plans to seek the death penalty in any pending case. These include Champaign, Peoria, Lake, Grundy, Tazewell, Rock Island and Kankakee. At least two state's attorneys, Stewart Umholtz of Tazewell and Lance Peterson of Grundy County recently cited the Moratorium, as a factor in their decisions not to seek the death penalty against a murder defendant (Umholtz also cited the high cost of capital trials).

Experts as wholly inadequate have decried the new report of the Justice Department issued on June 6, 2001 and Attorney General Ashcroft's assertion that racial and geographic disparities do not infect the system. The report does not deal with the disturbing patterns seen within the federal system. Specifically, it does not:

—Include an analysis of potential death penalty cases in which prosecutors might have pursued capital punishment but opted not to do so;

—Explain the disparity of the number of death sentences sought by the United States Attorney in the district in which Garza received his death sentence;

—Explain the finding in the earlier report that U. S. Attorneys were almost twice as likely to recommend seeking the death penalty for a Black defendant when the victim was non- Black as when the victim was Black as opposed to the finding that U. S. Attorneys were slightly less likely to recommend seeking the death penalty for a White defendant when the victim was non-White rather than White;

—Deal with the finding of the earlier report that 42 percent of the federal cases submitted to the attorney general for review came from just 5 out of the 94 federal districts.

It instead simplistically asserts that there are more minorities in the system because minorities commit more capital crimes. Elisabeth Semel, director of the American Bar Association's Death Penalty Representation Project, has challenged this conclusion by noting that cases involving white defendants, such as Mafia cases, are essentially the same types of crime but that in those cases the death penalty is either not being sought or the case is pled out. This observation is consistent with reports finding that plea bargains are offered to white defendants at a significantly higher rate than to minority defendants.

Federal executions are going ahead notwithstanding that Attorney General Ashcroft confirmed that he has authorized a more in-depth study of the federal execution system first proposed by former attorney general Janet Reno. There is no reason to rush toward execution when such troubling patterns exist and further study is deemed necessary. Ashcroft said he is ordering the study to increase the public's confidence in the federal death penalty system. It hardly instills confidence to kill someone while a study is pending on whether the system is fair. What if evidence surfaces that Garza represents the profile of a targeted group of defendants. How will it have instilled confidence to have already killed him. Garza's crimes do not make him a sympathetic figure. But how many death row inmates ever will be sympathetic? Ashcroft seeks to move the debate to issues of the moral character of the inmate and a simple assessment of guilt or innocence. Of course, the issue is our system of justice and our values as they will be expressed through the federal death penalty system.

It should be noted that Mr. Garza was convicted pursuant to the Anti-Drug Abuse Act of 1988 (commonly referred to as the Drug Kingpin Act) for which no review safeguards were implemented. A Staff Report by the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary issued in March 1994 showed that 89 percent of the defendants selected for capital prosecution under the Act were either African-American or Hispanic. At the time the report was issued, African-Americans made up just 21-27 percent of federal prisoners.

Garza's attorneys have also rightly criticized the federal government for failing to release the report in sufficient time prior to Garza's scheduled execution. The report was released on June 6, 2001 and the execution is scheduled for June 19,2001. President Clinton had called upon the Justice Department to complete the report by April. This is reminiscent of the rush to execution in the McVeigh case and seriously calls into question the commitment of the Bush Justice Department to fairness and Due Process in the federal death penalty system.

Attorney General Ashcroft indicated at his confirmation hearings that he was deeply troubled by the evidence of racial disparities in the federal death penalty system and that he approved of a thorough study of the system. Evidently for Ashcroft deep concern does not include postponing the execution of another human being who falls under the profile of the suspected biases in the system in order to find out whether the system is functioning properly. Certainly the execution could wait for the study to be conducted by the neutral National Institute for Justice. This is literally a matter of life and death for Mr. Garza and a matter of basic fairness and legal integrity for the federal government.