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Ashcroft’s Song

"THE FEDERAL DEATH PENALTY ACT IS UNCONSTITUTIONAL." With just seven measured words, a New York judge last week ignited an issue that has been smoldering at the political margins. U.S. District Court Judge Jed Rakoff, a former prosecutor, thereby earned national headlines as he threw out capital charges against two individuals accused of drug murders, citing "an undue risk of executing innocent people."

Judge Rakoff's seven words -- and the data behind it, like the exonerations of 102 innocent death row defendants -- amount to a gauntlet thrown in the face of the federal death penalty's top enforcer, Attorney General John Ashcroft. Indeed, it appears that Ashcroft is headed for a major showdown with the courts over the question of capital punishment -- and Judge Rakoff's ruling is just one symptom. Even while judges and politicians nationally are showing unprecedented skepticism about the death penalty, Ashcroft is seeking federal capital charges with a zeal unknown in any previous attorney general.

Rakoff's ruling may have seemed incendiary, but it was really the final piece of kindling in an expectedly hot season for the death-penalty debate. In San Francisco, U.S. District Court Judge Thelton Henderson recently issued a pretrial ruling hinting that he is ready to find the California death law so arbitrarily imposed that it violates the Eighth Amendment's ban on cruel and unusual punishment. Just two weeks ago the U.S. Supreme Court banned executions of the retarded and, in a separate ruling, threw out as many as 150 death sentences decided by judges rather than juries. Not long ago Maryland's governor Paris Glendenning imposed the nation's second state-level moratorium on executions. Illinois Governor George Ryan is mulling whether to follow up his 18-month moratorium by commuting the sentences of all Illinois death-row inmates. The chairman of his state's death-penalty commission -- set up after the release of 13 innocent people, some of whom came within days of execution -- has concluded that salvaging capital punishment will simply cost the taxpayers too much.

Where does Ashcroft fit into this picture of national unease? According to a study released by the Federal Death Penalty Resource Counsel Project the same day as Rakoff's ruling, Ashcroft is such an aggressive death-penalty zealot that he is frequently overruling his own prosecutors to demand capital charges. In fact Ashcroft has overruled U.S. attorneys 12 times. And he has approved death-penalty prosecutions in nearly half of all federal cases where capital charges might apply -- compare that to California, where fewer than 13 percent of death- eligible defendants actually face capital charges. And there's evidently a racial dimension: According to the study, Ashcroft is three times more likely to seek the death penalty for black defendants for killing whites than black defendants who kill African-Americans.

IT'S INCREASINGLY EVIDENT THAT Ashcroft's decisions in death cases are motivated by a perverse evangelism: He wants to impose the death-penalty gospel on states such as Michigan or Minnesota which don't have execution on their books. Shortly after taking office in 2001, Ashcroft quietly revised the guidelines for federal capital cases, encouraging U.S. attorneys to consider whether "appropriate punishment upon conviction" is available at the state level. In recent months Ashcroft's Justice Department has aggressively pursued the federal death penalty against defendants in Puerto Rico, Massachusetts and other anti-capital-punishment strongholds.

It's clear that Ashcroft's federal death-penalty evangelism is running against the tide. Judge Rakoff's ruling manages, in 31 pages, to lay out a case against federal capital punishment in terms so clear that even the pro-death-penalty Washington Times editorial page this week called it "a disturbingly powerful legal opinion" that casts light on "a new factual reality." Looking over "the best available evidence," Rakoff finds that "on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed," and that evidence of their innocence usually takes years to emerge. DNA testing, he says, has proved "the remarkable degree of fallibility" in criminal trials. In fact, he says, the federal death-penalty law so enthusiastically pursued by the attorney general presents "a greater risk of wrongful capital convictions than most states" because of weaker evidence rules.

Ashcroft may be counting on the Supreme Court to bail him out, but he should not be so certain. This spring's two major death-penalty decisions revealed the Supreme Court's traditional capital punishment consensus to be rattled. The court's majority opinion banning execution of retarded convicts notes that "we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated," and last summer O'Connor worried aloud in a Minneapolis speech about false conviction.

Perhaps emboldened by this uncertainty, Judge Rakoff ends his ruling by saying that the federal death penalty "is tantamount to foreseeable, state-sponsored murder of innocent human beings." He doesn't address the federal death penalty's biggest fan by name. But it is clear that when it comes to capital punishment, John Ashcroft and the courts are on a collision course.


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