News Release ~ 01/22/2001

Written Statement of Edward A. Mallett on behalf of the NACDL before the Senate Committee on the Judiciary

Re: Confirmation of John Ashcroft as Attorney General of the United States 

Washington, DC (January 22, 2001) -- As the preeminent organization advancing the mission of the nation’s criminal defense lawyers to ensure justice and due process, the National Association of Criminal Defense Lawyers appreciates this opportunity to share its concern about justice in America if John Ashcroft is confirmed as Attorney General. The record is voluminous and replete with statements from a variety of public service groups, many of whom have already expressed critical opinions. Today we will confine our comments to three areas of special concern for our organization: the effects of racial prejudice in the criminal justice system, the constitutional protections surrounding criminal proceedings, and the duty of the Attorney General to establish policies for the use of prosecutorial discretion.

We are troubled by John Ashcroft’s lack of insight into the vestiges of slavery and how racism often denies citizens equal protection of the law. He has shown insensitivity towards the victims of prejudice. His belated and equivocal renunciations of Southern Partisan magazine and Bob Jones University during the confirmation hearings have been widely reported. Adding to the perception of racial insensitivity are his comments regarding Missouri v. Kinder, a case in which Missouri Supreme Court Judge Ronnie White dissented. The trial judge in Kinder clearly juxtaposed minorities with “the hardworking taxpayers of this country,” yet John Ashcroft dismissed these patently racist comments as expressing nothing more than the trial judge’s opposition to affirmative action.

To compare, in stating his opposition to Ronnie White’s nomination, Mr. Ashcroft used several phrases — calling the distinguished jurist “pro-criminal,” “with a tremendous bent toward criminal activity” — intimating that Judge White’s jurisprudence is not only misguided but morally degenerate. The Attorney General’s stature in America’s law enforcement effort requires a balanced view of criminal justice — one that respects the value of different actors in the adversarial system and recognizes the interdependence of the rights of the accused and the rights of all persons. John Ashcroft’s conduct in opposing Judge Ronnie White’s nomination to the federal bench is incompatible with fitness for the position of Attorney General.

We believe this pattern must be considered in light of the significant perception and mounting evidence of racial disparities within the federal criminal justice system. Among the factors that contribute to this view are racial profiling, the disproportionate imprisonment of minorities for crack cocaine offenses, and racially disparate application of the federal death penalty. Specifically, with respect to each —

  • DEA agents have admitted reliance on drug-courier profiles that include race as an explicit element of suspicion. Leadership Conference on Civil Rights, Justice On Trial: Racial Disparities in the American Criminal Justice System, p. 3. In addition, the General Accounting Office recently reported that black female U.S. citizens were nine times more likely to be subjected to x-ray searches by U.S. Customs officials than their white counterparts (although these black women were less than half as likely to be found carrying contraband as white females). U.S. General Accounting Office, U.S. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results (March 2000), p. 2.
  • While a majority of crack users in the United States are white, 94 percent of those sentenced under the incomparably severe penalties for crack cocaine are black or Hispanic. United States Sentencing Commission, 1999 Sourcebook of Federal Sentencing Statistics, p. 69. The average sentence for crack cocaine (ten years) is thirty-five percent longer than the average methamphetamine sentence and fifty-two percent longer than the average powder cocaine sentence. Id. at 81. Amid widespread criticism directed at the severity and disparate impact of the crack sentencing regime, the Sentencing Commission has twice called for reduced crack penalties, noting “[t]he current penalty structure results in a perception of unfairness and inconsistency.” United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (April 1997), p. 8.
  • Minorities are also blatantly over-represented in the federal death penalty system. A recent Justice Department review of the federal death penalty found that in seventy-five percent of the cases in which a federal prosecutor sought the death penalty in the last five years, the defendant was a member of a minority group.

“Innocent minorities are harassed more than innocent white Americans, and wrongdoing by minorities is punished more harshly than wrongdoing by whites.” Leadership Conference on Civil Rights, Justice On Trial: Racial Disparities in the American Criminal Justice System, p. 7. These disparities breed distrust for our federal criminal justice system, particularly in minority communities. See David E. Rovella, Scandals Damage Cop Credibility, The National Law Journal, Dec. 11, 2000, at A10 (polling reveals that charges of racial profiling by the New Jersey States Police significantly harm the general credibility of police officers, particularly among minorities). John Ashcroft’s pattern of conduct in racial matters, whether the result of racial insensitivity or poor judgment, threatens to stigmatize the Department of Justice and further erode confidence in the fairness of federal law enforcement.

John Ashcroft’s confirmation as Attorney General would be a disservice to federal law enforcement efforts. While we do not doubt his commitment to vigorous prosecution, he lacks the temperament and credentials to restore confidence in the impartial administration of federal justice. On the contrary, John Ashcroft’s confirmation would likely reinforce the growing distrust for law enforcement within minority communities. His appointment will only serve to divide our great nation even more — not unite it.

Equally important, his non-racial arguments against Judge White show disrespect for the American legal process. Much of his floor speech was devoted to Missouri v. Johnson, a case in which a Vietnam veteran with no criminal history shot and killed three law officers and a sheriff’s wife. After describing the underlying murders, Mr. Ashcroft criticized Judge White for “urging a lower legal standard so that this convicted multiple cop killer would be allowed a second bite at the apple.” This rhetoric, which suggests that Judge White wants police killed, is outrageous. He further characterized Judge White’s dissent as “an opinion which sought to create new ground for allowing convicted killers who had the death penalty ordered in their respect, allowing them a new ground for new trials.” The majority opinion plainly reflects that Judge White simply disagreed with his two brethren as to the correct application of the well-established standard for adjudicating ineffective assistance of counsel claims.

Judge White specifically expressed his revulsion for the crime, support for a properly imposed death sentence, and discomfort with a decision granting retrial. Subsequent proceedings reveal that Judge White was not merely a “pro-criminal” voice in the wilderness: Considering Johnson’s federal habeas appeal, four judges on the Eighth Circuit Court of Appeals suggested that the issue of whether Johnson was denied effective counsel under the Sixth Amendment was debatable among jurists. Johnson v. Bowersox, No. 00-2198WMKC, Order Denying Petition for Rehearing and for Rehearing En Banc (Aug 29, 2000). John Ashcroft’s ambush turned Judge White’s serious and high-minded review of a capital case into personal slander.

John Ashcroft pointed to Judge White’s dissent in Missouri v. Demask, dealing with drug search roadblocks, as another example of his “pro-criminal jurisprudence.” He defended the roadblocks and complained that Judge White’s opinion would have “hamstrung this effective tool in the war on drugs” and “expanded substantially the rights of defendants to object to searches and seizures.” But Judge White’s view was wholly vindicated when, in November of 2000, the United States Supreme Court held, in a 6-3 decision written by Justice O’Connor, that drug search roadblocks violate the Fourth Amendment. City of Indianapolis v. Edmond, 121 S. Ct. 447 (2000). Few would accuse Justice O’Connor or Justice Thomas of “pro-criminal jurisprudence,” yet the former wrote the opinion and the latter would apparently outlaw all suspicionless roadblocks. Edmond, 121 S. Ct. at 462 (Thomas, J., dissenting based on the Court’s precedent but stating, “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”).

During the confirmation hearings, John Ashcroft repeatedly emphasized that he would enforce the law. But the job of the Attorney General is not that simple. The Department of Justice has limited resources, and the Attorney General determines which defendants will be prosecuted and which will not; which laws will be enforced more vigorously than others; and the types of agreements for dispositions without trial that may be entered by the trial court prosecutors. Because he is out of the mainstream on social issues, because of his low regard for constitutional protections when in conflict with his preferences, and because he has no experience with the day-to-day realities of federal criminal law and procedure, Senator Ashcroft is simply unqualified.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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