The Champion
June 1996

Informal Opinion
Racial Disparity on Federal Death Row

By William D. Matthewman

William D. Matthewman is a sole practitioner in Miami. He was counsel in U.S. v. Mack et al., the first federal death trial in Florida. This article first appeared in The Washington Post, March 15, 1996.

I recently served as lead defense counsel in the United States District Court for the Southern District of Florida on behalf of a young black man against whom the United States of America sought the most severe penalty possible: the irrevocable sentence of death. The case was tried in Miami federal court from September 1995 through February 1996 under the federal "drug kingpin" statute, and the allegations in a nutshell were that a gang of young African-American men in Miami engaged in the distribution of crack cocaine and committed two murders to protect their drug business.

The client and his codefendants were acquitted by the jury of both homicides, and the federal government's attempt to obtain the death penalty was beaten back. This was the first federal death penalty case ever taken to trial in the state of Florida, and it was the first acquittal in any federal death penalty case in the country to date.

My involvement in the case, however, uncovered some very disturbing and unsettling facts regarding the prosecution of federal death penalty cases in this country. Since 1988, when the "modern" federal death penalty was enacted in the United States, our government has authorized 61 capital prosecutions under various federal death penalty provisions. Of the 61 defendants against whom the Attorney General has authorized the government to seek the death penalty, 12 have been white, 7 Hispanic, 2 Asian, and 40 African-American.

A review of those numbers shows that a full 80 percent of the 61 defendants approved for capital prosecution by the Attorney General to date are members of minority groups. Incredibly, 66 percent of the federal death prosecutions have been brought against African-Americans.

How is it that the federal death penalty, which was initially designed in 1988 to target "drug kingpins," and then was broadened in the 1994 Crime Bill to include the death penalty for 50-odd categories of federal crimes, has so refined its focus as to enable our government to seek to use the death penalty in such a lopsided fashion against minorities? If you are alarmed and troubled by these statistics, as I am, then I think you will agree that the application of the federal death penalty in this country needs to be investigated, and now.

Fast Pace
Why the rush? Because the pace is quickening. There are now at least seven persons in our country on federal death row who await their fate while their cases are being appealed. In the fall of 1995, our country saw five separate federal death penalty trials underway, three under the 1988 drug kingpin statute, and two under the more recent 1994 Crime Bill: two separate Texas cases which began trial in October, and which resulted in imposition of the death penalty against both respective defendants; a Detroit case which began in September and resulted in a guilty plea without the death penalty; the Miami case which began in September and resulted in acquittals of the three capital defendants on the two charged murders; and a New York case which began in October and resulted in a recent murder conviction and life sentence rather than death. All eight of the capital defendants tried in these five cases this past fall were African-American. What is going on here?

Lest you get the wrong idea, I am not a "flaming liberal" nor am I an "ivory tower idealist." Prior to my becoming a criminal defense lawyer, I was a police sergeant with the Miami Police Department. I worked on the street as a police officer in Miami and I know firsthand the fears and problems occasioned in our cities by the crime problem. But I do believe, perhaps naively, that our government, and especially our federal government, should not be using the awesome power of the federal death penalty almost exclusively against minorities, and certainly not overwhelmingly against African-Americans.

Government functionaries, I am sure, would be quick to argue that the federal death penalty laws are being fairly applied, without regard to the racial background of the defendants and without any discriminatory intent. They would say that the skewed 80 percent minority rate is merely an unexplained happenstance. That is simply a shallow explanation which is wholly unacceptable.

I do not purport to know the answer to why the federal death penalty is being authorized by the Attorney General against minority defendants in 80 percent of cases. I do not ascribe an intentional discriminatory motive to the Attorney General, Janet Reno. In my many years in Miami, where I have lived my entire life, I have observed Ms. Reno to be a fair, honest and unbiased person. But something is wrong with the system and procedure that is authorizing these death penalty prosecutions. The adoption of new death penalty procedures and guidelines by the Department of Justice on January 19, 1995 has not helped the situation.

Color Blind
Application of the laws in this country is supposed to be color blind. It should be especially so when the federal death penalty is at issue. There is but one way to get to the bottom of what is going on with federal death penalty prosecutions, and that is for Congress to step forward, hold hearings, and conduct a careful, in-depth review of the process, procedure, and result in all federal death penalty prosecutions in this country since 1988. A congressional inquiry is mandated and timely, and Congress needs to step forward now and investigate this matter now.

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