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Ashcroft Demands the Death Penalty in Puerto Rico

by CHRISTOPHER BRAUCHLI

Only the hypocrite is really rotten to the core.

Hannah Arendt,
On Revolution

Once again the death penalty is prowling around the halls of justice looking for work.

Found in the interstices of the local papers was a story that Puerto Rico is the latest beneficiary of Mr. Ashcroft’s gentle importuning on behalf of the friend on whom he relies to dissuade criminals from doing the sorts of things that give the death penalty license to continue with its life’s work.

Mr. Ashcroft’s penchant for overriding his own U.S. attorneys and mandating that they seek the death penalty even when they, in their considered wisdom, have concluded that it is not appropriate in a given case, is well known. According to the Federal Death Penalty Resource Counsel, there have been 30 cases in the last two years in which Mr. Ashcroft overrode the judgement of local U.S. attorneys and demanded the death sentence. In at least one or two cases the demand was made after the U.S. attorneys had already agreed to a plea bargain for a lesser sentence. (Former Attorney General, Janet Reno, by contrast, only overrode local prosecutors 26 times in eight years.)

According to the death penalty’s spokesperson, Barbara Comstock, Mr. Ashcroft wants to establish "one standard" for death sentences and eliminate the present disparity between states. New York and Connecticut, for example, despite being the home of many of our most enlightened citizens, execute fewer people than places like Virginia and Texas. In a perfect world those states would execute the same number of criminals as those two.

John Muhammad and Lee Malvo, the snipers who terrorized the Washington, D.C. area for most of October, were examples of Mr. Ashcroft’s interest in the death penalty’s welfare. The shootings started in Montgomery County, Maryland, and ended there with the arrest of the two men. That was an unfortunate coincidence, as far as Mr. Ashcroft was concerned, because Maryland had a moratorium on hiring Mr. Ashcroft’s friend and before the existence of the moratorium, had permitted the death penalty to work its will on only three people in the preceding twenty-five years, a dismal record indeed from the perspective of the death penalty and Mr. Ashcroft. (He helped the death penalty in that case by taking steps that resulted in moving the trial to Virginia whose enthusiasm for the death penalty is exceeded only by that of Texas.) Having worked his magic in Maryland, Mr. Ashcroft has now turned his attention to Puerto Rico. That benighted place which is less sophisticated than its cousins on the mainland, enacted a constitution in 1952 that has this bizarre sentence: "The death penalty shall not exist." That is a palpably absurd statement and one which the death penalty finds demeaning. Everyone knows it both exists and performs a useful function. People know what the Puerto Ricans meant is that they don’t want the death penalty to take up residence in their fair island. For them the attorney general has news. His friend exists in Puerto Rico notwithstanding the Puerto Rican constitution.

A federal trial is taking place in Puerto Rico as this is written in which the Justice Department wants to enlist the aid of the death penalty when it’s time for punishment. According to a report in the New York Times, everyone from local politicians, to lawyers, scholars and just plain folk have denounced the trial. They call it a betrayal of their constitution which was approved in its entirety by the U.S. Congress in 1952.

The Justice Department didn’t see it that way. Court filings by the U.S. attorney say that federal criminal laws override local laws irrespective of their genesis. The law establishing Puerto Rico says, among other things, that federal laws that are "not locally inapplicable" are in force on the island. Whether that prevents the death penalty from plying its trade is a matter of conjecture and inconsistent decisions.

Commenting on a Puerto Rican capital case being tried in front of him some years ago, Salvador E. Casellas, a federal judge said: "It shocks the conscience to impose the ultimate penalty, death, upon American citizens who are denied the right to participate directly or indirectly in the government that enacts and authorizes the imposition of such punishment." The First Circuit in Boston said it understood that Puerto Ricans were not friends of the death penalty but nonetheless permitted it to compete in the trial saying the argument about the death penalty is "a political one, not a legal one."

William Matthewman is the lawyer representing Acosta Martinez, the defendant in the case now being tried. He is under court order not to discuss the case. In his only reported public comment he said: "It seems a waste of time and resources for the federal government to go into any jurisdiction where it’s not wanted." Mr. Matthewman has not met John Ashcroft.

As observed above, Mr. Ashcroft likes nothing better than to go into a jurisdiction where he’s not wanted, if in so doing he’s helping out the death penalty. That has not, however, been as helpful to his friend as he might have hoped. The Death Penalty Information Center reports that from 1988 to 2000, 46% of the federal capital trials resulted in death sentences. Since John Ashcroft has been attorney general, only 15% of the capital trials have produced that result. Juries in 15 of the last 16 cases tried have declined to impose the death penalty. That might tell the meddlesome Mr. Ashcroft something were he listening.

CHRISTOPHER BRAUCHLI is a Boulder, Colorado lawyer. He can be reached at: brauchli.56@post.harvard.edu

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