Each member and each individual must wrestle with his or her conscience and come to his or her own conclusion. We're probably not going to change many minds at this hearing today.

For my part, I am a supporter of the death penalty-I have voted for it in the past and will do so again. I believe that for some of the very worst crimes the death penalty is a justified form of retribution and may serve as a deterrent.

Prisoners serving life sentences who murder, defendants who kill judges, jurors or witnesses who attempt to avoid prosecution for their crimes and drug kingpins who profit while their addicted customers die are all committing heinous crimes that may well warrant the death penalty.

I am not yet convinced, however, that as a matter of policy or constitutional law, the death penalty should be extended to those who do not intentionally kill but merely act recklessly, or who in some cases do not murder at all, as the President proposes.

Very few States have gone that far and I am not entirely comfortable with the wisdom or the need to do so on the Federal level. Whether or not you believe the death penalty is a deterrent, one thing is clear-a Federal death penalty will not eliminate the vast majority of crimes committed on America's streets. We were told by the administration that the Brady bill is deficient because it is not the complete answer to the crime problem. Well, the death penalty is certainly no cure-all either.

The administration's support for a Federal death penalty is legitimate, but by making it one of the three pillars of its crime policy, it elevates rhetoric over reality. Even if everything in the President's bill regarding the death penalty became law, crime and drugs would continue to ravage our streets.

In the more than 22 years since the Anti-Drug Abuse Act of 1988 authorized the death penalty for drug-related killings, there have only been a handful of prosecutions and just one death sentence imposed. There are almost 1 million people in prison in this country and 2,457 subject to a sentence of death. Since the death penalty was reestablished in 1976, there have been 146 executions and just 23 in 1990. Clearly the debate over the Federal death penalty should not replace the debate about how to prevent crime in America.

The public also realizes that capital punishment isn't the solution in every case. This was shown by the first case in which the Department of Justice sought the death penalty under the 1988 drug law. In that case the jury convicted the defendant but refused to sentence him to death.

Punishing those who commit crimes must be a major goal of the criminal justice system. But as I have said repeatedly, I believe that the President's bill overemphasizes punishment and does next to nothing about prevention. The significance the bill places on the death penalty issues is the most telling example of this shortcoming. The administration is willing to execute the defendant who sprays a crowd with assault weapon fire, but is not willing to do something to keep that person from getting the weapon in the first place.

I'm looking forward to the testimony today and will be listening with an open mind.

At this time I would recognize Mr. Schiff if he has an opening statement. I'd be delighted for him to speak and then we will call on any other member who has an opening statement. Jim Sensenbrenner will be able to give his opening statement when he arrives in the interstices of the hearing.

Mr. Schiff.

Mr. SCHIFF. Thank you, Mr. Chairman.

I'll be brief because there's much to cover today-a couple of things I'd like to say. The first is my special appreciation to you for holding this hearing and scheduling other hearings, particularly because it needs to be on an oversight basis because the bill has not been referred to this subcommittee, as of yet. I want to say, I hope the bill is referred and that we can have a more complete hearing, if it's warranted, and proceed to markup on the items we discussed last week and the items we're discussing this week.

For example, just as in the hearing on the Brady bill, there are victims who are convinced that if that bill had been in effect, their crimes would not have occurred. There are victims who are equally convinced, and I'm sure would like to testify, that if the death penalty had been in that the crimes involving their families would not have occurred.

And, the local police who testified in favor of the Brady bill usually, also support an increase in the death penalty, and I'm sure they would like to testify. So I hope we can move farther, but I appreciate your doing what you can.

Specifically and finally on the issue of the death penalty, I personally, coming from a career in local law enforcement, had a number of experiences in the trial of death penalty cases. I want to make this observation-and very close to what the Chair just said, I believe I believe that the death penalty is an appropriate penalty which should be available for jurors to choose in certain heinous

cases.

At the same time, I think, to some extent, it has been overstated in its maximum range of effect. In other words, many people say, if only we had the death penalty crime would go away; and, unfortunately, I don't believe that's the case either. I think that the attack on crime has to come from many, many different directions.

I appreciate the fact that you have held, and plan to hold, several different hearings on different areas, which I think is the right approach.

Thank you, Mr. Chairman.

Mr. SCHUMER. Thank you, Mr. Schiff.

I see my predecessor as chairman of this committee, who has handled this issue in the past, is here. Bill, would you like to say something or do you want to wait?

Mr. HUGHES. Thank you, Mr. Chairman, I'm just looking forward to the testimony.

Mr. SCHUMER. Thank you.

Mr. Gekas, would you like to make an opening statement?

Mr. GEKAS. Yes, thanks very much. I appreciate the Chair's offer to make an opening statement.

I, too, am ready to embark once again on the quest for a reasonable and workable death penalty to be applied to those certain cases

where a jury will find it an absolute equal justice to impose that death penalty.

The Congress of the United States is way behind the American people on this, as in many other issues, and it is about time we begin to stretch our will to the extent that we can match that already expressed by the American people-and no need to go into the statistics and the polls, everyone knows where the death penalty, as a matter of justice, stands in the hearts and minds of the public.

Only once in the last 10 years has the Congress risen to the occasion and brought about legislation that would impose the death penalty. And we've had recent events that occurred in the State of Alabama, and previous to that in Illinois, that have shown that the death penalty for the drug dealer who intentionally kills is that kind of a case where a jury can steel itself to determine that the death penalty is the appropriate remedy.

That confirms, once and for all, in my judgment, that the people in our society who know down deep that the death penalty is an ultimate and distasteful remedy, nevertheless, are willing to impose it in the proper cases.

We all want to eliminate the death penalty and imprisonment and any punishment at all when we reach the time when our world will have no crime, no murders, and no mayhem across the breadth of the land. But until that period of peace shall come, we require remedies like the death penalty.

One word of caution here-in the past, in negotiations, as we Iwould have to call them, with the former chairman, with the present chairman, with others on this particular issue, we've come down to a possible recognition that maybe only intentional killings should be subject to the death penalty.

I was willing at one point to work toward that goal until we came to the rash of brutal killings that have occurred in the recent past, particularly of the genre that we call the drive-by killings, where a wanton shot, or shots, might be fired at passersby or toward a crowded street corner. Where someone is killed, we cannot allow a defense, or even the hint of a defense to be applied to that individual; that is, that he didn't intend to kill.

That kind of wantonness and recklessness has been applied in previous common law and Supreme Court decisions that subjected the defendant to the death penalty.

So there's a divergence that I find myself now taking in a way that I had not predicted for myself on the question of intentional killings.

So as a preliminary remark, then, that the Chair has accorded me the privilege of rendering, I am going to fight diligently to try to enact the President's comprehensive crime package to include the broadly based, workable, reasonable, and effective death penalty.

Thank you.

Mr. SCHUMER. Thank you.

Mr. Sensenbrenner.

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.

One of the most embarrassing failures of the House Judiciary Committee has been its failure to constitutionalize the Federal death penalty provisions.

On the Judiciary Committee, we have taken pride in reading Supreme Court decisions and fashioning the law around those Court decisions.

We failed in the area of the death penalty because a certain group of people on the Judiciary Committee has used its ideological bias against the death penalty to obstruct any meaningful legislation to conform Federal death penalty procedures to that Supreme Court decision.

It seems to me that the intellectually honest way to approach the death penalty question would be either to pass legislation that does make those crimes which are capital offenses, and the Federal Criminal Code, constitutional, or to be upfront and to repeal the death penalty altogether.

Rather, the Judiciary Committee has inexcusably permitted several statutes to be on the books as unconstitutional and unenforceable. That's what this hearing is all about today. I salute the chairman for bringing this matter up, and I hope that we have to be, on whether the death penalty is appropriate.

Should the committee and the Congress agree that the death penalty is appropriate, then the provisions of the President's crime package, that conform death penalty statutes to the Supreme Court decisions, should be passed.

If the committee and the Congress believe that the death penalty is inappropriate, then I think it is incumbent upon those that feel that way-and I do not-to bring forth legislation to repeal the Federal death penalty altogether, and to have an up or down vote on that so the American public can see how their Representatives and Senators vote on the question.

Now, looking at those provisions of the Federal bill where we do have a death penalty on the books but can't enforce it because of the legislative malpractice on the part of the House Judiciary Committee, I would like to enumerate those provisions that the President's bill attempts to amend.

For example, destruction of aircraft or aircraft facilities-the death penalty is on the books, is not constitutional.

Espionage, transporting explosives, malicious destruction of Federal property by explosives, malicious destruction of interstate property by explosives, murder, killing official guests and internationally protected persons, kidnaping, hostage-taking, mailability of injurious articles, presidential assassination, murder for hire, violent crimes in aid of racketeering, wrecking trains, bank robbery, terrorist acts, aircraft hijacking, certain provision of the Control Substance Act, and genocide.

I believe that capital punishment is a viable and legitimate sentencing alternative for each one of those crimes that I have mentioned and so does the President of the United States.

Our challenge today is to pass this legislation to give the judges and the juries that sit in trials relating to those kinds of crimes, where a guilty verdict is returned, the option of committing the defendant to the ultimate penalty, the death penalty-if that court and that jury, after hearing the trial, seeing the evidence, seeing

the demeanor of the defendant, realize that that is an appropriate alternative.

I put my faith in juries and courts. We're going to hear an awful lot of that in the context of the civil rights bill in the next week or so. I would hope that those who say they put their faith in juries and courts in the civil rights bill will be consistent and put their faith in juries and courts and the death penalty as well.

Thank you.

Mr. SCHUMER. Any other opening statements? [No response.]

Mr. SCHUMER. Let us begin with the first witness.

Our first panel this afternoon will consist of the representative from the administration, Deputy Attorney General William Barr. Before his appointment as Deputy Attorney General, William Barr served in the Department of Justice as Assistant Attorney General for Legal Counsel.

He has also served in the Central Intelligence Agency on the Domestic Policy Staff of the White House and in private practice.

Mr. Barr is no stranger to this topic, having testified before the Subcommittee on Crime on death penalty legislation last year, which was reported out of this committee.

Without objection, Mr. Barr's written statement will be submitted for the record.

Mr. Barr, you may proceed.

STATEMENT OF WILLIAM BARR, DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE

Mr. BARR. Thank you, Mr. Chairman and members of this distinguished subcommittee. I appreciate the opportunity to testify today in support of the death penalty provisions of the President's Comprehensive Violent Crime Control Act of 1991.

I would like to join with the members of the subcommittee who have commended you, Mr. Chairman, for your leadership. During the hearings on the Brady bill recently, you stated that you intended immediate consideration of the President's crime bill after completing your work on the Brady bill. And as expected, you have fulfilled your word.

On behalf of the Attorney General and the Department of Justice, I would like to extend our sincere appreciation for your action. We recognize that this subcommittee has jurisdiction, or will likely have jurisdiction, over only some of the provisions in the President's crime bill. One of those areas is the scope of the Federal death penalty, and that is the subject of my testimony today.

Before turning to the death penalty, however, Mr. Chairman, I would like to address a point that you made in your opening statement, observing that this particular crime bill is heavy on punishment-and you have the feeling that perhaps not sufficient emphasis is given to prevention of crime.

I don't think we should overlook the fact that one of the purposes of punishment is precisely prevention. As you know, our whole criminal justice system is based on punishing criminals, and punishment is intended to vindicate retributive justice interests,