Federal Prosecutors
Widen Pursuit
Of Death Penalty as
States Ease Off
By CHRISTOPHER CONKEY
and GARY FIELDS, Online WSJ.com February 2007
At a time when many states are
backing away from capital punishment, the federal government is aggressively
pursuing -- and winning -- more death sentences, including in jurisdictions that
traditionally oppose them.
On Tuesday, federal prosecutors in New York persuaded a jury to give a death
sentence to Ronell Wilson, a 24-year-old man convicted of killing two undercover
detectives by shooting each in the back of the head. The decision -- the
first time in more than 50 years that a federal jury in New York agreed to
sentence someone to death -- marked something of a milestone for the Justice
Department in its continuing effort to apply the death penalty more evenly
across the country.
Today, there are 47 people on federal death row -- more than double the number
six years ago -- and Mr. Wilson this week became the seventh sentenced in a
state without a death statute of its own since the federal death penalty was
reinstated in 1988. The ranks may grow in the months ahead, with several
capital cases on tap in locales traditionally opposed to the death penalty.
The last federal execution was in 2003, when Louis Jones Jr. died by lethal
injection at an Indiana facility where all federal executions now take place.
"I get the sense that it's really beginning to change a lot. There seems
to be a renewed emphasis on this," said Jensen Barber, an attorney defending
Larry Gooch, a man facing federal drug-related murder charges and a potential
death sentence in Washington, D.C.
The growth in federal capital cases, many observers say, results from a
heightened effort by the Justice Department to centralize the process for
deciding whether prosecutors should push for capital punishment.
Justice Department spokesman Erik Ablin says the government is making an effort
to pursue capital punishment uniformly across the country. "We have in
place a clearly defined review process to ensure the death penalty is applied in
a consistent and fair manner nationwide," he said.
Congress in 1986 began expanding federal jurisdiction to crimes that
traditionally had been prosecuted by states -- imposing mandatory minimum
sentences in crack cocaine cases, for example -- and two years later expanded
federal reach into capital cases. Still, it took 14 years before federal
prosecutors under then-Attorney General John Ashcroft managed to obtain capital
convictions in jurisdictions that didn't have the death penalty at the local
level.
In many cases, the Justice Department has asserted jurisdiction even though
local prosecutors were prepared to handle the cases. In Puerto Rico, for
example, federal prosecutors have unsuccessfully sought death sentences for four
defendants since 2003 although Puerto Rico's constitution explicitly states that
"The death penalty shall not exist."
Puerto Rico's Secretary of Justice at the time, Anabelle Rodriguez, said her
department's only recourse was to try to negotiate with the federal government
to make it "respect local idiosyncrasy" so a death sentence wouldn't be
enforced.
The rising count on federal death row comes as many states reconsider the death
penalty or issue moratoriums on the punishment for a variety of reasons,
including sloppy executions and exonerations of condemned inmates because of DNA
evidence.
Since the 1988 reinstatement of the federal death penalty, prosecutors have
attempted to bring capital cases in federal courts across the country.
Typically, this has proved much easier in states such as Texas, which have death
penalties of their own, than in states such as Iowa, which don't. In 2000,
there were 18 inmates on federal death row, but none were from a state that
disallows capital punishment.
Things began to change in 2002, when federal prosecutors secured a death
sentence in Michigan, a state without a death penalty. A year later, Mr.
Ashcroft ordered U.S. attorneys in New York and Connecticut to seek death
penalties against 12 defendants even though prosecutors handling the cases had
recommended against doing so or decided not to pursue capital charges. At
the time, the Justice Department said there shouldn't be "one standard in
Georgia and another in Vermont."
"There's all this talk about how death row is declining, but that's not true for
the federal system," said Ruth Friedman, director of the Federal Capital Habeas
Project, a federally funded program that assists lawyers in the post-conviction
stage of capital cases.
Indeed, the rising count on federal death row in recent years has occurred while
the number of inmates on state death rows has been falling. After a long
rise, the number of people on state death rows has fallen to 3,344 last year
from 3,593 in 2000, according to the Death Penalty Information Center, an
organization that tracks capital cases.
Eric Holder, a former U.S. attorney in Washington who was deputy attorney
general during the Clinton administration, said that in the 1990s, he and
then-Attorney General Janet Reno weren't as likely to override a local federal
prosecutor who didn't think a crime warranted capital punishment.
Overriding local federal prosecutors "was relatively rare during the Clinton
years," Mr. Holder said. "Having both been local prosecutors, we really
deferred to our U.S. attorneys' understanding that they knew their local
situations."
The Justice Department declined to comment on this point.
Richard Dieter, executive director of the Death Penalty Information Center, said
concerns that federal capital cases were being clustered in pro-death penalty
states led the Justice Department under Mr. Ashcroft to intensify its push for
death sentences in states that traditionally oppose the punishment.
This process is often difficult. In two recent cases in Washington, D.C,
federal judges ruled out the possibility of death penalties. In New York,
juries have opted for life sentences instead of executions in more than a dozen
federal cases.
Mr. Gooch, the defendant in the drug-related murder case, was initially charged
with two murders and slated for trial under D.C. law, which prohibits capital
punishment. Later, the U.S. attorneys charged him with two additional
killings connected with a drug ring -- making it a federal case and bringing the
death penalty into play.
Mr. Barber, his lawyer, unsuccessfully challenged the move, citing a 1992
referendum undertaken at the behest of Congress in which D.C. voters
overwhelmingly banned the use of capital punishment. Eleanor Holmes
Norton, the District's nonvoting congressional delegate, has written a letter to
the U.S. attorney for D.C., objecting to the "new and troubling pattern" of
federal capital cases in the district.
Write to Christopher Conkey at
christopher.conkey@wsj.com and Gary Fields at
gary.fields@wsj.com
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