Juan Garza is a different story. Most people have never heard of the 44-year-old marijuana trafficker who was convicted in 1993 in Brownsville, Texas, of murdering one associate and ordering the killings of two others. He was sentenced to death under a 1988 drug kingpin law. He also happens to be Hispanic, one of 17 minorities among the 20 (about to be 21) convicts on the Feds' death row.
Who's on first?
If you were John Ashcroft, who would you rather have at the head of the line as federal executions resume for the first time since 1963 Timothy McVeigh or Juan Garza? Unfortunately for the Attorney General, he really had no choice but to push back McVeigh's scheduled execution this month when the FBI turned up more than 3,000 pages of documents now make it 4,000 that hadn't been given to McVeigh's lawyers as promised before the trial. It's now set for June 11, and Ashcroft vows to give McVeigh no further extensions but the chances are good that the bomber's lawyers will go to court to seek more time to review the documents or ask for a new sentencing, either of which would almost certainly delay things further.
Which would move Garza up to the Number One slot, with a June 19 appointment in the death chamber. That would be, by the way, the same Juan Garza who was to be executed in December except that with five days to spare, President Bill Clinton postponed the event for six months so the Justice Department could further study racial and geographic disparities in the federal death penalty system. Last September, preliminary analysis showed that between 1995 and 2000, 70 percent of federal death penalty defendants were Latino or black. The study also found that a handful of the 94 U.S. Attorneys' offices accounted for 43 percent of the cases recommended for the death penalty. But there's been no word of the further analysis that Clinton and former Attorney General Janet Reno called for, and this week, Garza submitted an additional memo to support his Sept. 2000 clemency petition, asking that his sentence be commuted to life without parole in part because it's still unclear whether racism has played a part in federal sentencing patterns.
"We had a sense that they felt better about the first execution being Tim McVeigh rather than someone who raises systemic issues about the application of the federal death penalty," said Bruce W. Gilchrist, one of Garza's lawyers. "McVeigh is less likely to be a lightning rod."
An unenviable choice
The circumstances are not ideal for Ashcroft. The former Missouri senator has had his share of tough breaks since taking office, including the late-inning discovery of the McVeigh documents and the revelation that a spy had operated inside the FBI for 15 years; his report card internally is mixed as well, with many department lawyers disturbed by his inaccessibility, his criticism of some line lawyers and his daily 8 a.m. prayer meetings.
But the Garza problem reawakens a perception that Ashcroft has worked to overcome since taking office: that he is insensitive to minorities and racial issues. The biggest issue during his stormy confirmation hearings was his campaign, as senator, against a federal judgeship for Ronnie White, an African American. Since taking the helm at DOJ, Ashcroft has announced a series of minority appointments his deputy, who just took office, is black, for instance and said two of his top priorities are racial profiling and voting rights. Is there any clearer example of racial profiling than the fact that in every case from 1988 to 1994 in which the federal death penalty was sought in Texas, the defendant was Hispanic?
Garza raises another significant issue in his clemency petition: The fact that the jury in his case was not told that they could sentence him to life without parole. Gilchrist said that Garza is the only inmate on federal death row for whom that is true, and the U.S. Supreme Court has weighed in, in other cases, in favor of specific life-without-parole jury instructions. But while that may be an interesting legal question, it is the racial disparity question that is most compelling.
Fair, just, and sure?
Justice Department spokespersons say that they expect some information about the continuing analysis of the system to be made public in early June. Presumably that would involve material that was requested from federal prosecutors around the country about their death penalty decisionmaking. But the other part of what Reno and Clinton asked for, an outside study to be done by the National Institute for Justice, has not begun and has not even been put out for bid. "You need to go deep and look at the whole way cases get picked for federal prosecution," said David Bruck, an attorney who assists lawyers in federal capital cases. "Why are they almost all minority defendants?"
Releasing any new information a week or two before Garza is slated to be put to death "wouldn't give us much time," said Gilchrist, to process the findings and do anything with them in court. "It's enough so they could say that it wasn't right at the last minute, but not enough to really do much with the information."
During his confirmation hearings, Ashcroft, a death penalty supporter, noted that "the fair, just and sure administration of the federal death penalty requires that it be applied completely free of racial bias." Does that mean Garza's execution, too, might be postponed?
"We're aware of his execution date," said DOJ spokesman Susan Dryden. "We're keenly aware of that and of the concerns there."