On January 30 in a Brooklyn federal court, the twelve jurors assigned to decide the fate of 24-year old Ronnell Wilson finished deliberating, and went with death. It might have been a dramatic conclusion to a fairly traditional death penalty case—except that the trial never belonged in federal court to begin with. In a blatantly penalty-driven maneuver, the Staten Island D.A. handed the case to the Feds only after the New York Court of Appeals struck down the state death penalty in 2004. Arrested for the murder of two police officers, Wilson at one point offered to plead guilty in exchange for a life sentence, but the U.S. Attorney had made up his mind. For New York, the result was historic: the first federal death sentence in over 50 years. Two days later, in the same courthouse, drug kingpin Kenneth McGriff was convicted in a murder-for-hire that also made him eligible for death. The following week, however, McGriff was sentenced to life without the possibility of parole.
The two trials shared more than a venue. Both represent a mounting campaign by the U.S. Department of Justice to bring the federal death penalty to New York. The effort has been aggressive: January saw four capital trials occurring simultaneously in Brooklyn and Manhattan, with prosecutors in the McGriff trial seeking death even after victim’s family members expressed opposition—and after the judge called it an “absurd prosecution.” Despite such powerful objections, the Feds would not be deterred.
New York has not been an “active” death penalty state for decades. Its last execution was in 1963, and the state legislature and Governor Rockefeller essentially eliminated capital punishment two years later. The death penalty stayed off the books until George Pataki, riding a wave of tough-on-crime campaign promises in 1994, reinstated it shortly after taking office. Following the 2004 Appeals Court ruling, public hearings led lawmakers to conclude that the flawed statute was not worth fixing, leaving a moratorium in place. In most of the rest of country, jurors increasingly dole out life sentences, and a current, sweeping controversy over lethal injection has halted executions across multiple states, prompting speculation that the death penalty may be in its last throes.
At the same time, a countertrend has emerged. While the past few years have led to a 30-year low in state executions, under the Bush administration federal death row has nearly tripled in size. Ronnell Wilson might be the first New Yorker in decades sent to the complex in Terre Haute, Indiana, but he’s unlikely to be the last. With 51 death-eligible cases awaiting authorization by the Attorney General’s office, New York has more potential federal death penalty cases in the pipeline than any other state. The state death penalty may be “dying on the vine,” as one Albany public defender says, but when it comes to federal cases, capital punishment is blossoming.
The story of how New York recently became such fertile ground for the federal death penalty starts in Washington, DC in 2001, when John Ashcroft was taking his seat at confirmation hearings for Attorney General. For a man tapped to be “attorney of the people,” Ashcroft spent a lot of time during the nomination process denying he was a racist—defending his ties to the segregationist Bob Jones University and the neo-confederate Southern Partisan magazine. When asked to justify his savage smear campaign against an African-American nominee to the federal bench, Ashcroft’s explanation was revealing: “I had a particular concern with his dissents in death penalty cases,” said the Christian conservative about a man who upheld 41 out of 59 death sentences as a Missouri Supreme Court judge. Confirmed by a 58-42 vote, Ashcroft would try to make the Patriot Act his defining legacy—but his missionary zeal for capital punishment would also have major implications in the years to come.
He started by changing the rules. Overhauling the U.S. Attorney’s Manual, Ashcroft removed a clause stating that in non-death penalty states, “penalty-driven decisions to file federal charges are inappropriate.” (The Staten Island D.A. apparently took note of the change.) He then began overruling federal prosecutors across the country, forcing them to seek death sentences in cases where they had not planned to. Occasionally, he intervened when a plea bargain had already been struck, undermining his own prosecutors and compromising their cases. Ashcroft was particularly bent on targeting states without death penalty statutes, as well as those whose death penalty existed in writing but not in practice, like New York. By February 2003, Ashcroft had overruled his prosecutors 28 times.
Ashcroft’s mission made headlines, but one dimension went underreported: Of these 28 cases, only two of the defendants were white. Nineteen were Black, five were Hispanic, one was Asian, and one was Native American. “The whole problem of race,” Kevin McNally of the Capital Defense Network told the Washington Post, “appears to be a worse situation than it was before.”
In fact, the problem of race had been glaring enough for former Attorney General Janet Reno to call for an examination of racial bias in the federal death penalty. (Official conclusion: there was none.) The results paired racially slanted statistics with the demographics of urban drug and gang violence, handily rationalizing the widest disparities: “The cause of this disproportion is not racial or ethnic bias, but the representation of minorities in the pool of potential capital cases.” In other words, the death penalty doesn’t target minorities; minorities just happen to commit the crimes that get the death penalty.
Even if one buys such circular logic, that Black and Latino defendants are uniquely death-eligible is no accident. Historically, capital crimes have been the province of the “criminal classes,” from slaves to free Blacks to the poor. The Anti-Drug Abuse and Death Penalty Act (or “Drug Kingpin Act”), which in 1988 resurrected the federal death penalty for drug-related murders, was a hallmark of the War on Drugs, whose major fronts—low-income and minority neighborhoods—would be so devastated by street sweeps and racial profiling that many would call it a war on the poor and black. But it was Clinton’s 1994 Crime Bill that exploded the number of death-eligible crimes. “They threw in the kitchen sink,” says Ron Tabak, of the New York firm Skadden, Arps. Alongside a prison boom that would swallow a sizable portion of a generation of black men, the death penalty surged: between 1994 and 1995, the number of people charged with death-eligible crimes spiked from 45 to 118.
Soon thereafter, the Anti-Terrorism and Effective Death Penalty Act expanded the death penalty and curtailed the habeas corpus rights of death row prisoners, anticipating the Patriot Act and all that would follow. One decade later, a centralized and far-reaching death penalty system befits a White House that legalized torture and gutted habeas corpus. Capital punishment, as Richard Dieter, Executive Director of the Death Penalty Information Center notes, is “part of this administration’s philosophy.”
In 2005, Ashcroft was replaced by Alberto Gonzales, Bush’s General Counsel in Texas, who breezily signed off on stacks of execution memos for the then-governor. Not surprisingly, Gonzales has pushed forward Ashcroft’s death gauntlet, overruling prosecutors “with increasing frequency,” according to Kevin McNally. In New York, says Tabak, “if anything, it’s intensifying under Gonzales.”
With the Dems’ newfound strength in Washington and presidential campaigning in full swing, now would be the time to target the excesses of the DOJ. But as the War on Drugs has been eclipsed by the War on Terror, the death penalty has been sidelined in the political arena. Inside the Justice Department, 9/11 left fewer resources for domestic crime—making the current push for federal death penalty cases a warped priority. “Incurring additional costs and using up the resources of the FBI and U.S. Attorneys is particularly outrageous given the financial limits facing the U.S. Attorneys’ offices in dealing with domestic crimes,” says Tabak.
This dollars-and-sense line—rather than anything resembling an anti-death penalty stance—conceivably could become palatable enough for any politician choosing to fight back. But New Yorkers shouldn’t expect their senators to lead the charge. “The silence about this by the often-voluble Senator Schumer, who is strategically well-placed on the Senate Judiciary Committee, is particularly unfortunate,” says Tabak. Schumer, anyway, is pro-death penalty—a position that evolved alongside his political rise. Meanwhile, Hillary Clinton is also a death penalty supporter, and as her evasiveness on Iraq suggests, she’s unlikely to stake out any controversial position, let alone one that could lead to her presidential opponents’ questioning her “toughness.”
Barring Congressional action, it will take a new administration to stop the federal death penalty’s expansion—and Hillary’s not the only leading Democratic contender inspiring little confidence that there would be a new direction. Among the likely Democratic nominees, Edwards was well to the right of John Kerry on the death penalty in ’04, and even progressive darling Barack Obama supports capital punishment for cases “so heinous…that the community is justified in expressing the full measure of its outrage,” as he wrote in his recent bestseller, The Audacity of Hope. Regardless of party, no candidate is likely to take a more liberal stance than Kerry, who spoke in favor of a moratorium on federal executions while supporting death for terrorists (a position that cost him no votes). With yet another presidential election shaping up as a face-off between two pro-death penalty candidates, serious debate is likely to be off the table, leaving what the late Supreme Court Justice Harry Blackmun famously called “the machinery of death” intact.
In legal circles and among some conservatives, the “federalization” of the death penalty has been criticized as violating states’ rights—an ironic reversal of the role “states rights” have historically played in suppressing minorities. As the Bush administration uses the federal death penalty to circumvent state opposition to capital punishment, the problem of race will not improve—though it’s hard to imagine how it could get worse. In New York, where 36 out of 38 federal death penalty cases have involved minority defendants, the Bush administration could not have found a better laboratory for its project. The federal death penalty doesn’t merely tolerate racial bias—it thrives on it.
Liliana Segura is a writer based in Brooklyn.