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Letter to the attorney general from Wisconsin Sen. Russ Feingold
July 3, 2003

U.S. Sen. Russ Feingold, D-Wis., wrote this letter to Attorney General John Ashcroft, raising concerns about how Ashcroft is pursuing federal death penalty cases. Sen. Patrick Leahy, D-Vt., wrote a similar letter. Neither has received a response.

Washington, DC —

March 14, 2003

The Honorable John D. Ashcroft
Attorney General of the United States
U.S. Department of Justice
10th Street & Constitution Avenue, N.W.
Washington, DC 20530

Dear Attorney General Ashcroft,

I write to inquire about the decision-making process for determining whether to seek the death penalty in federal capital-eligible cases.

I am concerned about the fairness of the decision-making process, after reading recent news reports that indicate you have overridden the recommendation of local federal prosecutors in at least 28 federal death-eligible cases. You appear to be pursuing consistency in the application of the federal death penalty nationwide by seeking it more aggressively in jurisdictions where federal prosecutors have infrequently requested authorization from the Attorney General to seek the death penalty. In other words, you seem intent on making the federal system replicative of states that aggressively pursue the death penalty ? states like Texas, which next week is scheduled to execute its 300th inmate in the modern death penalty era.

I am concerned that your apparent determination to increase death penalty prosecutions, including sometimes overriding decisions of local prosecutors, increases the risk that the federal government could execute an innocent person. Former federal prosecutors have said that ?they need to take every last precaution to avoid the risk of condemning an innocent person to death.? See ?In Brooklyn Murder Case, Doubts on Identification,? New York Times, Feb. 12, 2003. While you and I may disagree on the fundamental question of whether the federal government should be authorized to use capital punishment, I hope that we can agree that the Constitution and the integrity of our criminal justice system require the fair administration of the death penalty and that only the guilty are convicted.

I join in Senator Leahy's request in a letter to you dated February 7, 2003, for the following information about the capital case review and decision-making process:

(1)(A) What is the process by which the Department decides whether to accept a U.S. Attorney?s recommendation that the death penalty should or should not be sought in a particular case? (B) To what extent are the U.S. Attorneys? recommendations afforded deference? (C) In cases in which the death penalty has been sought, does the Department follow the same process and afford the same level of deference in deciding whether to approve a plea or cooperation agreement that requires withdrawal of the notice of intention to seek the death penalty?

(2)(A) Since you became Attorney General in February 2001, how many capital-eligible cases have been submitted to the Department for review? (B) In how many cases has the Department rejected a U.S. Attorney?s recommendation not to seek the death penalty, and in what States? (C) In how many cases has the Department rejected a U.S. Attorney's recommendation to seek the death penalty, and in what States? (D) In how many cases in which the death penalty was sought has the Department authorized the U.S. Attorney to enter into a plea or cooperation agreement that requires withdrawal of the notice of intention to seek the death penalty? (E) In how many cases in which the death penalty was sought has the Department overridden the judgment of local federal prosecutors and rejected a plea or cooperation agreement that requires withdrawal of the notice of intention to seek the death penalty?

In addition, I request that you provide responses to the following questions:

(3)(A) Since you became Attorney General in February 2001, in how many cases and in which federal districts have you directed the federal prosecutor to seek the death penalty, even though both the U.S. Attorney and the Capital Case Review Committee made recommendations to decline seeking the death penalty? (B) In how many cases and in which federal districts have you directed the U.S. Attorney to seek the death penalty, where the U.S. Attorney recommended against seeking the death penalty and the Capital Case Review Committee recommended in favor of seeking the death penalty? (C) In how many cases and in which federal districts have you directed the U.S. Attorney to seek the death penalty, where the U.S. Attorney recommended in favor of seeking the death penalty and the Capital Case Review Committee recommended against seeking the death penalty?

I note that the Department provided similar information as part of its 2000 survey of the federal death penalty system, and I request that the Department compile this information again and provide it to me. See The Federal Death Penalty System: A Statistical Survey (1988-2000), U.S. Dept. of Justice (Sept. 12, 2000).

(4)The Attorney General will, of course, retain legal authority as head of the Justice Department to determine in an exceptional case that the death penalty is an appropriate punishment, notwithstanding the United States Attorney's view that it should not be pursued.? The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review, U.S. Dept. of Justice (June 6, 2001), p. 27 (emphasis added). I understand that, as of March 11, 2003, 30 of your 67 death penalty approvals have apparently been such ?exceptional cases.? (A) How do you account for this amazingly high proportion of cases in which you have forged ahead to seek death despite your own prosecutors' recommendations to the contrary? (B) In how many cases, in which federal districts, and under what circumstances, have you concluded that the case was "exceptional" and exercised your authority to direct U.S. Attorneys to seek the death penalty?

(5)In June 2001, you revised the "death penalty protocols," U.S. Attorneys Manual § 9-10.000, et seq., by changing the definition of "substantial federal interest" so as to remove an earlier provision that forbade the Department from relying on the fact that a state has chosen through democratic means not to impose capital punishment. U.S.A.M. § 9-10.070. (A) In how many cases and in which federal districts, have you directed U.S. Attorneys to seek the death penalty where the death penalty would be unavailable in a state prosecution? (B) For each of these cases, please state whether the U.S. Attorneys, the Capital Case Review Committee, or you accorded any weight to the unavailability of the death penalty under state law as a reason favoring federal prosecution, or federal pursuit of the death penalty.

(6)The June 2001 revisions to the "death penalty protocols" included adding a provision under which proposed plea bargains in death-eligible cases must be approved by you rather than by the U.S. Attorney. U.S.A.M. § 9-10.100. You enacted this modification in an attempt to address the concern that white defendants fare better in the plea bargaining process and are almost twice as likely as African American defendants to enter into plea bargains, thus saving them from a death sentence. (A) In how many cases and in which federal districts, have you denied requests to approve plea bargains, after you have authorized the U.S. Attorney to seek the death penalty? (B) In how many cases and in which federal districts, have you granted requests for such approval? (C) With respect to each of these cases, please provide data on the race and ethnicity of the defendants. (D) With respect to each of the above cases, how many of the proposed plea bargains included a provision requiring the defendant to provide cooperation to the government?

(7)Concerns that racial and geographic disparities exist continue to plague the federal death penalty system. See, e.g., "Death Penalty Cases Raise Race Questions," New York Times, Feb. 13, 2003. In releasing the 2000 survey, then-Attorney General Reno directed the National Institute of Justice to fund research about the use of the federal death penalty. At your confirmation hearing in January 2001, and again in testimony by Deputy Attorney General Larry Thompson before the Senate Judiciary Subcommittee on the Constitution in June 2001, you and the Department expressed your commitment to pursuing such research. (A) Please provide an update as to the status of that research project, including a description of who is conducting the research and when it is expected to be completed.

(B) In your letter to me dated July 25, 2001, and the Department's responses to my written questions following the June 2001 Constitution Subcommittee hearing, you agreed to support researchers in gaining access to the data they will need to conduct this study and expressed your intention to issue guidance to all U.S. Attorneys to cooperate with the researchers, consistent with privacy and sensitive law enforcement issues and grand jury secrecy rules. What instructions have you provided to U.S. Attorneys or Department employees about granting the researchers access to information regarding the investigation and prosecution of potential capital cases? Please provide me with copies of all instructions or guidance you have issued to U.S. Attorneys and Department employees about this issue.

(8)"U.S. Attorneys will be required to submit information, including racial and ethnic data, about potential capital cases, as well as those in which a capital offense is actually being charged." The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review, U.S. Dept. of Justice (June 6, 2001), p. 4. Specifically, the Department has stated that "more complete racial and ethnic data" should be made "available for both actual and potential federal capital cases on a continuing basis." Id. I am pleased that the Department recognizes that there is a need for public disclosure of information about the use of the federal death penalty on a regular basis. I therefore request that the Department publish data on the federal death penalty system that updates the data contained in the survey published by the Department in September 2000, The Federal Death Penalty System: A Statistical Survey (1988-2000), in as complete a form as the 2000 survey. Please let me know the time frame for when this updated survey will be made available.

I look forward to your response.

Sincerely,
Russell D. Feingold
UNITED STATES SENATOR

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