Because the Administration's bill would apply to "any other offense for which a sentence of death is provided" the death penalty in Section 3591(f), it would broadly revive the availability of the death penalty for first degree murder within federal jurisdiction. The death penalty for first degree murders occurring on Federal lands creates special concerns of sovereignty and discrimination for crimes committed in Indian Country. Jurisdiction is conferred on the federal courts for first degree murders committed in Indian Country (18 U.S.c. Section 1321). Both the House and Senate adopted amendments to death penalty proposals in the 101st Congress which made it clear that the death penalty provisions did not apply to cases arising in Indian Country, where that was the sole basis for federal jurisdiction, unless the Tribal government evidenced its intent to have the death penalty apply. We support the position that the Native American Rights Fund has taken in its written testimony which has been submitted to this Committee.

Other Issues

The Administration's Bill Would Codify the Status Quo of

Discrimination in Capital Cases:

The Bush Administration which has consistently opposed efforts to address the problem of race discrimination in the use of the

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death penalty, has unveiled the Equal Justice Act, a new device to defeat efforts to remedy system-wide discrimination, most notably, the Racial Justice Act which the House approved in the 101st Congress.

The Administration's proposal prohibits "any law, rule, presumption, goal, standard for establishing a prima facie case, or mandatory or permissive inference that requires or authorizes the invalidation of... sentences of death or other penalties based on the failure of a jurisdiction to achieve a specified racial proportion..........."

-- no

By its terms it would prohibit remedies for death sentences which are based solely on the race of the defendant or the victim if the proof of such discrimination is based on statistics matter how strong the link between race and death sentences appears to be. This aspect of the Equal Justice Act would place death sentences and "any other penalty" outside of the normal rules for claims of discrimination in such areas as employment, housing, and voting rights.

Moreover, to the extent that the Equal Justice Act purports to provide safeguards against discrimination it only restates the requirements of current law. Existing safeguards against

discrimination have been proven to be inadequate in preventing

racial considerations from influencing which cases and defendants are selected for death as a punishment.

Conclusion

The American people are waking up --- to the harmful effects of playing politics with things that we care about --- we are waking up to the harmful effects of racial polarization for political gain, we are waking up to the need to keep our eyes on the prize and not be lured into the trap where fundamental protections for individual rights are exchanged for the illusory promise of more safety.

The Bush Administration's proposal which prescribes death as "the presumptively appropriate penalty" shifts the delicate balance between the interest of the government and the interest of the individual in precisely the wrong direction. In that respect the Bush Administration proposal is outside the mainstream of death penalty jurisprudence and, we submit popular support, for the practice. If the government has the right to take life and be as unaccountable for its decision as the Administration's proposal would allow, we should not be surprised when we are denied lessor rights, that government says to us, but if we can take life and be so unaccountable, surely lessor rights deserve less protection. We urge this Committee to reject H.R. 1400.

Mr. SCHUMER. Mr. Bruck.

STATEMENT OF DAVID I. BRUCK, CHIEF ATTORNEY, SOUTH CAROLINA OFFICE OF APPELLATE DEFENSE, ON BEHALF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. Mr. BRUCK. Thank you very much, Mr. Chairman.

On behalf of the NAACP Legal Defense Fund, with which I'm a cooperating attorney, I very much appreciate the chance to share LDF's position with you today.

I come here from Columbia, SC, as a practicing attorney. For the last 11 years, I have spent almost all of my time involved in the actual litigation of capital cases. In that part of the country the death penalty is not simply a campaign slogan, but is an ongoing legal system, and I have to say a legal morass.

LDF has for many years opposed the death penalty under all circumstances. We find as a practical matter that it is inextricably bound up with discrimination and error. There is in fact no "good' death penalty.

However, we are realistic enough to know that this proposal for the expansion of the death penalty has a lot of political momentum. I am here today to simply share with you some of our insights about the administration's bill. Mr. Chairman, the bill is the Rube Goldberg version, if you will, of the death penalty. With every conceivable bell and whistle that could possibly be added. This is a most complex and cumbersome attempt to weave the death penalty into every nook and cranny of Federal law where U.S. Supreme Court decisions might arguably permit it, and then beyond that, to push the death penalty where Supreme Court decisions fairly clearly prohibit it.

Mr. Hughes' question about exactly how many cases this involved was very well taken. The administration's failure to offer any statistic whatsoever to support what has been claimed to be one of the three pillars of their crime bill, was, we think, rather telling.

This bill attempts, among many other things, to create a test case to overrule Čoker v. Georgia. This initiative will generate an intellectual feast, if you will, for Government lawyers. Endless appeals. That's an ironic result of a bill which is intended to curtail appeals in capital cases. This is a recipe for truly endless litigation at the fringes of eighth amendment law.

That much this bill will accomplish for certain. There's no doubt about that.

To turn to a couple of specifics on which LDF has, I think, particular experience and expertise. This bill would spread the net of the death penalty into civil rights murder prosecutions. That is one of the things that reminds us that the Federal Government has no experience in this area.

The administration and the one before it have been cheering from the sidelines as the States marched into this swamp-and it is a swamp, with 2,500 people waiting on death row; millions and millions of dollars spent every year; almost no executions and no impact on crime. But the Federal Government has not in modern times prosecuted a civil rights homicide with the death penalty.

Therefore, it has forgotten, or never knew, that when you have a civil rights murder case, or any murder case, in which you seek the death penalty, the first thing you have to do is a process death qualifying the jury. In plain language what that means is that each juror, as a qualification for service on the jury, must say that he or she believes in the death penalty. And if they don't believe in it to the extent that they could never impose it, they are excused-just as if they had a bias or couldn't read or write.

The effect of that, very predictably, is to skew the people that you select for juries. Now, the Supreme Court has upheld the constitutionality of that process in the face of evidence that it greatly reduces the number of blacks on juries, the number of other minorities, religious minorities, and that it also tends to ensure that the people on juries oftentimes hold a particular set of political views.

In a civil rights case, this is especially problematic. What, in effect, the Federal Government will be ensuring in a civil rights homicide case, is that the potential jurors who would be most sympathetic to the Government's position on the civil rights aspects of the crime would be the very ones who would never get on the jury because of the death qualification process.

Consider the Rodney King case. If that had been a killing and there was a Federal prosecution, under this bill it would be a capital case, and, as a result, the jurors would first be screened to see who believes in the death penalty. We know from actual experience that that process would eliminate a disproportionate number of black jurors, of Hispanic, Catholic jurors, and of jurors who are especially sympathetic to issues concerning constitutional rights.

Now the classic example of that, although very few people recall this, is the Dan White prosecution for the assassinations of George Moscone and Harvey Milk. No one remembers this any more, but that was a death case, because California law provides for the death penalty, and it was politically impossible for the DA to waive the death penalty.

So the first thing they did in the Dan White murder trial was that they death-qualified the jury and eliminated everybody who said they didn't believe in the death penalty. And, lo and behold, they empaneled a jury whose members resembled Dan White. And we all remember the appalling result of that trial, and the 8-year sentence that Dan White received for that double assassination. That is an example of how the death penalty really can shoot law enforcement in the foot. It certainly did there, and it would most certainly do that again if we make the terrible mistake of trying to entangle governmental death threats with civil rights enforcement. The Legal Defense Fund has, I think it's fair to say, a record in the area of civil rights. And I am here to say, Mr. Chairman, that LDF does not support and, in fact, vehemently opposes any attempt to entangle civil rights enforcement in any way with the use of the death penalty.

I was struck, in response to the questioning about what does “extreme indifference to human life" mean, what does "recklessness" mean, that Mr. Barr's answer basically was, "Well, it is up to the jury." We don't have to guess about what that sort of vague standard produces in real life. Because in the Death Belt, in the South