Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The PRESIDING OFFICER. The clerk will report. Mr. President, this is a straightforward, sense-of-the- Senate resolution that clearly indicates there is no place in our society, and particularly in our criminal justice system that a situation can exist whereby the punishment of an individual or the sentence imposed on an individual will be determined or the guilt or the innocence of an individual will be determined by way of their race, color, or creed. Lady Justice is unique in that she wears a blindfold. It is more than symbolism because we take pride in working to see to it that we have a system that dispenses justice regardless of a person's ethnic background, race, color, religion, their wealth, or their position. Justice should be dispensed in a manner and in accordance with what is right and proper, in accordance with the evidence -- the facts. Let us understand clearly what our colleagues in the House of Representatives have done. They have now said that the imposition of law -- the death penalty in this case -- will be based on statistical evidence that can be used to keep a person who may even be an admitted killer, a person who has been judged by a jury and found to be guilty of a heinous crime, from receiving the verdict of the jury, if that verdict were the death penalty. I find it interesting that while the House of Representatives has jumped up and down and said that the death penalty has now been expanded to cover -- I do not know how many -- new laws, it has in this instance passed the so-called racial justice provision. There is no one who is opposed to racial justice. Yet, when we discuss this subject we are talking about political gamesmanship. That is what it is -- political gamesmanship. How can you get up and say you are opposed to racial justice? Let us make it very clear. There should never be, at any point in time, the introduction or undertaking that we could be considering a person's guilt or innocence, particularly in criminal law, that it would be impacted or affected as a result of a person's race. That is repugnant to everyone. That is why this amendment that the House put in, the so-called racial justice provision, is so repugnant. Simply put, we are rolling back the clock. We are now saying the innocence of a person or the guilt of a person or the sentence that will be meted out will be on the basis of racial quotas. As a matter of fact, under the House bill, an inference that race was the basis of a death penalty can include evidence that the death sentences were being imposed significantly more frequently on persons of one race as opposed to that of another. Any numerical inequality in sentencing persons of different races would be considered statistically significant. This means that the death penalty must be imposed on an equal number of persons from all races. I have never heard of anything so preposterous. In order to apply the death penalty under this provision, you would have to have an equal number of people -- black, white, Hispanic, Asian -- otherwise you cannot apply it. The result is clear, this provision wipes out the death penalty. This is a wonderful and clever way of abolishing the death penalty. I would like to state that I respect those people who have deep convictions and do not believe the death penalty should ever be applied. At least, we can argue on the basis of their system of beliefs -- at least I know from where they are either coming from as opposed to them hiding it and cloaking it with the so- called idea of racial justice. Everyone is for racial justice. We are not for saying that because a person may be of a particular color or ethnic background at a particular time and statistically there are not the same number of people who are going to be executed within that jurisdiction, that the punishment should not be applied. We look to the facts of each individual case, and based upon that case and the person's actions, and if a jury finds them to be guilty, and then if they impose a sentence, that is the criteria. Was it done fairly? Was that person given an opportunity to defend himself or herself? Were they given all of the safeguards provided under the Constitution, both of the United States and of the constitution of the various States? If they were, then the law goes forward -- color blind, not with some kind of mumbo jumbo about racial equality, that the House hid behind. Does this mean that all of those on death row today can raise appeals now -- some of them may have been there 10 years, and all of their appeals have been exhausted, more than 3,000 of them. Can they then say, "We want to ascertain whether or not we fall within a certain statistical proportion as it relates to a number of people from the jurisdiction we come from who may be awaiting imposition of the death penalty"? Yes. It means that effectively you have wiped out the death penalty. The ugly thing about this -- and it is ugly, nasty, and mean spirited and wrong -- that when we title this racial justice, that is a mischaracterization of a deliberate nature. This provision is intended to obfuscate the facts and intended to say that those people who now will be calling for the death penalty and getting rid of this obnoxious provision, somehow do not care, do not share the craving that justice should be without any relationship to the ethnic background or race of an individual who is being tried. That is why I find it particularly disturbing. That is why I think many of my colleagues have a reluctance -- although they feel as strongly as this Senator, some more strongly, that this is a repugnant provision that the House included under the guise of racial justice, they are reluctant to publicly come forward, because we are in the age of political correctness. When some of the great newspapers can so blindly fall into this business and spend no time analyzing the impact of what this legislation does, and simply under the call of equality and fairness, back this legislation. This is something all of us believe in, because if you were to believe the headlines and not look behind the content of this provision, you would say, "of course, I am for racial justice," and this Senator is. But I am not for a system that will now develop a quota system for the imposition of a penalty, and I do not care what the penalty is. Do we really go about saying, "Well, I am sorry, this is a disproportionate number of people who committed this particular offense and, therefore, you are not subject to the imposition of a law"? Sorry, the quota is up. Do you mean that confessed killers, who have admitted their deed, with evidence that is uncontrovertable, with witnesses, et cetera, under this provision they would escape the death penalty on the basis of what their race, color, or ethnic background is? Sorry, you do not fit the statistics; there are too many whites today, too many Asians today, which would effectively denude this country of one of the great features of our justice system -- equality under the law. Our justice system has not always been perfect, and people can dredge up cases from the sixties and earlier, in which discrimination was present and rampant. Let us wipe out discrimination, and make sure it is discrimination that we are after and not an attempt to impede the imposition of a penalty by this ruse -- and that is what this is. Racial justice is a way to erase the equality of the application of the law. It will say that we will not apply the law any longer on the basis of the guilt or innocence of the particular person, but on the basis of his or her race. It should not be based upon the origin of that person. Mr. President, there are many more things that we can say and which I will be speaking to later. I know Senator Gorton has some remarks, and I know there will be further debate on this. I yield the floor. Mr. GORTON addressed the Chair. The PRESIDING OFFICER. The Chair recognizes the Senator from Washington [Mr. Gorton]. Mr. President, throughout the history of this country and, for that matter, of those other nations from whom we inherit our legal institutions, the prosecution of crime has been intensely individual. It is individuals, by name, who are charged with offenses against the state and against society. Verdicts are based on whether or not a jury believes beyond a reasonable doubt that the individual committed the offense with which he or she is charged. And when a conviction is obtained, we have prided ourselves, throughout our history, in suiting the sentence to that individual and to the circumstances surrounding that individual's conviction. In fact, in the many debates in the Supreme Court of the United States over the constitutionality of capital punishment, the ultimate result was a demand by the Supreme Court that individuals convicted of capital offenses be subject to capital sentences only on the basis of their own actions, and only after jurors or judges have listened carefully to both aggravating and mitigating circumstances surrounding the commission of the most serious criminal offenses. This has been our history; this has been our glory; this has been the result of decisions of the Supreme Court of the United States based on the due process and equal protection clauses. Never has the Supreme Court permitted consideration of race with respect to the imposition of capital punishment or, for that matter, the conviction of a crime. It is not a defense to the traffic offense of running a red light that other people ran the red light and were not arrested and prosecuted, whether of the same or a different race or sex. It is an individual offense. It is not a defense to a drug charge that those who lived in a different neighborhood were not so frequently charged or convicted, or those of a different sex, or those of a different race were not charged and convicted in similar numbers or in similar percentages. The theory of title IX of the House crime bill stands our history on its head. It is badly misnamed the "Racial Justice Act." It ought to be named the "Racial Quota and Repeal of Capital Punishment Act." For the first time, the House of Representatives, in this title, says that race must be a conscious consideration in the imposition of capital punishment sentences. They can be challenged, almost certainly successfully, on the basis of a showing that any other race has been subjected to capital punishment within that jurisdiction in differing numbers in spite of the percentage of that group in the society or, I assume by inference in reading title IX, in different percentages without regard to the number of those charged, the number of those convicted. Although that itself will be a separate ground for challenging under title IX of the House bill. This totally and completely different theory of criminal justice undercuts the entire history, the entire proud history, of not permitting the charging of groups simply on the basis of the fact that they belong to the same race, the same family, the same neighborhood, of the criminal activities of a single individual. Granted this reverses the process and says in the ultimate analysis it is only the sentence which can be changed on that ground, but it is absolutely certain that if title IX should become law, many, if not all, of the most aggravated forms of first-degree murder, the most outrageous of crimes, the crimes of serial killers, will result in a challenge to a sentence of capital punishment, not on the basis of any act or omission of the defendant, but solely on the basis of the way in which other members of that race were treated over an extended period of time in the same jurisdiction. The net result of the passage of this proposition is the repeal, not only of the capital punishment statutes which have been passed by the Senate of the United States and the House of Representatives in the course of the last 6 months -- almost without exception by overwhelming votes -- but the repeal, or at least the attempted repeal, of the capital punishment statutes of all or the great majority of the States in which they are imposed. (Ms. MOSELEY-BRAUN assumed the chair.) We have a graphic example in the State of Washington of the effect in communities of a proposal like this. More than 12 years ago in the small community of Clearview, WA, a work-release inmate named Charles Campbell brutally murdered Renae Wicklund, her 8-year-old daughter Shannah, and her neighbor Barbara Hendrickson, in revenge for Renae's earlier testimony which had sent Mr. Campbell to jail for sexual assault. When several months later, almost 12 years ago, a jury sentenced Campbell to death for his acts, the family and friends of the victims, and overwhelmingly the people of Washington State, felt that justice was done and expected justice to be served. Twelve years later the family, the neighbors, the people of the State are still waiting. Charles Campbell is exhibit A for failures of the present criminal justice system. More than $2.3 million in taxpayer money has been spent on 44 motions and briefs filed during five different appeals of that sentence, including three Federal habeas corpus petitions. Still, this murderer and his attorneys are using additional opportunities to delay justice. Most recently, a panel of the Ninth Circuit Court of Appeals dismissed Mr. Campbell's last petition for habeas corpus. He has now asked the Supreme Court once again to intervene. It seems unlikely to this former attorney general of the State of Washington, Madam President, that the Supreme Court will do so, the Supreme Court itself having taken almost unprecedented action a couple of years ago to direct the ninth circuit to expedite and to decide one of these earlier habeas corpus appeals. Nonetheless, the possibility of another stay exists. Charles Campbell is now scheduled to be executed on the 27th of this month. According to officials in the State of Washington, the only likely factor to delay final justice for Mr. Campbell is a major change in the law like this one. The prosecuting attorney in the county in which Mr. Campbell was tried and sentenced, wrote me on April 21 about the so-called Racial Justice Act provisions in the following words: Madam President, I agree with the judgment of the prosecuting attorney of Snohomish County. I believe that there is a high degree of likelihood not only that Mr. Campbell's execution would be delayed, but that it might never take place should, by some fortuitous circumstance, this title become law before the date of his execution. Mr. Campbell is Caucasian. Nevertheless, he would have the right to make such a challenge under the terms of this title. Now, I understand it was stated during debate over this matter in the House of Representatives that the House conferees would, at the very least, take out the retroactivity provisions of this title. But that really does not make any difference. It might possibly mean that justice was done in this single instance, but it would almost certainly prevent justice from taking place under any similar or even identical set of circumstances in the future. It is the view of many in law enforcement, especially those who must prosecute and defend appeals in capital punishment cases, that for all practical purposes this title repeals capital punishment in the United States. I am not saying that there is something wrong with debating the appropriateness of capital punishment statutes. That is a debate which is almost as old as the Republic itself. It is a debate in which many thoughtful and principled people find themselves with a different position than my own. But it is clearly not the view of the majority of the American people. It is not the law in the majority of American States. It is not what this body decided as recently as 6 months ago when it voted to extend capital punishment to a significant additional number of extremely serious crimes. The problem with this proposal, Madam President, is that it allows the repeal of capital punishment by indirection, by those who say that this is simply a minor procedural step designed to enhance rather than to inhibit justice, when, in the case of many, they privately have reached the same conclusion that I state here. Madam President, this sense of the Senate is very simple and straightforward. It strongly suggests to the conferees, yet to be appointed, on this bill that they reject this provision. It is, I suspect, a subject which can appropriately be debated independently and on its own. If the Judiciary Committee should choose to pass a proposal of this nature and bring it to the floor of the Senate, I rather imagine that the debate might be enlightening. It is highly inappropriate, however, to be included as a part of a bill which is designed and advertised to reduce violent crime in the United States. It will, if it is passed, add to the contempt with which the legal profession and the judiciary is treated by the general public because it will say, on the one hand, that we have greatly expanded capital punishment in the Federal Criminal Code and, on the other hand, by indirection repealed it, not only from the Federal Criminal Code but with respect to State criminal codes as well. Madam President, the distinguished Senator from New York and I, of course, have shared these views privately with the eloquent chairman of the Senate Judiciary Committee, as he has shared with us his intention to add to this amendment by second degree a statement that, nevertheless, racial discrimination shall not be practiced in connection with capital punishment. I hope, in anticipating that amendment, that he will explain to us what effect his second-degree amendment is intended to carry out. As I read the Constitution of the United States and as I read Supreme Court decisions of the United States, racial discrimination is absolutely prohibited in connection with capital punishment or, for that matter, prosecution or the conviction of any other crime by the due process and equal protection clauses of the Constitution of the United States. So, if we get such a second-degree amendment, either it is intended only to restate protections which the Constitution already provides, or it is intended to change slightly this title IX and to add factors in sentencing not related to the crime of the individual, the actions of the individual, and not add in rights not granted by the Constitution itself as interpreted by the Supreme Court. For myself -- I do not know that I can speak for the Senator from New York in this connection -- for myself, if it is the intention of any second-degree amendment here simply to restate constitutional protections which already exist, I would regard the amendment as harmless and would probably agree with it. If it is intended to create other grounds for appeal or other grounds for habeas corpus action than those which presently have been granted by the Supreme Court of the United States, it seems to me this body should have outlined to it exactly what those additional rights are by those who are unwilling to accept this amendment in its present form. Mr. BIDEN addressed the Chair. The PRESIDING OFFICER. The Senator from Delaware. Madam President, I rise in opposition to the amendment of my friend from New York. I will be relatively brief. Let me start off by saying my friend from Washington State indicated that there was an appropriateness to debate the existence and the utility and the morality and the constitutionality of the death penalty. And we all agree on that. There is an appropriateness in debating that. I do not think he meant to say it would be inappropriate to debate whether or not the death penalty was imposed fairly or unfairly. We do not have to go back 208 years or 150 years or 100 years or 50 years to come up with examples where the application of the death penalty has been applied in a prejudicial manner, where a black man or a black woman committing the same crime as a white man or white woman, where the black man got the death penalty and the white man did not get the death penalty. Unfortunately, to our great shame as a nation, we have several hundred years of history to demonstrate that that has occurred. I do think that it is totally appropriate for us to debate -- and I might add, I am the author of the amendments the Senator from Washington State is referring to. The so-called Biden crime bill which passed out of here and all those death penalties in the crime bill, I wrote, I authored, I put in my bill, the bill that the Senate passed. I support the death penalty. I have supported the death penalty in appropriate cases, and I outline what those appropriate cases are in the crime bill. There are over 50 cases in which I say, if someone is found guilty beyond a reasonable doubt and all of their appeals under the Constitution are exhausted, they should be put to death for having committed those crimes, and I list them in the Biden crime bill, the bill the Senate passed. So I am the author of those. And I do not mean I am author in terms of originality. I did not think up all of them, but I put them in the Biden crime bill. So, we should start from the premise that there are many of us who support the death penalty, vote for the death penalty, draft legislation expanding the death penalty, who feel that it is necessary to make sure that the application of those death sentences are done in a nondiscriminatory way. I do not have the letter that my friend from Washington read from the prosecutor, I guess it was a Washington State prosecutor. I may be wrong about this -- and when my colleague comes back on the floor he can correct me -- but I thought I heard a phrase or a sentence in there where the prosecutor says, "If this passes, we will have to go back and look at whether or not we applied the death penalty to blacks the same way as we did to whites, to all people." Why should you not have to go back and look at that? Why should there not be, in a country with our history in the way in which we have treated black Americans, why should we not have to say, let us just make sure here that we are doing the same thing with white folks as we do with black folks or with black folks as with white folks? What is wrong with that? My friends -- and, you know, especially the Senator from New York, he and I are truly really good friends. We say that in this body. We say, "My friend from" wherever. I mean, this guy is my friend. We hang out together. Our kids hang out together. They room together in college, in law school together. I totally respect his position on this. But, it seems to me that the debate should be whether or not what those of us Senators -- the Presiding Officer, Senator Carol Moseley- Braun; the Senator from Massachusetts; the Senator from Delaware, and a lot of other people in this body -- are talking about does in fact what we say. What we say is, we just want, as we expand the death penalty, we just want to make sure we do not slip into some bad old habits that have been practiced by this country, by States, some bad old habits of having a different standard when we apply it to the black folk than we do to white folk. So, it may be, arguably, the language the House of Representatives included in the crime bill -- in which it attempted to instruct me as the chairman of the committee who is going to go negotiate this bill with the House, instructing me to say: OK, we do not like that language. But let us make sure there is something in there that makes sure we see to it that this is not applied in a racially discriminatory way. We can argue, and there are reasonable people who argue that the House bill has unnecessary language in it or goes too far. I might add, back in 1991 I submitted, from the Committee on the Judiciary, a Federal Death Penalty Act that we ultimately passed. It was called the Federal Death Penalty Act of 1989. It actually had the language proposed by Senator Kennedy. But because I was the guy responsible for putting the bill in and included it in the bill, that had even stronger prohibitions against the discriminatory application of the death penalty. And it passed. It passed the U.S. Senate. It did not become law, but it passed the Senate. So I think the starting point of this debate should be: Do we all agree that there have been some States, there are some circumstances where in this country today the application of the law is not always applied even- handedly? It seems to me we have to acknowledge that occurs. It does not occur all the time. I do not think it occurs most of the time. I do not think it even occurs 40 percent of the time or 30 percent of the time. But it does occur. So, if I, in writing this legislation, am going to increase the number of death penalties, I for one as a supporter of the death penalty want to make sure it is done fairly. We can argue about whether or not the House language which my friend from New York is attempting to strike goes too far. By the way, I said 1991. It is not 1991, it was 1989, that report we passed -- that provision. Whether or not it goes overboard, we can argue about that. One part I do think goes overboard. I personally think it goes overboard. The House language says you go back and retroactively apply this. The sponsors of the legislation in the House and the chairman of the Judiciary Committee in the House on the floor said: We want to tell everybody now, we are going to take that out in conference. This is an example we can argue about, if we are up here argue, whether we should or should not have retroactivity. At least it says on the playing field we are worried about discriminatory application of the death penalty. But here what we are doing is we are saying we do not want anything in this massive crime bill that requires us to take an extra look at whether or not black people are being treated the same as white people with regard to the application of the ultimate sanction. If we put someone in jail, and we put them in jail for drunk driving or we put them in jail for robbery or burglary and they are going to get 1 year, 2 years, 10 years, 12 years, and we turn out to be wrong or it turns out we made a mistake or we did not apply the law fairly, we can go back and make amends. You can say, "Mea culpa, mea culpa, mea maxima culpa. We are sorry. You are out of jail. We will try to make you whole." You never can, but we will try to do it. But once you pull that switch, once you give that injection, it is over. What do we do if it is wrong then? What do we do if it is clear we focused only on one segment of our population? We say, "Oh, golly, we made a mistake." It is too late. It is too late. So, what we are trying to do here is we left the flexibility in the conference that says: Wait a minute, the idea of including racial justice in this bill makes sense. This is the bill we passed. I have a copy of it here. We passed it in the Senate, the Senate crime bill. I will not read the appropriate sections but I will just cite the page, 265: Well, we already passed that. This just goes to the thing that is the big deal -- death; death. So, Madam President, when we passed in the Senate Judiciary Committee the Racial Justice Act of 1991, which did not pass the Senate, did not become law but we got it through that committee, what we were trying to do then is what I hope we all are attempting to do. It is not eliminate the death penalty. If you are against the death penalty you are against the death penalty -- racial justice, no racial justice, you are against it. I am for it, but I respect that position. But if you are for the death penalty it is still totally appropriate to sit here and say, "Wait a minute, are we doing this and applying it in a nondiscriminatory way?" I for one can only support a death penalty that is fair, that punishes those who truly deserve to pay the maximum price for their crimes. And as I have added death penalty provisions as the author of these crime bills, the primary sponsor, I have consistently worked to put adequate safeguards in death penalty bills. I support the Racial Justice Act because I think it furthers that goal. It protects defendants from death sentences imposed for reasons that have nothing to do with the character of the crime but only have to do with the color of their skin. Federal law already provides that statistical -- you heard this argument about these statistics. You know, that it is kind of a radical thing to be talking about, to be able to introduce in evidence that statistically it applies more to blacks than whites. Federal law, as the Presiding Officer knows, already provides that statistical proof of discrimination is sufficient to obtain relief where the right of housing or employment has been infringed. If you can statistically show -- and it is very complicated -- but if you can statistically show that you are denied housing because notwithstanding the fact you are a U.S. Senator, that you are a black woman, you can, in fact, carry the day. That is because we know that discrimination is insidious. It is awfully hard to find absolute proof that this person at this moment made that decision on the grounds that they say we do not like black women: I do not like black women, therefore you cannot live in this house. No one says that anymore. They used to say that. The good news is those days are gone, by and large. The bad news is it has gotten much more sophisticated, racism in this country. It has kind of gone underground. So in order to respond to that, just like for the history of the entire civil rights movement, since and including Dred Scott in the middle of the 19th century, the courts when they have made the right decisions have always had to not just state a principle that you cannot discriminate, they have had to use their ingenuity to overcome the ingenuity of States and governments and people who came up with massive constructs to accomplish the same discriminatory end through a less direct means. So that is how we got to using statistics in housing or employment. It is kind of interesting. We say if you have a company that has 100 people and 500 black folks come and apply for jobs and 100 white folks come and apply for jobs, if you end up with 100 white folks and no black folks you do not have to be a rocket scientist to figure out maybe -- maybe -- maybe the employer was discriminatory. Just maybe. Citing statistics does not automatically make the case. It becomes a presumption that has to be rebutted by the employer. We do that in housing, we do that in job employment in the law. People on that side of the aisle voted for those kinds of proposals, along with the rest of us. I do not know how either one of the sponsors voted on housing discrimination and employment discrimination. I do not know. But I know the vast majority of us voted for that. But now we are saying when it comes to putting you to death, we are not going to apply that same kind of reasoning. Somehow that is being a quota king or queen, or that is being -- there is nothing novel about this, Madam President. There is nothing novel about this approach. Racial discrimination should play no role in a decision as to who shall live and who shall die. And for that reason, that simple basic reason, I support this legislation. Now again, maybe the precise legislation, as written, does not meet the requirement or meets more than the requirement of that simple proposition that race can play no role in the application of the death penalty. But I hope for goodness sake, this Senate is not saying that is something we should not consider. We consider it in housing, schooling, in everything we do because we, unfortunately, have a history in this country of having some people and some governments act in a discriminatory fashion. Madam President, the opponents of the Racial Justice Act claim that it will put an end to capital punishment. Let me tell you that with the retroactivity provision taken out, I would not support the Racial Justice Act or an attempt to fashion such language if I believed it would end all capital punishment. As a start, it is the plan that the Racial Justice Act will not eliminate capital punishment in cases where the statistics do not support any claim of discrimination, and under the act, the defendant has to establish not only that discrimination existed in the system overall, but that he himself was discriminated against. He must show that his case is a type of case where race makes a difference. If he cannot make that showing, then the Racial Justice Act is no bar to the execution of his sentence. Let me give you an example, and I see other colleagues are here to speak and I will not take much longer because the Senator from Massachusetts knows so much more about this than I do and has been committed to seeing to it that there is nondiscriminatory policy in the application of all our laws, civil and criminal, for the entirety of his public life. But let me just give you an example. In a highly aggravated case, a case where the defendants have committed the most heinous of capital crimes, the statistics, in fact, show that the death penalty is dealt out evenly without regard to race. These are the facts now. Remember, I said in the beginning I do not believe that the vast majority or even a significant minority of death penalty sentences are racially motivated or not handed out evenhandedly. The statistics show that the death penalty is dealt out evenly without regard to race in the most heinous crimes because there is no showing of discrimination in those cases, the most serious cases. The Racial Justice Act will not affect the imposition of death penalty in those cases at all. Nor will the Racial Justice Act affect those cases where the defendant is not a member of a suspect class, a class of persons whose sentences have been tainted by race. Defendants who are not members of a suspect class will not be able to invoke the Racial Justice Act. White males have not been one of those suspect classes. So the Racial Justice Act will have no impact on a broad range of cases where the death penalty has been imposed. Only in those cases where history has shown that race may be a factor will the Racial Justice Act even apply. Contrary to the claims of the critics, the Racial Justice Act will not dictate the result that the courts must reach. Rather, the act sets out a simple, self-evident proposition, and I quote: What is wrong with that? Then turns the application of that simple proposition over to the factfinding body that we most rely upon: The court. It is for the courts, not the Congress, to determine whether racial discrimination exists in a particular case. The courts have long expertly dealt with claims of discrimination on a wide variety of contexts, as I mentioned the reference earlier. This act simply permits the courts to apply that expertise here. By the same token, the act frees the courts to consider in death penalty cases the types of relevant evidence that has been considered for decades in other contexts, such as housing discrimination, employment discrimination, and discrimination in our schools. At the same time, the act explicitly confers on the court the discretion to reject evidence that is not valid or relevant. In short, the Racial Justice Act will not outlaw capital punishment. What the act will do is force the States to seriously address the issue of racial disparity in capital sentences. It will force prosecutors to take a hard look at their procedures for seeking the death penalty. Contrary to what the critics say, there is nothing wrong or wrongheaded about requiring prosecutors to adjust their actions that impact upon the black community more severely. Such actions should be carefully scrutinized so that we can all be sure that racial bias plays no part in the decision to seek the ultimate penalty: Death. There is no doubt, at least initially, the Racial Justice Act will make it harder to impose the death penalty in certain cases. There is no doubt about that, initially. But assuming the States take seriously their responsibility to develop procedures to do away with unexplained differences in capital sentencing, the act will serve as a restriction only temporarily, because what the State will do here, Madam President, if there is a history of a misapplication of the death penalty, they will turn around and say, here is how we will proceed from now on, and they start from scratch. Since we are not making it retroactive for people who are already on death row, the inconvenience is de minimis compared to the potential wrong that is possible to be perpetrated. Will the Senator yield for a question? I will in just one moment. Just as relates to retroactivity. I beg your pardon? I believe that I heard that the application of the provision that we are discussing was not retroactive to those cases. I do not believe the Senator meant that. Madam President, the Senator from Delaware did mean that. Let me explain again why. The Senator may not have been on the floor when I started. It is true the House-passed provision has retroactivity in it. Right. What I am asserting on the floor today is that, in my discussions, and also discussions on the floor at the time of passage, the sponsors of the act, including the chairman of the Judiciary Committee in the House, Mr. Brooks, and the chairman of the Senate Judiciary Committee in the Senate, coupled with the sponsors of the act assert that we will remove retroactivity in the conference. So the Senator is correct, it is in the bill. But prior to its passage, there was a colloquy on the floor by the sponsors saying -- under the House rules, they could not amend it at that moment procedurally. They made a commitment to all their colleagues, and I am making a commitment here, that that retroactivity provision will be removed. No crime bill will come back with the retroactivity provision in it. That is all I meant to say. I am very glad to hear that. I think that is a point of great concern to many as it relates to the problems in the justice system at the present time. Again, that does not mean -- as my colleague, I think, understands and explained -- that we want anybody punished unfairly on the basis that they were discriminated against. But certainly this concession -- -- No, it is not a concession. Or acknowledgment. An acknowledgment -- -- There would be no retroactive application as it relates to those people who are on death row at the present time. Right. I thank the Senator. That is why I asked for that point of clarification. Madam President, I do not want to mislead anybody here. No. 1, if you take away the retroactivity and, No. 2, you do what this act does in the House language, you in effect say to the States that may have had a practice that was discriminatory or showed a statistical application to blacks more than whites, all they have to do is come along and say from this moment on here is how we are proceeding, these are the rules we are going to use in the future relative to the application of the death penalty -- those two things done, I acknowledge in a small number of cases it is going to make it more difficult temporarily to bring about the imposition of a death penalty -- those that fall between those already convicted and the passage of this legislation and before a State sets out a new procedure explaining how they are proceeding, if that State is required to do so because of the way in which it has been applied before has made it difficult to discern whether or not it was equally applied. So I am not suggesting that passage of this act means that nobody has to change the way they are doing business. I am asserting that the change, if necessary, will be able to be done immediately by a State and that it will not affect but a small number of cases temporarily. And the payoff, the benefit of having once and for all in place a capital offense, capital procedures in all the States guaranteeing nondiscriminatory application is worth that minor inconvenience. That is the position of the Senator from Delaware. Now, on a final note, the Racial Justice Act does not, as some claim, overrule the Supreme Court decision in McCleskey versus Kemp. Justice Powell, the author of that opinion, effectively invited legislative acts in this arena. Madam President, let me conclude by saying for the reasons I have stated and others I have not, I support there being in this crime bill legislation that is called racial justice, a Racial Justice Act. I will vote to oppose the amendment of the Senator from New York, but tell the Senator from New York, whether he wins or loses, I am committed to the withdrawal of retroactivity, and I am open to any reasonable changes or proposals that relate to the House language. But I am not prepared to say what essentially a vote for the amendment of the Senator from New York would require of me -- to be insensitive that: First, there is no need for a Racial Justice Act; and second, the Racial Justice Act in the House provision would end the death penalty. I yield the floor. Mr. KENNEDY addressed the Chair. I wonder if I might ask for the yeas and nays. The PRESIDING OFFICER. The Senator from Massachusetts. I will yield for the purpose of making that request and retain my right to the floor. Madam President, I ask for the yeas and nays. The PRESIDING OFFICER. Is there a sufficient second? There appears to be a sufficient second. I thank my colleague. The PRESIDING OFFICER. The Senator from Massachusetts. Madam President, I want to commend my friend and colleague, the chairman of the Judiciary Committee, for the excellent explanation of the public policy issues which are involved in the Racial Justice Act. It is no secret to any of the Members of this body that I am opposed to the death penalty as a matter of conscience. That has been my position for as long as I have been in the Senate and still remains my position. I do think, nonetheless, we will and should speak out on the issues of how the death penalty is applied in our country. And that is the subject I want to address the Senate about this afternoon. Madam President, as the Senator from Delaware has pointed out, the issue of the role of race in the application of the death penalty, whether it is in regard to the race of the defendant or the victim, has been an issue in our society for many years. Numerous studies conducted over a very long period of time have analyzed the application of the death penalty State by State and it is unquestionable that the race of both the defendant and the victim has a profound effect on the application of the death penalty. I can remember when we passed the 1988 anticrime act. In that legislation we asked the General Accounting Office to conduct an analysis of race discrimination in death penalty cases using the most modern technology and analysis available to the General Accounting Office. I will just take a moment to read their conclusion: Now, we do not have to accept every conclusion reached by the General Accounting Office, but we agreed during the 1988 debate to have an unbiased authority take a look at this issue that many of us had raised over a period of some 10 years; let us get a definitive study about these various analyses. Let us use the latest computer technology to really review that. Well, it was agreed at that time by both Republicans and Democrats to ask the GAO to report back to us on this controversial matter. Now we have the GAO's finding. And now the opponents of the Racial Justice Act say, "Oh well this is something different. We will not accept it. We will not look at it. We will not regard it as authoritative. It is a flawed study." You cannot get away from it. Every time you have a responsible review about the nature of the race of the victim or the defendant in capital punishment, it comes out this way time in and time out. Let us make sure that the Record includes some of this evidence: Perhaps the best example, but by no means the only one, is the evidence before the Supreme Court in the 1987 case of McCleskey versus Kemp. Warren McCleskey, the defendant in that case, was a black man convicted of killing a white police officer in Fulton County, GA, and he was sentenced to death. In fact, between 1973 and 1980, 16 -- 16 -- other defendants were convicted of killing police officers in Fulton County, but Warren McCleskey was the only one who received a death sentence. In only one other case was the death penalty sought, and in that case a defendant convicted of killing a black police officer received a life sentence instead. In challenging his death sentence, McCleskey placed into evidence two studies conducted by Prof. David Baldus of the University of Iowa Law School. From official State records, the two studies collected data on all the key factors in each of 2,400 homicide cases in Georgia between 1973 and 1979 -- information relating to the characteristics of the defendant and the victim, the circumstances of the crime, the strength of the evidence, and the mitigating and aggravating factors in each case. The conclusions were striking: When the characteristics of the crime and the defendant were weighed, those who kill whites were 4.3 times more likely to receive the death penalty than killers of blacks. If Warren McCleskey had been white, or if his victim had been black, it is highly likely he would be alive today serving a life sentence instead of having been executed. In the McCleskey case, the five members of the Court who voted to affirm the death sentence did not dispute the accuracy of the studies. The majority conceded that statistical evidence of the kind contained in the studies would be sufficient to prove intentional race discrimination in other areas, such as housing and job discrimination. But the Justices concluded that evidence of widespread race discrimination in capital sentencing is best presented to the legislative bodies. They left the issue to Congress, and it is our responsibility to deal with it, not duck it. The pattern of racial disparities in sentencing described in McCleskey is repeated in jurisdiction after jurisdiction around the country. In Florida, a study published in the Stanford Law Review found that defendants convicted of killing whites were eight times more likely to receive a death sentence than those convicted of murdering blacks. Another study found that blacks who kill whites received the death penalty 22 percent of the time, while whites who kill whites received the death penalty only 4.6 percent of the time. In Georgia, blacks who kill whites received the death penalty 16.7 percent of the time, while whites who killed whites received the death penalty only 4.2 percent of the time. In Illinois, that same study found that killers of whites were six times as likely to receive a death sentence as killers of blacks. In Maryland, defendants convicted of murdering whites received the death sentence eight times more frequently than killers of blacks. In Ohio, a study found that blacks who kill whites received the death penalty 25 percent of the time, while whites who kill whites received the death penalty only 4.6 percent of the time. In Texas, a 1985 study found that they were over four times more likely to do so. Blacks who kill whites received the death penalty 8.7 percent of the time, while whites who killed whites received the death penalty only 1.5 percent of the time. Now, let us look at exactly what is in the House legislation. Let us take a moment and examine it. This is what it says: Simple, clean, understandable language. Is there anybody in our society who would take a contrary position, that we ought to put people to death on the basis of race? There were such views at other times in our history. There were certain places where that was the rule, not the exception. All the House bill says is: Simple. People will take that language and misrepresent or distort it. That is a typical technique in this body. But the American people should not be fooled. The House provision continues: Is that complicated? Is that language the courts do not understand? Of course it is not. We use that same concept, as the Senator from Delaware pointed out, with regard to employment, which was the basis of the civil rights bill last Congress. We use it with regard to housing, jury selection, and voting. We use it on every one of those civil rights laws; every one of them. Now we have the ultimate civil right: the right not to be put to death based on race. People say, "Oh, no. We cannot do that. No, no, no. We cannot do that on this issue. We just cannot do it. It is just not right." Well, some of the opponents of the Racial Justice Act have been reluctant to embrace those other civil rights causes. But if we have as a body decided that discrimination is unacceptable in employment, in housing, in jury selection, and in voting rights, it is unacceptable in the application of the death penalty. So now we go back to the House bill. If statistical evidence is presented to establish an inference that race was the basis of the sentence of death, the court shall determine the validity of the evidence, and if it provides the basis for the inference, they just review it. They just review the statistics that are provided. It is not terribly complicated to find out if that statistical information is valid. The courts make that judgment every single day. Every judge does in this country. It does not put an undue burden on them. The House bill says that if the inference was that race was the basis on which the death sentence was established, the death sentence may not be carried out unless the Government rebuts the inference by the preponderance of the evidence. That is what every law student learns in the first year; everyone understands what the preponderance of the evidence is. It is a low standard -- lower than the standard included in the Racial Justice Act in previous years. There are many factors that the Government might rely on to rebut the inference created by the statistics. Defendants sentenced to death may have more serious criminal records. The courts can take a look at that. Defendants sentenced to death may commit crimes with greater planning, cause larger numbers of deaths, or may have committed their crimes with greater cruelty. OK. Those are understandable factors. The victims of the defendants may have been law enforcement officers or were particularly vulnerable. Or the defendants sentenced to death were organizers or ringleaders of the conspiracy. We can work those out, if the Senator from New York wants to work out these factors with greater specificity. They have been defined in some States. They have been upheld, and are beginning to have some impact. Madam President, this would be important if there were only one racially tinged execution to be prevented. But in this legislation we have created 50 new capital offenses, and the House has 66 new capital offenses. Hundreds of more individuals are going to be executed. How much longer will it take us to learn about this issue? What is it? Why are people so hungry and thirsty to try to execute individuals without considering evidence of discrimination? Why are they unwilling to consider that factor here when they will consider it on jobs or housing and permit the courts to make that assessment? Why do they say no, no, we have to execute the individual? We cannot take the time. We cannot take the time. All of us are concerned about the problems of violence in our society, and I yield to no one on that issue. But why cannot we, a society that should not, cannot, and must not be described as a bloodthirsty society, recognize what is happening and how the death penalty is being used? Why is it that the proponents of this amendment would deny the conference the opportunity to consider this? No. They will not do that. Special instructions to the conferees are certainly legal from the parliamentary point of view; but they are rarely utilized. Why is it that they are so hungry to clear the way for executions in our society? But they will not take the extra step to ensure that race is not a factor. I come from a part of the country where the death penalty was accused of being utilized on the basis of ethnicity as well as race. We had long debates and troublesome times over the Sacco-Vanzetti trial -- these issues inflamed the ethnic tensions at that time. I just wonder why it is that when we are talking about the ultimate right, which is the right to live -- we would deny those individuals the opportunity to have the issues of race considered. I am not making the argument about the wisdom of the death penalty, or about the number of innocent people who have been executed over the past century. To my regret, that issue has been basically resolved in this Senate and among the American people at this time. We are not making that argument. I hope that when we vote on this amendment it will be roundly defeated. We can try to do something about the crime in our society and still be true to the goal of racial justice. One of the reasons that I admire my friend and colleague from Delaware is that he is a supporter of the death penalty but understands that the application of the death penalty must be free from racial discrimination. I admire him for his courage in taking that position. I hope we will defeat this amendment next Wednesday. Mr. D'AMATO addressed the Chair. The PRESIDING OFFICER. The Senator from New York. Madam President, first, let me say that the House provision is obnoxious. It is indeed the antithesis of what the society should be about. Our justice system should be colorblind. There should be no place for discrimination of any kind. Let me tell you something. I resent the implication that some come down here and say that, if anything, this is racial legislation. Since when do we say we are going to judge the guilt or innocence and what the Government's sentence should be on the basis of a person's race, color, or creed? It is preposterous. That is what is being done with this legislation. Let us look at the law itself because I have not heard anybody refer to the law: Prohibition against the execution of sentences of death imposed on the basis of race. There should be absolute prohibition on any kind of thing like that. Discriminatory sentences of any kind on the basis of a person's color or race should be rejected; should be stamped out. We have no place for it. But let me tell you what a mockery this legislation is. Let me tell you why. "Section C, relevant evidence" -- this is the act itself. This is not the rhetoric that refers to the past. This talks about what this act will do now and in the future. Madam President, let me tell you what that section means. It says if you have more people of one race who have a sentence of death imposed upon them, that itself raises the inference that you have discrimination. That is wrong. I thought we had a society where we looked at the actual deed. You have effectively, with the adoption of this legislation, said that unless you apply the death penalty in equal numbers -- by the way, not in statistical accuracy -- equal numbers of blacks, whites, Hispanics, Asians; where does it talk about that we look to see the guilt or innocence of a party? By the way, under the Senate provision, we do take extraordinary lengths. Let me read to you what it says. The crime bill requires that the trial judge instruct the jury that they are not to consider race, and to return a certificate, wherever the death penalty is going to be applied, signed by each juror attesting to the fact that race was not involved in their judgment in the death penalty case. I want to tell you, this business will set back the justice system and bring about anarchy. If this provision in the House bill becomes law, it creates an inference of racial bias if certain statistical differences in past sentencing can be shown. It is wrong. I have to tell you, we start with the death penalty and say that is how we are going to apply it on the basis of race, color, and creed. Statistics equal numbers, so why not for people with life sentences? Do you think it is going to be long before people say it should apply to the whole criminal justice system? And then we will have anarchy, not a system based upon the guilt or innocence or the deed that person may have undertaken. It belittles a jury system and a system of justice that we have become proud of. Have there been abuses? Yes. But by simply going back and pointing to past abuses and discriminatory practices, that does not in any way -- in any way -- give us a better system. You do not correct past instances of racial bias by creating group-based justice, and that is what this bill does. I yield the floor. Mr. GORTON addressed the Chair. The PRESIDING OFFICER. The Senator from Washington [Mr. Gorton], is recognized. Madam President, I think even in the relatively brief period of time since the Senator from Washington introduced his amendment, the parameters of the debate have been quite considerably clarified. At this point, the distinguished chairman of the Judiciary Committee and the distinguished senior Senator from Massachusetts have made it very clear that they intend, at least, to deal very specifically with this amendment and that they oppose this amendment, rather than coming to an attempt to somehow or another change it and make less clear the direction of any vote which is ultimately taken on the amendment itself. (Mr. BRYAN assumed the chair.) So the wind is blowing in a different direction, and I think from a more favorable direction, that we will have a vote on whether or not the Senate favors title IX of the House bill, without its retroactivity provisions in its present form, or in any form roughly similar to that in which it finds itself at the present time. That is healthy for the nature of this debate. There are certain other statements which were made by the distinguished chairman of the Judiciary Committee with which I know both the Senator from New York and I agree. The chairman of the Judiciary Committee pointed out that if a sentence for robbery or for drunk driving -- a sentence to jail -- is found to have been imposed on the wrong person, we can always make up for it in some fashion or another. But if we impose capital punishment on someone not deserving of that sentence, someone not guilty, then we have made a mistake which cannot be rectified. Neither the Senator from New York, nor I, nor any other proponent of this amendment, in any way, disputes that proposition. What we do point out, however, is that title IX has absolutely nothing to do with guilt or innocence, absolutely nothing to do with guilt or innocence. No one is going to be saved by title IX, who is innocent of the crime of which he is convicted. As a matter of fact, all of the facts -- aggravating, mitigating, as well as those relating directly to guilt or innocence -- are unchanged by any proceeding or any determination pursuant to title IX. So there is no difference on whether or not we wish to convict the not guilty, or even run the risk that a person not guilty will be found guilty and will be executed. In fact, one of the most emotional and perhaps occasionally valid arguments against capital punishment at all is that, in some circumstances, mistakes may be made as to matters of fact. Whatever the validity of that argument, it is irrelevant here today, because we are not talking about any factors which relate to guilt or innocence whatsoever in title IX of the House bill. An area in which we perhaps have a greater degree of contention than this, however, is one which -- and this Senator copied what the distinguished chairman of the Judiciary Committee said. I think I paraphrased it with great accuracy. He said that we must acknowledge that the death penalty is not now imposed evenhandedly in all American States. I find that to be an interesting statement, though not a statement for which the chairman of the Judiciary Committee came up with any evidence. It is an important statement, there is no question about it. If, in fact, the death penalty is not today imposed fairly or evenhandedly, I strongly suggest that those who oppose this amendment cite chapter and verse. In what jurisdictions is the death penalty today not imposed evenhandedly or unfairly? What are the names of individuals? After, I think, several hundred executions, what are the names of the individuals who were wrongly executed, who somehow or another were the victims of either passion and prejudice on the part of juries convicting them in the first place, or of racial bias in connection with their sentences in the second place? If we are to accept that proposition, we need more than the surprising statement that in spite of all of the appeals, in spite of the Supreme Court of the United States, in spite of habeas corpus action after habeas corpus action in every case of capital punishment, nonetheless, States are imposing this sentence unfairly. This Senator finds that to be an astounding statement, given the protections which the Supreme Court of the United States itself has already placed on any capital punishment sentence. This Senator finds it particularly strange that the distinguished chairman of the Judiciary Committee went out of his way to assure the Senator from New York that retroactivity would be taken out of title IX if, in fact, States have been imposing capital punishment unfairly. How in the world can they agree to say that all of those unfair sentences which have already been handed down will be carried out? I cannot see how he can make such an assurance if, at the same time, he says that right now, under present circumstances, capital punishment is being imposed unfairly. To make that statement, it seems to me, one should be required to submit a very explicit outline to this body of the precise cases which have caused this title to be included and its importance to be so high. The first section of the title, eloquently quoted by the distinguished senior Senator from Massachusetts, reads: That is an eloquent and accurate statement. And, Mr. President, this is the law of the United States of America today. The Supreme Court of the United States has not, since capital punishment has been reinvoked, found to be constitutional ever allowed capital punishment to be imposed based upon race. Again, if any Member on the other side of this debate can cite a particular instance in which the Supreme Court of the United States or any Federal court of the United States has permitted the death penalty to be carried out on the basis of race, I think it very important for the Members of this body to be informed of that situation. The first paragraph of title IX simply states the law as it exists today. The balance of title IX, however, does not state the status of the law today. The Supreme Court of the United States has been asked to impose these quotas and to engage at looking at these statistics, and it has rejected that kind of defense. That is why we are here debating. The House of Representatives wants to add to every proceeding leading up to an execution a set of factors which have never previously been included because they have nothing to do with the guilt or innocence of the defendant and nothing to do with the horrendous nature of the crime of which that defendant has been convicted. They have nothing to do with the individual as an individual. They are, in effect, saying that if one person gets off for one reason or another by reason of the sympathy of the jury, every other person under similar circumstances, if that person is of a different race, has to be excused from the death penalty as well. That is not justice. Justice is individual. This proposal would totally overturn that doctrine and require justice not to be individualized but to be collectivized and in the language so general, so vague, that it will allow any person of any race to make a challenge based upon these sections. In spite of what the distinguished chairman of the Judiciary Committee said, there is no restriction of rights under this Racial Justice Act to members of one race only. It is highly general. It applies to everyone. My prosecuting attorneys and attorney general think it applies to Charles Campbell, the individual to whom I referred in my previous remarks. We cannot be certain of that. But what we can be certain of is that he will clearly make that claim and almost certainly have his sentence delayed as a result of any such claim. This, Mr. President, is a radical change in American law from individual responsibility to collective responsibility, to a determination as to what ultimate sentences will be based on nothing that the individual has done himself but on the basis of various statistics about other individuals under other circumstances. It totally reverses the direction which most of the people of the United States want to move with respect to justice, and I simply repeat those who believe that this kind of section ought to be included in the law have a duty, it seems to this Senator, to come forth and say exactly and in what cases unfair or unjust sentences have been imposed to such an extent as to require so radical a change in the laws of the United States in a way which the Supreme Court of the United States has rejected, a Supreme Court which has been the bulwark of the protection against discrimination based on race under the 14th amendment to the Constitution of the United States. The PRESIDING OFFICER. The Senator from Illinois is recognized. Thank you, Mr. President. Mr. President, in the past week the world witnessed the historic elections in South Africa where, for the first time, blacks were allowed to vote alongside whites to choose the individuals who would represent them in the government. That election represented the dismantling, at long last, of the system of apartheid and the beginning of a nation where all individuals, no matter what race, can live together and be treated equally under the law. America has made great strides in the past 30 years at doing just that. We have worked toward eliminating discrimination at the voting booth, in employment, in housing, and in schools. But unfortunately, there are still situations in this country where a persons race truly makes a difference in how that person is treated under the law. One of those situations is in the administration of the death penalty. The administration of the death penalty is truly one of last vestiges of apartheid left in our system. In far too many jurisdictions, race is the primary factor -- perhaps even the sole factor -- in determining whether a defendant in a capital case will, in fact, be sentenced to death. Now, whether anyone as an individual supports or opposes the death penalty, I think we can all agree that it should be imposed in a non- discriminatory manner. I think we can also agree that, in many parts of the country, that simply is not the case. Consider the facts. The General Accounting Office recently evaluated 28 studies of the effect of race on capital sentencing and found: "A pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty." Take, for example, one judicial circuit in Georgia. Despite the fact that 65 percent of the murder victims in the jurisdiction were black, 85 percent of the cases in which the death penalty was sought have been cases in which the victim was white. Or take a county in Florida. Blacks comprised 40 percent of the murder victims in the county. Yet, all 17 cases where the death penalty was sought between 1975 and 1987 involved white victims. We have even seen this problem under the Federal death penalty adopted in 1988 for drug kingpins. Since that time, the death penalty has been sought against 36 defendants. Four of those defendants have been white, 4 have been hispanic, and 28 -- 77 percent -- have been black. The fact is, in certain jurisdictions, a nonwhite person is more than four times as likely to receive a penalty of death for committing a heinous crime than a white person. In those same jurisdictions, defendants who have killed a white victim are far more likely to receive a penalty of death than those who have killed a non-white victim. This is not a matter of conjecture or opinion, it is a cold, hard, disgusting fact. The House of Representatives has taken action to address this disparity by including the Racial Justice Act in their crime bill. I think the Senate should be commending the House of Representatives, not condemning them. The Racial Justice Act makes it unlawful to carry out a sentence of death that was imposed on the basis of the race of either the defendant or the victim. In addition, the act will allow a defendant to challenge a death sentence by showing a pattern of racial bias in capital cases within the judicial circuit. The presumption can be met if a prosecutor shows, by a preponderance of the evidence, nonracial reasons for the penalties imposed in their courts. And the statistics must compare similar cases within the jurisdiction, and must take into account the aggravating factors in the cases being compared. The burden for collecting such data rests on the defendant. I would like to address, for 1 minute, what the Racial Justice Act does not do. Despite the claims of some opponents, the Racial Justice Act does not eliminate the capital punishment. Instead, it merely prohibits continued racial discrimination in the administration of the death penalty. So long as death sentences are imposed in a non- discriminatory manner, they will not be affected under the bill. In other words, this legislation will only affect those death sentences where, taking into account the brutality of the offenses, the prior records of the offenders and other nonracial characteristics, race is left as the determining factor in the imposition of the death penalty. The only way this legislation could completely eliminate the death penalty is if every death penalty was imposed based on discriminatory factors. Nor will the legislation invalidate the death sentences of every single inmate now sitting on death row. It is true that the legislation, as now written, applies retroactively. But Representative Brooks has clearly stated his intention to modify the provision in conference so that it applies prospectively only. Finally, I would like to address the argument that the Racial Justice Act will impose a quota system in the death penalty. Nothing could be further from the truth. If death sentences were handed out on the basis of quotas, then they would by definition be handed down on the basis of race. That -- imposing death sentences on the basis of race -- is exactly what this bill is designed to prevent. Opponents of the Racial Justice Act like to point out the fact that the Supreme Court, in the case of McCleskey versus Kemp, held that courts could not accept evidence of discriminatory death sentencing patterns to prove the purposeful racial discrimination necessary to make out a claim under the 14th amendment. And that is true, the court did just that. But what opponents don't point out is that Justice Powell, at the end of his majority opinion, stated that evidence of discrimination in the death penalty was, and I quote, "Best presented to the legislative bodies," who could develop the appropriate solutions. That is what the Racial Justice Act represents, the appropriate solution to the problem of discrimination in the imposition of the death penalty. Just as Congress has allowed the use of statistics to prove housing discrimination or employment discrimination or voting discrimination, the Racial Justice Act allows the use of statistics to prove discrimination in the handing down of death penalty sentences. Every civil rights law in modern times has allowed the use of statistics to prove discrimination. Shouldn't we in Congress extend that protection to those whose lives are quite literally on the line? Mr. President, I know the conference on the crime bill is going to be a very difficult process. Not everything that we put in the bill in the Senate will stay in the bill. Not everything that was inserted in the House of Representatives will remain in the final bill. But it seems to me that if there is anything Congress must agree on, it is the requirement that death penalty sentences be handed down in an unbiased manner. That is what the Racial Justice Act is all about. Mr. President, I voted for the crime bill which, among its other provisions, vastly expands the death penalty. I am a former Federal prosecutor. I come from a law enforcement family, and I am as concerned as any American about the violence in our society and people who commit heinous crimes. And I am as concerned as any American that punishment for violent crimes be appropriate for the severity of the act. Despite all that, Mr. President, I have to ask the question this afternoon, how can anybody be against racial justice in the application of the death penalty? How is it possible for someone to say "I fully support killing people based on their color?" How can anybody stand on this floor and say "It does not matter to me that there is a long history of inequitable application of the death penalty based on color and I am for that history. I do not want to recognize what the facts and the truth and the statistics clearly show us." Mr. President, I am shocked. I have to restrain the emotion of my remarks this afternoon because the amendment offered by the Senator from New York is so shocking. I cannot believe that he would propose that we dispense with racial justice in the application of the death penalty. And that is what this amendment is about. It is not about crime. Criminals who are sentenced to the death penalty in a fair and nondiscriminatory manner ought to get it. Frankly, I do not personally support the death penalty, even though I voted for this crime bill with all the new death penalties in it. But I think it is a fair statement to say that the issue we are debating today is not about crime, but is instead about racial justice. Mr. President, I say to you that the sole issue raised by the amendment of the Senator from New York is whether we as a society are prepared to say that we are as opposed to racial discrimination in the application of the death penalty as we are to racial discrimination in housing, racial discrimination in public accommodation, racial discrimination in education, and racial discrimination in employment. The Senator from Delaware was very eloquent in discussing what this amendment really does. All it says is we are going to apply the same rules when we decide to take someone's life as we do when dealing with housing discrimination issues, employment discrimination issues, and education discrimination issues. We are going to use the same rules. This is not new. This is not rocket science. It says we have made a commitment to the elimination of apartheid in the United States. Mr. President, between the Senator from Delaware and the Senator from Massachusetts I think the issue is clear. That is what this is about. This is not a vote about crime; this is a vote about color. This is not a vote about the death penalty; this is a vote about whether we are going to have apartheid in America or not. Curiously, Mr. President, I was sitting before the debate started trying to make a list for myself. I am going to the inauguration of Nelson Mandela in South Africa next week, and I have to tell you, I cannot describe to you the pride and the hope I feel now that South Africa is leaving behind its history of apartheid and racial injustice and coming together to build a new South Africa. I am going to get to attend the inauguration of this great freedom fighter as President of South Africa. But, Mr. President, I have to tell you it is really stunning to, on the one hand, make a list to go to South Africa, to see the dawn of a new day in South Africa, and then, on the other hand, to come here and listen to my colleague from New York saying it is perfectly OK to kill people because of their color. To hear my colleague from New York say we are not going to worry about racial discrimination in the application of the death penalty, that it does not bother us that the statistics from the GAO and everybody else who has even examined this issue positively state there is a disparate impact in the application of the death penalty based on color, based on race. Mr. President, I have to almost suspend disbelief that I am going to South Africa to see a new day dawning, and I see someone here in the U.S. Senate say we are just going to ignore altogether reality; we are going to pretend this is not a problem, and we are not even going to extend to people -- criminals albeit -- who are subject to the death penalty the kind of protection against discrimination we extend to someone trying to rent an apartment. Mr. President, I have to tell you it is beyond shocking. What does it say about us as a nation that South Africa, the last bastion of legalized apartheid, is turning the page forward, and we are turning the page back? I just cannot understand how somebody can be for racial justice in the application of the death penalty and against title IX of the Racial Justice Act. I would like to respond to my colleague from Washington State who said, "Well, I have never heard of racial discrimination in the application of the death penalty. Where did this come from? How did this novel idea arise?" First off, Mr. President, it is counterintuitive for anybody, knowing what our history is and how far we have come in getting past that history, to say, "I am not aware of any inequitable or differential application of the death penalty in the United States of America. Show me some statistics. Give me some specifics. What are their names?" Mr. President, here are some statistics about which there can be no argument. We can argue about opinion, but we cannot argue about facts. Our analysis, our evaluation of those facts may change, but the facts are what they are. To begin, Mr. President, look at the fact that 33 of the 37 defendants charged under the 1988 Federal death penalty law are black or Hispanic. Eighty-nine percent of people charged with capital crimes under the Federal death penalty law since 1988 are black or Hispanic -- in this country, not in South Africa. Eighty-nine percent are black or Hispanic, in a nation in which, by definition, people who are black or Hispanic are called minorities. If these statistics are not enough for you, let us examine some others. Janet Reno is a fine Attorney General, a person I absolutely support. But, Mr. President, in 10 of the cases in which the Justice Department has sought the death penalty since she has been Attorney General, all of them have been black, all 10 people. Now, you could say for a moment, "Well, OK. Let's see. Maybe because the only criminals that we can find that ought to get the death penalty are black ones." That, Mr. President, defies imagination. That, Mr. President, is the problem. That is why title IX was included in the House crime bill, to ensure that we at least get courts to examine these statistics and give people a chance to say, "Wait a minute. Hold on. The only people you could find to kill under this crime bill are black people or Hispanic people? Excuse me? Can we take another look at this? Can we see if, possibly, by some stretch of the imagination, my color and not the fact that I did something terrible might have something to do with this." Mr. President, it seems to me that is a small concession to make to the history, to the statistics that look like this. Let us talk about further statistics. My colleague from Washington says, "OK, give me some specifics." Mr. President, 77 percent of the death penalties imposed in Georgia's middle district circuit have been against black defendants. Now, in Georgia, 40 percent of the population is black. There have been nine death sentences in total. Out of those nine sentences for the death penalty, seven of them have been black people. That is 77 percent. I mean it almost defies the imagination that someone in this day and time could say, "Oh, I haven't got a clue that this might possibly be a problem in America; that we could conceivably have a racial differential in the application of the death penalty." Some more statistics. Philadelphia -- and my colleague from Pennsylvania is here, and I did not mean to hit on this, but this is one of the statistics I have in front of me. In Philadelphia, population about 20 percent African-American. Of the 26 death penalty sentences handed down by a single judge in that population, 92 percent of them were against African-Americans. Do you want some more statistics? I do not want to just pick on the South. But Alabama's population is 25 percent African-American, and yet 43 percent of its 117 death row inmates are black; 43 percent. More startling is the fact that 70 percent of all people executed in Georgia since the resumption of capital punishment in the 1980's have been black. But, Mr. President, I think the really interesting statistic, and one that goes beyond whether or not people are themselves picked on because of their color -- and this puts another spin on it that the Racial Justice Act also tries to address -- is that the single most important determinant of whether an individual gets the death penalty is not just the race of the criminal, the single most important determinant, Mr. President, is the race of the victim. The race of the victim seems to play a larger role in the imposition of the death penalty than anything else. And so, let us use an example. If my assistant is killed by an African-American criminal, he or she is more likely to get the death penalty than if that person kills me. Now, this does not make a whole lot of sense to me. But that is what the statistics show us; that the life of an African-American victim seems to be valued less in our court system than the life of a nonminority victim. And so, we have the statistics, cutting both ways. On the one hand, the race of the criminal matters in the implication and imposition of the death penalty. But, guess what? The race of the victim also matters in the imposition of the death penalty. Now, I know that this is one of those issues that can inflame passions in people. And people who support the death penalty and want to see the folks sitting on death row fry are saying, "Well, you know, we are a little nervous about this." Senator Kennedy and Senator Biden made it clear: Nationwide, there are about 3,000 people on death row right now. If you want to see those folks put to death, that will still happen under the Racial Justice Act. Guess what? This legislation is not going to stop those executions. This legislation, as Senator Biden just said, is not going to be applied retroactively. And so if you have a specific person in your State that you want to see fried, guess what? The sentence is going to be imposed and we are going to pretend that we did not have this problem when he was sentenced, or she, as the case may be. We are going to pretend that. All that title IX of the House crime bill says is, "Wait a minute, since we are going to expand the death penalty and the crimes we can kill you over, we are going to see that you are treated fairly in terms of the issue of race." Mr. President, I do not see how anybody can be against being fair on the issue of race. I cannot. I am, in fact, stunned that anybody would say I am for racial injustice in the imposition of the death penalty. And that is what this, the amendment of the Senator from New York, says. "It does not matter to me. It does not matter to me if we have racial injustice in the imposition of the death penalty. Because, guess what, I am so anxious to get those old, lethal injections going, boys, I do not want to stand back and see the switch not pulled for another second. I have been waiting all these years to show that the death penalty works to protect the innocent in America. I am so eager for the imposition of the death penalty, by golly it does not matter to me if we fry another 33 black kids or Hispanic kids. It does not matter to me, Mr. President, because guess what -- when we go forward and we expand the death penalties, we are going to get some more of them to fry." I find that conclusion to be absolutely shocking. I cannot imagine that my colleagues are going to come down in favor of killing people based on color. I just cannot imagine that. If we are talking about the crime, you know: "If you can't do the time, don't do the crime," I support that concept. Coming from a law enforcement family -- I do not have a problem with people being punished for their acts. In fact, I voted for this crime bill in spite of the fact that it expands the death penalty. I do not have a problem with people having a sincerely held belief that the only way we are going to stop heinous crime and stop the violence and stop the murder is if we reimpose the death penalty. Lord knows, they have been campaigning on the issue for years. Fine, so you won on that point. You won on that point. The death penalty is back in the law. But how can you argue with making it fair? How can you argue with a racial justice act? How can you argue with statistics like this that say, "Guess what, we might have a problem and need to look at it. And guess what, we are going to put in a procedure that lets you look at it in the same way you look at housing discrimination, discrimination in employment, discrimination in education. If we are going to vastly expand the death penalty, we ought to have an opportunity to look at it the same way we do other kinds of discrimination." That is all that title IX does. So I have every hope that this issue can be worked out. It must be worked out. People who support the death penalty do not want to see it applied in a discriminatory way. People who support the death penalty do not want to see racial injustice in its application. And people who support the death penalty, I believe, will want to provide some mechanism for ensuring that the evil of racism does not infect this process. We do not want to be a society in which people go to their death because of their color and not what they did. We do not want to be a society like that. We want to be a society in which somebody of one race who commits a capital crime is going to be punished on the same basis as somebody of another race who committed that same crime. That is the essence of what we are trying to achieve as a country. Unfortunately, that has not been our history. There is nobody in this room or in this world, frankly, who does not know it. But we have come so far -- we have come so far it just boggles the mind that we would turn the page back and say we are for racial injustice when it comes to the death penalty because we are so anxious to fry these people because they have been taking up too many tax dollars on death row. That is what this amendment says. That is what this amendment says. I have never supported the death penalty, even when I was in the State legislature. I just do not. I just have a problem with the whole idea of the State executing somebody. But I certainly understand, given the cries for crime control out of my community, why the death penalty was expanded in this legislation. Do you know what? Because of the community policing and the prevention efforts and other benefits in there, I said, OK, I will hold my nose on the death penalty part because, guess what, there is a racial justice act eventually going to be part of this. We had a commitment it was going to be part of it when the amendments went on here in the Senate. I said to myself, "I know it is going to be OK. I know there is a problem now, but it is going to be OK because the people in this Congress are committed to fairness. The people in this Congress stand up for racial justice. And the people in this Congress do not want to send a signal to the States, to the prosecutors all over this country, that it is OK to prosecute differently based on the race of the perpetrator or it is OK to prosecute differently based on the race of the victim." The people of this Congress should know better, care more, have better sense and certainly higher morality. And even though they may support a death penalty -- and we may disagree about that -- on one thing we must be together. This is the United States of America, this is not the old South Africa. And we have turned the page in terms of racial discrimination. We are overcoming discrimination, overcoming America's system of apartheid. We have not gotten there entirely. It would be dishonest to suggest that we have. But we are trying and we are moving in the right direction. Then on something as profound as putting somebody to death, we are going to take three steps back? I do not think so. Mr. President, I will provide a copy for the Record of this report for the edification of any of my colleagues who want to see it: "Racial Disparities in Federal Death Penalty Prosecutions, 1988 to 1994." It is from the House side. I ask unanimous consent it be printed in the Record. Mr. President, I think maybe sometimes people do not have the perspective to think about how initiatives here in the Senate may have a ripple effect out in the rest of the world. Vaclav Havel -- I am fond of quoting the former President of Czechoslovakia -- talks about what he calls the butterfly effect. He said it is the notion that everything is so -- and I am quoting as best I can without a copy -- but it is the notion that everything in this world is so interconnected that the wave of a butterfly wing can unleash a typhoon of change in another part of the world. So I really call on my colleague, the Senator from New York, to take a look, a serious look, at what he is doing here. His motivation may be we do not want to hold up a process that we have been fighting for so long. If he is anxious on that score, I am sure he can be accommodated by whatever happens. But what he is doing here with this amendment is wrong. This amendment is a vote in favor of the worst elements -- the worst elements in our society. And to talk about the butterfly effect -- if anything, this amendment has a butterfly effect I think that will shame -- and I do mean shame -- all of America. We have, I think, an obligation to be better, to be more. At a time when there is an inauguration of a President of South Africa and the first multiracial election there, for us in America to take a step backward on so highly visible and highly emotionally charged a matter as the imposition of a sentence of death, I think would be most unfortunate and would have a negative effect, a regrettable effect on a lot of fronts that we would not want to see. So, while this seems like a small, almost technical amendment, I say to my colleagues and I say to the Senator from New York, take a good look at what this really means and what it portends for our society as a whole to stand up and say we are for racial injustice in the administration of the death penalty. It says a lot more about what we should not be and where we used to be than it does about where we are going to be, where we can be, and what we can be. I hope that while the technicalities of the amendment having to do with retroactivity can be worked out in conference -- Senator Biden has made a commitment on that score -- that we can reach a consensus, reach some kind of agreement so as to meet the concerns that some of the many Members who are supporters of the death penalty may have. At the same time to take racial justice out of the crime bill, I think, makes the crime bill say things about America that none of us want it to say. I thank you and I yield the floor Mr. SPECTER addressed the Chair. The PRESIDING OFFICER. The Senator from Pennsylvania is recognized. Mr. President, I believe that the focus of the American judicial system is on the individual, and I am convinced that the appropriate standard for the American criminal justice system is to focus on the individual, the charge which has been leveled against the individual, the nature of the offense -- if, as and when proved -- and the background of the individual. Sentencing is not a matter for statistical determination because I do not believe that statistics really bear on the underlying meaning or equities of the case. In my experience as an assistant district attorney and then as district attorney of the City of Philadelphia, the total of which was more than 12 years, I became convinced that the death penalty was an effective deterrent against violent crime. I saw many cases where professional burglars would not carry weapons for fear that a killing would result in the course of a burglary and that individual would face a first-degree felony murder charge. Similarly, I saw cases where young hoodlums would not carry guns on robberies because they, too, feared that a killing might result in the course of the robbery and there would be a first-degree murder charge. In the early sixties, when the death penalty was being carried out, Mr. President, I believe that it did have a deterrent effect on violent crime. But what has happened as of this year, 1994, with some 2,800 individuals on death row and 38 applications of the death penalty last year, is that there has been a serious erosion of the deterrent effect of capital punishment. I agree totally with the Senator from Illinois that there has to be racial justice in America. That is the cornerstone of our system. When I was district attorney of Philadelphia, I refused to allow my assistants to question jurors on any item that related in any way, shape, or form to race, and had an office policy against striking African-Americans from juries on peremptory challenges. For those who do not know, a peremptory challenge is a challenge that can be made by either side against any potential juror without any cause shown. Under Pennsylvania law, there are 20 peremptory challenges available. Long before the Supreme Court of the United States ruled that it was unconstitutional to strike jurors on the basis of being African- American, or any race, I adopted a policy in my office to prohibit that. There have been necessarily and appropriately very substantial restrictions on the application of the death penalty. In 1972, in the case captioned Furman versus Georgia, the Supreme Court of the United States struck down the death penalties in all States on the proposition that the death penalty could be constitutionally imposed only if there was consideration by the jury of aggravating circumstances and mitigating circumstances. It could not be left to the unchanneled discretion of the jury, to any generalized principle or any possibility of speculation. Instead, there had to be a specific enumeration of what constituted the aggravating circumstances, the coldheartedness, the callousness, the act of the killing, the background and the record of the defendant, and on the mitigating circumstances, for example any impairment of mental acuity or any background of other impairment had to be considered. We have made substantial strides on the adequacy of counsel since the 1960s. I think adequate trial is an indispensable element in a fair and just application of any criminal sanction. But if death penalty cases turn on a statistical analysis -- and there are many statistics which are available on this subject and many of the statistics which are quoted are erroneous -- for example, Philadelphia does not have an African-American population of 20 percent, it is more than double that. To pick out a single judge and say that 92 percent of the death penalties handed down by that judge are against minorities is not really a telling factual matter as to what kind of cases that one judge had. When you take a look at crime in America today, there is no need for any extended discussion about the seriousness of crime in this country. There is no serious need for a discussion of the imperative nature of the Congress acting on this subject. The Congress has indicated its will on the Senate side with more than $22 billion and on the House side with some $28 billion to combat crime. There is a consensus in America, not only reflected in the votes in the Congress, with more than 70 percent of this body in favor of the death penalty, but in the percentage of the American people who believe that the death penalty is an effective deterrent. So much of the debate on this statistical analysis -- and I do not call it the Racial Justice Act because that is another illustration where Senators who introduce bills and put titles on bills which argue a characterization or argue a conclusion. I take second place in this body and on this planet to no one in terms of my commitment to racial justice. If there is ever any element of a question about racial justice, I am among the first to question it. But what this proposal does is to say that there has to be some finding where there is a disproportionate share of one group or another that raises a question about the fairness as to what has gone on in the trial. I submit, Mr. President, that is not sensible or logical or in accordance with our American tradition that each individual should be judged on his or her own, and that each case should be judged on its own merits and what happened under the particular factual circumstances and what is the background of the individual defendant and victim. Only in this way, focusing on the facts of each individual case can we have a fair judicial system in America. We have rejected racial quotas on all categories -- from admission of Jewish students to law schools and medical schools to an arbitrary definition as to how many of one group or another will be entitled to jobs, because Americans are opposed to the quota system and we are opposed to controlling people's lives by statistics. We are committed to a principle of individualized justice, and I think that is the only way that the system can work. I became convinced about the deterrent effect of capital punishment on many, many cases which I saw as a prosecuting attorney, and one is worth a moment or two. It was a case that I handled in the Supreme Court of the Commonwealth of Pennsylvania back in the early sixties, and it involved three young hoodlums named Williams, Cater, and Rivers, ages 19, 18, and 17. The two younger men, Rivers and Cater, saw a gun that Williams had and Cater and Rivers said: "We're not going along on this robbery if you carry a gun." How do we know that? We know that from the confessions of all three shortly after the incident occurred. Williams put the gun in the drawer, slammed it shut and, as they all left, unbeknownst to Cater and Rivers, Williams pulled the gun out, stuck it in his pocket and they went to a grocery store in north Philadelphia for a robbery. And there was a scuffle, and Williams pulled the gun and murdered the druggist. All three of those men were sentenced to death. I argued the case in the Supreme Court of Pennsylvania which upheld the death penalty. Ultimately, the two younger men, Cater and Rivers, had their death sentences commuted, that is, changed. I was district attorney at the time of the commutations, having been elected in 1965, and I took the position that they ought not to receive the death penalty even though as a matter of law they were equally guilty with Williams, having been coconspirators in the event. But it was my view that they did not have the same degree of culpability or intent that Williams did. One thing about criminal law that people need to understand, is that if a number of people join together in an offense and have a conspiracy, each one of them is liable for everything that the other one does. So that if you are in a robbery/murder and you do not pull the trigger, you are still liable for the murder. And if you are in a robbery/murder and you went along on the judgment that there would not be any gun taken along but one was taken, you are still equally responsible. While I support the death penalty, I have long believed that it has to be scrupulously, meticulously and carefully applied. In a day long before Furman versus Georgia, long before the kind of focus that is present today, my sense was that there ought not to be the death penalty for Cater and Rivers because they did not know that the gun was being taken along, just like I felt as an intuitive matter that African-Americans ought not be stricken from juries by peremptory challenges because of their race. Mr. President, I think what this disagreement really focuses on is those who are for the death penalty and those who are against the death penalty. I appreciate the conscientious and moral scruples of those who oppose the death penalty, and I understand their considerations and I respect them. But there has been a judgment made in the pending crime bill for the death penalty, and there has been a judgment made by 37 States in the United States to have the death penalty carried out. I believe that it is an effective deterrent, and I think it ought to be carried out again in a very, very selective number of cases. During my days as district attorney of Philadelphia, with the 500 homicide cases which we had a year, I would not allow an assistant to ask for the death penalty in any case without my own personal in-depth review to see what ought to be done. Mr. President, the reality is that the Congress has not moved with real vigor in the whole field of death penalty application because we have stripped from this bill the so-called habeas corpus reform, and that is the reform which would focus on the Federal court appeals which involve tremendous delay. At the present time, the average case takes 9 years after the death penalty has been imposed before it is carried out, and some cases last as long as 17 years. I have introduced legislation which I brought to the floor to provide a procedure which would safeguard the rights of the defendants but would eliminate technicalities in habeas corpus procedures so that a constitutionally determined and imposed death penalty would be imposed promptly and in a meaningful way, because no deterrent is meaningful unless it is swift or certain. Regrettably, the Senate rejected that approach because many on one side did not want the death penalty at all, and many on the other side opposed my amendment because they did not like its provisions as to what is called retroactivity. That is where you take a new rule where it is a fundamental rule and apply it to pending cases. I am at an absolute loss as to how we could have any just provision of law on the death penalty which would not be retroactive. The arguments have been made in the Chamber today that this statistical provision under debate will not be retroactive. That is the kind of compromise which appears to me to be totally unjustified. When you are talking about the death penalty, if there is some principle of law which precludes its application to any case, a case in the future, it is just unconscionable not to have it apply to cases which are pending, if it is a meaningful principle of law. I suggest, Mr. President, that the willingness to have this statistical proposal apply only in the future, prospectively, is more than a compromise. It is really a concession that these cases really ought to be judged on their individual merits and not on any statistical analysis. So for these reasons, Mr. President, being firmly committed to individualized justice in this country, I believe that we should move ahead in a rational way, utilizing every legitimate weapon at the disposal of law enforcement, one of which is the death penalty, as sanctioned in some 37 States -- seeing to it that there is adequate counsel, that there is an effective day in court for all the issues to be raised and decided, and that appropriate death sentences are carried out where the act and the actor warrant it, without any complex statistical analysis which really does not bear on what happened in any case and which would destroy a very fundamental principle of American justice which is individualized justice. Mr. President, a number of my colleagues have spoken this morning in favor of the Racial Justice Act which was included in the House version of the crime bill. Whether you favor or oppose the death penalty, all fair and right thinking people believe that a person's race should not determine whether someone is sentenced to death by the State. But despite our desire for a fair judicial system, the evidence that the death penalty is applied in this country in a racist manner is overwhelming. A 1990 GAO report documents a long standing pattern of racial discrimination in the charging, sentencing, and imposition of the death penalty. This discrimination takes two forms. One kind is based on the race of the victim, and the other is based on the race of the defendant. The report stated that since 1976, when the Supreme Court allowed the death penalty to be reinstituted, 85 percent of the executions involved the killing of a white person. Only 11 percent of the executions involved the killing of an African- American and these only occurred where the defendant was also black. During this period only one white person has been executed for killing an Afircan-American. This GAO report reflects what is an unfortunate fact of life in America. Our Criminal Justice System does not value the life of an African-American as highly as it values that of a white. On the Federal level, a recently released report by the House. Subcommittee on Civil and Constitutional Rights tracks prosecutions under the Federal death penalty provisions of the Anti-Drug Abuse Act of 1988. The report reveals that 89 percent of the defendants selected for capital prosecution have either been African- or Mexican-Americans. Increasingly, all 10 of the defendants most recently approved for Federal capital prosecutions have been black. What does this say about our sense of justice about the quality of justice in America? The Racial Justice Act will help to eliminate racial discrimination in capital cases. It allows defendants to challenge only their death sentence, and not the underlying conviction. In other words, it does not have to do with whether the defendant is guilty or not guilty. It just gives the defendant the right to challenge the death sentence itself. To obtain relief under the act defendants must offer evidence of two things. The first is statistical evidence of a consistent pattern of racially biased sentences in death penalty cases. The second is that their own death sentence fits this discriminatory pattern. The defendant and not the State bears the burden of collecting the statistical evidence. This evidence must compare the sentences in similar cases and take into account any aggravating factors. For example, an African-American defendant cannot get relief under the act by simply showing that blacks get the death penalty more frequently than whites. Rather, the defendant must show that blacks get the death penalty significantly more frequently than whites for the same type of offenses and aggravating circumstances. If the court finds that there was discrimination in imposing a death sentence, the defendant would either be resentenced to death, but under a nondiscriminatory scheme or sentenced to life imprisonment. In an attempt to defeat the Racial Justice Act, some of its opponents have used inflammatory rhetoric and claimed that the act amounts to a quota bill. Clearly, the Racial Justice Act does not require compliance by the adoption of racial quotas. Rather, it urges States and prosecutors to eliminate the use of race in capital cases by adopting nonracial standards for bringing death penalty cases. The Racial Justice Act will help to ensure that similar crimes receive similar sentences. I urge my colleagues to support it. I would like to point out, Mr. President, that over a period of years, many of us on this floor have opposed capital punishment, many of us have felt very strongly about it, in addition to other reasons, the fact that capital punishment has been so unfairly meted out to African-Americans as compared to whites. Realistically speaking, there is no question about it. The evidence is irrefutable that blacks have paid a higher penalty with respect to the death sentence than have whites. It is not fair. It is not right. This is a country that prides itself in its sense of justice. And I think that if we really intend to be just, then it is imperative that we support inclusion of the Racial Justice Act in this legislation. Mr. President, my position on the death penalty is well known. But, even if I were an ardent supporter of death sentences, I would be extremely concerned that the Government apply this punishment in an evenhanded manner. This is the least that we must demand, regardless of our position on the death penalty. This is why I oppose the sense of the Senate amendment calling for deletion of the Racial Justice Act during conference committee action on the crime bill. Each time that we discuss death penalty issues, we hear stories of brutal cold blooded murders. These are horrible crimes and should be punished severely. Spending one's life in prison without possibility of release is severe. But, this is not the issue today. If we must have this gruesome State sponsored killing -- and I do not concede that we must have it -- the very least we can do, the absolute minimum we should do, is ensure that the punishment is not being used in a racially discriminatory manner. In fact, I believe that we might take an even broader approach. I believe that the death penalty has been applied disproportionately upon the poor of all races because they do not have the resources to adequately defend themselves. Perhaps on another occasion we will examine whether discrimination based upon economics also should be considered in death penalty cases. This issue cuts to the heart of one of the fundamental reasons that the death penalty has been questioned by those who are very experienced in its application. Why do some people get killed by the State for committing the same crime that causes others to receive prison terms? How can we make sense of this? Justice Blackmun's recent description of the death penalty as "fraught with arbitrariness, discrimination, caprice, and mistake" has become well publicized for good reason. He has struggled with these issues personally on the Highest Court in the land for 24 years. According to a recent House subcommittee report, 89 percent of death prosecutions under the Anti-Drug Abuse Act of 1988 have been against African-Americans or Mexican-Americans. The last 10 Federal death prosecutions have been against black defendants. In addition, a GAO report in 1990 showed serious racial disparities in death sentencing. These frightening statistics do not necessarily prove discrimination. They do, however, cry out for an explanation. While raw numbers of prosecutions brought against a particular race do not prove discrimination, comparisons of factually similar cases can prove it. This is the statistical proof required under the Racial Justice Act title of the House crime bill. Allowing proof of discrimination in death penalty cases does not eliminate the death penalty. And, it will not impose a quota system. It only attempts to ensure that we will not allow the State to kill based upon race. The imposition of death is a decision that cannot be undone. The least we can do is make sure that race is not a factor in making the horrible choice to ask for the death of another human being. Mr. President, I yield the floor and in the absence of any other Senator on the floor, I suggest the absence of a quorum. The PRESIDING OFFICER. The absence of a quorum having been suggested, the clerk will call the roll. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered.