John Whitehead's Commentary
A Giant Step for Compassionate Conservatism
If Kopp were to receive the death penalty under federal law and be executed by federal officials, it could be the first federal execution in over 40 years. That would only happen, however, if a group of concerned politicians lose in their battle to pass a moratorium on federal executions. They hope to delay such executions until the flaws in the current system can be addressed.
There are a number of reasons that a moratorium is a good idea, not the least of which is that it would save the FBI the embarrassment of having a high-profile fugitive captured but then not extradited by a foreign ally. Getting fleeing criminals back, however, is just the tip of the iceberg. As usual, the real danger in this issue lies below the surface. As with death row cases in state court systems, the federal death penalty system suffers from a severe racial imbalance. Of the convicts on federal death row, 79 percent are minorities. And in federal capital punishment cases, 72 percent of the defendants are minorities.
The U.S. Justice Department's own study, released late last year, concluded that federal prosecutors seek the death penalty against black defendants significantly less often when the victim is black, rather than white. Where the case involved a white victim, prosecutors sought the death penalty in 36 percent of cases. But where the victim was black, they sought it in only 20 percent of cases. These bare statistics, on their own, are not evidence that the system is defective. There could plausibly be other factors that weigh into each individual decision. But when the numbers are so skewed against minority defendants, it raises serious questions about the system. It also demands that Justice Department officials closely scrutinize their procedures to make sure that any possibility of racial bias is completely eliminated.
It only makes sense that while prosecutors engage in this process there should be a moratorium on any federal executions. If someone is executed and the system is subsequently found to be racially biased, it will be too late for that unfortunate inmate.
That's why Senator Feingold and a few of his concerned colleagues have introduced a bill to do just that. The official purpose of their legislation is "[t]o place a moratorium on executions by the Federal Government...while a National Commission on the Death Penalty reviews [its] fairness...."
But even if this bill survives Congress, it will have to receive the signature of President Bush. It's not clear what the new President would do, but one thing is certain--signing a federal moratorium would be an ideal way to illustrate his commitment to "compassionate conservatism."
Even if President Bush is convinced that the death penalty in theory is right, its application in the federal system clearly deserves closer scrutiny. A moratorium simply acknowledges the need for more justice, not less. And if compassion means anything, it means a baseline commitment to justice for all, regardless of race, color or creed.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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