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There has been yet more twisting and pulling to make local matters into federal crimes. Gary Sampson, sentenced to death in Massachusetts last fall for stabbing a 69-year-old man to death during a carjacking, was a federal case, not because he drove across state lines while committing his crime, as many believe, but because carjacking involves automobiles. This allowed the government to invoke the US Constitution’s commerce clause, which gives the federal government power to regulate interstate trade.

Of course, the federal government has used the same sorts of arguments to defend all manner of regulation and intrusion into local matters; it would be hypocritical for liberals to celebrate the anniversary of Brown v. Board of Education, in which the US Supreme Court forced states to desegregate schools one day, and then bemoan the overreach of Sampson’s federal prosecution the next. But Brown involved the vindication of rights under the US Constitution. In these prosecutions, by contrast, the federal government often wields its power to tack an extra few years onto a criminal’s sentence (or, in some cases, to execute him).

What happened to a group of 24 people arrested in Roxbury in April offers a perfect example of how federal prosecutions are parceled out in order to win harsher sentences. All have been charged with crack and cocaine distribution near the Warren Gardens housing development. None has been charged with violence or gun possession, and there have been no allegations of gang activity. All are accused of essentially the same crime, but 16 have been charged federally, while eight have been charged by the state. Although Sullivan would not comment on the specific cases, he and others in his office acknowledge that in these types of matters, the various cooperating prosecutors divvy up the defendants based largely on which court offers the severest penalty. Distributing cocaine base (i.e., crack), generally carries a stiffer penalty in federal court; the alleged crack dealers in the Warren Gardens group face federal indictments. Several of the defendants are charged in the state system with distribution in a school zone, which carries a heavy penalty in Massachusetts. Others allegedly caught dealing on Copeland Street — more than 1000 feet from the Lewis School — are charged in federal court with distribution within 1000 feet of a playground, which doubles the potential federal sentence but would not have been relevant in state court. "What I see going on now is cases that are more than suitable for the state court — in fact, it’s the staple of what they do — being federalized because the penalties are harsher," says defense attorney Sheketoff.

That is exactly the point made by a major 1998 American Bar Association task force — chaired by no less a conservative than Edwin Meese, the attorney general under Ronald Reagan. "The federalization phenomenon is inconsistent with the traditional notion that prevention of crime and law enforcement in this country are basically state functions," the task force’s report said. It went on to criticize the "indiscriminate federalization of local crime for no other reason than that it is serious," warning that this practice is "at best, wasteful, and at worst, destructive of the relationship between state and federal law enforcement."

That hasn’t stopped supposed states’-rights proponents George W. Bush and John Ashcroft from dramatically increasing the use of the federal courts — from 59,923 new criminal cases in Reno’s last fiscal year (ending September 30, 1999) to a record-high of 70,642 in FY 2003, an 18 percent jump. The rise in numbers is partially due to the expansion of immigration laws post-9/11. But the single biggest increase is in prosecution of weapons and firearm offenses, which have more than doubled, from 4367 to 9075. Meanwhile, the number of white-collar cases, like embezzlement and lending-institution fraud, has dropped.

Not only has Ashcroft accelerated federalization of cases, he has increasingly centralized the federal justice system, taking decisions away from local US attorneys. Even some inside the Boston office complain privately of Ashcroft’s insistence on ever-higher numbers of drug, firearm, and sex-crime prosecutions, sources say. And a September 22, 2003, memo from Ashcroft to all federal prosecutors instituted a new policy directing that in every case, the most serious offense possible must be charged. "The most serious offense or offenses are those that generate the most substantial sentence," the memo elaborated. Further, the policy bars prosecutors from dismissing charges once filed, and severely restricts plea bargaining. Individual US attorney’s offices now have very little independent power to apply their own judgment to the prosecution of crimes.

The minimization of local attorneys’ discretion also extends to the decision to seek the death penalty. In roughly 40 percent of the cases in which Ashcroft has authorized pursuit of the death penalty, he has done so against the recommendation of the local prosecutor, says David Bruck, of the Death Penalty Resource Counsel. Reno asked to review all US attorneys’ decisions to seek the death penalty and overruled some, in both directions. But Ashcroft essentially ignores the local office’s opinion and makes the decision himself, says DPRC executive director Deiter: "Ashcroft said the recommendation of the US attorney doesn’t really count."

Many in Boston believe that Sullivan actually recommended against seeking the death penalty for Green and Morris and was overruled. We cannot know for sure because Ashcroft ordered a clampdown on the release of such information after several controversial cases played out in the press, including one involving alleged gang leader Emile Dixon, in Brooklyn, New York. Prosecutors in that case had recommended against seeking death because of concerns about the reliability of their main witness.

According to the National Coalition To Abolish the Death Penalty, a Washington, DC–based advocacy group, Ashcroft has called for the death penalty over the opposition of local US attorneys at least 28 times. He has done so only twice in cases involving white defendants, 23 times in cases involving black, Hispanic, or Native American defendants, and three times in cases where the defendant’s race is unknown, according to NCADP spokesperson David Elliott. There may be more coming, as Ashcroft continues his campaign to send young Bostonians to the executioner.

David S. Bernstein can be reached at dbernstein[a]phx.com