In ""Supervising Federal Capital Punishment: Why Attorney General Should Defer When U.S. Attorneys Recommend Against the Death Penalty"", published in the Virginia Law Review, the Hon. John Gleeson of U.S. District Court of Eastern District, New York attacks Attorney General John Ashcroft's decision to pursue thirty-three cases as capital offenses, when the local U.S. Attorney recommends against capital punishment.  Gleeson argues that Ashcroft's decision potentially hinders the U.S. Attorneys' conviction probability in these cases, as well as hinders the U.S. Attorneys' abilities to prosecute current defendants' co-conspirators. 

      Judge Gleeson argues that forcing U.S. Attorneys to prosecute capital cases contrary to their recommendations may actually harm efforts to punish criminals.  While two defendants may have committed the exact same crime, the evidence may exist stronger against one defendant than the other.  As Gleeson writes, ""If the Prosecutor and Defendant want to hedge against losing the trial by agreeing in any of these ways to a compromise sentence that reflects the strength of the evidence, there is no good reason to prevent them""  (89 Va. L. Rev. 1713).  If a case is too weak, juries could actually acquit rather than impose a sentence as harsh as death.

     Judge Gleeson also argues that there are ripple effects as well.  As Gleeson states, ""Murder investigations depend heavily on confidential informants, and murder prosecutions depend just as heavily on the testimony of accomplice witnesses"" (89 Va. L. Rev. 1723).  Through plea-bargaining, prosecutors can use the testimony of already convicted felons to help prosecute their cohorts.  Also, police officers receive better help in their investigations.  Forcing U.S. Attorneys to seek capital charges for certain crimes, most defendants will not help the U.S. Attorneys convict other co-conspirators, because the defendants gain nothing from the conviction of their former partners.  With the lack of the defendant's testimony, the U.S. Attorney's task to convict the defendant's co-conspirators increases in difficulty and the likelihood of co-conspirator avoiding conviction increases.  Using common logic, most people prefer more incapacitated criminals to more death row inmates.  Through the loss of convicted defendants' valuable testimony, Ashcroft's actions will secure fewer convictions and endanger more lives.

     Gleeson cites the case of U.S. v. Zapata, as an example of the problem, where Jairo Zapata agreed to plead to guilty to a non-capital murder charge in exchange for cooperation with the federal government.  Logically, the U.S. Attorney agreed to not pursue the death penalty, but Attorney General Ashcroft disagreed, and now, potentially life-saving information that Zapata knows will not be used.  According to Gleeson, Ashcroft nullified at least five similar plea agreements to the Zapata case.(89 Va. L. Rev. 1697).  These five plea agreements could have potentially helped the U. S. Attorney's office put more people in prison.