Death Penalty Dispute Shadows New Crime Bill

State attorneys general join GOP in opposing tests for racial bias

WHEN the House of Representatives votes this week on a $15-billion crime bill, lawmakers will be grappling with two of the most sensitive topics in America today - race and murder.

In response to a public outcry about violent crime, the wide-ranging legislation, H.R. 4092, contains several popular provisions. It includes funds to hire more local police, extension of the death penalty to over 60 federal crimes, and life imprisonment for violent criminals.

Yet those ``get tough'' measures have failed to quiet critics. An alliance of Republican lawmakers and state and local law enforcement officials is fiercely resisting the crime package, as now written. Dan Lungren, a former Republican congressman who is now attorney general of California, says bluntly that if this law passes unchanged, it ``would sound the death knell for the death penalty in my state.''

Newman Flanagan of Boston, executive director of the National District Attorneys Association, explains that convicted murderers are already able to extend legal appeals for ``an entire lifetime.'' This crime bill will make it even more difficult for states to carry out executions, he says.

Rep. Henry Hyde (R) of Illinois says two subtitles in the legislation, ``habeas corpus reform'' and ``racial justice act,'' will ``effectively prevent the states from carrying out the death penalty.''

The racial justice act would bar the execution of prisoners, state or federal, who can show that their conviction was based on racial discrimination. To prove discrimination, the act would permit convicted killers to use statistical evidence to show that there is a pattern of discrimination against a particular race.

For example, 89 percent of the defendants selected by federal officials for capital prosecution under the Anti-Drug Abuse Act of 1988 have been either black or Hispanic. Under the racial justice act, proponents say, such statistics could be cited to prove that American capital punishment laws are unfairly tilted against minorities.

Rep. Don Edwards (D) of California, chairman of the House Judiciary Subcommittee on Civil and Constitutional Rights, says the Racial Justice Act is really a civil rights act. It allows any defendant to protest to a judge when the death penalty is being enforced disproportionately against a particular racial group.

Proponents point to Bay County (Panama City), Fla., where blacks comprise 40 percent of the population. From 1975 to 1987, a federal study found that prosecutors there sought the death penalty only in cases when the victims were white.

Similar patterns are found in some other localities, but Representative Edwards says the act is aimed primarily at four states with a record of capital prosecutions of minorities: Texas, Alabama, Georgia, and Florida.

Rep. Craig Washington (D) of Texas, who supports the bill, says the long-term goal is to at least give defendants ``a fair trial before we hang them.'' He says that, too often, states like Texas provide only minimal legal help to minority prisoners facing execution. Jurisdictions offer as little as $400 for lawyer fees and only $500 for research and investigation by the defense. ``You are talking about poor people,'' he says. ``It's a class struggle.''

The crime bill would increase funding for defense of indigents by mandating reasonable expenses and insisting that state prisoners have competent attorneys. Attorney General Lungren protests, however, that the bill could add as much as $1 million to the cost of a murder trial. Even more troubling to some critics of the crime bill is the provision on habeas corpus, which Hyde calls ``a galloping leap backward from current law.''

Habeas corpus reform would permit certain death row prisoners to file new appeals any time the US Supreme Court issues a ``new rule of law.'' Currently, federal courts cannot apply a new rule retroactively.

Attorney General Grant Woods (R) of Arizona calls this proposal ``ludicrous.'' Already, death row prisoners are jamming the courts with habeas corpus actions. Arizona has one prisoner who has used legal maneuvers to delay execution for 29 years. ``The system today in most people's minds is a joke,'' Mr. Woods says.

Edwards, who supports the measure, insists that habeas corpus reform would have the opposite effect. With better attorneys and more clear-cut procedures, the reform would cut short the appeals process and permit the pace of executions to speed up, he says.

But Attorney General Lungren, Congressman Hyde, and other critics insist that just the opposite would be the case - that cases that now drag on for five, 10, or 20 years will now be even longer.

``Justice delayed is justice denied,'' complains Attorney General Frankie Sue Del Papa (D) of Nevada.

Ms. Del Papa says 60 inmates are at present on death row in Nevada and that legal delays have prevented any executions for the past four years.

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