ASHCROFT SETS A TONE ON THE DEATH PENALTY

Prosecutors say one of their toughest decisions is whether to seek the
death penalty. In the last week, Attorney General John Ashcroft had a
message for federal prosecutors in the New York region about when he thinks
it ought to be sought: more often.

In 10 cases being handled by federal prosecutors in New York and 2 in
Connecticut, he has rejected the recommendations of his United States
attorneys and ordered them to seek execution.

Some current and former prosecutors have been stunned by the newly
assertive approach to the most controversial issue in the criminal justice
system. But, whether they agree with him or not, many of them say Mr.
Ashcroft is doing exactly what an attorney general is empowered to do: set
national law enforcement policy, even if that means discarding the
recommendations of some of his prosecutors.

"The law vests in the attorney general the authority to make a death
penalty decision," said Otto G. Obermaier, a former United States attorney
in Manhattan. "It doesn't vest that authority in the U.S. attorneys."

The decision about whether or not to seek death is often a close call,
prosecutors say. Mr. Ashcroft has made it clear he favors making that call
more often than federal prosecutors in the Northeast have been since new
federal death penalty laws were passed more than a decade ago.

He also seems unimpressed by the reality that it has been remarkably
difficult to persuade jurors in federal cases in the New York area to vote
for death. No federal jury in New York City and its suburbs has yet voted
for execution in the new era of federal death-penalty laws.

Justice Department officials declined to discuss the standards the attorney
general is using, saying only that the department's decisions are governed
by a desire to see that the federal death penalty is applied uniformly
around the country.

An examination of some of the cases in which Mr. Ashcroft has directed
prosecutors to seek execution shows that the Justice Department is using
what might be called an outrageousness test. Among those now facing
possible execution are at least three men charged with killing witnesses
who were cooperating with prosecutors and a carjacking suspect charged with
beating his victim to death. Other cases for which Mr. Ashcroft has
required prosecutors to seek the death penalty involve alleged members of
drug gangs charged in what prosecutors call assassinations that were a
routine method of doing business.

In some areas of the country, where execution has been sought more
routinely, such volatile charges are frequently the focus of death penalty
trials.

Opponents of the death penalty see the change in directives from Washington
as an ominous intrusion on the discretion of prosecutors who themselves may
be squeamish about the death penalty. "They want to impose their ideology
about the death penalty on more moderate parts of the country," said Kevin
M. Doyle, the New York capital defender, who heads the office that provides
defense in state death-penalty cases.

That ideology, some lawyers say, may well be a strict right-and-wrong view
of justice, one that holds that federal prosecutors in the New York area
have been too accepting of the kinds of violence that are seen as shocking
elsewhere.

The recent cases show that Mr. Ashcroft and his aides appear particularly
vigilant about seeking the ultimate punishment when witnesses working with
prosecutors were killed. Defendants involved in such so-called
obstruction-of-justice killings, some lawyers say, are now viewed in
Washington as presumptive candidates for execution.

A Manhattan case involves the torture and murder of a government informant.
A Brooklyn case centers on the drive-by killing of a man who was supposed
to be a witness in an attempted-murder case being prosecuted by the
Brooklyn district attorney's office.

Mr. Ashcroft's decisions also show a hard line against the homicidal
routines of drug gangs.

A Long Island case involves a man facing murder and cocaine distribution
charges who had offered to cooperate with prosecutors. Although few details
have been made public, court records suggest that the prosecutors believe
that the defendant, Jairo Zapata, was part of an assassination crew that
killed people at the direction of the murderous representative of a
Colombian drug cartel in Queens.

Mr. Obermaier, who was the Manhattan United States attorney in the
administration of the elder George Bush, says that the attorney general is
responsible for carrying out the president's law enforcement policy.
Seeking the death penalty more often or in different kinds of cases, he
said, is each administration's prerogative.

He said that kind of policy shift might include insisting that people who
commit murders to obstruct justice face the possibility of execution, even
though jurors might resist voting for it. "I could understand someone in
Washington saying, `I understand it's hard to convince a jury, but it's
important from a law enforcement perspective to go for the death penalty,'
" Mr. Obermaier said.

Insisting on more death-penalty trials, some lawyers say, may accomplish
one goal of death-penalty proponents, which is to make such trials seem
less extraordinary. That in turn, could make it a less forbidding task for
jurors to determine whether someone lives or dies.

But if Mr. Ashcroft is trying to re-educate federal prosecutors and
potential jurors in New York, some lawyers say that may come at great cost.

Alan Vinegrad, the former United States attorney in Brooklyn, said New York
jurors might be so averse to execution that they might effectively demand
that the prosecution prove to a certainty that a defendant is guilty. That,
he said, might mean some defendants in heinous cases would be acquitted
entirely.

"Although it is laudable in the abstract to impose the death penalty
consistently," he said, "the danger is that may not be taking sufficient
account of the resistance in a particular locale toward the death penalty
or the specific facts that might weigh against the death penalty in a
particular case."

Other lawyers say Mr. Ashcroft's effort to foster more federal
death-penalty trials in areas of the country where there have been few of
them could backfire. The modern federal death-penalty system has been seen
as having more safeguards than some state systems, which have sentenced
innocent people to death.

But in the last week, as Mr. Ashcroft's policy spurred discussion wherever
criminal lawyers gathered, it has been common to hear both prosecutors and
defense lawyers worry about life-or-death decisions made in Washington.

The Justice Department, they said, is too far from the streets and
courtrooms, where the complicated stories of crime and punishment play out.
From a distance, some of them said, mistakes can be made.