It is now time to take the next step--to enact a death penalty statute for large-scale drug trafficking, even when no specific death is proven to result.
I intend to introduce such legislation, and I am pleased to report that Senators Thurmond, DeConcini, and Hatch have agreed to cosponsor this bill.
It is very significant that the Justice Department has concluded that the death penalty for drug traffickers is constitutional.
On October 2, 1989, Edward S.G. Dennis, Jr., Assistant Attorney General for the Criminal Division, testified on the death penalty before the Senate Judiciary Committee.
I ask that the full text of Mr. Dennis' testimony be printed in the Record immediately following my remarks.
In his testimony, Mr. Dennis states:
It is the considered view of the Department of Justice that imposition of the death penalty on the leaders of large-scale drug production and distribution operations would be consistent with the proportionality requirement of the eighth amendment. * * * We believe that imposition of the death penalty on the leadership of major drug organizations would be constitutionally permissible because of the enormous magnitude of the public harm they cause and the depraved state of mind--the reckless disregard for human life--involved in managing these death-dealing enterprises.
His testimony also points out that there are Federal death penalty statutes for several other crimes not directly involving the taking of another life, including treason, since 1790; espionage, since 1917; and airliner hijackings, since 1961.
Stating that `the scope of the public harm caused by those who introduce large quantities of drugs into our society is staggering,' Mr. Dennis cites the following important statistics:
Over one-third of all violent felonies are committed by persons under the influence of drugs;
In a 12-month period in Miami, 573 narcotics users were responsible for 6,000 robberies and assaults, 6,700 burglaries, nearly 900 vehicle thefts, and more than 26,000 prostitution offenses;
In the 4-year period from 1985 to 1988, the drug abuse warning network reports that over 14,000 overdose deaths were reported in 26 metropolitan areas, exluding New York City;
One-half of all AIDS deaths are drug related; and
Seventy-five percent of infant AIDS cases are attributable to drug use.
It is the Justice Department's view that the Congress could find that the link between the activities of large-scale drug dealers and the destruction of human life is such that the harm they cause, combined with their reckless indifference to the value of human life, justifies the ultimate penalty. I completely agree. The drug traffickers have brought society to its knees. They are killing our children by the thousands. They are destroying lives by the millions. They are tearing at the fabric of this Nation. It is time for society to defend itself by invoking capital punishment. It is time to put the drug traffickers to death.
Mr. Chairman and Members of the Committee, thank you for giving me the opportunity to appear today. I am pleased to present to the Committee the views of the Department of Justice on the issue of racial imbalance in the imposition of the death penalty. With your permission, I will also take this opportunity to address certain related issues of interest to the Committee, posed by pending death penalty legislation and by the recently issued report of the committee chaired by Justice Powell, the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases.
First, I will discuss the allegation that the death penalty is imposed in a racially discriminatory manner. Second, I will briefly discuss habeas corpus reform in light of the Powell Committee's recent report and proposal. Finally, I will discuss whether the death penalty is a proportionate sentence under the Constitution for those drug kingpins who knowingly engage in the massive and ongoing sale of lethal and illegal drugs.
Critics of the death penalty have argued that the death penalty is imposed in a racially discriminatory manner, so that--for invidious reasons--the murderer of a white victim is more likely to receive the death sentence than the murderer of a black victim, and that black murderers are more likely to receive a death sentence than white murderers.
I am not a statistician, and cannot speak to the highly technical statistical methods often cited in consideration of this issue. I can, however, offer the following legal analysis.
First, it is clear beyond dispute that an individual defendant who can demonstrate that race motivated the prosecuror's decision to charge him with a capital crime, or the jury's decision to impose the death penalty, has a constitutional claim for relief. McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Wayte v. United States, 470 U.S. 598, 688 (1985). That fact alone strongly suggests that there is no unredressable racial bias in the administration of the death penalty.
Second, I wish to emphasize that what is currently being considered by you and by the Congress is expansion of the federal death penalty, which of course will be administered by the Department of Justice. I can assure you that the Department already has in place the strongest possible safeguards against allowing invidious or arbitrary factors to influence the decisions of individual federal prosecutors to seek the death penalty. The final decision to seek the ultimate sanction would not be made by an Assistant United States Attorney, or even by a United States Attorney, alone. Rather, in each and every case, this decision would be made by the Attorney General. Prior to the Supreme Court's decision in Furman, the United States Attorney's Manual contained a requirement that the Attorney General personally decide on the appropriateness of seeking the death penalty. That provision remains in the manual, and shortly after the death penalty for drug-related killings was enacted in 1988, all United States Attorneys were reminded of this requirement. I can assure the Committee that this careful control over decisions to seek the death penalty would apply to any new federal death penalty provisions enacted by this Congress.
There remains the question of various statistical studies purporting to show certain racial disproportions in relation to the imposition of the death penalty in various states. The Supreme Court addressed this issue more than two years ago, in McCleskey v. Kemp, 481 U.S. 279 (1987). I will briefly review the holding in that case, principally because it has been the
focus of discussion on this issue and has been frequently mischaracterized.
There appears to be a misconception that McCleskey involved a judicial finding of systemic discrimination in the imposition of the death penalty, and the upholding of capital punishment despite such a finding. Any such reading of the Court's opinion is contrary to fact. As I will discuss in greater detail below, the district court in McCleskey found that the empirical study on which the systemic discrimination claim was based was seriously flawed. The Supreme Court, in reviewing the case, did not question the accuracy of the district court's findings.
In McCleskey, the defendant submitted a statistical study, the Baldus study, that purported to show that a disparity in the imposition of the death penalty in Georgia was attributable to the race of the murder victim and, to a lesser extent, the race of the defendant. Id. at 286. The defendant argued that the Baldus study demonstrated that his rights had been violated under the Eighth and Fourteenth Amendments.
The Supreme Court, in an opinion by Justice Powell, assumed without deciding that the Baldus study was statistically sound. Id. at 291. Even with that assumption, the Court rejected the defendant's arguments.
With respect to the defendant's Fourteenth Amendment equal protection claim, the Court held that the defendant was required to prove that the decisionmakers in his case acted with a discriminatory purpose. The defendant offered no such evidence, but instead relied solely on the general statistical analysis contained in the Baldus study. Id. at 292-93. Given the nature of the capital sentencing decision, the uniqueness of individual juries, and the innumerable variables that the Constitution requires be considered by the jury in its deliberations, the Court held that the defendant's general statistical evidence was insufficient to show that any decisionmaker at the guilt or sentencing stages of his trial acted with a discriminatory purpose. Id. at 293-97. The Court also rejected the defendant's Fourteenth Amendment claim because the defendant offered no evidence that the State of Georgia as a whole had acted with discriminatory purpose by adopting a capital punishment statute and permitting it to remain in force. Id. at 297-99.
Defendant's Eighth Amendment, `cruel and unusual punishment' claim fared no better. The facial constitutionality of the Georgia death statute had already been upheld by the Court in Gregg v. Georgia, 428 U.S. 153 (1976). Because the defendant's sentence was imposed pursuant to constitutional procedures, and because the Baldus study did not `demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process,' 481 U.S. at 313 (footnote
omitted), the Court rejected the Eighth Amendment challenge as well. Id. at 306-13.
Let me emphasize two points with respect to the McCleskey decision. First, the defendant utterly failed to prove that either his own trial, or his own sentence, had been infected with racial bias. If the defendant had proved that, he would have had a valid equal protection claim. 481 U.S. at 292. Thus, it remains the law that any defendant who can demonstrate that his conviction or sentence was infected by racial bias can obtain constitutional redress.
Second, as noted above, the Supreme Court simply assumed that the Baldus study was statistically accurate in order to reach the defendant's constitutional arguments. The record is clear, however, that the Baldus study was significantly flawed. As the Supreme Court noted, the district court in the McCleskey care had examined the Baldus study `with case,' following `an extensive evidentiary hearing.' 481 U.S. at 287. In the course of a thoughtful and exhaustive opinion, the district court found that the Baldus study was unpersuasive. Among many other things, the district court found that the data compiled as the basis for the study was incomplete and contained `substantial flaws' and that the defendant had not established by a preponderance of the evidence that the data was `essentially trustworthy.' McCleskey v. Zant, 580 F. Supp. 338, 360 (N.D. Ga. 1984). 1
1 See also the Supreme Court's summary of the flaws in the Baldus study found by the district court. 481 U.S. at 288 n.6.
I would therefore suggest that a healthy scepticism is warranted towards claims by opponents of the death penalty that empirical studies--such as the Baldus study used in McCleskey--have shown the existence of racial discrimination in the imposition of the death penalty. Moreover, I would counsel against reliance on simplistic numerical studies of the death penalty--such as a comparison of the number of black inmates on death row to the black percentage of the populace. Discrimination cannot validly be inferred merely from such gross statistics. By way of comparison, women comprise about half of the general population, but only a minute fraction of the death row population. It would be irrational to infer from this numerical disparity alone that men are being invidiously singled out for the imposition of the death penalty on a discriminatory basis. 2
In general, gross figures of this type are meaningless in assessing the risk of discrimination unless the potential effect of other, non-invidious factors is taken into account.
2 Similarly, it would be unwarranted to infer that white homicide defendants are being discriminated against in the imposition of the death penalty from data that indicates that white homicide defendants are more likely to be sentenced to death than black homicide defendants. See Bureau of Justice Statistics, Bulletin, Capital Punishment 1984, at 9-10 (whites were 50.2% of adults arrested for murder and non-negligent manslaughter for 1980 through 1984, and were 57.9% of those admitted to prison under a sentence of death; for the same time period and offenses, blacks were 48.5% of adults arrested and 40.9% of those entering prison with a death sentence).
Nonetheless, if the case were made and tested through the adversarial process that there was a constitutionally significant risk that race was affecting the imposition of the death penalty, that problem could be rationally addressed without abolishing or limiting the death penalty.
If, for example, we were not executing murderers of black victims in the same proportion as murderers of white victims in comparabe cases, we should seek to correct that imbalance through policies that make clear that the lives of all citizens, regardless of race, are precious to the government, and that those who murder black citizens will face the death penalty in appropriate cases as certainly as those who murder white citizens. Among other things, Congress should ensure that sufficient resources will be available to prosecute aggressively those cases in which the death penalty is appropriate. Another procedural safeguard would be to require judges in cases involving the death penalty to instruct jurors that the race of the victim must not be taken into account in determining whether the death sentence is appropriate. A certification procedure, by which individual jurors are required to sign a statement that the race of the victim was not a factor in their decisions, would also further that end. Indeed, such procedures are already found in the current death penalty for drug-related killings, 21 U.S.C. 848(o)(1), as well as in the general death penalty proposed in title II of the President's violent crime bill, S. 1225. It makes no sense, therefore, to address any perceived imbalance by abandoning the death penalty--which is a clear-cut policy of increased leniency for murderers of black citizens as well as white.
Similarly, jury instructions and juror certificates insulating against the consideration of the race of the defendant will further insure that any disproportion among the races in the imposition of the death sentence is not the product of racial bias. Again, both existing law and the President's violent crime bill contain such provisions.
Many other protections are already in place, designed to ensure that not only the death penalty but all criminal penalties are administered in a race-neutral manner. The Supreme Court has acknowledged the risk that considerations of race may enter into the administration of the criminal justice system and, as a result, has engaged in `unceasing efforts' to eradicate racial prejudice from the system. Batson v. Kentucky, 476 U.S. 79, 85 (1986). Among other things, the Court has already held that grand and petit juries cannot be selected on the basis of race, Vasquez v. Hillery, 474 U.S. 254 (1986), Whitus v. Georgia, 385 U.S. 545 (1962); that prosecutorial discretion may not be
exercised on the basis of race, Wayte v. United States, 470 U.S. 598 (1985); that a prosecutor may not exercise peremptory challenges on the basis of race, Batson v. Kentucky, Supra; that the Constitution prohibits racially biased prosecutorial arguments, Donnelly v. DeChristoforo, 416 U.S. 637 (1974); and that widespread bias in the community can make a change of venue constitutionally required, Irvin v. Dowd, 366 U.S. 717 (1961).
Further, if the circumstances of a particular case indicate a significant likelihood that racial bias may influence a jury, the Constitution requires examination of any such bias durng voir dire. In a capital sentencing hearing, a defendant convicted of an interracial murder is entitled to such an examination regardless of the circumstances of the case. Ristaino v. Ross, 424 U.S. 589, 596 (1976); Turner v. Murray, 476 U.S. 28 (1986).
The teaching of these cases and of the various statutorily mandated procedures is that when there is a constitutionally significant risk that the criminal justice system might operate in a racially discriminatory manner, the Congress and the courts will fashion an appropriate remedy--and, just as that remedy with respect to the criminal justice system in general is not the wholesale abandonment of criminal justice, so in the specific context of the death penalty it is not necessary, or even logical, to restrict or abandon the application of the penalty because of a perceived risk that race may enter into the application of that penalty, so long as other means of addressing that risk are available.
I would now like to address briefly the recommendations of the Ad Hoc Committee of the Judicial Conference on Federal Habeas Corpus in Capital Cases, which I will refer to as the `Powell Committee' after its chairman, Justice Powell. The committee membership included several distinguished members of the federal Judiciary. It was convened in June 1988 by the Chief Justice to inquire into `the necessity and desirability of legislation directed toward avoiding delay and lack of finality' in capital cases.
In essence, the Committee's report proposes legislation that would afford states the option of establishing effective systems for providing indigent capital defendants with competent representation in state collateral proceedings. If a state chose to establish such a system, stronger rules of finality would apply in subsequent federal review. Specifically, the defendant would normally be limited to a single federal habeas corpus petition. Following the affirmation on appeal of the district court's denial of such a petition, and affirmation of the judgment or denial of certiorari by the Supreme Court, further
federal review would be barred except on grounds that undermine confidence concerning the defendant's factual guilt of the underlying capital offense for which the sentence had been imposed.
The Department of Justice strongly supports the enactment of the legislation proposed by the Powell Committee, subject to certain amendments. A legislative proposal embodying the Powell Committee recommendations will shortly be sent to Congress by the Administration. We believe that the legislation enacting the Committee's proposal should be passed in conjunction with the general habeas corpus reform proposal and federal death penalty proposal in the President's violent crime bill, S. 1225.
Let me turn now to a legal issue that was raised earlier in these hearings. Without getting into the details of any particular proposal, I will now address the constitutionality of imposition of the death penalty on those who lead and organize large drug distribution enterprises, individuals commonly referred to as `drug kingpins.'
It is the considered view of the Department of Justice that imposition of the death penalty on the leaders of large-scale drug production and distribution operations would be consistent with the proportionality requirement of the Eighth Amendment. The Eighth Amendment's rule of proportionality requires that the severity of punishment be proportionate to (1) the gravity of the injury caused by the offense and (2) the moral culpability, or blameworthiness, of the offender's state of mind. See Tison v. Arizona, 481 U.S. 148-149 (1987); Coker v. Georgia, 433 U.S. 584, 598 (1977); Gregg v. Georgia, 428 U.S. 153, 173 (1976) (principal opinion). We believe that imposition of the death penalty on the leadership of major drug organizations would be constitutionally permissible because of the enormous magnitude of the public harm they cause and the depraved state of mind--the reckless disregard for human life--involved in managing these death-dealing enterprises.
The Supreme Court has held that the death penalty--the ultimate sanction--must be reserved for cases where the harm caused by the offense is especially grievous. See Gregg, 428 U.S. at 187 (principal opinion). The Court has recognized two ways to measure the gravity of a crime. One is the degree of injury done to the individual who is the direct victim of the offense. Coker, supra, at 598. The death penalty is appropriate for the cold-blooded murderer because the degree of injury inflicted on the individual victim--the taking of the victim's life--is enormous. Gregg, supra, at 187. However, the gravity of a crime can also be measured by the magnitude of the `public
injury' caused by the offense. Coker, supra, at 598. Thus, capital punishment has historically been considered appropriate for certain crimes that profoundly endanger the public welfare. Since the inception of our Republic, it has been recognized that certain criminal conduct--even though it may not directly involve homicide--may inflict such egregious injury to society at large, or may pose such a clear and present danger to the lives of a large number of citizens, that the death penalty is warranted for those who purposefully engage in such conduct.
In the past, Congress has dealt with broad threats to the security of the Nation and the people's welfare by imposing the death penalty on individuals who--although they have not directly taken the life of another individual human being--engage in conduct that profoundly injures the Nation as a whole. In the first statute defining federal crimes after the framing of the Constitution, Congress prescribed the death penalty for those guilty of treason. See Act of April 30, 1790, 1 Stat. 112 (1790). The Supreme Court has noted that legislation passed by the First Congress sheds significant light on the scope of constitutional limitations on legislative action, see Marsh v. Chambers, 463 U.S. 783 (1983), and the Court has itself upheld the imposition of sentences of death for treason. See Kawakita v. United States, 343 U.S. 717, 745 (1952). Federal law still prescribes a penalty of death for treason today. See 18 U.S.C. 2381. Similarly federal law has, since 1917, allowed the imposition of the death penalty for certain crimes of espionage. In 1946, Congress responded to the enormous threat posed by the release of sensitive information concerning nuclear technology to hostile powers by imposing the death penalty for such conduct in certain circumstances. See Act of August 1, 1946, 60 Stat. 766-767 (1946). The death penalty remains available for peacetime espionage today, including espionage involving nuclear secrets. See 10 U.S.C. Sec. 906a. In 1961, the Congress responded to the threat to public safety posed by aircraft piracy by making the death penalty applicable to airliner hijackings. See Act of September 5, 1961, 75 Stat. 466 (1961). As these historical examples indicate, Congress has the power to respond to conduct posing a serious threat to public safety and national security by imposing the death penalty, even in situations where the defendant has not personally and directly engaged in the killing of another human being.
Not since the dawn of the nuclear age, have we faced a threat more pernicious, more dangerous to the security and welfare of the Nation than the current crisis involving the large-scale importation and sale of narcotics. The importation of drugs into this country by large-scale distribution organizations violates the sovereignty of our borders and effects our foreign relations with our neighbors in Central and South
America. At home, drug use destroys lives through dependency, overdoses, violent crime associated with drug use, and the facilitation of the spread of diseases like AIDS. The scope of the public harm caused by those who introduce large quantities of drugs into our society is staggering. Over one third of all violent felonies in this country are committed by persons under the influence of drugs. U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics--1988 624 (1989). In New York City, in 1988, 90 percent of all male arrestees tested positive for drug use. United States Department of Justice, Bureau of Justice Assistance, 1988 Report on Drug Control 2 (1989). A recent study of the criminal activity of 573 narcotics users conducted in Miami graphically illustrates the connection between drugs and violent crime. In a twelve month period these 573 drug users were responsible for 6,000 robberies and assaults, 6,700 burglaries, nearly 900 vehicle thefts, and more than 26,000 prostitution offenses. Id. at 18. In 1983, it was estimated that the cost of drug use to American society in terms of lost productivity, crime, and health care services was almost sixty billion dollars. U.S. Department of Justice, Report to the Nation on Crime and Justice 114 (2d ed. 1988). Indeed, last Term, in the drug testing cases, the Supreme Court itself recognized that the importation, sale, and use of illegal drugs is `one of the greatest problems affecting the health and welfare of our population.' National Treasury Employees Union v. von Rabb, 109 S. Ct. 1384, 1392 (1989).
Recent federal court decisions have recognized the fact that the harm to society caused by the distribution of illicit drugs may far exceed that involved in the case of the killing of an individual human being. In Terrebonne v. Butler, 848 F.2d 500 (5th Cir. 1988), cert. denied, 109 S. Ct. 1140 (1989), the Court of Appeals for the Fifth Circuit rejected the argument that the Eighth Amendment proportionality requirement prohibited a sentence of life imprisionment without parole for the sale of a small amount of heroin. Judge Gee wrote for the en banc court:
`Except in rare cases, the murder's red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner's evil image--others who create others still, across our land and down our generations, sparing not even the unborn.' Id. at 504.
Similarly, in Young v. Miller, No. 88-1103 (6th Cir., August 29, 1989), the Court of Appeals for the Sixth Circuit upheld a sentence of life imprisonment without parole for possession with intent to sell 1300 grams of heroin. In finding that the sentence was not disproportionate under the Eighth
Amendment, the Court noted that the crime of large-scale distribution of drugs `is one of the gravest that a person can commit today,' and that `[t]he ripple effect on society of such a large quantity of heroin is staggering to contemplate.' Slip op. at 14. Given the widespread harms wreaked by those who lead the very largest of drug distribution operations, the Department believes that Congress would be within its constitutional powers in determining that this class of individuals, narrowly and appropriately defined, presents the same danger to the health and welfare of the Nation as those who engage in treason or espionage. As a consequence, imposition of the death penalty in these cases would not be disproportionate under the Eighth Amendment.
Congress has significantly more latitude than any individual State in determining the necessary punishment for federal crimes that affect the security of the Nation as a whole. The Supreme Court has repeatedly recoginzed that `[t]he Constitution gives Congress broad comprehensive power `[t]o regulate commerce with foreign Nations, ' and that `[h]istorically such broad powers have been necessary to prevent smuggling and to prevent prohibited articles from entry.' United States v. Montova de Hernandez, 473 U.S. 531, 537-38 (1985) (quoting United States v. Ramsev, 431 U.S. 606, 618-19 (1977)). Thus, in reviewing Congress' determination that past measures have been ineffectual and that sterner penalties are necessary, substantial deference would be given to congressional fact-finding. This is particularly so in the Eighth Amendment context. In determining whether a particular state law penalty is disproportionate, the Supreme Court inquires into the legislation of the fifty States to determine the `conceptions of decency' shared by `modern American society as a whole.' Stanford v. Kentucky, 109 S. Ct. 2969, 2974-75 (1989). Federal legislation, passed by the Congress and signed by the President, represents the views of the representatives of all the people, and should be entitled to great weight in making the determination whether American society as a whole regards a particular penalty for a particular cirme as disproportionate.
Some have suggested that, under the Eighth Amendment, the death penalty can only be imposed for criminal conduct causing the death of another human being. While we believe that the Eighth Amendment imposes no such requirement, imposition of the death penalty on the leaders of large-scale drug distribution organizations meets even this standard. In its recent decision in Tison v. Arizona, 481 U.S. 137 (1987), the Supreme Court discussed the moral culpability necessary to justify a sentence of death in the felony murder context. Tison involved the imposition of the death penalty on defendants who assisted two inmates in escaping from an Arizona correctional facility. The defendants armed the escapees with weapons and aided them in flagging down a family on the road to steal their vehicle. The
two inmates killed the family members after seizing their car. Thus, the actual defendants in Tison did not have an intent to kill, nor did they accomplish the actual killing. The Supreme Court noted that `[a] critical facet of the individualized determination of the culpability required in capital cases is the mental state with which the defendant commits the crime.' Id. at 156. The Court found in the legislation of the States and the common law support for the proposition that `reckless indifference to the value of human life may be every bit a shocking to the moral sense as an `intent to kill.' Id. at at 157. The Court stated in conclusion:
`[W]e hold, that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment * * *' Id. at 157-58.
In our view, those who lead large-scale drug distribution enterprises `knowingly engage in criminal activities known to carry a grave risk of death' under Tison and thus exhibit a mental state which the Supreme Court has indicated can support a sentence of death. As the Supreme Court noted in Tison, `[d]eeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished.' Tison, 481 U.S. at 156. In the case of so-called drug kingpins, we deal with a conscious decision to introduce into society addictive substances whose destructive capacity is unlimited. Thus, unlike the murderer or rapist who generally strikes only one victim, the large-scale drug distributor threatens millions, indeed society at large. Cf. Gregg v. Georgia, 428 U.S. 153, 202-203 (1976) (principal opinion) (creating `risk of death to more than one person' is an aggravating factor which may properly be considered in capital sentencing). Moreover, the large-scale drug distributor engages in this destruction of human life solely for pecunicary gain. This, too, is a factor the Supreme Court has considered relevant in adjudging moral blameworthiness in the capital context. Gregg, 428 U.S. at 197. Finally, the link between the activities of large-scale drug enterprises and death is clear. In the four-year period from 1985-1988, the Drug Abuse Warning Network reports that over 14,000 overdose deaths were reported in 26 metropolitan areas, excluding New York City. Secretary Bennett's National Drug Control Strategy report indicates that drug use is now the single largest source of new AIDS infections, and that one-half of all Aids deaths are drug related. The report further indicates that the number of drug-related emergency hospital admissions increased by 121 percent between 1958 and 1988. A
recent survey of state prisoners incarcerated for murder indicated that over 28 percent were on drugs when they killed. U.S. Department of Justice, 1988 Report on Drug Control, at 19. The deadly effect of drugs even reaches beyond birth to our future generations. The Centers for Disease Control report that 75 percent of infant AIDS cases are attributable to drug use. Recent newspaper accounts indicate that the infant mortality rate in the District of Columbia is three times the national average. Drug use by pregnant mothers is the cause. In our view, the Congress could find that the link between the activities of large-scale drug dealers and the destruction of human life is such that the harm they cause, combined with their reckless indifference to the value of human life, justifies the ultimate penalty.
Let me turn briefly to the relevance of the Supreme Court's decision in Coker v. Georgia, 433 U.S. 584 (1977), to the constitutionality of prescribing the death penalty for drug kingpins. In Coker, the Supreme Court held that the death penalty was excessive punishment under the Eighth Amendment for the crime of the rape of an adult woman. The plurality opinion in Coker relied heavily on the fact that Georgia alone among the fifty States allowed imposition of the death penalty for rape, and that juries in Georgia itself seldom returned sentences of death for rape. The Coker plurality also indicated that in its view, `in terms of moral depravity and injury to the person and public, [rape] does not compare with murder.' Id. at 598. The reason given was that `rape by definition does not include the death of or even the serious injury to another person.' Id. (footnote omitted).
Coker's analysis of the past legislative practice of the States and juries within the States has little relevance to the constitutionality of a federal statute prescribing the death penalty for those who lead large-scale drug enterprises. Rape was a crime at the English common law, and thus the Court could look to a significant history of legislative choice of punishment by the States. In contrast, large drug enterprises, particularly those of international scope, are a relatively recent phenomenon. The situation is much as if a weapon were invented which reduced its victims to a vegetative mental state but did not otherwise affect their physical well-being. The constitutionality of imposing the death penalty for the use of such a weapon could not be measured by past practices of the States.
Moreover, the absence of state legislation in this area is not necessarily an indication of public disapproval of the death penalty for the leaders of large-scale drug distribution rings. A far more likely explanation is that given the international and interstate ramifications of the activities of these massive enterprises, the States rightfully view the problem as beyond
their capacity to cope with and as demanding a comprehensive federal solution.
In addition, Coker dealt with a common law crime perpetrated against a single individual, and the Court focused only on the harm to that individual. As several commentators have noted, Coker did not purport to pass on the proportionality of the death penalty in situations where significant risk of serious injury or death is posed to many individuals. See Note, Coker v. Georgia: Disproportionate Punishment and the Death Penalty for Rape, 78 Columb. L. Rev. 1714, 1729 (1978) (indicating that aircraft hijacking and espionage may be outside the Coker framework); accord The Supreme Court, 1976 Term, 91 Harv. L. Rev. 70, 128 (1977).
Finally, it should be noted that even as to State legislation, the Coker decision does not purport to hold that the death penalty is disproportionate to any crime which does not directly result in the death of another human being. Coker involved only the crime of rape of an adult woman, and the Coker plurality explicitly left the question whether crimes comparable to murder in terms of `moral depravity' and `injury to the person and public' might be punished by death. Coker, 433 U.S. at 598. Indeed, after Coker a number of States continue to maintain the death penalty for crimes not necessarily involving the death of another human being where those crimes involve either serious permanent injury to an individual, or a serious threat to society at large. See, e.g., Cal. Penal Code 37 (West 1988) (treason); Ga. Code Ann. Sec. 17-10-30 (1982) (`The death penalty may be imposed for the offenses of aircraft highjacking or treason in any case.'); Idaho Code 18-4504 (1987) (first degree kidnapping); La. Civ. Code Ann. art. 14:113 (West 1986) (`Whoever commits the crime of treason shall be punished by death.'); Mont. Code Ann. 45-5-303 (1987) (aggravated kidnapping) 48-18-220 (1987) (attempted murder and aggravated assault while imprisoned); S.D. Codified Laws Ann. 22-19-1 (1988) (Kidnapping with bodily injury); Utah Code Ann. 76-5-103.5(2)(b) (1987) (aggravated assault while imprisoned).
In sum, the Department is of the view that the Congress may impose the death penalty for non-homicidal crimes which imperil national security or threaten the fabric of our society, or pose a mortal danger to a large number of our people. The more narrowly drawn the category of offender, so as to target those most culpable of wreaking broad societal harm, the more likely that a `drug kingpin' death penalty statute would pass constitutional muster. The Department also believes that under Tison v. Arizona, the Congress could find that the link between large-scale drug organizations and human destruction is such that the leaders of these organizations exhibit `reckless indifference to the value of human life,' and thus may be subject to the death penalty. Under this latter theory, the more well-documented the link between the destruction of human life and the activities of drug kingpins (as a class or in an individual sentencing proceeding) the more likely that the statute would survive proportionality review under even the broadest reading of the Supreme Court's decision in Coker.
That concludes my prepared testimony. I will be happy to answer any questions that the Committee may have.