Death penalty policies examined

By Richard Willing, USA TODAY

WASHINGTON - The Justice Department seeks the federal death penalty six times more often for murders committed in states that strongly support capital punishment than in the 12 states that forbid it, a new study by a former Justice Department death penalty specialist shows.

The study, by law professor Rory Little of University of California's Hastings College of the Law in San Francisco, suggests that federal death penalty policy is governed by geography and judgment calls by local prosecutors rather than by a uniform policy that determines which cases qualify for death.

Internal Justice Department figures examined by Little show that three attorneys general - Richard Thornburgh, William Barr and Janet Reno - reviewed 572 potential death penalty cases from October 1989 through February. They sought the death penalty in 199 cases, or 35%. Reno made almost all the decisions.

Under Justice rules, the attorney general decides in which cases to seek the death penalty, based on death-eligible cases submitted by the United States' 94 federal attorneys.

Little's study, to be published next month by the Ohio Northern University Law Review could upstage an internal Justice Department review of the possible effect race and geography have on federal death penalty decisions. That study, which was announced in January, is still under way.

Little and the Justice Department's internal review team studied similar data.

Among Little's findings:

• Federal prosecutors in 12 states that do not use the death penalty for state crimes had only 11 cases approved for capital prosecution.
• In the dozen states that lead the nation in executions for state offenses, 67 federal death penalty prosecutions were authorized. Texas, Virginia and Florida accounted for 35 federal cases in which the death penalty was sought.
• U.S. attorneys in only five of 94 federal districts - one each in Virginia, Maryland, Puerto Rico and two in New York - submit more than a third of all cases in which the death penalty is considered.

A leading capital punishment foe said the Little study suggests that the death penalty may be impossible to apply fairly and thus should be abandoned.

''With the federal system, you have one set of laws and one Justice Department doing the administering and there's supposedly some kind of uniformity,'' said Richard Dieter, executive director of the Death Penalty Information Center in Washington.

''What (the study) seems to be saying is that, even with that in place, there may be no good way to run a system that eliminates all human choices and arbitrary tendencies.''

At the Justice Department, Little sat on a committee Reno established to try to see that the death penalty is applied equitably. He said his study is not intended to buttress the anti-death penalty movement, but rather to spark a discussion.

''Do we want some overall prosecution ethic ... for all crimes, or should local community values play a role?'' Little asked. ''It's something for the public to think about.''

Reno decides whether death will be sought, based on the opinion of a five-lawyer panel she set up in 1995. The panel, on which Little served for seven months, is designed to ensure that the death penalty is imposed for the same sort of crimes everywhere in the federal system.

About 60 federal crimes, from treason to assassinating the president, can result in the death penalty, although the attorney general is not required to seek it. In practice, all federal crimes for which the death penalty has been sought involve murder.

Little's study does not examine potential racial disparities in the application of the federal death penalty. But Little said he expects the Justice Department's internal review to conclude that there is ''racial and geographic disparity'' in the use of the federal death penalty, but no ''actual bias.''

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