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.