St. Petersburg Times

Editorial)

USA: Death penalty doubts

2 courts recently have ruled the federal death penalty unconstitutional, but the questions they have raised seem of no interest to Attorney General John Ashcroft.

 The U.S. Supreme Court long ago acknowledged that in determining criminal sentences, death is different. The court saw in the finality of the death penalty a societal responsibility to hew to heightened procedural protections as a way of reducing the possibility of executing an innocent person. In the past 4 months, 2 federal district courts have ruled the federal death penalty unconstitutional, ruling in both cases that the federal statute violates defendants' due-process rights because it allows looser procedures and a lower standard of evidence in sentencing than allowed at trial.

 The decisions by these judges reflect the growing discomfort with the way in which the ultimate penalty is being dispensed. The use of DNA evidence has shown that some convictions thought to be solid are in fact seriously flawed.

 Earlier this year, a dubious marker was reached when the 100th innocent person was released from death row. These persistent mistakes led New York U.S. District Court Judge Jed Rakoff to find the federal death penalty unconstitutional. In his 28-page ruling in July, he said the current system offers "an undue risk of executing innocent people."

 Just when the fairness of the federal death penalty is causing grave concerns, Attorney General John Ashcroft is applying it with gusto. On at least 16 occasions, Ashcroft has ordered his prosecutors to seek the death penalty when they recommended against it.

 Last month, when a Vermont judge joined his colleague in New York in finding the federal death penalty invalid, Ashcroft sent out a mouthpiece to savage him. U.S. District Judge William Sessions III of Vermont found constitutional problems with the way the Federal Death Penalty Act was written in light of new U.S. Supreme Court precedent. His reward for a narrow, carefully drawn opinion was to have Justice Department spokeswoman Barbara Comstock essentially call him an irresponsible Clinton appointee.

 "Today's decision underscores the importance of confirming President Bush's nominees to the federal bench - well-qualified men and women who will apply the laws that Congress has passed in accordance with Supreme Court precedent," Comstock said. She didn't bother to mention that, in the name of federalism, the conservative majority on the Rehnquist court has struck down more laws passed by Congress than any court in recent history.

 Sessions' opinion raises a legitimate question of due process: Must all the information submitted to a federal jury as it deliberates whether to recommend a death sentence follow the normal rules of evidence, or can the standards be relaxed? A reasonable reading of the Supreme Court's recent decision in Ring vs. Arizona suggests the stricter rules must apply. If so, the Federal Death Penalty Act by its own terms is unconstitutional.

 The Justice Department inability to quiet its partisan sniping long enough to professionally analyze a federal judge's opinion is further evidence that Ashcroft has little respect for any law that doesn't conform to his ideology.