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Monthly Archives: July 2013

The Death Penalty: Murderers, Rapists, Spies and the Inequity of Capital Punishment

The United States is one of the few western countries that still has the death penalty. Whether one supports or disapproves of capital punishment is not the focus of this discussion. Rather, capital punishment’s implementation as the ultimate penalty for certain crimes I believe can say a great deal about who we are as a society; that is to say, what types of behavior we as a society absolutely do not allow under any circumstances and will not forgive and, perhaps more importantly, what offenses are not considered so heinous and unforgivable as to merit the offender forfeiture of his life as punishment.

The use of the death penalty among the states has been limited to offenses resulting in the death of another person and generally only if that death is held to be pre-meditated. The 1977 U.S. Supreme Court case of Coker v. Georgia, (433 U.S. 584), a case where the defendant was convicted of aggravated rape and sentenced to death, essentially held that the death penalty was “grossly disproportionate and excessive punishment” for this crime. The ruling ultimately restricted the states to applying a vigorous proportionality test to determine if any given crime warranted the death sentence. As a consequence, virtually all state offenses other than murder are prohibited under the Eighth Amendment of the Constitution as cruel and unusual punishment. Seventeen years later, The Federal Death Penalty Act was passed as Title VI of the Violent Crime Control and Law Enforcement Act of 1994. In passing this legislation, use of the death penalty under Federal law was codified far more broadly than that the states. In this act, Congress established constitutional procedures for imposition of the death penalty for 60 offenses, including 28 new Federal capital offenses, which “…fall into three broad categories: (1) homicide offenses; (2) espionage and treason; and (3) non-homicidal narcotics offenses.”

I now turn to recent events that have brought the use of the death penalty into sharp focus. The first involves the matter of Ariel Castro, 54, of Cleveland, Ohio, who was charged with 977 felony counts for the kidnapping and abuse of 3 women in the Cleveland area over the course of nearly a decade. The indictment included 512 counts of kidnapping, 446 counts of rape, and 2 counts of aggravated murder. The latter charges stemmed from Mr. Castro’s repeated beatings of his victims which resulted in the termination of pregnancies that he himself had caused through raping them. On July 26, 2013, Mr. Castro entered into an arrangement in which he pleaded guilty to 937 felony charges and was sentenced to life imprisonment without the possibility of parole plus 1,000 years.

The second involves Edward Snowden, 30, a former CIA employee and contractor for the National Security Agency. Mr. Snowden absconded with 4 laptop computers containing highly classified information detailing surveillance efforts by the NSA and the British intelligence agency Government Communications Headquarters (GCHQ) against American and British citizens domestically as well as foreign governments, some of them allied with the United States and leaked the data to the press.  On June 14, 2013, while in hiding at Russia’s Sheremetyevo International Airport in Moscow, the U.S. Department of Justice indicted Mr. Snowden for espionage and theft of government property.  The espionage charge, under the Federal Death Penalty Act of 1994, carried with it a possible sentence of death. On July 26, 2013, U.S. Attorney General Eric Holder submitted a letter to his Russian counterpart, Justice Minister Alexander Konovalov, assuring Russia that the United States would not seek the death penalty if the government in Moscow would return Mr. Snowden to U.S. custody.

Here we have our quandary. For so many of us, after learning the horrifying details of his actions, most of us felt that Ariel Castro must be executed. As a society, we could not conceive that the sheer volume of so many monstrous acts committed over such a long period of time would merit anything but death for the offender. But one could argue that because he did not commit pre-meditated murder, Ariel Castro could not have faced the death penalty. The aggravated murder statutes for which he faced execution derive from a “fetal homicide” law which provides for capital punishment if a pregnancy is terminated unlawfully. Ohio is one of 38 states that have such a law on the books. It has been argued that if Mr. Castro had gone to trial, his defense could have overcome these charges or had them dismissed, as the state would have to prove that Mr. Castro knew his victims were pregnant and that his beatings were the specific cause of the miscarriages beyond a reasonable doubt. There is no provision in any state law to allow for the execution of a person for the totality of crimes committed over days, years or a lifetime. To put it succinctly, the vast majority of Americans recently polled (excluding those ardently opposed to the death sentence as a matter of principle) feel that Ariel Castro should die for his crimes. The reality, however, is that were it not for what amounts to a quirk in Ohio law passed only in 2002, as horrific as his crimes were, Mr. Castro would never have faced the ultimate penalty.

As for Edward Snowden, although he has not committed murder or any other act coming anywhere close to the standard imposed in the Coker decision, the Federal charge of espionage nevertheless carried with it the possibility of the death penalty. The drama that has played out in the media regarding Mr. Snowden’s flight to avoid capture and extradition back to the U.S. to stand trial for the crimes he has been charged with has often hinged on whether or not the death penalty would be imposed if he was convicted of espionage. It is no surprise that Attorney General Holder had to make assurances to Russia specifically regarding the death penalty with regard to Mr. Snowden. In today’s world, it is logical to conclude that any information whatsoever placed on internet could easily be found by “enemies of the state”. As such, we are left with the difficult task of trying to redefine what “giving aid and comfort to the enemy” constitutes. In a time of war or if the accused is a soldier at war, the task is less difficult, although the case of PFC Bradley/Chelsea Manning has proven it is by no means an easy one either. But is disseminating classified information to the press and by extension the public in whose name such secrets are kept to protect, so unforgivable a crime that the offender must lose his life for it? Unless we know that what Mr. Snowden has in his possession could have the immediate result of causing the death of others or putting lives in grave danger, the automatic consideration of capital punishment for espionage seems harsh. The last time this country had this particular discussion was in 1952. Julius and Ethel Rosenberg were convicted for conspiracy to commit espionage in a time of war for passing technical information about the atomic bomb to Soviet Union and subsequently executed.  Are we prepared to compare Mr. Snowden’s activities to that of the Rosenberg’s?

As a final thought, I return to Coker to wonder if it is not appropriate to add aggravated rape to the list of offenses punishable by death under state or even Federal law. If we are prepared to execute non-violent offenders such as drug runners, spies and people who did not actually commit murder but were only accessory to the crime, is death not a fitting punishment for a person who commits the most vile act one human being can commit against another? In so many instances, rape survivors have often said they would rather be dead than continue to be haunted by the anguish, humiliation and terror of that moment. Some greater action must be taken if we are to honestly purport to be a country that actively supports the rights women to be secure in their persons from such sickening violations of their bodies.

I wonder if the justice system can or should be changed. If our current laws do not allow the state to punish those whose crimes are so beyond society’s capability to punish through conventional means such as life imprisonment, should there not be a mechanism for which special charges may be brought against such offenders? Perhaps in the case of Mr. Castro, there could have been a provision in Ohio law to allow the state through the Attorney General’s office to petition the Ohio Supreme Court for a writ that would allow prosecutors to charge him with a general “Crime Against the People of the State of Ohio” that carried with it a sentence of death. Also, as a civilized society, what message do we send when we are prepared to level the ultimate penalty against a man who is the final analysis is a naïve and petty thief, who with poor judgment exposed to the world the secret that they too were being watched without just cause?

The death penalty again is supposed to deter violent crime and punish those who cannot be rehabilitated back into society. If given a choice between a man who has essentially commits grand larceny and leaks classified material to the press or a man who kidnaps three women and holds them in a basement, rapes and tortures them over a period of several years, who do we strap to the table for lethal injection? Both men in the end will be punished. But  I submit that when the state must employ execution as a means to maintain order, then maybe we always have contend with the hard questions  from men such as Castro and Snowden and ask those questions over and over again without resolution. Two individuals on opposites ends of what we consider “offenders” and “criminals”, two men who are different in almost every way, but nevertheless both at one time staring at the exact same fate. If there was ever a time to reconsider the law’s use of the term “grossly disproportionate”, this would be good time to have that conversation.

Edward Snowden on Mars

“There was supposed to be an Earth-shattering Ka-boom!”

The lament of Marvin the Martian as his attempt to blow up the Earth is foiled by the accidental astrorabbit Bugs Bunny stealing the Illudium Q-36 Explosive Space Modulator is a witty reminder of something that is, shall we say, less apocalyptic than an alien destroying the world to clear his view of Venus. It is nevertheless curiously and somewhat disturbingly also the story of something of immense power stolen by the most unlikely of protagonists with the ability, ostensibly anyway, to blow up the world. There have lately been some important questions that have gone completely missing from the collective American political consciousness:

Where is Edward Snowden? What happened to his reported treasure trove of U.S. government secrets that was supposed to have caused so much hand wringing in the halls of power from Washington to Warsaw to Wellington? More importantly, where is this great national discussion that we were supposed to be having about government surveillance and the questions regarding individual privacy versus public safety?

Since the Zimmerman verdict, the birth of Royal Baby, and the continuing scandals of Anthony Weiner (aka The Man Who Would Be Mayor), we have completely lost sight of Mr. Snowden, now holed up for a month inside the international transit zone of Moscow’s Sheremetyevo airport. We can only assume that he still has possession of his four laptop computers containing not only specific information about NSA surveillance of American citizens and foreign governments but also reportedly a “blueprint” outlining NSA infrastructure and operations. But that’s only an assumption.

We can also assume that there have been no great efforts on the part of any of the countries that have offered him asylum to actually get him out of Russia. Little news or commentary has come from the governments in Bolivia, Nicaragua or Venezuela regarding their desire to give succor to Mr. Snowden. Nor has there been any confirmation that he will be allowed to emigrate to Russia, as has been widely reported. Vladimir Putin’s stated requirements that if Mr. Snowden wished to remain in Russia that he no longer release any more classified information that might damage the United States or its intelligence networks may prove too stringent for him to abide by, leaving Mr. Snowden still marooned at Sheremetyevo. But that’s also only an assumption.

Save for the occasional brief statement by an intelligence official, there has been strangely little in the news at all lately about the man who once had the attention of the world riveted to his every move. Ironically, another domestic issue of great importance has taken the place of the discussions we as a nation were supposed to have about the implications of Snowden’s revelations and eclipsed once again our view of what’s going on inside Fort Meade. In the wake of George Zimmerman’s acquittal for the 2012 shooting death of Trayvon Martin in Sanford, Florida, race relations and gun violence in America have once again rushed to capture center stage. I do not wish to imply even for a moment that this is not a debate we should be having. Indeed, this is an issue that we as a nation must tackle head on. But I think something important to America got lost in the din of angry voices, somewhere between Sanford, Washington, New York, London and Moscow.

It has been said that the American news media, particularly on the left, missed a golden opportunity to initiate a truly vigorous debate about the NSA and its activities at home and abroad. Instead, they dropped the ball with an obsession to cover the man and not the message. Mr. Snowden’s flight across the world became our dirty little national pastime. It was a soap opera better than any on daytime television ever could hope to be.  The somewhat ridiculous and banal national polling of the “hero or traitor” question also clouded what Mr. Snowden was trying to achieve. We focused on the person of Edward Snowden and his endless search for a place to hang his hat and failed to stop and think about what our intelligence services are up to in our own backyards. I should think that would qualify as a major intelligence scoop all by itself.

It may be too late. We as Americans have the attention span of a school of halibut and get distracted so easily by the agony and the ecstasy that hits our headlines every morning. We may not even care if he ever gets asylum, or is captured by U.S. authorities or just simply disappears one day from our memory. Tragic death occurs and protesters fill the streets. A baby is born and we can all share in a little joy, pomp and circumstance. Tomorrow will have new things to worry and wonder at. In the meantime, a young man stays trapped inside an airport terminal far from home. However carefully calculated or misguided his original intentions may have been, I for one have no doubt he was trying to change the world for the better. Who mourns for Marvin with his view of Venus still obstructed by that annoying planet filling his telescope?

Well, THAT was a waste of perfectly good taxpayer dollars…

Lost among the torrent of news saturating the internet today regarding the birth of Kate and William’s son who shall one day rule a nation slightly larger than Oregon that is not this one, something of great consequence in this country was being grossly underreported. A federal judge blocked the enforcement of North Dakota’s new abortion law, which was one of, if not the most, restrictive in the United States. The law, scheduled to take effect on August 1, would have banned virtually all abortions in that state beginning at 6 weeks as opposed to 28 weeks, which is the measure laid down in the U.S. Supreme Court’s landmark Roe v. Wade decision in 1973. U.S. District Judge Daniel Hovland, ruling for the plaintiff in the case of MKB Management v. Burdick (13-cv-71, U.S. District Court, District of North Dakota), stated in his ruling “The state of North Dakota has presented no evidence to justify the passage of this troubling law…The state has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women.” As the order blocking enforcement is temporary, Judge Hovland gave the parties involved in the case 30 days to let him know whether to schedule a trial on the merits of suit. Comments from the state government in Bismarck are pending as of this writing.

I suppose what I find to be most startling aspect of these cases is the vigor with which Republican controlled legislatures in states houses across the country pursue the most restrictive laws on reproductive rights possible. It’s amazing to consider the Herculean effort that is put forth in so many states to restrict a woman’s right to choose and I often find myself watching with wonder as GOP controlled state houses go through a kind of legislative Bataan death march to pass these restrictions where ultimately the entire process follows the same outrageously predictable, costly and unnecessary storyline. In each body of the legislature, there is first seemingly endless debate or in certain cases none at all, as an attempt is made to railroad the legislation through without any chance for opposing views to be heard and documented. Sometimes it is necessary for the bill’s proponents to amend or even completely ignore the rules of procedure, thus insuring the proposed legislation won’t fail prematurely through parliamentary maneuvering by the opposition. There are also, of course, the public protests and citizen testimony on both sides of the issue that sometimes famously go into the night, day after day for sometimes weeks on end and all with the accompanying bad press that inevitably follows the abortion debate, regardless of whether you support such legislation or not. Finally, after exhaustive work or sheer guile, the bill is passed and finds its way to the governor for his signature. It’s always seems to be “his” signature which I find very telling.

In the end, the fruits of their labors always appear to literally wither and die on the vine. All the work put forth to accomplish these goals is usually for nothing, as legislators watch as their new laws are promptly blocked by the federal courts as unconstitutional. It was suggested to me by a colleague that certain GOP legislators go through what he termed “abortion histrionics”, as it is part of the current Republican raison d’être to legislate as far to the political right as possible. There is a desire to appeal to a base that they are convinced will remove them from office, one way or the other, if they don’t pass unimaginably conservative laws to regulate our behavior. The irony, of course, is that the true extent to which such a constituency wields enough political clout or can bring out sufficient voters to level a credible threat toward lawmakers is uncertain. So it is that these legislators generally know these abortion restrictions are never going to pass muster in court but they try it anyway.

The motivation behind these Sisyphean endeavors I believe is two-fold. First, it pacifies that very dedicated (and mysterious) conservative base which they are convinced will make or break their political careers unless all women, regardless of circumstance, are compelled by the state to carry an unwanted pregnancy to term, even one caused by rape or incest. Second, there are those odd true believers within the Republican party that are convinced that even though their efforts will fail when initially challenged in court, they hope to eventually find their bill at the U.S. Supreme Court and thus challenge and perhaps overturn Roe v. Wade, thereby allowing them to claim final legislative victory and bring moral correctness to a nation they see as hopelessly lost and damned for a collective promiscuity that exists only in their heads. They never consider that all would happen in the eventuality of Roe v. Wade’s dismissal is the decisions regarding abortion rights would return to the states, defeating the grand vision of a pure and chaste America that needn’t worry about the problems of women who refuse to simply put an aspirin between their knees.

There is something foul about the continued efforts to restrict abortion rights that go beyond the dictatorial and onerous desire to keep women from exercising their individual rights by controlling their bodies by force of law. Judge Hovland expressed it well his use of the word “expensive” in his ruling. These efforts are not simply misogynistic, which is bad enough. They are a waste of the taxpayer’s money. It costs plenty to litigate these matters and the eagerness of certain lawmakers to keep dipping into the people’s coffers to fund their own personal moral crusade should offend even the most politically conservative among us. What’s worse, they know these laws are doomed to collapse under legal scrutiny, which makes their efforts all the more odious.