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Now some things have changed under a new administration, but one thing has not. And we will report next on how President Obama's administration handles criminal cases involving the death penalty. Many people expected Attorney General Eric Holder to seek executions less often. Instead, he is telling prosecutors to try for the death penalty at roughly the same rate as President Bush's last attorney general.
NPR's Ari Shapiro reports.
ARI SHAPIRO: Attorney General Holder has said he is not a proponent of the death penalty, but early on he proved he is not afraid to instruct prosecutors to seek it. He spoke to reporters back in March.
Attorney General ERIC HOLDER (Department of Justice): I think that's probably the toughest decision that an attorney general has to make, when do you authorize the seeking of the death penalty. I've had to sign a few of those already, during the course of these six weeks.
SHAPIRO: The Federal Death Penalty Resource Center helps defense lawyers in capital cases and they also track how often an attorney general authorizes prosecutors to seek the death penalty. The organization says out of all of the cases that could be eligible for capital punishment, President Bush's first attorney general, John Ashcroft, green-lighted death penalty prosecutions 22 percent of the time. His successor, Alberto Gonzalez, authorized 19 percent.
Then came Attorney General Michael Mukasey, who approved death penalty prosecutions 13 percent of the time. And that 13 percent figure is roughly the same as Attorney General Holder's rate. The Justice Department said it could not confirm these numbers.
Mr. RICHARD DIETER (Director, Death Penalty Information Center): The federal death penalty is not on hold in the sense of prosecutions.
SHAPIRO: Richard Dieter runs the Death Penalty Information Center, a nonpartisan group that tracks death penalty enforcement.
Mr. DIETER: Eric Holder's stamp of approval and signature is now on a number of federal prosecutions that are being carried on, and yet we don't know if there's going to be a change in policy.
SHAPIRO: Holder has not made any sweeping pronouncements about the death penalty. And sources who've met with senior Justice officials on this issue say there is no policy review on the horizon. So, as multiple people who've worked with the Justice Department on the death penalty put it: Nothing has really changed.
But this debate is about more than the number of prosecutions. It's also about how and where the decision to seek the death penalty is made. Paul Charlton was President Bush's U.S. attorney in Arizona. He advised against seeking the death penalty for a drug dealer accused of killing his supplier, and Attorney General Gonzales overruled Charlton's recommendation.
Mr. PAUL CHARLTON (Former U.S. Attorney, Arizona): Of great disappointment to me, in that instance, was that the attorney general refused to hear from me personally.
SHAPIRO: Speaking to reporters last month, the new attorney general said he won't make that mistake.
Mr. ERIC HOLDER (United States Attorney General): Based on my experience having been a United States attorney, and given the respect that I have for the career people who handle these kinds of matters, the recommendation that I get from the field carries a great deal of weight with me.
SHAPIRO: There's also a question of local standards. Many states have outlawed the death penalty, but even in those states, federal prosecutors can still bring capital charges.
As Richard Dieter explains, the Clinton administration deferred to local norms.
Mr. DIETER: That is to say, you don't ordinarily seek the death penalty where the voters have rejected it. President Bush and John Ashcroft were upfront. They said, we're changing the policy.
SHAPIRO: They brought federal death penalty cases in states that have outlawed capital punishment. Sometimes that led to street protests.
So, in March, I asked Attorney General Holder: what are you thoughts on when asked the Justice Department will seek the federal death penalty in states that don't have the death penalty?
Mr. HOLDER: I wouldn't say that there is a policy where we're doing it on a state-by-state basis. It really is a case-by-case basis.
SHAPIRO: And a few months later, Holder authorized a capital prosecution in Vermont, a state that does not have the death penalty. When Attorney General Ashcroft brought a federal death penalty case in Vermont seven years ago, the mayor of Burlington called it an affront to states' rights and not consistent with the values of a majority of Vermonters. But this time there was hardly any outcry.
There's also an international element to some death penalty cases. Europe has outlawed capital punishment. And when the United States announced it would seek the death penalty against alleged 9/11 mastermind Khalid Sheikh Mohammed, Germany said it would not let German evidence be used against him at trial. And that could be significant, because KSM spent time in Germany before 9/11.
Ari Shapiro, NPR News, Washington.
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