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The Attorney General Forces Federal Prosecutors to Break Promises:
Ashcroft's Pattern of Reneging on Cooperation Agreements, Especially with Minority Defendants


Wednesday, Feb. 12, 2003

Two weeks ago, Attorney General John Ashcroft rejected a recommendation by federal prosecutors that the Department of Justice decline to seek the death penalty against defendant Jairo Zapata. The prosecutors, however, had already signed a deal with Zapata: If he provided information about his drug lord bosses, they would recommend that a judge not sentence him to death. Moreover, Zapata had already provided the information, thus putting himself in danger of reprisals. Yet thanks to Ashcroft, they were forced to break the deal.

By law, all such deals are contingent on approval from the Attorney General's office, and none can bind the sentencing judge. But in reality, the judge typically weighs such agreements heavily, and the Justice Department typically approves them. (At least, it did before Ashcroft's reign).

Nevertheless, Ashcroft reneged. Now the prosecutors who gave Zapata their word that in exchange for information, his life would be spared, are duty bound to seek his execution. Perhaps they should resign, but their resignation wouldn't alleviate the injustice. Perhaps they should sandbag, and make a poor case for death, but they wouldn't be fulfilling their duties if they did.

Is it really acceptable to lie to people when their lives hang in the balance? Ashcroft seems to believe so.

Zapata's Alleged Crimes, and His Deal with Prosecutors

Jairo Zapata is a Colombian immigrant. According to federal prosecutors, he was the triggerman in a 1993 drug-related gang murder in Queens. He was also knowledgeable about the activities of the higher-ups in the drug ring. If he helped prosecutors find the higher-ups and then testified against them, they too might go to jail, prosecutors hoped, and the ring might be broken.

The ringleaders, the prosecutors believed, had ordered Zapata to kill his victim. Moreover, they likely had a lot more blood on their hands than Zapata did. Prosecutors wanted to take them down before they did more damage.

So the prosecutors made Zapata an offer: Agree to share your knowledge of the drug ring, and to testify to it at trial, and we will promise not to seek the death penalty against you. Zapata accepted, though probably with some fear that he might face reprisals for his testimony, and both sides signed the agreement.

Such cooperation agreements are an ugly part of our prosecutorial system, but they are a necessary part of it, too: Without cooperators' testimony, many archcriminals would continue to walk free. And as cooperation agreements go, this one was pretty innocuous.

The agreement asked a lot from Zapata: He had to risk reprisals by testifying in open court. And, in return, it didn't offer Zapata very much. After all, he still faced life in prison, and even without the agreement, he probably wouldn't have gotten the death penalty anyway. Since the penalty was reinstated in New York a decade ago, no jury has agreed to impose it.

Nevertheless, from Zapata's perspective, the agreement must have seemed attractive enough to accept, so he signed off on it. So did the government. Then he talked. Then the government took back its word.

Ashcroft Frequently Ignores Federal Prosecutors' Sentencing Requests

It's not the first time. Since taking office, Ashcroft has tripled the pace set by his predecessor, Janet Reno, of rejecting such prosecutorial recommendations. So far, he has done so in 28 cases, according to research by the Federal Death Penalty Resource Counsel Project in Kentucky. The Counsel found that Reno only did so in 26 cases in a five-year period during her tenure as Attorney General.

Here is something even more disturbing: In more than 90% of Ashcroft's recommendation rejections, the defendant has been a minority group member. Also troubling is evidence that Ashcroft's rejections are political, not based on the merits of the prosecution: Nearly half involve trials in Connecticut and New York, two states that have been resistant to applying the death penalty.

Finally, there's an important difference between Ashcroft and Reno, other than the rate of recommendation rejections. Available evidence indicates that Reno did not reject recommendations embodied in a signed agreement. Ashcroft, however, has done just that. Indeed, the Kentucky Death Penalty Project says that he's done so in seven cases - suggesting that ignoring signed agreements is a deliberate pattern.

Ashcroft's frequent rejections of prosecutors' recommendations are a disaster not just for justice, but also for public safety. They set him, and the Justice Department, against U.S. Attorney's Offices across the country. They are unfair to defendants - who put themselves in serious jeopardy by providing information, and then are betrayed. In addition, they work against society's interest in catching murderers, which can be served best only if cooperation deals are enforceable. Prosecutors and defense attorneys alike have complained that Ashcroft's move is going to prevent prosecutors from using this valuable tool to get after bigger fish.

The inevitable result: More murders. The big fish keep operating, and they keep killing to preserve their territory. Is ensuring that the state gets to execute someone, instead of putting him in prison for life, really worth risking the lives of the innocent civilians who may be caught in the crossfire, as the big fish continue to operate?

With all these bad effects, is there, at least, some strong countervailing benefit from the policy? Let's examine some possibilities.

Is There A Reasonable Justification For Ashcroft's Policy?

Ashcroft's office explained in a statement that it is seeking to have the death penalty applied more consistently. And it's true that lack of consistency in its application is a major concern.

But solving inconsistencies by executing more people, regardless of the circumstances, is not a good solution. Indeed, that's why the Supreme Court has rejected as unconstitutional an automatic death penalty that does not allow for the decisionmaker's exercise of discretion.

Moreover, some of the most troubling inconsistencies are race-based. Seeking death for still more minority defendants - recall that 90% of Ashcroft's recommendation rejections affected minorities - is hardly the answer. It only makes a serious injustice worse.

What about the idea of keeping maverick states such as New York and Connecticut in line? Their legislators voted to have the death penalty on the books, after all, but their prosecutors never seek it - which plainly bothers Ashcroft, who prefers states that use their penalties early and often. Isn't the disjunction between the law on the books, and the law in practice, a problem?

Not necessarily. For one thing, Ashcroft is supposed to believe in federalism, and shouldn't be troubled by the idea of maverick states. Federalism anticipates that states will have very different penalties for the same crime. For instance, a regular offense in another state could be the fatal "third strike" in California.

Moreover, federalism supporters such as Ashcroft tend to oppose congressional measures - such as the Violence Against Women Act, which was struck down by a conservative majority of the Supreme Court - that might create some national uniformity. And Ashcroft has supported maverick states who resist federal regulation and licensing of firearms. So he ought to be the last to protest that penalties are non-uniform.

In addition, Ashcroft hasn't really made the case that this non-uniformity is unjust. To do so, one would have to carefully compare cases in New York and Connecticut that result in life imprisonment, with cases in, say, Virginia and Texas that result in death.

Moreover, one would have to explain why the uniformity shouldn't be corrected the other way: Why shouldn't Virginia and Texas follow New York and Connecticut in imposing life imprisonment in similar cases, rather than vice-versa? Why seek consistency in vindictiveness, rather than consistency in mercy? There is growing evidence that national public opinion is turning against the death penalty as it is currently applied in the United States - that's why outright moratoriums and commutations are being seriously discussed, if not imposed, in some states. This evidence makes Ashcroft's policy seem that much more out of touch.

The question is more than academic - for it seems these state-to-state disparities actually may be what motivates Ashcroft. For instance, discussing the Zapata deal, Justice Department spokesperson Barbara Comstock said, "What we are trying to avoid is one standard in Georgia and another in Vermont."

The choice of states is telling. Only last fall, a federal judge in Vermont, William Sessions, held the death penalty unconstitutional. Thus, Comstock's message is clear: It is pro-death-penalty Georgia's views, not anti-death-penalty Vermont's, that will prevail.

That doesn't vindicate any principle except support for the death penalty uber alles. A "states' rights" view would suggest states have a right to differ with each other, no matter what they believe. So in the end, Ashcroft's message boils down to this: The death penalty is good. Let's try to make sure it's used more often.

Why Even Strong Death Penalty Supporters Should Oppose This Policy

When I watch Ashcroft in action, I get the distinct feeling that he is acting in the interests of a truly radical - and pretty scary - minority. . . of one. Many Americans, of course, share Ashcroft's support for the death penalty. But few, I believe, would carry their support to the point of rejecting the recommendations of federal prosecutors.

Many death penalty supporters would respect the rights of prosecutors, who bear the burden of standing in front of the jury and saying "you should vote to have this defendant executed," to exercise their judgment as to when it is most appropriate. After all, the prosecutors are the ones closest to the case, and most knowledgeable about the particular defendant.

Many death penalty supporters also are truly concerned by the kind of disparities that reflect injustice - such as disproportionate executions of minorities. Ashcroft, in contrast, seems to be concerned exclusively with the kind of disparities that reflect legitimate state-by-state dissent, even if resolving them exacerbates the existing racial disparities.

Finally, many endorse the death penalty not just as a matter of revenge, but as a matter of deterrence - hoping it will lead to fewer murders of innocents. Clearly, Ashcroft disagrees. His policy will only breed murder, by discouraging the kind of cooperation agreements that could lead to convictions of the serial criminals who run criminal organizations. How many innocents' deaths is one execution worth, anyway?

Jake Kreilkamp is a third-year student at New York University Law School. He previously worked, for PEN American Center, on freedom of expression campaigns for harassed and detained writers around the world.

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