"The continual federalization of criminal law is a retrograde development," says David Bruck. "It is politically driven and is leading to a huge expansion of federal crimes that were perfectly well handled by the states." That complaint about the growing number of crimes prosecutable in federal courts has been heard with increasing frequency from states' rights supporters and conservative judicial scholars.

But in this case -- the case of Kristen Gilbert, accused of murdering four men and attempted murder of three others -- Bruck, a lawyer with the Federal Death Penalty Resource Counsel (FDPRC), comes down on the states' side.

• The deaths for which Gilbert is charged occurred in Massachusetts, one of the 12 states with no death penalty.

• However, the alleged crimes occurred at Veterans Affairs hospital, which is under concurrent federal and state jurisdiction, and U.S. attorneys decided to seek the death penalty under federal law.

• Members of Gilbert's defense argue that trying to impose the death penalty here "is a direct insult to citizenry" of a state that has "time and again rejected the reinstitution of capital punishment."

The defense has accused the Justice Department of using racial considerations in choosing Gilbert for capital prosecution, claiming three-fourths of those selected for federal death penalty prosecutions in the early 1990s were minority group members, and therefore the prosecution of Gilbert, who is white, "makes the numbers look better."

The FDPRC is a federally funded program, under the Criminal Justice Act, that aims to assist counsel and the courts in death penalty cases.

Source: "Woman Faces Death Sentence In State Without that Penalty," New York Times, January 30, 2000.