At a time when many authorities, from the U.S. Supreme Court to state governments, are rethinking aspects of capital punishment, Attorney General John D. Ashcroft is aggressively pursuing the federal death penalty and frequently overruling his own prosecutors in the process, according to records and public officials.
Since taking office early last year, Ashcroft has reversed the recommendations of federal prosecutors 12 times, ordering them to seek the death penalty in cases where they had recommended against doing so, according to statistics compiled by the federal capital defense bar. These include at least one case in which a tentative plea agreement had already been reached.
Overall, Ashcroft has approved capital punishment for one or more defendants in nearly half the eligible cases, the statistics show. Some of the cases come from Michigan, Vermont and other states that have outlawed capital punishment, but where the federal death penalty can be applied under certain circumstances.
The data also indicate that racial disparities in the application of the death penalty, identified as a problem under the previous attorney general, Janet Reno, have lingered during Ashcroft's tenure.
Since Ashcroft became attorney general, the Justice Department has been three times more likely to seek death for black defendants accused of killing whites than for blacks alleged to have killed nonwhites, according to the Federal Death Penalty Resource Counsel Project, which was established by the courts to monitor capital cases.
The aggressive pursuit of capital prosecution on the federal level comes at a time whenother government officials are increasingly skeptical of some aspects of capital punishment.
Last week, the U.S. Supreme Court handed down rulings barring execution of the mentally retarded -- which had been allowed in 20 states -- and invalidating procedures in at least five states that allowed judges, rather than juries, to decide death sentences.
The rulings followed moratoriums on executions by Maryland and Illinois, where officials said they are troubled by wrongful convictions and racial disparities in death penalty cases. In April, Arizona authorities released the 100th U.S. death row inmate found to be wrongfully convicted since capital punishment was reinstated a quarter century ago.
"The pattern that's developing under the Ashcroft regime is running counter to the national trend, which is to place more restrictions on capital punishment," said Kevin McNally, a Kentucky defense attorney who is part of the federal death penalty monitoring project. "I think there's a conscious attempt here to nationalize the death penalty. . . . But by pulling more people in, you exacerbate the problems already evident in the states."
Ashcroft has overridden prosecutors in the cases of three defendants in New York, two in Maryland and one each in Michigan, California, Vermont, Florida, Illinois, Indiana and Tennessee, according to McNally.
In the Maryland case, defense attorneys said Ashcroft overruled prosecutors by directing them to seek the death penalty against Rufus J. Millegan Jr., 22, and Cornell W. McClure, 23, who are accused of killing Tessa Mae Osborne, 18, on federal land in Beltsville in May 2001.
Justice Department officials, who cited confidentiality rules in declining to provide statistics on death penalty cases, said they have worked aggressively to address concerns about racial imbalances. They also said Ashcroft and other top Justice officials who review death penalty cases generally do not know the race of the defendant.
One senior Justice official also said states that do not have the capital punishment penalty nevertheless cannot opt out of federal laws they oppose.
"If there is a federal death penalty, someone who commits a federal death penalty crime should be treated the same no matter where they commit the crime," the senior official said. "States do not have the option of opting out of federal death penalty law any more than they had the option of opting out of civil rights laws in the 1960s."
Since taking office in February 2001, Ashcroft has presided over the executions of Oklahoma City bomber Timothy J. McVeigh and drug kingpin Juan Garza. The cases, decided before Ashcroft took office, were the first federal executions in nearly four decades.
Both Ashcroft, a conservative former U.S. senator, and President Bush, who oversaw scores of executions as Texas governor, had criticized the Clinton administration for not pursuing federal capital cases aggressively enough.
Ashcroft has approved pursuit of the death penalty in 20 of the 45 eligible cases he has considered through March 1, according to McNally's group. He has approved seeking capital punishment for 36 of the 145 defendants through June. In prosecutions with multiple defendants, Ashcroft approved seeking the death penalty for some but not others.
That rate for individual defendants is about the same, 25 percent, as the proportion approved by Reno during her last five years in office. However, a precise comparison is impossible because Reno did not review all capital cases, as Ashcroft does.
But Ashcroft so far has been almost twice as likely as Reno to reverse the recommendations of local U.S. prosecutors and pursue the death penalty, according to the available statistics.
One of those cases was the prosecution of accused killer Donald Fell of Vermont, who last fall signed a tentative plea agreement with the U.S. attorney's office there that would have required him to serve a sentence of life imprisonment without parole.
Fell, 21, was charged with carjacking and kidnapping that resulted in death. He allegedly abducted 53-year-old Teresca King from the parking lot of a Price Chopper store in Rutland in November 2000. He and another man, the late Robert Lee, allegedly beat King to death in New York and left her body in a forest.
Prosecutors proposed a plea agreement based on numerous mitigating factors, officials said, including Fell's remorse, his age, his history of drug problems, his lack of previous criminal activity and his willingness to cooperate by leading authorities to King's body.
Members of King's family, however, wanted Fell executed. In addition to unsuccessfully calling for capital punishment in Vermont, the family appealed to Ashcroft.
In January, Ashcroft ordered federal prosecutors to seek the death penalty in Fell's case. Last week, the U.S. District Court judge handling the case rejected a defense motion to block the move.
"It's a long and difficult process, and no one wants to go through it except John Ashcroft," said Gene Primomo, a federal public defender who represents Fell. "It's an inside-the-Beltway exercise by the attorney general for political points."
U.S. Attorney Peter W. Hall said his office is obligated to pursue a capital case against Fell regardless of the earlier agreement. Hall also said that Reno approved a previous capital case in Vermont, which ended in a guilty plea and life imprisonment.
"We understand full well that there is only one person in the country who is authorized to make that decision, and that is Attorney General Ashcroft," Hall said. "While we may pass on our views of the case, we all stand ready to proceed when a decision is made."
Fell's case illustrates one important difference between the capital punishment systems under Ashcroft and Reno: the oversight of plea agreements.
In June 2001, Ashcroft released the final version of a Justice Department report which concluded that there was "no evidence of racial bias in the administration of the federal death penalty," but did find a "slight statistical disparity" in plea agreements that seemed to favor white defendants.
As a result, Ashcroft said, he would begin reviewing all plea agreements in death-eligible cases, which previously could be settled without attorney general review.
Under Reno, Hall's office likely would have proceeded with the Fell agreement without input from Washington, several officials said. Such an agreement for Fell, who is white, would have affected the racial distribution numbers.
Minorities account for four of every five federal capital defendants, although last year's report noted that blacks and Hispanics were less likely than whites to face capital punishment once they were charged. Critics said the Justice report was flawed because it did not examine the roots of the problem: Minorities are much more likely to be charged with death penalty crimes than whites. Ashcroft launched a broader study that is still underway.
McNally, the Kentucky defense attorney, said "the whole problem of race appears to be a worse situation than it was before Ashcroft came in," citing the disparities between death sentences in cases for white versus nonwhite victims.
But current Justice officials said Ashcroft's review of plea agreements, such as the pact in the Fell case, will help ensure that heinous cases, regardless of the suspect's race, will be punished by death.
One senior Justice official said the race of defendants is rarely known by either the attorney general or his deputy, Larry Thompson, who heads a review committee that makes recommendations on capital cases.
"That's how we address the concern -- by not addressing race," the official
said. "If you're not considering race in the decision-making process, it can't
be the result of racial bias."
© 2002 The Washington Post Company