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New guidelines for federal death row inmates seeking a presidential commutation of their sentences will change little about the process, critics are saying. Moreover, some charge that the Justice Department’s Aug. 2 announcement of the nonbinding regulations was only a ploy to delay a politically unpalatable execution. The guidelines specify how much notice a federal death row inmate must receive before an execution date. They allow oral clemency presentations to the government’s pardon attorney. What they don’t do is specify which issues the president will consider in deciding whether to commute a death sentence. The guidelines say that this is aimed at preserving the broad constitutional latitude the president has to pardon as he sees fit. “If there were broader categories, it could open up the process, but this still leaves a very broad and unknown territory — it makes the system more subject to arbitrariness,” says Richard C. Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center. He says that, in addition to a claim of innocence, mental infirmity, rehabilitation, or even simple mercy should be incorporated into the guidelines. But Justice officials admit that the guidelines are only a restatement of what has long been DOJ’s informal, nonbinding policy. “This has always been an ad hoc process. Nothing is changing here,” says DOJ spokeswoman Gretchen Michael. “Given the abysmal record the states have on the death penalty, it’s important that procedures be in place to take the politics out of the decision,” says Diann Rust-Tierney, of the American Civil Liberties Union Capital Punishment Project. Dieter echoes the disappointment of death penalty opponents who view clemency as a potential check on wrongful convictions. “Clemency used to be a much more regular part of the death penalty process at the state level,” he says. “Ten to 20 percent of cases used to receive clemency. Now it’s at a pace of only one a year.” The guidelines require 120 days’ notice before an execution and require that any clemency petition be filed within the first 30 days of that period. An additional 15 days are given for the defense lawyer to provide the federal pardon attorney with supporting papers. In addition to allowing defense lawyers to make an oral presentation, victims’ relatives are also given an opportunity to be heard. THE GARZA CASE When the guidelines were announced, President Clinton delayed the execution of Juan Raul Garza. Conservative groups argue that the president wanted Vice President Al Gore to be credible if he were to attack Republican presidential candidate George W. Bush on his death penalty record as governor of Texas. Bush has presided over 138 executions since taking office five years ago. Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, in Sacramento, Calif., says it is telling that the postponement of Garza’s death comes as Bush “is being hammered for executions in Texas.” Justice officials deny any connection between the Garza case and the Gore campaign. Garza, 43, was convicted in 1993 under the federal “drug kingpin” statute for three murders related to his marijuana-smuggling operation. He was originally scheduled to die by lethal injection on Aug. 5 in the new federal death chamber at the U.S. penitentiary in Terra Haute, Ind., becoming the first civilian to be executed under the auspices of the federal government since 1963. Garza’s lawyer, Gregory Wiercioch of the Texas Defender Service in Houston, says that he may need more time now that his client has received notice of his new Dec. 12 execution date. The clemency petition, Wiercioch says, will rely on the results of a pending DOJ study on racial and geographic disparities in the federal death penalty system. Two-thirds of the 21 federal death row inmates are minorities, and a handful of federal districts are responsible for most federal death sentences. Wiercioch says that he is seeking access to files on death-eligible cases in which U.S. Attorney General Janet Reno declined to seek execution. “We have discovered there are cases with more egregious [facts] than Mr. Garza’s,” he says. “We are entitled to know why those cases were not authorized.”

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