Justice Department officials have overruled federal prosecutors here and authorized seeking the death penalty for an Army soldier in a move critics say is part of a nationwide attempt by the Bush administration to spread capital punishment to non-death-penalty states.

Naeem Williams, charged with murdering his 5-year-old daughter last year, is believed to be the first in the country to face the death penalty under a provision passed by Congress three years ago for first-degree murder cases involving "a pattern or practice of assault or torture against a child or children."

The U.S. Attorney's Office in Hawai'i recommended against seeking capital punishment for Williams and his wife, Delilah, who is also charged with the murder, according to sources familiar with the case who do not want to be identified because the recommendation is considered confidential.

The Justice Department went along with the recommendation for the 21-year-old wife, but U.S. Attorney General Alberto Gonzales, who must approve federal death penalty prosecutions, authorized seeking capital punishment for the husband.

That move is part of a trend under the Bush administration to seek the death penalty in Hawai'i and 11 other states that don't have capital punishment, some critics of the death penalty believe.

WHITE HOUSE AGENDA

Gonzales and former Attorney General John Ashcroft authorized 180 death penalty prosecutions, including 51 cases in which the local U.S. attorney's office did not recommend capital punishment, according to the Federal Death Penalty Resource Counsel Project, a national information clearinghouse for court-appointed defense lawyers in federal death-penalty cases.

Fourteen of the 51 cases are from non-capital-punishment states, said Kevin McNally, a Kentucky lawyer with the project.

Richard Dieter, executive director of the non-profit Death Penalty Information Center in Washington, D.C., which is critical of the way the death penalty is applied in this nation, said Ashcroft wanted to uniformly apply capital punishment across the country.

"To him, that meant seeking it in places that don't have the death penalty," Dieter said.

Dieter said there hasn't been any change in philosophy under Gonzales. He said local federal prosecutors now "have less of a say in the process."

Under President Clinton's administration, no one from a non-death-penalty state was sitting on a federal death row, but now there are six, Dieter said.

There are two from Iowa, and one each from Massachusetts, Michigan, Vermont and North Dakota.

David Bruck, a South Carolina lawyer with the Federal Death Penalty Resource Counsel Project, raised concerns as early as 2003, when he said the trend reflected an attempt to "nationalize capital punishment."

"I don't think there's any doubt that this administration believes its role to be enforcing the death penalty nationwide without regard to local beliefs or policies," Bruck said in a recent interview.

He said Ashcroft dropped a provision under his predecessor Janet Reno that prevented federal death-penalty prosecutions when capital punishment was not authorized in the state where the crime occurred.

"This administration from the top down has been vigorously pro-death penalty," he said.

The criticism has been echoed by capital-punishment opponents in non-death-penalty states.

When Donald Fell was sentenced to death this year by a federal judge in Vermont for the 2000 fatal beating of a 53-year-old woman, the American Civil Liberties Union said Ashcroft sought to bring capital punishment to states without the death penalty. Vermont's ACLU said Ashcroft had earlier rejected a tentative plea agreement by federal prosecutors calling for a life term for Fell.

Vermont abolished the death penalty in 1987.

CONGRESS' ROLE

Peter Watkins, a spokesman for the Bush White House, deferred comment to the Justice Department on whether the administration is trying to expand the death penalty to non-capital-punishment states.

A spokeswoman for the Justice Department, Kathleen Blomquist, said the recommendations by U.S. attorneys are confidential and that the department does not comment on the decision-making in specific cases.

Blomquist, however, said the goal of the department's capital-punishment review and decision-making process is a "fair, consistent and even-handed application of the federal capital sentencing laws nationwide to the worst offenders who commit the most egregious offenses."

The death-penalty prosecution will be unusual for Hawai'i, which abolished capital punishment in 1957. Sporadic attempts to revive it have never gotten far in the state Legislature, and Hawai'i remains one of 12 states that do not have capital punishment.

Congress, however, has authorized the death penalty throughout the country for federal crimes, starting in 1988 for drug kingpins. The law was expanded in 1994 to cover other offenses, such as murder for hire and murder of government officials. The provision involving a pattern of abuse and torture of children was added in 2003.

Currently, 46 prisoners from 20 states are sitting on federal death rows, according to the Death Penalty Information Center. Only three, including Oklahoma City bomber Timothy McVeigh, have been executed under the federal death-penalty law. All three were executed by lethal injection.

In announcing on Sept. 8 that it would seek the death penalty in Williams' case, federal prosecutors accused the soldier of committing the murder in an "especially heinous, cruel and depraved manner in that it involved torture and serious physical abuse." The prosecutors said Williams' 5-year-old daughter was "particularly vulnerable because of her youth."

Williams also tried to thwart the investigation by washing his daughter's blood from the walls and instructing his wife to give a false statement to authorities, the prosecutors said.

In his statement to Army investigators, Williams said he used a belt on his daughter, Talia, daily for four months. On the morning of her death, July 16 of last year, he repeatedly hit the girl to discipline her, he told investigators. Later, he slapped her and she fell on her face, he said.

When the girl became unresponsive, he and his wife didn't call 911 for about an hour because Delilah Williams feared authorities would take away her 4-month-old baby, he said.

The autopsy report concluded Talia died from "inflicted head trauma due to battered child syndrome."

David Klein, Naeem Williams' lawyer, said the decision to seek the death penalty "compounded" the "tragic case."

He said his client "has no record of any significant convictions" and "has served his country in the military for a number of years."

Alexander Silvert, the first assistant federal public defender who is representing Delilah Williams, said he doesn't think capital punishment is appropriate for either defendant.

Silvert said he believes the death penalty is being sought for political reasons by the administration with Bush associates from Texas, a pro-capital punishment state. He said he fears the Justice Department is using the case to "test" the 2003 law.

U.S. Attorney Ed Kubo said the department did not reach its position because it wanted to "test" the new law.

"I don't think the president or any of the people under him from Texas knows about this case way out in Hawai'i," he said.

FIRST UNDER NEW LAW

Naeem Williams was initially charged by the military, but when the case was transferred to federal prosecutors in August last year, Kubo said Naeem and Delilah Williams were the first in the country prosecuted under the new law involving torture and abuse of a child.

Kubo said he does not know if there are currently any similar prosecutions in the country. Spokeswoman Blomquist of the Justice Department said those statistics are not readily available.

Silvert said that as far as he knows, Naeem Williams is the first to face the death penalty under the 2003 provision.

"To treat this as a death penalty case is really unwarranted," Silvert said.

He said the girl did not die as a result of a deliberate act to kill her.

"I don't think anyone can seriously argue that the child was struck with the intention to kill the child," he said.

If Williams had been charged under state law, he would have been charged with second-degree murder, punishable by life in prison with parole, but not with death, he said.

Silvert said he believes the U.S. Attorney's Office here gave the "appropriate consideration" on the death penalty issue for both defendants. "I think this is coming from Washington (D.C.)," he said. "I think it's political."

He contended that with the strong backing of the Justice Department, Congress added the provision in 2003, and that one reason for seeking the death penalty in Williams' case is that the Justice Department views the law as "its new toy."

"Whatever you want to believe about the death penalty, it should never be used for political purposes, and it should never be used simply because, like a nuclear weapon, it's out there, so let's play with it," he said.

Kubo disagreed.

"Unlike the state Legislature, Congress has determined that under certain horrific circumstances, death would be an appropriate sanction, and the Justice Department has determined that the torture and beating to death of a small child warrants the death penalty as an optional sentence," he said.

He said the law was in effect at the time Talia Williams died.

"Since it's clear what it mandates and it fits within the facts of this case, we're just following the law of Congress," he said.

OCTOBER TRIAL

Naeem Williams and his wife are both being held separately at the Federal Detention Center.

His case is expected to generate a huge amount of litigation before U.S. District Judge David Ezra because it is a death-penalty case.

"I expect the case to be zealously litigated by both sides," said Assistant U.S. Attorney Marshall Silverberg, who is handling the prosecution.

Delilah Williams was added to the case when she was indicted by a federal grand jury Oct. 12 on a charge of murdering the girl. The maximum sentence she would face if convicted is life in prison.

Both have pleaded not guilty. Their trial is scheduled for next October.

Naeem and Delilah Williams are declining to comment, their lawyers said.

Silvert said his client has "very mixed emotions" with the death of her stepchild and the decisions that leave only her husband facing the death penalty.

"There's a lot of emotions that run through that, and I think she's entitled to her own privacy," he said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.