Attorney General THORNBURGH. Senator Thurmond, I think there is a straight-line relationship between the amount of resources that are devoted to the criminal justice system and the results that are obtained in the form of the number of investigations undertaken, arrests, prosecutions, convictions, seizures, and jail time served. Every one of those statistical indicators today is at a record high, and the application of more resources will only see additional records being set.

This, as you note, however, is not the only front upon which the effort to contain the depredations of illegal drug use and drug trafficking can be addressed. We will not win the war against drugs through law enforcement efforts alone, and the President's comprehensive drug strategy is designed, as I noted, to include a wide variety of other efforts. And all of that governmental undertaking must be overlaid on a community effort that recognizes that the ultimate way to win the war on drugs is to win on the battlefield of values. That will require much more sustained and sophisticated effort.

With regard to the use of additional resources, I must be candid with you. Since I first became involved in law enforcement 20 years ago, I have never talked to a police chief, a prosecutor, a judge, or a prison correctional official who said they had enough. The question of how much is enough in dealing with the social plague of violent crime, drug abuse, organized crime, white collar crime, what have you, is one that is very difficult to answer. As always, it must be answered, and it falls to those of us in Government to answer it, within the parameters of the available resources. And within those available resources, we must set priorities in the use of our funding.

We have received, thanks to the efforts of you and your colleagues, record increases in the number of investigators and prosecutors and prison space available within the Federal criminal justice system. I think it is noteworthy that the administration now supports the addition of 75 new judges to take up the slack that may have occurred within the judicial branch. But it will always be a problem of making sure that our efforts against crime advance on a common front; because if we have too many investigations and not enough prosecutors, good cases will not be prosecuted. If we have too many prosecutors and not enough judges, good cases will not be tried. And if we have too many sentences and not enough prisons to accommodate those persons who violate the laws, too many serious offenders will be loosed on the community again.

Keeping those features of the criminal justice process in total and perpetual balance is a very daunting effort, but one that we are pleased to be able to work with you and your colleagues in achieving.

Senator THURMOND. Mr. Attorney General, the Senate will soon consider major crime issues, including the Federal Death Penalty Act of 1989. Opponents of the death penalty have been calling for enactment of the Kennedy Racial Justice Act. This act would allow death-row inmates to overturn their sentences by using statistics— I repeat, statistics-which show disproportionate patterns in sentencing without regard to whether there was any discrimination in

the individual cases. Senator Biden's crime package, S. 1970, includes this legislation.

Please discuss this legislation and the effect it would have on Federal and State penalties.

Attorney General THORNBURGH. As you know, Senator, we have made available to you and your colleagues a detailed assessment of the crime legislation, which we hope and expect will be taken up soon by this body. Let me state with regard to the death penalty that this administration supports a restricted constitutional death penalty in enumerated situations where it is felt it would have a strong deterrent effect.

One of the difficulties with the present law is that while some 15 death penalty provisions are on the books, they are incapable of being implemented because of the lack of legislation which would meet constitutional standards set down by the Supreme Court. Therefore, we support procedures such as you have sponsored to provide a constitutional procedural setting within which the death penalty can be carried out against particularly egregious offenders. With regard to the proposed legislation dealing with the measure of death penalty cases by statistical analysis, we are, as I expressed to you and your colleagues, opposed to that legislation. The Supreme Court of the United States has made it abundantly clear that in any particular case where there is a finding that a death penalty has been imposed in a racially discriminatory manner, it would be struck down. And the provisions that require the use of specific aggravating and mitigating circumstances in assessing the death penalty and requiring a certificate from each juror that no racial discrimination was involved in the assessment provides, we think, sufficient safeguards in both the legislative and judicial branches against any hint of racial discrimination being forthcoming in the application of the death penalty.

On the other hand, I must say that it is clear that this is an issue upon which there is considerable division, and I think those who oppose the death penalty have translated a concern about discrimination and its application into a statutory proposal that could well put an end to the death penalty in the 37 States that have adopted it, as well as under Federal law. I think it is important to recognize that opposition to the death penalty is an issue that deserves debate among those who oppose it and those who support it; but that the use of statistics, which are in some quarters subject to considerable doubt as to their validity in assessing a class of cases without looking at what transpired in the individual case, could be counterproductive to the agreed-upon use of the death penalty as a deterrent to serious violent crime and threats to our citizens.

Senator THURMOND. Mr. Attorney General, S. 1971, crime legislation which I introduced, includes a habeas corpus reform proposal to limit Federal judicial interference with State court proceedings, and to address many of the abuses typical of the current habeas corpus procedures. Other proposals to reform habeas corpus law have been introduced. I also introduced S. 1760 which embodies a recommendation to the Powell Committee. Senator Biden has another proposal included in his crime package S. 1970.

Could you please compare these proposals and discuss which proposal the Department of Justice endorses?

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 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. Notwith

standing 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.