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March 1, 2008

Is AG Mukasey going soft on the federal death penalty?

Thanks to this post at TalkLeft, I saw this local article reporting that new Attorney General Michael Mukasey is unwilling to support the toughest federal charges against a murderous drug kingpin.  Here are the basics:

Federal prosecutors say they will not seek the death penalty against Martin Carrillo, a former fugitive charged in a major drug conspiracy and killing.  The decision was announced Friday by U.S. Attorney Drew Wrigley, after he received a letter from U.S. Attorney General Michael Mukasey. Wrigley said it was a short statement by Mukasey....

Carrillo is charged with four felony counts, including death caused by use of a firearm during a crime of violence. He's one of five men accused in the death of Lee Avila of East Grand Forks, Minn.... Carrillo, who turned 21 last week, was arrested in Washington state in October, after evading authorities for about 11 months. He is one of more than 60 people charged in the case known as Operation Speed Racer....

Nine people have been considered for capital punishment in Wrigley's tenure as U.S. attorney for North Dakota.  The state's first federal death penalty verdict was handed down in 2006 to Alfonso Rodriguez Jr., convicted in the kidnapping and death of University of North Dakota student Dru Sjodin.  Rodriguez sits on death row at a federal prison in Indiana.

Authorities say Carrillo, Arandas, Martinez, Wessels and Michael Petzold were involved in the death of Avila, 28, after a dispute over the size of a shipment of methamphetamine.  Petzold pleaded guilty before prosecutors made a decision on capital punishment, and was sentenced to 30 years in prison.

Jeralyn at TalkLeft, who I think is categorically against the death penalty, seems pleased about this development:  "Could we finally be done with the Ashcroft-Gonzales era of seeking the death penalty even in the face of opposition from federal prosecutors?  We might actually be doing better than that."

I am much more troubled by this decision.  I think it sends the symbolic message that, if you kill a young white woman in North Dakota, federal authorities will seek to vindicate your death through the toughest possible federal criminal punishment, but if you kill a young Latino man in North Dakota, federal authorities will not be too concerned about vidicating your death through the toughest possible criminal punishment.  Sorry, gents, but apparently your lives are less important to the federal criminal justice system.

March 1, 2008 at 09:29 AM | Permalink


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You can't see any difference in these two victims other than their sex and ethnicity? You don't think the fact that one was an innocent victim and the other was a participant in drug trafficking is a legitimate factor to be considered?

Posted by: Kent Scheidegger | Mar 1, 2008 3:06:30 PM

Of course there are differences, and that may be a very valid reason for the JURY to reject the DP for the killer of the drug dealer. But is this a valid reason for the federal prosecutors not to even pursue the DP here?

More generally, Kent, are you arguing that prosecutors should focus ALWAYS AND ONLY on the nature of the victim when deciding to seek the death penalty? Are you suggesting that if the prosecutors thought that Dru Sjodin was not a nice person they should have felt fine not seeking the DP? Should brutal killers in the future be sure to let prosecutors know about everything bad the victim ever did in an effort to prevent prosecutors from seeking death?

And let's go beyond the death penalty. If I were elected to be a prosecutor, can I exercise discretion not to charge any drug offenses since the "victim" clearly is a willing participant in the drug transactions? Are you only for the rights of victims when they a pretty or look like you, Kent?

Posted by: Doug B. | Mar 1, 2008 4:04:50 PM

Doug, I am not familiar with the federal DP statute, but I am aware that one state, Indiana, may make the victim's status (as a participant) as a mitigating factor. Seeking death is an expensive proposition (no thanks to people of Jeralyn's ideological stripe)--seeking it in cases where a jury may not give it may not make sense from a cost standpoint. Somehow I doubt the race thing is that big of a deal here. Didn't Gonzo pursue the death penalty for where racists killed some black prisoners?

Your shot at Kent is unwarranted.

Posted by: federalist | Mar 1, 2008 5:53:09 PM

Doug, perhaps you have not seen me. I assure you I do not look remotely like Dru Sjodin.

No, I did not suggest that prosecutors should focus only on the victim. It was you who focused on the victims and suggested that their different ethnicities was the reason for the DoJ's decision. My point is that there is a very legitimate nonracial difference in these crimes, even if one just looks at the victims.

I do not agree that a factor can be legitimate for the jury to consider in deciding whether to impose the death penalty and yet illegitimate for prosecutors to consider in deciding whether to seek it. All murder is heinous, but kidnapping and murdering an innocent person is more heinous than one drug dealer killing another over a dispute in that despicable trade. In the Supreme Court's jurisprudence from Gregg forward, decision-makers must exercise discretion to separate out the worst murderers from the others, and this is a legitimate factor to consider.

If I were AG, I would have approved seeking the death penalty in that case. But Mukasey's contrary decision is not outside the bounds of reasonable discretion and most certainly does not warrant an accusation of racial bias based on comparison with the very different Dru Sjodin case.

Posted by: Kent Scheidegger | Mar 1, 2008 8:36:09 PM

Kent, I did not level an "accusation of racial bias." First, my headline worries about the new AG going soft on the DP, which is a concern that you seem to share. Second, I say that the AG's decision sends a "symbolic message," and I later used the word "apparently" in my closing line.

I am always intrigued that you (and federalist) frequently seem very eager to deny the descriptive significance of race, gender and other identity realities that obviously influence the operation of criminal justice systems in so many ways. Please understand, when I point out these realities I am not seeking to accuse anyone of "racial bias." Rather, my goal is to highlight --- and raise consciousness --- about factors that seem to influnce the operation of the criminal justice system in various ways.

Consider this datum, Kent: why haven't you complained about the AG's decision here on C&C? You say you disagree with the decision, and you usually do not pull your punches when you fear that the DP is being poorly administered. Would you have been so reserved if the AG had decided not to seek death in the Dru case?

Again, Kent, please understand that I am not accusing you of racism. Rather, I mean only to highlight that the media and bloggers will often make a big deal if an AG does not go hard after the killer of a pretty white girl, but few seem to notice or care too much when the AG decided not to go hard after the killer of a darker-skinned man.

Posted by: Doug B. | Mar 2, 2008 9:11:21 AM

"Are you only for the rights of victims when they a pretty or look like you, Kent?"

And then you write that you are not accusing anyone of racial bias. Perhaps, but that's a pretty inflammatory question, is it not? And it's framed on thinly veiled racial terms. I don't think it's so easy to walk back from that language.

Likely, the decision to seek death for Dru Sjodin's killer has more to do with her being a completely innocent victim of a recidivist sexual predator. It may surprise you, but drug dealers killing other drug dealers is not very rare. Had Dru been Latina, I'm guessing that death would have been sought, given the heinousness of the crime. Also, let's not forget that one person got 30 years for this crime, something which complicates the seeking of death for a co-defendant.

With respect to race and the criminal justice system generally, I am of the view that it's a lot more complicated than one thinks. I believe that many urban areas are very lenient on crime, relative to suburban or rural areas, and that lenience disproportionately benefits minority criminals. I look at the death penalty numbers and conclude that if you are a white murderer in America, you are more likely to be executed than if you are black--all you have to do is look at the numbers of black killers vs the numbers of white killers in America and compare that to the percentages of those executed.

With respect to crack, I understand that most people (and I agree) have come to the conclusion that the relative penalties between crack and powder need to be adjusted. However, the reason for that should really have nothing to do with the fact that it disproportionately affects black criminals. If the crack/powder distinction is wrong, then it is wrong, and the racial make-up of whom it affects is besides the point. Would the disparity be any less or more of an injustice if the races were reversed . . . . I think not.

I remember when crack hit the streets. It was, and still is, a scourge. Congress, including many members of the Congressional Black Caucus, called for stiff punishments. We may want to tweak things now, but, I submit, there needs to be a lot more circumspection in the debate. The crack/powder disparity is not "racist"--it has a disproportionate effect on black criminals--there is a big difference, and disproportionality, standing alone, is an insufficient reason to make changes.

Posted by: federalist | Mar 2, 2008 11:36:34 AM

Anyone else see in this exchange a beautiful, if small, set of data in support of the proposition that this nation should abandon the death penalty, on pragmatic grounds if no other? Here we have three very bright people working themselves into knots, and probably into a lather as well. Even if we arrogate the prerogative, none of us have lights bright enough to discern reliably whom we should kill, why, or when, once the accused is firmly in the sovereign's grasp and no immediate threat to anyone. Perhaps we ought resolve to let death come when it comes -- for the worst of us (whoever they may be) just as for the best.

Posted by: Dean | Mar 2, 2008 12:28:48 PM

"...but if you kill a young Latino man in North Dakota, federal authorities will not be too concerned about vindicating your death through the toughest possible criminal punishment."

"I am not seeking to accuse anyone of 'racial bias.'"

Okay, thanks for the clarification. The initial post read that way to me, but if you didn't intend it that way, that's fine.

"...why haven't you complained about the AG's decision here on C&C? You say you disagree with the decision, and you usually do not pull your punches when you fear that the DP is being poorly administered."

It would take an extreme case before I would so complain. The decision to seek or impose the death penalty in a given case involves many factors (the Supreme Court has required that it must), and only where a case is so clearly aggravated that the decision is an abuse of discretion would Monday-morning quarterbacking that decision be in order. I certainly do not complain publicly about every prosecutor's decision I disagree with. Among the reasons I do not is that I am aware that the facts reported in the press are not and cannot be the full picture.

"Would you have been so reserved if the AG had decided not to seek death in the Dru case?"

That's a close call. I don't know if I would have gone public on that or not. Probably not.

"...the media and bloggers will often make a big deal if an AG does not go hard after the killer of a pretty white girl..."

Really? I must have missed it.

Dean asks, "Anyone else see in this exchange a beautiful, if small, set of data in support of the proposition that this nation should abandon the death penalty, on pragmatic grounds if no other?"

Simple disagreement over the appropriate punishment in one particular, borderline case is a reason to abolish a punishment altogether let the worst murderers off with less than they deserve in cases where the death penalty is clearly warranted? No, I don't see that conclusion as following at all.

Posted by: Kent Scheidegger | Mar 2, 2008 2:12:55 PM

There likely would not be even "simple disagreement over the appropriate punishment" if we were discussing the propriety of life imprisonment for intentional homicide, in which no recognized justification or excuse applied. At least there would be little or no simple disagreement inside the very far edges of American public opinion. But that aside, perhaps you can clarify for me so that I may apply some rational criteria in advance, rather than just ad hoc: who are the "worst murderers," what exactly do they "deserve," and when I might know objectively that death is "clearly warranted," as opposed to, say, merely warranted.

I wonder whether, possibly, ten reasonable people might have ten different answers to this multivariate chain of questions -- all of which questions I agree are necessary to answer if we are to administer the death penalty with both rationality and some individuation in cases. You are a damn sight smarter than I, but I confess that a workable principle that I can apply prospectively, rather than just retrospectively, eludes me.

Posted by: Dean | Mar 2, 2008 3:38:48 PM

Doug B. You are increasingly becoming a "one trick pony" in your analysis. You see nearly every Justice decision through the prism of racial bias to the exclusion of other more plausible explanations. In doing so, you disappoint many of your readers.

Posted by: anonymous | Mar 2, 2008 7:23:25 PM

anonymous, my goal is to highlight the way racial bias can be observed, which notably tends to lead some tough on crimes types to defense a soft on crime decision. I rarely think severe punishment is driven by racial bias, but I do think we see bias in mercy -- to the benefit of women and whites --- all the time.

I fully appreciate why, anonymous, you and others may get tired of my efforts to point out how frequetly --- in cases ranging from Scooter Libby, to Roger Clemens, to Generalow Wilson --- that mercy is so ready shown to those the powerful can identify with and rarely to those whom the powerful like less. I get tired of this reality. When the reality goes away, I will stop highlighting its impact.

Posted by: Doug B. | Mar 2, 2008 9:44:10 PM

I think the complaint, Doug, is that you make a drive-by assessment of anecdotes without looking at any other factors. Moreover, I note how you've pivoted here. Before it was a naked race argument, now it's the "powerful".

And if you're going to call for the prosecution of Clemens, you should be adding Palmeiro to the mix as well.

And, by the way, Doug, if you think that in many urban areas there isn't plenty of unjustified mercy being handed out to violent criminals in urban areas (a disproportionately minority population), you haven't been paying attention. Let's just take for example the vicious racially motivated assault in Hollywood on Halloween. The offenders there, all black, got pretty good deals. I don't recall you getting worked up about that. Moreoever, I don't see you seriously considering the possibility that many minority criminals in urban areas benefit from lenience. Instead you point to anecdotes.

Posted by: federalist | Mar 2, 2008 11:21:18 PM


The question of whether the death penalty must be administered according to fixed criteria specified in advanced or with discretion considering all the circumstances is one that goes way back. After Furman v. Georgia in 1972, many thought that the Supreme Court had required fixed criteria to avoid the discrimination problem. Congress, California, New York, and several other states enacted mandatory laws. Then in 1976, the Court said (without apology) that the Constitution forbids what it previously hinted was required. "Guided discretion" is the way to go.

Some cases are so clearly aggravated that there is a strong consensus that if we are going to have the death penalty at all, this is such a case. Timothy McVeigh, Ted Bundy, and Richard Allen Davis come to mind. Others are sufficiently mitigated that most people would not impose the death penalty. In between there will necessarily be case where people disagree. That is the inherent nature of a discretionary system.

There have been studies that track jury sentencing behavior to try to quantify what factors go into the determination. Many of these are obvious. Rape-murder is worse than robbery-murder. Killing children is worse than killing adults. Importantly, many of the opposition's own studies have found no significant effect of race of the defendant, and race of the victim generally vanishes into the statistical grass when the legitimate factors (including jurisdiction) are accounted for.

Posted by: Kent Scheidegger | Mar 2, 2008 11:31:58 PM

Further to what Kent said, the issue is not just the nature of the crime, but the offender. The guy here is 21, which may have influenced the decision as well.

The obvious differences in these cases with respect to the offender, the crime itself (i.e., a rape-murder in the Sjodin case), the presence of co-defendants who got less time and victim convincingly demonstrates this statement to be over the top:

"I am much more troubled by this decision. I think it sends the symbolic message that, if you kill a young white woman in North Dakota, federal authorities will seek to vindicate your death through the toughest possible federal criminal punishment, but if you kill a young Latino man in North Dakota, federal authorities will not be too concerned about vidicating your death through the toughest possible criminal punishment. Sorry, gents, but apparently your lives are less important to the federal criminal justice system."

Perhaps it sends a message to the ill-informed.

Posted by: federalist | Mar 3, 2008 12:46:03 AM

For the record, federalist, I think it is a disgrace that Palmeiro has not been prosecuted for perjury. BUt let's stay on topic here.

I must start by saying how bemused I am to have you defending so vigorously a soft-on-crime choice by AG Mukasey. I am not sure why you are now saying that the realtively young age of a murderer supports a mitigated outcome here, but I hope you will continue to apply this age-mitigation principle in subsequent comment threads.

Next, I cannot help but note that my original post was really meant to be more about gender than race (as my "sorry, gents" line reveals). Isn't it notable how quickly we devolve into a race discussion when this case is, as you stress, about so much more.

Finally, Justice Thurgood Marshall long argued that folks well informed about the death penalty's costs would turn away from it. Perhaps you just think AG Mukasey is going soft on these matters because he is better informed than Gonzo. That may be true, though I think we should not quickly dismiss the societal importance of the messages sent to the "ill-informed."

Posted by: Doug B. | Mar 3, 2008 1:39:07 AM

federalist: I look at the death penalty numbers and conclude that if you are a white murderer in America, you are more likely to be executed than if you are black--all you have to do is look at the numbers of black killers vs the numbers of white killers in America and compare that to the percentages of those executed.

I defy you to produce those statistics. I am absolutely positive that the reverse is true. I have seen studies in Missouri & Nebraska that show the opposite, and am sure it is true elsewhere. I would love to see you cite something to back that up.

Posted by: so wrong, feddie, so wrong | Mar 3, 2008 9:37:09 AM

A couple of things:

1) Doesn't the fact that Palmeiro isn't being prosecuted undermine the thinly-veiled race accusations with respect to Clemens? Moreover, Congress has referred the matter to the DOJ. Can't we wait and see?

2) It's funny how explaining why a decision may not be racially or gender motivated devolves into "defending" the outcome. I would seek the death penalty in that case. I believe in the death penalty, and I would work to see it carried out a lot more if I were the AG, including the lobbying of Congress to get rid of the silly rule that if one juror votes against death, then no death penalty.

3) Doug, you injected race into the discussion with the post.

4) So wrong, all you have to do is look at the DOJ stats for murderers and DPIC's info with respect to the race of those executed. Where the race of the killer can be identified, whites committed about half of those murders in the US (and that's an inflated number because the DOJ includes "hispanics" in the category of white), and non-Hispanic whites make up 57% of those executed since 1976.

Posted by: federalist | Mar 3, 2008 10:14:27 AM

Perhaps lost in this discussion is the fact that if Congress had not federalized so many essentially local crimes (e.g. kidnapping, drug dealing), this problem would not appear. If Rodriguez had not crossed the state line, he would have not been elgible for the death penalty, because the neither of the states involved had the death penalty. However, despite all of the media attention which always appears whenever an attractive white woman disappears, any harm was essentially local since the victim was only transported a short distance which just happened to cross a state line (so given that the federal kidnapping law dates back to the 1930s this provides more evidence that deterrence is a crock, since that defendant could have avoided the death penalty simply by taking the victim off in the other direction).

The drug case also appears to be mainly local in harm - with minimal effect on the nature of the whole. Apparently some people have no problem with the federal death penalty being largely used to punish local criminals in cases where the state legislatures refuse to pass a death penalty law - however, anyone who cares about federalism and local choice at least a little should be concerned about that trend. However, if the federal death penalty for drug crimes does exist, there is quite a bit of justification to reserve it for people who are involved in national, regional, or international distribution. Maybe Mukaskey has more respect for federalism than Gonzales did - which would seem to be a positive development for anyone at all concerned about the federalization of local crimes - especially as a way to bypass state's decisions to not have the death penalty.

Posted by: Zack | Mar 3, 2008 10:59:13 AM

Federalist, maybe if you look at the overall percentage of population you can see why people say that minorities are executed at a higher rate than Whites. If Non-Hispanic Whites makes up 75% of the population, but are only executed 57% of the time, some other group is getting executed at a much higher rate based on population - because based on population, Whites should account for 75% of executions. Something is going on there and potential racial bias cannot be ruled out as an explanation.

Of course, the real bias in the US criminal justice system and the US as a whole is a class bias - often the class bias is mistaken as a racial bias because the past racism of the US leads many minorities to be poor, so things which harm the poor tend to harm minorities at a higher rate than Whites. How many wealthy or even upper or middle middle class people have been executed in the US? How many had steady jobs before they were arrested for their crimes? Does anyone even keep those numbers?

Posted by: Zack | Mar 3, 2008 11:23:16 AM

Zack, the relevant measuring stick is the racial breakdown of murderers, not the population as a whole.

Posted by: federalist | Mar 3, 2008 11:35:55 AM

Federalist, see comments regarding class as it relates to criminal justice to see why that is a false distinction. Looking at race will only obscure that the real issue there is class. Of course, poor people are also way more likely to be victims of crime, yet I really have seen any good summaries of the intersection between class and the death penalty. I wonder what percentage of the victims were of a higher social class than the executed criminal.

BTW, have you ever heard of Tommy Lee Strickler - if you want a perfect example of how the criminal justice system and the death penalty are really based upon class, look at that guy - he was the first White criminal executed for killing a Black woman in Virginia (maybe ever). He was poor - his victim, a middle class JMU student. Race of the victim and criminal tell you less in that case than class of the victim and criminal. Perhaps Professor Berman is making the mistake of seeing racial issues where he should be seeing class issues.

Posted by: Zack | Mar 3, 2008 11:54:33 AM

Strickler committed an awful crime, and got what he richly deserved.

As for class, well, people lower on the economic scale are more likely to commit violent crimes. A rich guy from Delaware, Capano, got the death penalty, but escaped death row due to a technicality on appeal. Bundy was a middle class killer.

Virginia has executed 4 whites for the killing of black victims since 1976.

Posted by: federalist | Mar 3, 2008 12:06:57 PM

Federalist - if you listen carefully you'll see that I am not totally disagreeing with you in that you just cannot look at race. However, to look at your examples, in Capano's case, his victim was working for the governor of Delaware so she was also from a privileged background. Bundy's best known crime was when he attacked a Florida State University sorority house - if you went to college in a college with sororities, you don't need to be told what social class sorority girls come from (middle upper to upper class generally). Hence, in both cases, the victims were from a similar social class as the perps (although Capano's victim was nowhere near as wealthy as she was the fact that she was directly employed by the governor of a state shows that she was at least connected with the rich and powerful).

Also you really cannot generalize based on a serial killer like Ted Bundy - fortunately for all of us, serial killers like Ted Bundy are rare and exceptional cases. Of course, Capano's case was exceptional as well - fortunately most rich people don't arrogantly think they can murder their mistresses and get away with it based on their wealth and political connections. Of course, those types of cases also stand out because of their rarity. However, while Bundy is atypical, I think it does raise a valid point that some death penalty cases do involve sex crimes and criminals with abnormal personaility types - class plays less of a role, but I'm thinking that the social class of the victim may still matter in that society may be more tolerant of executing the killer of a college student than the killer of a drug dealer or prostitute.

Posted by: Zack | Mar 3, 2008 3:33:13 PM

Well, Zack, when you serve up a bogus comparison and then say that racial discrimination could be a cause, then I don't think I am wrong for ignoring your arguments about class, or just mentioning a few counter-examples. In any event, newsflash, people of means tend to commit less violent crimes than lower class people.

Posted by: federalist | Mar 3, 2008 6:10:31 PM

If you think it is bogus to compare criminal justice statistics with the entire population, there really isn't much point in trying to have a rational discussion with you. Any statistical analysis must begin with the baseline, which is the percentage of the whole population who share a certain characteristic. When a disparity appears between something (e.g. percentage of executions by race) and the baseline (percentage of the whole population by race), discrimination based on that factor (race) cannot be eliminated as a potential factor in explaining the disparity. Of course, if you deny that a baseline exists, anything that disagrees with your beliefs will be "bogus."

Posted by: Zack | Mar 4, 2008 4:40:14 PM

It's not bogus to compare the justice stats with the entire population--it's bogus to suggest that the criminal justice system is racist with such a comparison.

Posted by: federalist | Mar 7, 2008 8:19:53 PM

North Dakota does not have the death penalty. In the Dru Sjodin case the killer took her into Minnesota (where her body was found), that is why the federal government prosecuted that case and that is why the death penalty was an option. In the other case (the Latino) the murder happened within North Dakota and wasn't subject to Federal jurisdiction so the death penalty was not an option anyway.

Posted by: Mom | Mar 26, 2008 12:56:49 PM

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