Ashcroft Is Undeterred in Push for Capital Cases

Shortly after arriving at the Justice Department nearly four years ago, Atty. Gen. John Ashcroft was faced with a new internal study that raised serious questions about the application of the federal death penalty.

A small number of federal districts, including pockets of Texas and Virginia, were accounting for the bulk of death cases. Experts decried the geographical disparities.

For Ashcroft, an ardent supporter of capital punishment, the solution was to seek the death penalty more often and more widely.

Since then, he has pushed federal prosecutors around the country -- often over their objections -- to be more aggressive in identifying prosecutions that could qualify as federal capital cases. Much of that effort has been in states that have banned or rarely impose capital punishment.

But Ashcroft’s quiet campaign, which has been overshadowed by his prosecution of terrorism cases, has made few inroads.

With public support for the death penalty in decline, jurors have rebuffed calls for the death penalty in 23 of the 34 federal capital cases tried since 2001, according to the Federal Death Penalty Resource Counsel Project, a court-funded group that assists defense lawyers in capital cases.

But the poor track record, added time and significantly higher cost of death penalty prosecutions have not dissuaded Ashcroft.

This month, federal prosecutors began a capital murder trial in Iowa, where no one has been executed since the state abolished the death penalty in 1965. Vermont, another state that long ago abolished the death penalty, is gearing up for its own federal capital trial next year.

And in New York -- which hasn’t executed a federal prisoner since the Rosenberg spy case in 1953, and where jurors have already rejected two Ashcroft capital cases -- a federal court on Long Island is expected to take up another death case next year.

Ashcroft and the Justice Department contend the moves represent an effort to make the use of the federal death penalty more fair and uniform.

“Federal law should be standard across the nation,” said Justice Department spokesman Mark Corallo. Ashcroft declined to be interviewed. “A person who commits a heinous crime under federal law in one state should not fare better or worse than someone who commits the exact same crime in another state.”

The threat of execution, advocates add, has helped push the number of violent crimes around the country to a 30-year low.

The Justice Department under Ashcroft has succeeded at least three times in winning death penalties in anti-death jurisdictions.

They include a death sentence in January in Massachusetts, whose high court found the state death penalty unconstitutional in 1984, and in a murder case in May 2003 on the Navajo Indian Reservation, which has traditionally opposed capital punishment for cultural reasons.

But the campaign has triggered accusations that the Justice Department has overreached and is manipulating the legal process.

Some argue that the department is bringing what are essentially local cases to trial in federal court to achieve the political aim of making the death penalty a reality in all 50 states.

In doing so, they say, the Bush administration -- usually a staunch advocate of the primacy of states’ rights -- is making an end run around local laws and customs against capital punishment. Federal death penalty law, they argue, should be reserved for cases involving crimes such as terrorism, racketeering or the murder of a federal official.

Last year in Michigan, a state that did away with the death penalty in 1846, Ashcroft approved a capital trial for two brothers in a drug-related murder case. Jurors convicted both men but rejected the death penalty.

The Justice Department said it was a federal case because it was a murder linked to drug trafficking, which is punishable by death under federal law.

But a defense lawyer called it a routine local murder.

“It was no different than many, many crimes in Michigan that never see the federal courts, and people end up in state prison for life,” said Paul Mitchell, a veteran defense lawyer involved in the case.

“I do not think the federal government has any business coming into our state and attempting to basically force a death penalty on us as a state that does not accept the death penalty or has not until now,” Mitchell said.

He also represented a defendant in a 2002 murder case in which the Justice Department did win a death sentence. The victim had been found in a lake in a national forest in Michigan. Mitchell said he had never encountered a capital case until Ashcroft became attorney general.

In some cases, the Justice Department is overriding the wishes of its own federal prosecutors, undoing plea bargain agreements they made that took the death penalty off the table in exchange for the cooperation of defendants in continuing investigations. Federal prosecutors declined to discuss the matter, but court records show numerous examples.

One such case was in Vermont, which was one of the first states to impose capital punishment -- during the Revolutionary War -- but which hasn’t executed anyone since 1954 and abolished the death penalty in 1964.

Now a young drifter named Donald Fell is facing possible death for a cocaine-induced killing and carjacking spree that left three people dead. Federal authorities have asserted jurisdiction because he drove one of his victims across the state line, beating her to death as she pleaded for her life.

The federal judge in the case initially threw out the possibility of the death sentence, saying it was unconstitutional. He was overruled by an appeals court.

Vermont federal prosecutors proposed a plea agreement with the defendant that would have resulted in a life sentence. They were overruled by Ashcroft.

Michael Mello, a law professor at Vermont Law School, said it was a waste of time, effort and resources to pursue a capital case in his state, because jurors were disinclined to sentence anyone to death.

“I am provincial enough to believe that local prosecutors and local judges are the real experts on what local juries are likely to do,” Mello said.

New Yorkers have rejected Ashcroft capital cases twice in less than a year.

In December, a federal jury in Brooklyn rejected the death penalty for a Jamaican immigrant, Emile Dixon, who was convicted of killing a witness to keep him from testifying in a murder case against a fellow gang member.

A life sentence was imposed after defense attorneys disclosed to jurors in closing arguments that Ashcroft had directly intervened in the case -- dismissing a recommendation by New York prosecutors against seeking the death penalty.

“You don’t have to listen to John Ashcroft,” the defense attorney, Richard Levitt, exhorted the jury.

Last month, prosecutors persuaded a judge in another death penalty case in New York to preclude defense lawyers from introducing similar evidence of an Ashcroft override during the penalty phase of that case.

That jury, which had convicted two Bronx heroin dealers of murdering a police informant, returned in less than two hours with a unanimous sentence: life without parole.

The federal district judge, Jed S. Rakoff, expressed personal disagreement with the Justice Department’s role. “A reasonable exercise of discretion by the powers that be would not have favored seeking the death penalty in this case,” he said.

The legal and cultural landscape surrounding the death penalty has shifted during the last three decades.

The Supreme Court struck down state and federal death penalty laws in 1972, saying that the wide sentencing discretion they gave juries had led to a system that was “arbitrary and capricious.” States responded by rewriting their capital punishment laws, and the court reinstated the death penalty four years later.

The federal death penalty was restored in 1988, amid rising public concern over a spike in violent crime and as states were beginning to execute people on a regular basis.

Initially limited to cases against drug kingpins, the roster of death-eligible federal offenses was expanded in 1994 to include kidnapping deaths, murder for hire, and fatal drive-by shootings, among other crimes.

Three federal prisoners, including Oklahoma City bomber Timothy McVeigh, have been executed since the federal death penalty was restored; the other two were prosecuted and sentenced in Texas.

A handful of states continue to contribute a disproportionate number of federal death cases.

According to the Death Penalty Information Center, a Washington organization that keeps statistics on such cases, of the 32 inmates on federal death row as of July 1, 19 were tried and sentenced in just four states: Texas, Virginia, Missouri and Georgia.

Although a majority of Americans still support the death penalty, Ashcroft’s initiative coincides with a softening of the tough public mood amid numerous studies showing flaws in the system. A Gallup Poll showed that the percentage of people who favored the death penalty for a person convicted of murder fell from 80% in the mid-1990s to 71% in 2003.

Not only are there geographic disparities, but blacks are much more likely to face the death penalty than are whites for comparable crimes.

Perhaps most important, the growing use of DNA and other evidence has led to the release of dozens of death row inmates around the country who were shown to be innocent. The clear inference has been that innocent people were executed before the advent of DNA technology.

Democratic presidential nominee Sen. John F. Kerry, who opposes the death penalty except in cases of international terrorism, has vowed to place a national moratorium on federal executions until he is satisfied through DNA evidence that those on death row are guilty.

President Bush, like his attorney general, is a strong proponent of capital punishment, having presided over 152 executions as governor of Texas.

The number of death sentences nationally has declined from nearly 300 a year in the 1990s to about 150 a year, nearly all in state courts. Executions have also declined since reaching a high of 98 in 1999. Last year there were 65.

The death penalty has long been one of Ashcroft’s signature issues.

As a U.S. senator from Missouri, he gained a measure of fame for blocking the nomination of a black jurist from his home state to the federal bench, saying the nominee had a weak record on the death penalty. The judge, Ronnie White, later became chief justice of the Missouri Supreme Court.

Among his first acts as attorney general were two changes in internal Justice Department rules and guidelines, which cleared the way for his campaign to win more death sentences.

He eliminated a Clinton administration rule that empowered local federal prosecutors to enter plea bargain agreements that eliminated the possibility of a death sentence. All such deals are now subject to approval from Washington.

Ashcroft also abolished a rule that barred federal prosecutors from seeking a death sentence for the sole reason that the state where the crime was committed did not have the death penalty. The rule was intended to ensure that there was a legitimate federal interest in a case, and to prevent prosecutors from bypassing state laws that did not authorize capital punishment.

“That little change turned out to be a big deal in states where there was no death penalty,” said Rory Little, a former top aide to Ashcroft predecessor Janet Reno who served on her death penalty review committee and is now a professor at Hastings College of the Law in San Francisco.

Reno, who was in office longer than Ashcroft has been, authorized more death penalty cases. But Ashcroft has been much more insistent on going to trial in death cases rather than striking plea bargains. Despite that, his success rate in obtaining convictions is slightly worse than his Democratic predecessor.

Sixty-five defendants are facing federal capital trials, compared with a high of 39 under Reno, said Kevin McNally, a Kentucky lawyer affiliated with the Federal Death Penalty Resource Counsel Project.

Under Ashcroft, the department has won the death penalty in a handful of especially gruesome cases. But its generally poor record, critics say, suggests not only waning public enthusiasm for executions but also that juries and judges see through what are essentially weak cases for the death penalty.

Federal prosecutors sought a death sentence in a Connecticut case last year on the theory that the defendant -- Luke Jones, a Bridgeport gang leader -- killed two people to further his drug trafficking and racketeering enterprise. That would have made it a federal offense.

A jury returned a conviction on the racketeering count. But the judge ruled that the evidence suggested overwhelmingly that the defendant had killed for another reason -- because the victim made a disrespectful comment to Jones’ girlfriend -- and criticized the government’s rationale for seeking death as “strained.”

Jones was to have been the first person in Connecticut history to face the federal death penalty. He was sentenced earlier this year to life in prison.