IN THIS DEATH PENALTY CASE, THE CHOICES WERE TOO FEW

On Tuesday, the federal government is scheduled to conduct its second
execution in less than two weeks, after there were none for a
generation. Juan Raul Garza will be put to death for several
drug-related murders he committed a decade ago. One could argue that
Timothy McVeigh's exceptional crime made him a likely candidate for
execution in any society that employs the death penalty. But the Garza
case forces us to confront troubling questions about not only the
general fairness of a capital punishment system that has a
disproportionate impact on African-Americans and Hispanics, but also the
fairness of depriving Mr. Garza of a basic protection that every other
federal inmate on death row has received.

From 1995 to 2000, federal prosecutors recommended against seeking the
death penalty for 57 percent of the defendants who, like Mr. Garza, were
charged with multiple murders. Can we be certain that race and geography
did not play roles in causing this case to be in the minority of cases
in which death was sought? The Justice Department has developed some
good procedures for guarding against that possibility, but they were not
in place when Mr. Garza -- one of the first federal capital defendants
in the modern era -- was prosecuted.

Even with safeguards, there is still a very serious question of why
minorities are so overrepresented in the pool of defendants who are even
considered for death. Of 157 federal defendants charged with multiple
murders from 1995 to 2000, 83 percent were members of minority groups.
Several possible explanations -- like the overrepresentation of
minorities in the violent drug organizations that law enforcement has
targeted over the years -- may well be correct, but without the kind of
rigorous analysis that the National Institute of Justice has been
directed to undertake, it is hard to be sure. We should not carry out
Mr. Garza's execution while we are still trying to determine whether the
system is tainted by bias.

Some argue that Mr. Garza should be executed because the judge in the
case, several jurors and even one of the prosecutors were Hispanic and
because there is no question about Mr. Garza's guilt. But these facts do
not address a wholly separate problem with Mr. Garza's case: the
possibility that the jury imposed the death penalty only because it was
unable to sentence him to life without parole.

A 1993 study published in the Cornell Law Review suggested that concern
about whether a defendant may one day be released is a very important
factor. Jurors who are not allowed to impose a true life sentence are
more likely to vote for death. On the other hand, jurors who know that
they can effectively keep a defendant in prison for life are less likely
to choose death.

Congress understood this when it expanded use of the federal death
sentence in 1994. The 1994 law requires federal capital juries to choose
specifically between death and "life imprisonment without possibility of
release." Every federal defendant now on death row can be certain that
the jurors who sentenced him knew that they had that alternative. Every
defendant, that is, except Mr. Garza.

He was tried under an earlier statute. The prosecutor in the case was
able to argue that Mr. Garza should be executed because there was the
possibility that he might be released in 20 years. Would jurors have
sentenced him to death if they could have chosen a life sentence that
would stick? I don't know, and neither does anyone else. But for all
other inmates on federal death row, we do know the answer to that
question -- a question that Congress considered a matter of fundamental
fairness in capital cases.

The federal government generally has done a good job in the relatively
small number of capital cases it pursues. But there are serious
questions about whether the process used to place Juan Raul Garza in
that small group of the condemned was sound. I have no doubt about Mr.
Garza's guilt, but if we execute him on Tuesday, I will have grave
doubts about the innocence of our system.