August 19, 2001

Eyes Are on Justice Dept. in Rhode Island Death Penalty Case

By RAYMOND BONNER

WASHINGTON, Aug. 16 � In a case being watched for clues to how the new Justice Department may administer the federal death penalty, the department is considering how to proceed against two men who have been charged in the execution-style murders of two college students.

The murders occurred just over a year ago, when a gang of five young men who were cruising the streets of Providence, R.I., came upon the students, Amy Shute and Jason Burgeson. The suspects forced the students into Mr. Burgeson's Ford Explorer, drove them to a golf course and shot them in the head, an F.B.I. affidavit said. Ms. Shute, 21, had her arms around Mr. Burgeson, 20, and was clutching a diamond ring in her left hand, the affidavit said.

 It is the type of case that would normally be handled by local prosecutors. But because Rhode Island does not have the death penalty, and carjacking resulting in death is a crime for which federal prosecutors may seek the death penalty, the victims' families waged a vigorous campaign to have the case prosecuted by the United States attorney.

 Three of the defendants have pleaded guilty, leaving the fate of the other two in the hands of Attorney General John Ashcroft. One of the two, Gregory J. Floyd, who prosecutors say pulled the trigger, has offered to plead guilty in exchange for life in prison without parole. The United States attorney for Rhode Island, Margaret Curran, has recommended accepting that plea bargain.

Now, under regulations he put in place, Mr. Ashcroft must decide to accept or reject Mr. Floyd's plea bargain. The other defendant, Kenneth D. Day, 23, who is generally considered the least culpable of the five, has not offered to plead, and so Mr. Ashcroft must choose whether to authorize Ms. Curran to seek the death penalty in his case.

 Ms. Curran declined to comment on the carjacking case.

 "The reason this decision will be so revealing is that the case is so local and has so little federal interest," said David I. Bruck, a veteran death penalty lawyer at the Federal Death Penalty Resource Project, a federally financed program that provides assistance to court-appointed lawyers in federal capital cases.

 Mr. Bruck said the case illustrated a clash of Bush administration principles. Mr. Bush and Mr. Ashcroft are supporters of the death penalty, he noted, but they are also strong supporters of states' rights.

 "This case reflects the federalization of the death penalty, which would seem to contradict the Bush administration's respect for states' rights in other areas," Mr. Bruck said. He said carjacking was rarely prosecuted in federal court, and in this case there was virtually no federal aspect to the case beyond the fact that the victim's car had come from another state.

 "If respect for states' rights were paramount, then in this case, it would seem Mr. Ashcroft should not proceed to seek the death penalty," Mr. Bruck said.

 Last month, Mr. Ashcroft accepted the plea agreement of another of the defendants in the Rhode Island case, Samuel Sanchez. Two other defendants pleaded guilty during the Clinton administration, when the regulations did not require the attorney general's approval.

 Mr. Ashcroft adopted the regulation requiring the attorney general's approval in response to criticism that white defendants were more often allowed to enter into plea bargains than defendants who are members of minorities. In this case, one of the first two defendants to plead was white and the other was black. Mr. Sanchez is Hispanic. Mr. Floyd and Mr. Day are black.

 Since taking office in February, Mr. Ashcroft has rejected plea bargains in at least three capital cases in which the United States attorney had recommended accepting the agreement, said Mr. Bruck, whose project monitors the federal death penalty.

 The Justice Department would not comment on the Rhode Island case. But the department did provide some numbers on the administration of the death penalty under Mr. Ashcroft. Of the 28 cases he has reviewed from Feb. 1 to June 1, he has rejected the death penalty for 20 defendants and authorized it for 8, a department spokesman said. The department would not provide a breakdown by race or state.

 The department also declined to say what the United States attorneys in those 28 cases had recommended.

 Mr. Bruck and other federal death penalty lawyers said the Rhode Island case should never have been prosecuted under federal law.

 An underlying tenet of American federalism is that law enforcement is generally a matter for the states. For nearly 200 years, the death penalty was authorized for only a handful of federal crimes � espionage, murder on federal property, murder in the course of bank robbery, and, after the Lindbergh kidnapping, interstate kidnapping. Assassinating the president did not become a federal crime until after the assassination of John F. Kennedy.

 In 1988, in the war on drugs, Congress made some drug-related murders punishable by death.

 The number of federal capital crimes increased in 1994, when Congress, as part of an omnibus crime bill, added more than 40 crimes for which federal prosecutors could seek the death penalty. One was carjacking that resulted in death. That crime was included in the aftermath of a case in Maryland in which a 34-year- old mother was dragged to death while trying to rescue her daughter during a carjacking.

 From 1995 to 2000, the period covered by a recent Justice Department study, there were 21 federal carjacking cases. (Those figures do not include Puerto Rico, where there is a special arrangement with the island's government for the United States attorney to assume jurisdiction of carjacking cases.)

When the state and federal governments both have jurisdiction to prosecute a crime, Justice Department guidelines say the federal government should take the case only when there is a "substantial federal interest." Under Attorney General Janet Reno, a United States attorney in a nondeath-penalty state could not take into account the absence of the death penalty in deciding whether there was substantial federal interest. From 1995 to 2000, Ms. Reno authorized seeking the death penalty against 285 defendants, according to the Justice Department study. Only 17 of them were from the 12 states without the death penalty.

 Mr. Ashcroft has changed the guidelines, so that the absence of the death penalty in a state may now be a factor in deciding whether the federal government will take a case.

 In Rhode Island, before the carjacking case, there had been only one other federal prosecution in which the death penalty was an option, and in that case the United States attorney had recommended against it.

In this case, Ernest Burgeson, the father of one of the victims, said he "pleaded" with Washington not to enter into a plea deal with Mr. Floyd, and to pursue the death penalty against him and Mr. Day.

"I hope Washington doesn't make any more deals," he said. "That's not justice in my mind."