Attorney General John Ashcroft will go down in history not only as the chief salesman of the Patriot Act, but for his attempt to revitalize the federal death penalty, even to the extent of overruling his own prosecutors who recommended against it in specific cases.

The National Law Journal examines Ashcroft's legacy vis as vis the death penalty--and whether his likely successor, Alberto Gonzales, will continue down the same path.

Currently, 71 federal death penalty trials are pending nationwide, according to Kevin McNally, a lawyer at the Federal Death Penalty Resource Counsel Project, which assists capital defenders and functions as a clearinghouse. In at least 15 of the pending cases Ashcroft overruled local prosecutors, McNally said. All told he has overruled prosecutors on at least 42 of 128 capital defendants (33 percent). He overruled prosecutors the other way -- declining to request the death penalty -- on eight defendants. Though disagreements between the Justice Department and U.S. attorneys are not always disclosed, McNally said that his information comes from defense lawyers and public records.

Which way will Alberto Gonzales go? Hard to say. Gonzales wrote a lot of pro-execution clemency memos to Bush while Bush was Governor of Texas. But the Department does seem to be overruling its prosecutors less the past few months, so maybe Gonzales abandon Ashcroft's hard line stance. Stay tuned. It's bound to be an issue Gonzales is questioned about during his confirmation hearing.