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Attorney General THORNBURGH. Senator Thurmond, the Department of Justice is very much interested in seeing reform forthcoming in an area which has prompted a degree of cynicism and skepticism about the ability of Government to impose a penalty approved by 37 State legislatures in the Congress of the United States because of the delay and lack of finality that is imparted into the processing of death penalty sentences through prolonged dilatory proceedings in the State and Federal courts.

The Powell committee, headed by former distinguished Justice of the U.S. Supreme Court, made what we felt were specific suggestions designed to ensure on the one hand that every possible defense available to a defendant in a death penalty case was raised in appropriate State and Federal proceedings; that counsel was available to that defendant to ensure that no shortcoming in searching the record for any possible defect would be tolerated; but that there comes a time when a sentence imposed must be a sentence carried out. And the provisions of the Powell committee report, as embodied largely in legislation which you have sponsored, we find to be positive and constructive in ensuring that this virtual slowdown in the application of the death penalty is carried out.

I might mention, Senator, in connection with an unusual case that we had to deal with seeking extradition of a murderer from abroad, that the enormous and inordinate delay in our criminal justice process with regard to death penalties was taken note of by the European Court of Human Rights in Strasbourg. This defendant, who was sought for extradition on account of a contract murder in the State of Virginia, sought to assert before the European Court of Justice in Strasbourg two defenses: one, that the death penalty was potentially to be imposed in this case and that, therefore, he should not be extradited; second, raised the question that if the death penalty were imposed, he faced the prospect of being on death row for a considerable period of time while appeals were exhausted.

The European Court of Justice turned down our request for extradition on the basis that the delay in the execution of the sentence here in the United States was such as to constitute a violation of the human rights of the individual involved not on the basis of the existence of the death penalty, but the delay, the socalled death row syndrome which was built into the process.

This somewhat odd result, I think, nonetheless underscores the international recognition which has been accorded to the fact that we simply permit these series of long, involved processes to ensue, giving a defendant a virtually unlimited delay in the imposition of the death penalty. We think the Powell Commission recommendations make sense, and we would support them.

Senator THURMOND. Thank you very much. My time is up.
The CHAIRMAN. Thank you.

For those that came late, let me suggest that, because I had to step out just as the Attorney General finished, I asked the ranking member to begin to question first. So I will now question and then Senator Kennedy and then Senator Simpson or whomever, so that we regain the order.

Senator SIMPSON. Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Attorney General, as you know, last summer you made a pledge to me and this committee regarding the Department's investigation of a leak by a Department employee involving

a the alleged investigation of the now majority whip of the Congress. And at that time, I told you that I believed the investigation should properly be conducted by the Office of Professional Responsibility, which was set up, in my view, to deal with misconduct of this nature. You indicated that you thought that because it may have a criminal outcome, that there may be an indictment that would flow from this, that the Criminal Division should look into the matter. But you pledged at the time, and I quote, “If it turns out that there is not a threshold where criminal conduct is involved, then Mr. Shaheen's operation would, as in the normal situation, complete the investigation and recommend appropriate sanctions against those who can be identified."

However, after the Criminal Division concluded its investigation, it was concluded there was not enough evidence to bring an indictment, a criminal case. And you informed me that the investigation was being closed. This was between Christmas and New Year's of

last year.

Now, I wrote to you requesting that you honor your commitment and send the matter to the OPR, which I believe should review this matter to see if any disciplinary action, as distinct from criminal sanctions, is warranted. I would like to repeat that request today.

Will you now or at some time can you identify for us refer the matter regarding the majority whip, the investigation of the matter surrounding the majority whip to OPR for its investigation?

Attorney General THORNBURGH. The matter of leaks of confidential investigative files that are currently being handled in the Department of Justice, as you know, Mr. Chairman, I regard as a very serious matter. It has two potentially harmful effects, both of which are of concern to the Department and, I suspect, to members of this committee. One is the potential for the unauthorized disclosure of this information to compromise the ongoing investigation by alerting targets, witnesses, and in the unusual case, even causing the fabrication or destruction of evidence.

But perhaps of greater importance, as illustrated by the Gray case, is the unjustified reflection on the character and integrity of persons who may never be the subject of a criminal prosecution. And because of that concern, we undertook a vigorous investigation, violation of the criminal laws which we feel is appropriate in these situations. They are not to be treated lightly. And as I informed you in my letter in December 1989, a full criminal investigation was conducted by the Federal Bureau of Investigation under the supervision of career prosecutors of the Criminal Division of the Department of Justice.

The Office of Professional Responsibility was consulted throughout the investigation, although I have learned the Office never actually reviewed the final report.

The Criminal Division concluded, as you noted, that there was insufficient information on the basis of which to prosecute any criminal violations. And I agreed with the Division's conclusions.

Additionally, as I advised you, I do not believe that the FBI's investigation provided any basis for disciplinary action. Notwithstanding this view, however, as I discussed with you earlier, I have asked the Office of Professional Responsibility to review the report and to provide me with their advice. At that point, I will again assess whether any disciplinary action is warranted.

Because this matter is still under review within the Department, I think it would be inappropriate to discuss the particulars beyond this. But I am pleased to respond to your earlier request by assuring you that this review will take place.

The CHAIRMAN. I am not asking for the detail now, General, just the assurance that it is being referred to or has been referred to OPR, and that upon their recommendation and your conclusion as to what to do with that recommendation, you will be prepared to make that judgment clear to us and the rationale for it.

Attorney General THORNBURGH. We will. Yes, sir.

The CHAIRMAN. Now, let me move quickly in the interest of time since there is a keen interest in your testimony here today, and as short an answer as you can give me on these matters, General, I would appreciate it. On the death penalty, we discussed the Kennedy civil justice-or the provisions relating to violation of civil rights, potential violation of civil rights of those who have been condemned to death, and you indicated you did not support that. But my distinguished colleague to my left, which is an unusual place for him, he and I each have death penalty bills in, and his death penalty provision does not include-would allow a 14-yearold mentally retarded child to be put to death.

Does the administration agree with that? If it is established that there is mental retardation, not insanity, and it is a juvenile, do you agree that that person should be put to death if the evidence sustains it?

Attorney General THORNBURGH. That person, Mr. Chairman, is not before us. I can conceive of situations which the Supreme Court has conceived of and acted upon as well

The CHAIRMAN. Let me ask it another way. Do you agree with the prohibition against putting to death mentally retarded people for capital offenses?

Attorney General THORNBURGH. No.
The CHAIRMAN. So you think it should be available?

Attorney General THORNBURGH. Yes. There are degrees of mental retardation and mental capability that have to be taken into account with respect to individual defendants, just as numerous other characteristics have to be taken into account. To rule out someone who may be legally classified as mentally retarded in a particular offense of a particular nature, under particular circumstances, with a flat prohibition I don't think would be in the interest of justice.

The CHAIRMAN. I think it would be civilized, but that is where we disagree.

How about juveniles? Do you think the death penalty should be available for juveniles?

Attorney General THORNBURGH. I think the position that the administration has stated is that persons under 18 years of age should not be subject to the death penalty.

The CHAIRMAN. So you disagree with the Senator from South Carolina.


Attorney General THORNBURGH. Occasionally.
The CHAIRMAN. But on this matter.
Attorney General THORNBURGH. Yes. That is right.

The CHAIRMAN. Now, let me ask you with regard to the FBI. You indicated, and I am paraphrasing, there is a straight-line relationship between resources and results. That is the comment you made. And you have spoken with eloquence here this morning about the breadth and scope of what need be undertaken by your Department, and you mentioned white collar crime.

Now, the administration originally came forward in its first round this year with a cut of over 400 FBI agents. Later that was changed. Director Sessions testifying before us in the not-too-distant past—I will get the exact date for you. As a matter of fact, October 2, 1989—when I asked him why he wasn't targeting more criminal organizations and what happens when he doesn't have the thousand extra FBI agents, he says he needed-he says,

Mr. Chairman, if I am not mistaken, you said 57 percent of those involved now in your significant anti-drug effort or resources are agents who are taken off other assignments and moved into the drug area. Is that correct?

Excuse me, that was my question.
Mr. SESSIONS: They are people who are coming beyond funding. That is correct.
The CHAIRMAN. Beyond funding?

Director SESSIONS. Yes. They are taken from organized crime, white collar crime, counterterrorism and some foreign intelligence operations. White collar crime.

I'm reading on. Well, anyway, that is sufficient.

The point he made was that even absent the addition of the thousand FBI agents he says he needs to cover those areas, that he is now having to steal from white collar crime units to provide for the FBI's agreed-to portion of the President's drug strategy. Why are you opposed to us giving you more FBI agents?

Attorney General THORNBURGH. I hope I haven't created an impression that I am opposed to having more resources in the Department of Justice, Senator, because that is far from the truth.

The CHAIRMAN. You will take the additional thousand FBI agents? Attorney General THORNBURGH. We will take whatever we get. The CHAIRMAN. That is all I need to know.

Attorney General THORNBURGH. Dick Thornburgh and Bill Sessions are no different from the police chiefs and prosecutors I mentioned in response to Senator Thurmond. We never have enough. But we also-

The CHAIRMAN. God bless you. I will end right there.
Attorney General THORNBURGH. Well--
The CHAIRMAN. I would yield to my colleague, Senator Kennedy.

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OPENING STATEMENT OF SENATOR KENNEDY Senator KENNEDY. Thank you very much, Mr. Chairman.

In the time we have available, I am not sure that we could probably reach a final judgment. I believe you have stated yours with regards to the racial disparity provisions of the death penalty. We use statistics in the enforcement of various civil rights. The idea that we don't use statistics is really not, I think, a fair judgment, and we have seen the reports of the GAO which have substantiated the disparity on which the death penalty is given in cases throughout various jurisdictions of the country.

I want to just mention, General, that my general concern is we won't be able to get into a number of the areas that I would like to with regards to the issues of assault weapons and in detail on the issues of the civil rights. But what I am looking at is the issues taken by the administration on the racial disparity and application of the death penalty. What I am looking at is the real inadequacy of reaching out and trying to find qualified minorities on the courts. When you look at your record, the administration's record, I find it really hard to justify, particularly in the selection of a number of recent nominees for the fifth circuit and other circuits that have been extremely important in terms of the preservation of civil rights in important parts of the country. The failure to really comply with the law on IRCA with regards to the discriminatory actions of employers that has recently come to the fore. And then also the unwillingness to provide for the compensatory damages in the areas of civil rights; for example, in the areas of sex discrimination. You provide for-recently the Justice Department has-in housing for compensatory damages in complying with the fair housing act, but are still unwilling to do so with regards to the protection of women and those that are being discriminated against on national origin.

So I look at these basic four areas that involve the basic issues of sensitivity to the issue and the questions of civil rights, and we could spend the time—which we can't because of the shortage of the time-on each and every one of them. But it is my central concern that in each and every one of these areas the administration comes down on what I wouid consider to be on the wrong side of it. We can debate those; we won't have the chance this morning. But the cumulation of those, I think, has to be of central concern to people who wonder whether this Justice Department, this administration, this President, is as fully committed as I think many of us believe that he is, but nonetheless the results are considerably short of the mark.

I would like to focus your attention on one area, and that is with regards to the immigration requirements under the law, Immigration Task Force requirements. We were very much concerned when we passed the 1986 bill which Senator Simpson and I worked on, and he, I thought, did an extraordinary job-although we reached some different conclusions. But, nonetheless, as someone who has been concerned about the immigration laws over a period of time and known that they have been used for discriminatory purposes too many times, we established a provision to bring to the attention of the Congress whether the employer sanctions were going to be used in a discriminatory way.

I don't want to spend a lot of time about whether a certain percentage, 10 or 19 percent is substantial or non-substantial. As the author of the amendment, we have recognized that there may be occasional discrimination. But if it is going to more than occasional, it is substantial as far as I was concerned and, hopefully, other Americans who are concerned about discrimination.

But under the statute, there is the requirement for the Attorney General jointly with the Chairman of the Commission on Civil

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