Juan Raul Garza could become the first person executed by the federal government since 1963. The Brownsville, Texas, man was sentenced to death under provisions of the federal "drug kingpin" statute after he was convicted of operating a continuing criminal enterprise, marijuana trafficking, and involvement in three drug-related murders. But his execution is now on hold as President Clinton and the Justice Department review federal death penalty procedures and address complaints from the Organization of American States (OAS).
A federal judge set an August 5th execution date for Garza, apparently to the surprise of the Justice Department, which has been studying racial and geographic disparities in federal death penalty cases. On July 6th, President Clinton personally announced the hold pending the results of the Justice Department investigation.
Garza's attorney, Gregory Wiercioch of the Texas Defender Service, told DRCNet that the White House counsel's office confirmed in a July 7th phone call that the execution was on hold. But, said Wiercioch, he still has not been officially notified and remains uncertain how long the hold will last.
"We would ask the president to wait until the Justice Department commission rules before making his decision," said Wiercioch.
Garza has found an ally in the OAS, of which the US is a member. The OAS's Inter-American Commission on Human Rights (ICHR) has intervened in the Garza case. "The issue we raised with the ICHR is the government use of unadjudicated offenses in sentencing," said Wiercioch. This is inherently unfair and in violation of international law," he maintained.
According to ICHR complaint, federal prosecutors violated an international agreement when, in the penalty phase of Garza's trial, they presented testimony about murders with which he was never charged, let alone convicted, and which allegedly occurred in a foreign country, Mexico.
Wiercioch told DRCNet that the US government has not responded to the IHRC's complaints. "In January, the commission wrote to the State Department, notifying the government of its concerns and asking the government not to execute Garza while they reviewed the complaint."
But, said Wiercioch, the Justice Department failed to reply to the IHRC within the mandated 90-day period. The IHRC filed a second complaint and then a third, the latest coming in May. "The government still has not responded," said Wiercioch.
Wiercioch welcomed the IHRC's intervention, he said, but sees its utility as more likely to come in the political realm rather than the judicial. "The IHRC can have a strong impact on a presidential clemency decision," he said. "The US has previously looked to the commission for guidance in interpreting international covenants, and for that reason the IHRC's complaint could have an impact on Clinton's decision to grant clemency or not."
The prosecutor's use of unadjudicated crimes against Garza in the penalty phase is not the only problem with the Garza case. Garza's prosecutors got the go-ahead for the death penalty from then Attorney General William Barr, who without any formal review had given the okay for 19 out of 21 death penalty requests from US Attorneys. Under Attorney General Janet Reno, who has implemented an elaborate procedure for determining who is eligible for a death penalty prosecution, authorizations for a death penalty prosecution have plummeted. According to Wiercioch, Reno has only approved one-third of the prosecutor's requests.
Wiercioch also notes that cases where the facts were more heinous than Garza's have not received the Attorney General's authorization. "This leads to questions about whether racial or geographical disparities are involved," he said.
Those concerns have merit. According to the Death Penalty Information Center (http://www.essential.org/dpic/feddp.html), three-fourths of inmates on federal death row are ethnic minorities, and for those sentenced under federal anti-drug statutes, 89% are African-American or Mexican-American. Of the 20 federal prisoners currently awaiting the death penalty, five are white, 13 are black, one is Asian, and Garza is the sole Hispanic.
For Wiercioch and his client, however, the big question is what President Clinton will do once the guidelines are in place and the Justice Department's racial disparity study is finished. Clinton will then make a decision on Garza's case.
"We'll have to wait and examine our options at that time."