Forgive, O Lord, my little jokes on Thee
And I'll forgive Thy great big one on me.
- Robert Frost, In the Clearing

When I realized that John Ashcroft was not just playing the ghoul as a Halloween joke, I was overcome with nostalgia for the halcyon days when Edwin Meese was the attorney general of the United States.

Readers will recall that Edwin Meese's selection generated a lot of controversy of a different sort from that accompanying Johnny Ashcroft's selection. The controversy was attributable to the fact that Mr. Meese led what seemed, to some, to be a charmed life and to others a life filled with moral turpitude.

Following his nomination it was disclosed that he missed 15 consecutive house payments to the California bank that had given him a mortgage, an oversight that for a lesser man might have meant loss of the home. Instead the bank lent him an additional $20,000 so he could catch up on his payments. Thereafter, the bank's president became an alternate delegate to the United Nations and another officer was made Chairman of the Federal Home Loan Bank Board. One of Mr. Meese's friends lent him $70,000, forgave the loan and then became an Undersecretary of the Interior in the Reagan administration. As a result of these and other questions, there were extensive hearings concerning Mr. Meese's qualifications. He was confirmed.

What evoked nostalgia for Mr. Meese was seeing Mr. Ashcroft involve himself in determining who would get the privilege of trying John Muhammad and Lee Malvo, the boy and man accused of being the snipers who terrorized the Washington, D.C. area for most of October. His involvement was not precipitated by his eagerness to make sure that they would have the best chance of receiving a fair trial, about which he cares little, but to make sure they would have the best chance of receiving the services of death penalty, about which he cares a great deal.

Although the two men accused of the murders have not yet been tried and accordingly have not yet been found guilty, and, accordingly, are not yet ripe for punishment, Mr. Ashcroft wanted to make absolutely sure that when the time comes, they would be in a jurisdiction where Death Penalty would be permitted to participate in the proceedings. (Death Penalty counts Mr. Ashcroft as one of its closest friends even though Mr. Ashcroft professes to be a very devout Christian. To the non-Christian, it is an unending puzzle as to why certain Christians have such enthusiasm for putting others to death.)

Montgomery County, Maryland, is where the shootings started and ended. Maryland was home to more victims than any other jurisdiction and Douglas Gansler, a state's attorney, felt that Maryland was the "most appropriate place for the healing to begin." Maryland, however, has imposed a moratorium on the death penalty and, in addition, has executed only three people in the last 25 years. Death Penalty and Mr. Ashcroft did not want the accused tried in a state so hostile to Death Penalty. To avoid that possibility, Death Penalty and Mr. Ashcroft put their heads together and came up with a splendid idea.

Mr. Ashcroft caused the Justice Department to file charges of extortion against both men. A federal statute provides that if a death occurs in connection with the crime of extortion, the crime is murder and Death Penalty is permitted to participate in the proceedings, a result Mr. Ashcroft finds highly appealing. Not content to wait for a trial before letting folks know what the sentence should be, Mr. Ashcroft told reporters that federal charges were appropriate because "I believe that the ultimate sanction ought to be available here." He might have added, "assuming the men are guilty." Indeed, it would not have been inappropriate for Mr. Ashcroft to have given a judge and jury the opportunity to convict the men before spending a lot of time telling the world what kind of punishment would be appropriate.

Mr. Ashcroft is not Death Penalty's only friend. Virginia is an even better friend and some of the murders occurred in that state. Virginia has executed 86 people since the death penalty moratorium was lifted in 1976. Death Penalty was silently rooting for Virginia for another reason. The federal government does not permit the execution of minors even if their crimes are, as the sniper shootings were, particularly heinous. Virginia has no such compunction. Four minors have been executed in that state in the last three years.

Death Penalty was sitting at the table with Mr. Ashcroft and Virginia prosecutors as they decided how to proceed with the case. Not present at the table was the state of Maryland. One Maryland official said his understanding was that "our death penalties are not strong enough." As Mr. Gansler explains: "The fact that we're not even at the table is very disappointing, but there's not a lot we can do about it." He was right. Virginia got the privilege of trying the two men because, as Mr. Ashcroft triumphantly explained, Virginia has: "the best law, the best facts and the best range of available penalties."

Muhammad's federal public defender in Maryland, James Wyda, said: "It seems to be that the attorney general decided to allow the rate of execution to determine where justice will be sought in this case. The government's clumsy, macabre forum shuffle for the cheapest and easiest way to obtain the death penalty against my client diminishes the system of justice." He got that right.

It is sad for the country that Mr. Ashcroft was playing the ghoul in real life. It would have been better as a Halloween prank.

Christopher Brauchli is a Boulder lawyer and and writes a weekly column for the Knight Ridder news service. He can be reached at brauchli1@attbi.com

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