Prosecutors and the Death Penalty

As the scandal over the US Attorney purge intensifies, each day brings stark revelations. From intimidating phone calls made to prosecutors' homes to incriminating e-mails from the office of former White House counsel Harriet Miers, to the lurking shadow of Karl Rove, it's a political firestorm that threatens to reduce the career of Attorney General Alberto Gonzales to ashes. But long before this controversy shed light on the political maneuvering between the White House and the Justice Department, two of the fired attorneys were engaged in a largely invisible internal struggle with the Justice Department over its aggressive pursuit of the death penalty.

Both Paul Charlton of Arizona and Margaret Chiara of Michigan have been criticized for failing to seek death sentences with sufficient gusto. Both US Attorneys were pressured to participate in an aggressive campaign begun by former Attorney General John Ashcroft and continued by Gonzales to extend the federal death penalty--particularly into jurisdictions without death-penalty statutes of their own.

The expansion of the federal death penalty is in many ways old news. Resurrected in 1988 and expanded by the 1994 Crime Bill, capital punishment was again encouraged by the Patriot Act. Shortly after taking office in 2001, Ashcroft amended a number of official US Attorney protocols for capital cases; among the most controversial was a new requirement that forced prosecutors to seek Attorney General approval in plea bargains that would spare a defendant's life. But it was only when Ashcroft began stepping into federal cases across the country, overriding federal prosecutors and forcing them to seek death sentences that people began to take notice.

In 2001 Charlton prosecuted Lezmond Mitchell for his role in a murder and kidnapping on a Navajo reservation in Arizona. Citing the Navajo tribe's opposition to capital punishment, Charlton opted not to seek the death penalty. But Ashcroft overruled Charlton, forcing a capital trial. The result: the only Native American on federal death row at the time.

Charlton would be overruled again, by Alberto Gonzales, in a 2003 drug-related murder case in which neither the weapon nor the victim's body were ever found. (The defendant, Jose Rios Rico, is still awaiting trial.) But the historic nature of the Mitchell case would set the stage for prosections over the next six years in which the federal death penalty crept into jurisdictions that had not seen capital cases of any sort for decades. Michigan, for example, had not prosecuted a capital case in sixty years when Margaret Chiara, a declared death-penalty foe, became a US Attorney in 2001. Two years later, she would be overruled and forced to prosecute a capital case described as "completely mystifying" by Kevin McNally of the Capital Defense Network, which tracks federal capital cases. In the murder case against Robert and Michael Ostrander, Ashcroft was so zealously in favor of capital punishment that he rejected a plea bargain arranged by Chiara in which Michael Ostrander would plead guilty and implicate his brother, Robert, forcing the case to go to trial. As McNally told the Grand Rapids Press in August 2003, "If a trial-level prosecutor feels he can use another witness to shore up a case, how do you overrule that decision a thousand miles away?

Yet the same thing happened in the case of Donald Fell in Vermont in 2002; prosecutors had arranged a plea bargain that would have resulted in a life sentence, only to be overruled by Ashcroft, who insisted that a death sentence be sought instead. Unlike in the Ostrander case in Michigan, which ended with life sentences, jurors in the first capital trial in Vermont in fifty years voted for death. Other states where Ashcroft overruled prosecutors--and where Gonzales has continued to overrule with increasing frequency--include New York, which in January sent its first defendant to federal death row in fifty years.

"Typically, the decision to seek the death penalty is made at the local level and then the Attorney General has the ultimate say," says Wayne McKenzie, a former prosecutor and program director at the Vera Institute of Justice in New York. "The question here is: How much push is coming from main justice down to the individual US attorneys encouraging [death sentences]? As a US prosecutor, you have certain autonomy, but you also have a certain amount of oversight. There are certain mandates that come out of main justice."

"Main justice" is of course, the Attorney General's office, the ultimate embodiment of a fundamental contradiction. "Federal prosecutors are supposed to represent 'the people,'" says Angela J. Davis, a law professor at American University Washington College of Law, "but they are nominated by the President and confirmed by the Senate. How do 'the people' have any connection to that?"

The answer, presumably, is through their representatives in Congress. But consider New York Senator Charles Schumer, a death-penalty supporter who has led the charge against Gonzales and who presided over the first set of Senate Judiciary hearings on March 6. For all his moral indignation over the attorney purge, Schumer has had nothing to say about the Attorney General's overruling of prosecutors in capital cases in his own state. And New York leads the country in the number of potential death penalty cases in the federal pipeline: fifty-one as of February.

Federal prosecutors, after all, "serve at the pleasure of the President," and, like lawmakers, cannot completely transcend politics, even if they are supposed to be, as Schumer insists, "bedrock neutral servants of the law."

"The system as it stands is troubling enough," says Davis. "What's going on now with Bush is that these attorneys are being removed not because they aren't being accountable to the people; they're being removed because they're not being accountable to the Bush Administration. That is outrageous."

Besides Schumer, some of the most vocal Congressional critics of the US Attorney purge, including Vermont Senator Patrick Leahy and Michigan Representative John Conyers, hail from states that have been affected by the Justice Department's aggressive pursuit of the death penalty, but neither lawmaker has addressed the death penalty issue to date. Meanwhile, the impact of the policy is already apparent. "In 2000, there was no one on the federal death row from a jurisdiction that did not have the death penalty," points out Richard Dieter of the Death Penalty Information Center. "Now there are six on the federal death row from such places." He adds, "The size of the federal death row has almost tripled from 2000 to the present, during a time when state death row numbers have declined." Indeed, the expansion of the federal death penalty is in direct opposition to declining death penalty trends throughout the country--yet another example of the Bush Administration's deliberate disconnect from its constituents.

With the White House and DOJ officials engaged in a showdown with Congress, the investigation phase of this scandal is just beginning. Thus far, D. Kyle Sampson, Gonzales's influential chief of staff (and a former adviser to Ashcroft) has been the only casualty. Regardless of the results, a hard look at the Bush Administration's death penalty push is long overdue. This needs to happen whether or not Gonzales survives. "In Texas we believe in having a fair trial," Republican Senator John Cornyn recently said, "and then we have the hanging."

(c) 2007 The Nation