Boston Globe
 June 11, 2000

 Fed's death penalty net cast ever wider
 Making a federal case attaches the highest penalty
 By Eric Goldscheider

 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 Veteran's 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 

 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 nominee 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 

 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 

 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 

 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 

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

 Eric Goldscheider is a Globe correspondent living in Amherst.
 This story ran on page E1 of the the Boston Sunday Globe on June 11, 2000.