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Mr. Barry Sabin
June 27, 2007
Statement of Barry Sabin
Thank you Mr. Chairman and Members of the Committee. I am pleased to appear before you today to testify about the Department of Justice's implementation of the Federal death penalty statutes. The Justice Department relies upon rigorous procedural safeguards and highly experienced personnel to ensure a uniform decision-making structure that is respectful to victims and defendants.
In connection with my testimony today, I will emphasize the paramount importance the Department attaches to the review of capital cases and key elements that define this review process. These elements are: (1) the capital case review process is centralized and the decision in every case is ultimately made by the Attorney General of the United States; (2) the review of a capital matter is designed to respect the Federal law; (3) the review of a capital matter treats each defendant as an individual, even as it evaluates the case within a national framework; (4) discrimination and bias play no role in the capital review process; and (5) each review of a capital matter respects victims' and defendants' rights.
With the goal of fair and consistent application in mind, in June 2001, the Justice Department implemented a revised protocol (hereinafter protocol), which further harmonized the capital review process. This protocol for Federal death penalty case review appears in Title 9-10.000 of the United States Attorneys' Manual. Under this United States Attorney Manual provision, the Department instituted policies and procedures to ensure that the government fairly and consistently seeks the death penalty in cases with appropriate factual support for potential death verdicts.
Recently, the Department has focused on expediting the review of certain categories of offenses for which a decision to seek the death penalty is highly unlikely and on facilitating and encouraging timely submissions through centralized monitoring of potential capital cases. These revisions to the protocol will further ensure fairness and address the concerns expressed by the Federal judiciary about the cost of providing counsel with capital expertise during the review process. In addition, by encouraging timely submission of cases for review, the revisions reduce the need to delay judicial proceedings to accommodate the review. The proposed revisions will clarify existing procedures, create mechanisms to more closely manage cases, and expedite decision-making for certain categories of cases in which the Justice Department will not likely seek the death penalty.
II. Capital Case Review: Personnel and Process
The Committee is drawn from the United States Attorneys' Offices, the Criminal Division, and the Office of the Deputy Attorney General. Committee members are selected based on their experience, abilities to synthesize facts and to fairly and uniformly evaluate arguments regarding the application of the Federal death penalty statutes. The Committee has no policy-setting function and only gathers information as required to fully consider individual cases.
The relatively small size of the Committee helps ensure fairness and consistency in the application of Federal death penalty laws. The Committee has two standing members, a Deputy Assistant Attorney General or other senior attorney experienced in capital litigation from the Criminal Division and the career Chief of the Capital Case Unit. Additional Committee members are assigned on a rotating basis from two pools. The first pool includes selected attorneys in the Office of the Deputy Attorney General; the second pool includes Assistant United States Attorneys with capital trial experience from approximately half a dozen United States Attorneys' Offices around the country. One representative from each pool is named to the Committee for every case.
The Committee meets to consider every case for which the U.S. Attorney requests authorization to seek the death penalty and every case in which, based on the U.S. Attorney's protocol submission and an analysis prepared by an attorney in the Capital Case Unit, an assigned Committee member requests a conference. Under the United States Attorney's Manual provision, United States Attorneys' Offices submit all potential death penalty cases for review by the Committee. The Committee's central role and national perspective further the Department's goal of fairly and uniformly administering the Federal death penalty.
B. The Justice Department Review Procedures For Capital Cases Are Transparent, Thorough, and Uniform
The Department designed its death penalty review process to ensure the fair and consistent application of the nation's capital sentencing statutes. The Department strictly adheres to this protocol because of the unparalleled degree of transparency it affords to the reviewing attorneys and the attorneys litigating for both the government and the defense. Such openness optimizes the quantity and quality of information available to the officials who recommend or decide whether the government will seek the death penalty in any given case. In every potential capital case, the Committee recommends to the Deputy Attorney General and the Attorney General whether to seek the death penalty, but the final determination rests solely with the Attorney General.
2. The Review Process is Race and Ethnicity Neutral
The Department of Justice September 2000 Statistical Survey noted that there was no evidence that any U.S. Attorney's office had engaged in discrimination or bias in charging decisions. Following this statistical study, the Justice Department contracted the RAND Corporation to undertake further analysis of the Justice Department's capital case statistics. In 2006, the RAND Corporation published a Technical Report that concluded that decisions to seek the Federal death penalty through 2001, "were driven by heinousness of crimes rather than race."
3. The Committee's Decision-Making Process and Defense Counsel's Participation
When the Committee convenes a conference, its recommendation is determined by majority vote. The recommendation and the supporting rationales are set forth in a memorandum prepared by the Capital Case Unit and circulated to the Committee for approval and revisions. Dissenting Committee members have discretion to include the minority viewpoint in the memorandum, which, in all events, summarizes the defense position and any Committee responses. The Committee memorandum, the U.S. Attorney's submission, all defense submissions, and any other pertinent documents are forwarded to the Deputy Attorney General and the Attorney General. The review is based on all the available pertinent documents.
The death penalty protocol also advises the United States Attorney to consult with the family of the victim concerning the decision whether to seek the death penalty and to include the views of the victim's family concerning the death penalty in any submission made to the Department. The victim's family is notified by the U.S. Attorney of all final decisions regarding the death penalty.
4. Participation of the Deputy Attorney General and Attorney General
As previously noted, the Committee's recommendation memorandum, the U.S. Attorney's submission, any defense submission, and any other pertinent documents are forwarded to the Deputy Attorney General and the Attorney General. The documents (such as the United States Attorney memorandum, the Committee memorandum, indictment, defense submissions, death penalty evaluation forms) are organized in an indexed "AG Notebook." The notebook is initially received by the Office of the Deputy Attorney General, where it is assigned to a staff member who did not serve on the Committee for the case. The staff member prepares a brief analysis and recommendation, which along with the AG notebook is forwarded to the Deputy Attorney General's Chief of Staff, who makes a separate recommendation to the Deputy Attorney General. The Deputy Attorney General's recommendation is also conveyed to the Attorney General in the AG Notebook. In the Attorney General's office, a staff member reviews the recommendations of the U.S. Attorney, the Committee and the Deputy Attorney General, and presents the case to the Attorney General. The Attorney General's decision is memorialized in a letter addressed to the prosecuting U.S. Attorney. The letter states whether the Attorney General has authorized the U.S. Attorney to seek the death penalty.
In an effort to secure fair and appropriate decisions in every case, the review process permits and encourages communication between the U.S. Attorney's Office and the reviewing officials within the Department. The Committee's recommendations are communicated to the prosecution team. Certain recommendations may prompt further discussion between the Committee and the prosecutors, who have a continuing right to supply the Committee with supplementary documents and information in support of their position. The process also permits a request for reconsideration of a recommendation to seek the death penalty at any time throughout the pre-trial and trial litigation. The U.S. Attorney's Office typically has multiple opportunities to present its position to the Deputy Attorney General and various members of his staff.
C. Capital Case Review Provides Each Defendant With Individualized Consideration, Even as it Permits Each Case To Be Assessed Within a National Framework
The review allows each potential capital case to be viewed in context of all other such cases, protecting against arbitrary decision-making. The review also ensures that individual characteristics are highlighted during this review; the Attorney General's decision turns on what the defendant has done and the relevant aggravating and mitigating circumstances. Factors that are arbitrary, such as race, ethnicity, gender, or religion, are not considered. In this way, the Justice Department is able to effectuate Congress's intent that the death penalty be sought against the worst offenders, while simultaneously respecting statutory and constitutional principles that all defendants must be given individualized consideration. In short, the Attorney General will not authorize seeking the death penalty against a defendant unless he believes that such a sentence is both authorized under Federal statute, and is consistent with constitutional principles.