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Boston Globe FOCUS Section 

FED'S DEATH PENALTY NET CAST EVER WIDER
June 11, 2000

Despite death penalty advocates' repeated attempts, Massachusetts has steadfastly refused to reinstate capital punishment. It was 1947 when the state last executed someone. So why, then, could Kristen Gilbert face a death chamber if found guilty when her case goes to trial in Springfield later this year?

The short answer is that the alleged crimes charged to her - killing patients with injections of epinephrine, a hard-to-detect drug that can induce heart attacks - were committed at the Veterans Administration hospital in Northampton, which is under concurrent state and federal jurisdiction. Thus, Gilbert, who was a nurse there, can be tried under federal statutes.

The longer answer is that Gilbert and many others are being caught in an expanding federal net, as Washington increasingly exercises its often-controversial prerogative to impose the death penalty in places and cases in which it would otherwise not apply.

The number of federal death penalty cases has risen steadily over the 1990s, from two in 1990, to 20 in 1995, to 34 last year, according to the Federal Death Penalty Resource Council.

Those cases are brought even in states that do not sanction state executions. Massachusetts is one of 12 such states (four are in New England), plus the District of Columbia and Puerto Rico.

This "federalization" of cases, troubling to many, means that no state will be able to declare itself a death penalty-free zone. Not even a jurisdiction such as Puerto Rico, which has a ban on executions written into its constitution, will be able to repudiate a punishment many find morally repugnant. Puerto Rico has no voting representation in Congress, and cannot vote for president, yet the federal government is currently pursuing eight death penalty cases there.

Here in Massachusetts, if Gilbert's trial goes ahead as expected, jurors will be asked to decide on her guilt or innocence. If they convict, they will then be required to decide whether the 32-year-old mother of two young boys should be sent to Terra Haute, Ind., to await her fate on a federal death row. The last federal execution was in 1963.

The federalization of crimes comes at a time when use of the death penalty is facing new skepticism. Illinois Governor George Ryan, a Republican, recently announced a moratorium on executions in his state after journalism students and other investigators found numerous cases of innocent people being sent to death row. In Virginia, Governor Jim Gilmore has approved DNA testing to see if a death row inmate is in fact guilty. And Texas Governor George W. Bush, soon to be the GOP noiminee for president, recently blocked an execution until DNA tests could be performed. Even in conservative New Hampshire, lawmakers recently voted 191 to 163 to do away with the death penalty, although the governor vetoed the bill.

John Russell, a US Department of Justice spokesman, said that even though Attorney General Janet Reno personally opposes the death penalty, she feels obligated to seek it when the laws passed by Congress require it.

But to David P. Hoose, one of Gilbert's lawyers, that reasoning smacks of Nazi rationalizations for crimes against humanity; "I was just following orders" was the defense many Germans gave for doing unconscionable things, Hoose said.

In the case at hand, he says, Reno has plenty of discretion not to make it a federal crime. The fact that his client, who says she is innocent, is accused of committing crimes on "a patch of land that is under concurrent state and federal jurisdiction" should not be enough for the federal government to take the case, said Hoose.

The state is well-equipped to try Gilbert, and has prosecuted at least one murder committed at the Northampton VA hospital in the past, Hoose said.

A basic principle of federalism - under which the federal and state governments exercise dual sovereignty - is that crime should be prosecuted at the most local level possible. The only rationale for the federal government to take this case, said Hoose, is to seek the death penalty.

In a recent capital case in another state with no death penalty of its own, a jury in West Virginia was unable to reach a verdict in a case against Ricky Lee Brown, who was charged with killing his children to collect insurance money by setting his house on fire.

The only basis on which that became a federal death penalty case, says Jeffrey O'Toole, Brown's lawyer, was that the house was serviced with electricity and natural gas coming from out of state.

That same issue - does the federal government have grounds to try an arson case just because the local utility bought out-of-state gas or power? - was recently argued before the US Supreme Court in yet another arson case, one from Indiana.

The question prompted Chief Justice William Rehnquist to sarcastically ask from the bench, "How about milk?" - in other words, whether the fact that people in a house drink milk produced in another state should constitute grounds for federal prosecution, said O'Toole. The court ruled unanimously last week against federal jurisdiction in the Indiana case. As a result, federal prosecutors will not continue to seek the death penalty against Brown.

What is to be gained by Washington's encroachment on matters traditionally handled by states?

Nothing, according to Rehnquist, who accuses Congress of grandstanding by federalizing more and more high profile categories of crimes. In his 1998 year-end report, Rehnquist wrote that the trend to federalize crime "threatens to change entirely the nature of our federal system" and ultimately will lead to the question of "whether we want most of our legal relationships decided at the national rather than local level."

Legislation recently introduced in Congress by Senator Patrick Leahy of Vermont and Representative William Delahunt of Quincy, both Democrats, called "The Innocence Protection Act," bars the federal Department of Justice from seeking the death penalty in non-death-penalty states except under very specific circumstances.

There is a certain irony in the politics of federalization. Conservatives historically back so-called "states rights" and the death penalty. But in this case, to advocate for the first is to discourage the second. As a result, many conservatives have been reluctant to follow Rehnquist's lead and speak out against the federalization of crimes.

This is not lost on Mark Agrast, who is working on the bill for Delahunt, a former prosecutor who opposes capital punishment. "We are tired of people grandstanding on states rights until it comes time to inject people with lethal substances," said Agrast.

Delahunt has been following the Gilbert case closely, said Agrast, and is "puzzled that the Justice Department would go out of its way to do something so apparently random and unusual" as to take over a murder case that the state is well qualified to prosecute.

Agrast takes issue with the notion that Reno has any kind of legal obligation to seek the death penalty in this case. "It would be one thing if her hands were really tied, which is not the case, and if it were, then this bill would untie them," said Agrast of the proposed legislation.

Stephen Bright, who directs the Southern Center for Human Rights and teaches courses on the death penalty at Harvard and Yale, notes that, with a slew of additions in the last several years, more than 50 crimes now qualify a defendant for federal execution. But he also notes that "there is no rhyme or reason" for why the death penalty is sought in some cases and not in others.

"The death penalty is all politics everywhere," said Bright. "It is much more part of the political process than the judicial.

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