WASHINGTON — The Clinton administration is planning to postpone the first federal execution in nearly 40 years because of a lack of clemency procedures and concerns about racial and geographic disparities in death penalty cases, administration officials said.
The White House is awaiting Justice Department regulations for death row inmates to follow in seeking clemency from the president.
Juan Raul Garza, who was convicted seven years ago in Texas of three drug-related murders, is scheduled to be executed on Aug. 5, and his lawyers said Thursday that they would use the new procedures as soon as they have them to ask President Clinton to spare Garza's life.
The department is also finishing a report on whether members of racial minorities or defendants in certain parts of the country are more likely to face the federal death penalty.
Data gathered so far by the Justice Department show that members of minorities make up more than three-quarters of the defendants in federal capital cases and that federal prosecutors in five districts, including two in New York, have filed nearly half of the federal cases in which the death penalty was an option, officials said.
The Justice Department report, to be released later this month, is certain to generate questions about the fairness of the federal death penalty beyond the Garza case, which would be the first federal execution since John F. Kennedy was president, officials said. There are currently 21 men who face the death penalty for federal crimes.
The new clemency procedures, the first in federal capital cases since the federal death penalty was reinstated in 1988, should be completed within a week or two, a Justice Department spokesman said.
They will allow for the death row inmate's lawyer to make an oral presentation to a clemency panel, and the process, from filing to final decision, will take at least 90 days, officials said.
A White House official said Garza, who was convicted in 1993 in Brownsville, Texas, would be allowed to take advantage of the new procedures. Thus, his execution will have to be postponed, officials said.
A Justice Department spokesman said the department had no authority to grant a reprieve to Garza at this time, and that the sole power for such a reprieve now lay with the president.
Under the Constitution, the president's pardon powers are absolute. Thus, options in the Garza case include a pardon, which would erase the criminal record, commutation to a life sentence or a temporary reprieve, which would allow Garza to follow the new clemency procedures. A 90-day reprieve would put off the execution until after the election, one official noted.
"We're cautiously optimistic," said Garza's lawyer, Gregory W. Wiercioch of the Texas Defender Service in Houston. Wiercioch added that he had not been given official notice of any reprieve.
"Until then, we have to move forward on other fronts," he said. Wiercioch was in Washington Thursday looking for support for his client.
Garza has had his hopes dashed before. When Judge Filemon B. Vela of U.S. District Court in Brownsville first proposed setting an August execution date, U.S. Attorney Mervyn M. Mossbacker Jr. joined the defense in asking that he not do so. Noting that it would be the first federal execution in more than three decades, Mossbacker said the Justice Department was developing guidelines and procedures to ensure that it would be carried out "in an appropriate, dignified and expeditious manner."
Although declaring that he was "not a proponent of the death penalty," Vela rejected the arguments and set the date, after which the U.S. attorney dropped further opposition.
Garza, a high school dropout who is the son of migrant farm workers, was the head of a drug-running operation that smuggled in tons of marijuana from Mexico, according to the federal charges. He was convicted of ordering the execution of three people as part of his criminal enterprise.
Although Garza has declared that he was not responsible for the murders, his lawyers, in seeking clemency, do not intend to argue that he is innocent. Rather, they will argue that it is unfair to put Garza to death because the federal death penalty system, as it currently operates, discriminates against members of minorities and is unevenly applied across the nation.
The administration of the federal death penalty is like a "rigged lottery," with the outcome determined by "the color of your skin and where you purchased your ticket," Wiercioch said.
At a news conference last week, Clinton said he was concerned about "the disturbing racial composition" of the federal death penalty population, and that a handful of federal districts account for the majority of death penalty cases, "which raises the question of whether, even though there is a uniform law across the country, what your prosecution is may turn solely on where you committed the crime."