In a time of growing doubt about whether the death penalty is being administered fairly and accurately, U.S. Attorney General John Ashcroft is hewing to a policy of full speed ahead in implementing it. "He's the anti-Ryan," says David Bruck, a federal capital-defense lawyer in Columbia, S.C., contrasting Ashcroft with former Gov. George Ryan (R-Ill.), whose misgivings about the death penalty have struck a national chord.
Ashcroft took office in February 2001. Four months later, the attorney general issued what amounted to a clean bill of health for the federal capital-murder system. He declared it free of racial bias, a charge President Clinton had taken so seriously that all federal executions were postponed. Ashcroft allowed federal executions to occur for the first time since 1963. Although his predecessor, Janet Reno, had ordered an independent race-disparity study by death-penalty experts from outside the Department of Justice, Ashcroft has been reluctant to go forward with it and apparently agreed to do so only because of congressional pressure.
Although Ashcroft says it's a top priority to prevent innocent people from being sentenced to death, he has not pushed initiatives to upgrade the quality of defense lawyers in state capital-murder cases or increase death-row inmates' access to DNA testing. Both steps are crucial to eliminate tragic errors in death-penalty prosecutions, according to a broad coalition of reform-minded activists.
Asked if Ashcroft believes death-penalty administration is deeply flawed, as the activists submit, Justice Department spokesman Mark Corallo says, "I think we would argue that the system is overwhelmingly fair."
Ashcroft's unflinching belief in the death penalty is nothing new. He was a death-penalty hard-liner as governor of Missouri and a U.S. senator. More recently, his views reportedly led the Justice Department to steer the prosecution of alleged sniper-murder defendants John Allen Muhammad and Lee Boyd Malvo to Virginia. Muhammad, 42, and Malvo, 17, are suspected of at least 10 killings in four states and the District of Columbia. The Justice Department is said to prefer a trial in the Washington area, the site of most of the killings. Maryland would ordinarily have first claim on trying the case because more of the murders (six) occurred there. But neither Maryland nor Washington allows the death penalty for minors. Virginia does, however, and in late January, Malvo was indicted for capital murder as an adult. (He turns 18 in February.)
The attorney general's views on the death penalty appear very much in sync with those of the man who picked him, President George W. Bush. As governor of Texas, Bush set a modern-day record, presiding over 40 executions in 2000. Bush's clemency power was limited -- a Texas governor can grant a full reprieve of a death sentence only with the consent of the Texas Board of Pardons and Paroles. Nonetheless, he appointed the board's members, who granted clemency only once while he was governor.
Like Bush and Ashcroft, Ryan is a conservative Republican. Before he became governor of Illinois, he was a staunch death-penalty supporter. But he became alarmed by the number of inmates on Illinois' death row who had turned out to be innocent. All told, 17 inmates were exonerated in Illinois (and more than 100 nationwide) before Ryan's term ended last month. Ryan cited a litany of problems -- coerced confessions, incompetent defense counsel and lopsided numbers of minorities on death row, among others -- that he said led him on Jan. 11 to pardon four and commute the sentences of his state's remaining 167 death-row inmates.
Much happened to catapult Ryan from one pole of the death-penalty debate to the other. As the pace of executions quickened and the specter of wrongfully convicted defendants emerged as a growing concern in the 1990s, the issues surrounding capital punishment took on greater urgency. Of course, deliberating the wisdom and legality of capital punishment is almost as old as the nation's history. In 1972, the U.S. Supreme Court invalidated the death penalty as it was being administered in the states and by the federal government. But the court allowed capital prosecutions to resume in 1976 under new guidelines it said were required by the Constitution. Thirty-eight states eventually restored the death penalty. In 1988, Congress reinstituted capital punishment under federal law.
Just as Ryan had to struggle with death-penalty issues as a governor, Ashcroft has had to face persistent claims that error and unfairness plague capital-murder prosecutions. The attorney general's response has been to dismiss the claims as mostly unfounded and to turn a deaf ear to demands for change.
One of the most serious charges to emerge had preoccupied the Clinton administration during its last year. Of the 19 inmates then on federal death row, only four were white, and 13 were African Americans. Further investigation ordered by Reno revealed that, of the 183 defendants for whom U.S. attorneys had recommended seeking the death penalty from 1995 to mid-2000, 135 (74 percent) were minorities.
President Clinton ordered a delay in the resumption of federal executions while the Justice Department got to the bottom of the matter. The scheduled execution of Juan Raul Garza, a Mexican American who was convicted of three drug-related murders, was put on hold. Reno demanded more studies, including at least one to be awarded by the National Institute of Justice to an independent researcher outside the Justice Department.
But there was no guarantee that Ashcroft would follow through on the study as attorney general. To put his intentions on the record during Senate consideration of his nomination, Sen. Russ Feingold (D-Wis.) asked Ashcroft if he would go ahead with the study. "Yes," Ashcroft replied. Feingold pressed on with a series of written questions. "Are you troubled by the fact that about 75 percent of those against whom the Department of Justice seeks the death penalty are people of color or ethnic minorities, even though far less than 75 percent of the people who commit federal capital crimes are people of color or ethnic minorities?" the Democratic senator asked the attorney general. "Yes," Ashcroft responded, "it troubles me deeply," and he promised to pursue "all reasonable and appropriate research necessary to understand the nature of the problem."
By June 2001, although the contract for the independent study had not yet been put out for bid, Ashcroft released another study by the Justice Department, which found "no evidence of racial bias in the administration of the federal death penalty."
But the study didn't look into why federal prosecutors earmark certain cases as worthy of federal attention while leaving others to state authorities. It is there, in the earliest stages of a case, where the race disparity problem could arise, says Rory Little, who was Reno's associate deputy attorney general.
Once Ashcroft had proclaimed the death-penalty system to be free of racial (and ethnic) bias, the executions of Garza and Timothy McVeigh, whose 1995 bombing of the federal office building in Oklahoma City killed 168 people, could proceed.
Ashcroft's report in June 2001 indicated that he did not expect an independent study to "yield definitive answers." At a Senate hearing a few days later, Feingold raised a ruckus, and a Justice Department official reassured the senator that the study would go ahead after all. But it wasn't until September of last year, 15 months later, that the Institute of Justice (which is an arm of the Justice Department) awarded two contracts to researchers to begin the work.
The attorney general has displayed no more enthusiasm in advocating legislation to reduce the risk of innocent people being convicted in capital cases. No less a dyed-in-the-wool conservative than Supreme Court Justice Sandra Day O'Connor devoted a speech to the subject in July 2001. O'Connor, whom President Reagan had appointed and whose support of the death penalty dates back to her days as an Arizona legislator, said, "Serious questions are being raised about whether the death penalty is being fairly administered in this country." She went on to decry the lack of minimum standards for appointed counsel in death-penalty cases and the unavailability of post-conviction DNA testing.
A bill to tackle just those problems, the Innocence Protection Act, has been before Congress since 2000. The author, Sen. Patrick Leahy (D-Vt.), asked Ashcroft about it in January 2001 during the attorney general's confirmation process. Ashcroft said the right to counsel is "particularly precious in capital cases," and he promised to work with Congress to ensure that the justice system "protects the rights of all capital defendants" and provides "access to DNA technology."
Leahy's bill has attracted substantial bipartisan support. Its backers include, besides many Democrats, Sens. John Warner (R-Va.), Gordon Smith (R-Ore.) and Arlen Specter (R-Penn.), all of whom support the death penalty. A House version garnered the endorsement of 250 members, among them 67 Republicans, but no support from Ashcroft.
The need for improved counsel is paramount, many death-penalty critics say, particularly in what they call the "Death Belt" states of Texas, Georgia, Alabama and Mississippi. None has a statewide public-defender system to handle capital cases. "A defendant [in those states] may be assigned a lawyer who doesn't even specialize in criminal defense," says Stephen Bright, director of the Atlanta-based Southern Center for Human Rights, which represents capital defendants.
The attorney general had a chance to further the goal of post-conviction DNA testing by proceeding with a $750,000 federal pilot program created by the Clinton administration. But Ashcroft didn't spend the money for the intended purpose, shunting it instead into support services for DNA testing to identify victims of the terrorist attacks on the World Trade Center. An aide to Ashcroft admitted to Leahy last year that there were no plans to "undertake a national effort to promote and fund post-conviction DNA testing."
As members of Congress have pressed for an in-depth, race-disparity study and DNA-testing legislation, Ashcroft has been quietly overseeing the flow of capital-murder cases in the federal courts. Federal authorities have broad jurisdiction over which murder cases to prosecute. (Any murder committed in pursuit of drug trafficking, for example, is eligible.) They file charges in a small fraction of the cases. The rest are prosecuted in state courts.
When a murder case goes forward in federal court, a U.S. attorney recommends whether the government should seek the death penalty. The attorney general acts as a gatekeeper, either accepting the U.S. attorney's recommendation or overruling it.
In Reno's last five years as attorney general (the period for which Justice Department statistics are available), she required U.S. attorneys to pursue the death penalty despite their recommendations against it in the case of 26 defendants. Conversely, Reno blocked U.S. attorneys from filing capital charges involving 27 defendants when U.S. attorneys favored it.
Ashcroft has been overruling his U.S. attorneys' recommendations against seeking death sentences at a faster clip than Reno. His two-year total is 21, according to the Federal Death Penalty Resource Counsel, which consults with defense lawyers on federal capital cases. But he has been less likely (seven times) to stop a death-penalty prosecution when a U.S. attorney preferred it.
Defense lawyers say the numbers show that Ashcroft is aggressively tilting cases toward capital prosecution, a point that the Justice Department disputes. "I don't think you can make that comparison," says Corallo, the department spokesman. "He looks at each recommendation on a case-by-case basis and decides based on a variety of factors. It's not about trends or proclivities."
A recent decision by the attorney general in a Brooklyn, N.Y., case shows that Ashcroft is willing to go to extraordinary lengths in mandating death-penalty prosecution. Jairo Zapato, a murder defendant in the case, had promised to testify against others tied to a Colombian drug ring in exchange for a life sentence. Ashcroft overrode the prosecutors' recommendation and insisted on a capital case against Zapato.
In a carjacking-and-murder case filed in U.S. District Court in Burlington, Vt., U.S. Attorney Peter Hall recommended that the government accept a plea agreement whereby the defendant, Donald Fell, would receive a penalty of life imprisonment. Hall cited a number of mitigating factors, such as Fell's history of mental problems and his age (20) at the time of the alleged murder in November 2000. Fell is accused of having seized the car of a 53-year-old woman, Teresca King, and beaten her to death.
Ashcroft did not accept Hall's recommendation and required him to proceed with a death-penalty prosecution. Nor would the attorney general allow the judge in the case, William K. Sessions III, to decide the sentence, as Hall and Fell's lawyer then proposed. The Fell case is pending.
What happened in New York and Vermont reflects a pattern, defense lawyers say. They see Ashcroft's interventions in such cases as part of what they call his "agenda" -- meaning maximum control from Washington, greased skids for the death penalty and ears closed to George Ryan and others crying foul. "Everywhere there is questioning about seeking death and imposing the penalty," says Dick Burr, a Houston defense lawyer who consults in federal capital cases. "You have Ashcroft going against the tide of the times."
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