Demanding the Death Penalty

U.S. Attorney General John Ashcroft, heretofore an ardent advocate of deferring to local control over federal edict, has now countermanded his own U.S. attorneys' recommendations for life imprisonment instead of death at least 28 times.

When it comes to the death penalty, the states and the public are marching in one direction and the federal government in another.

The federal death penalty involves murder on federal property, certain drug kingpin killings and the use of the mail system to transport a murder weapon. Courts have even allowed federal capital prosecutions when interstate commerce is implicated. Typically, a recommendation for sentencing originates with one of the 93 local or regional U.S. attorneys. A committee designated by the attorney general and, ultimately, the attorney general himself or herself must decide between seeking death or "life without release."

Most local U.S. attorneys, attuned to the politics of their jurisdictions, do not recommend death in federal cases that originate in states that have no death penalty (Hawaii, Michigan, West Virginia), or where it is seldom if ever imposed (New York, the Northeast). Under the Bush administration, however, Washington is redefining that process.

Take the case of David Lien. Accused of participating in the mail-bomb murder of San Jose State student Patrick Hsu, Lien thought he had a deal. In exchange for his guilty plea, then- U.S. Attorney David Shapiro offered to spare him from the death penalty for a life sentence. Washington overruled the decision, however, forcing Lien to a lengthy trial at taxpayer expense.

Ashcroft's stated rationale for insisting on capital punishment where life in prison had been recommended has been to counter geographic disparity in the imposition of the death penalty. But his actions have reflected longtime racial disparities in death sentences: Ashcroft has sought death against 25 Black, Latino or (such as Lien) Asian defendants, and only two whites.

Ashcroft's spokesperson, Barbara Comstock, insists that he is "committed to the fair implementation of justice." Yet some 75 percent of the defendants the U.S. government has sought to put to death since 1988 have been minorities. About 90 percent of those condemned to death had white victims, though blacks make up half the murder victims in the country.

State juries, which account for 99 percent of all death sentences, are imposing fewer. The reasons include advances in DNA evidence and a growing belief that life without parole is an acceptable alternative to the racial and class disparities that continue to infect the criminal justice system. In some corners there is a general distrust of placing this much power over life and death in the hands of government officials.

According to the Bureau of Justice Statistics, death sentences have declined for the fourth consecutive year.

A brief survey of states reveals the changing landscape:

-- In Illinois, former Gov. George Ryan cleared out the state's death row and granted blanket clemency to 167 inmates and pardons to four others because DNA evidence was uncovering so many false convictions. Then the House Judiciary Committee voted to abolish the death penalty and send the matter to the full chamber. Although passage is unlikely, this was first of many such bills to clear a committee and be sent to the floor.

-- In Pennsylvania, which has the fourth largest death row in the country, the Committee on Racial and Gender Bias in the Justice System, appointed by the state's supreme court, has recommended a moratorium until "policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented."

-- The rate of death sentences imposed by juries is down 80 percent in Ohio since 1998. In Florida, which has the third largest death row in the country, the rate of death sentences has fallen by 40 percent over the past 5 years.

-- A University of Georgia poll found 60 percent of Georgians oppose executing people who committed their crimes under age 18, and in Arkansas, the House Committee on Aging, Children and Youth, Legislative and Military Affairs, passed a bill to restrict the death penalty to people 18 and over. Two years ago it had defeated similar legislation.

-- In Virginia, which has the highest per capita rate of executions in the country, Gov. Mark Warner has asked the legislature to end the "21-day rule" that bars new evidence from being introduced three weeks from the time of sentencing, citing the fact that no other state "has such a restrictive rule that can actually prevent evidence of innocence from coming to light."

-- Even in Texas, which leads the nation in executions, an astonishing 69 percent questioned by the Texas Poll believe the state has executed innocent people.

In 1997, before ascending the seat of federal power, Attorney General Ashcroft told the Conservative Political Action Caucus that the Constitution's framers envisioned a republic "where the will of the people would be imposed on Washington, not the views of Washington imposed on the people." Principle may be the first casualty of power. Apparently for the attorney general, the old adage holds true: "Where you stand depends on where you sit."

Michael Kroll (mkmitigates@hotmail.com) is the founding director of the Death Penalty Information Center in Washington, D.C.

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