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It Depends On Whose Dead Bodies We’re Talking About.

The Dakota Access Pipeline has “environmental disaster” written all over it. It’s a senseless destruction of land and culture and a blatant disregard of treaty with the Standing Rock Sioux Nation. I hate this pipeline and would love to see it scrapped. But it’s time to be truthful. The protest against it near Cannon Ball, North Dakota is a tragic exercise in futility.

Many of the “police” at the site are privately contracted security guards, not unlike the ones the US military had in Iraq and Afghanistan. They are a heavily armed, paramilitary force and really answerable to nobody other their employers who pay them very, very well. Local and state government stand to benefit greatly when the pipeline is operational so they are going to be of no help. Quite the contrary, they apparently are all too thrilled to throw as many of the protesters behind bars and to be blunt, people are crazy to think they will lift a finger to stop any violence when it happens.  Some in this country may even welcome a forcible crushing of this protest, the First Amendment be damned. As such, in the absence of direct intervention at the Federal level, the self-described “water protectors” out there are sitting ducks. When the time comes that the corporate overseers of this project back in Dallas decide they are bored with this nuisance, those guards will be given leave to do whatever they want.

Let me say that again. They can and will do whatever they want.

If those security contractors, or the Morton County Sheriff’s office, or the North Dakota State Police, or any of the myriad enforcers with a badge and a gun out there decide to go in and kill fifty protesters, they will likely do just that and there isn’t a single court with any jurisdiction in these United States that will send a single one of those men to jail. The law, right or wrong, will call the protest “trespassing on private property” and that is all that will be required to initiate a legal mass execution.  At the rate we are going, there is nothing to indicate that this will not end in a brutal and violent crackdown. Why? There has never been a point in our national history where the needs and rights of Indigenous Peoples have ever trumped private interests. This pipeline is 60% completed, has cost almost $4 billion and despite the injunctions currently in place, construction will resume sooner than later and it will resume through Indigenous land. It’s oil, people. Nobody is going to get in the way of the flow of oil which everybody needs and loves. And ugly as it sounds, obscure petitions on even more obscure websites, appeals to the United Nations or a protest that is smaller than the average Grateful Dead concert will do little if anything to dislodge a powerful oil developer like Energy Transfer Partners.

I’m very upset at this. Not so much because of the construction of the pipeline itself. I’m upset because it’s only when the abuse of the Indigenous people of this nation reach an absolutely horrendous point such as this exigency do white people start to care and that is the rub. This is why it’s now acceptable for the rich and famous to now make “appearances” in opposition to the project. Rarely, however, are the elite of Hollywood’s activist class actually going anywhere near North Dakota. Some do, but it’s always best to play it safe. Protests in New York and Washington, DC are great.  So are interviews on YouTube, primetime cable news shows and of course, what could be better than the ever popular hashtag activism on their Twitter feed? They want you to know that they “stand with Standing Rock”.

Well, so what?

Well-known entertainers and media stars don’t want trouble. They just want exposure. Honestly, who wants to go to where there’s the potential for real danger to life and limb? Especially theirs, since they have a vested interest in maintaining those faces and bodies that keep them so very well compensated at the box office. Does anyone think these celebrities will go to North Dakota and stick it out long-term to fight a real injustice? Hell, no. They want a photo-op and then they are gone.  Lawrence O’Donnell will not lose a day of sleep once the protest has been successfully terminated. America barely knows who Amy Goodman is now much less cares. So when she was arrested for reporting on this travesty, it was hardly noticed.

Worse yet, the endless parade of celebrities who never trouble themselves with Indigenous matters at any other time will still be able to enjoy their lives of luxury when this protest inevitably ends. It’s a disgusting spectacle. Think about it. What do Leonardo DiCaprio, Susan Sarandon, Pharrell Williams, Rosario Dawson, Mark Ruffalo, et al really have to lose if the pipeline goes through? Not a damn thing. Riley Keogh is out there taking promotional selfies with people there like she’s at a family barbecue, for God’s sake. Now, I’ll give credit where credit is due. Shaliene Woodley went to Standing Rock and got herself arrested and humiliated and brought attention to the cause. Good for her. On the other hand, Ms. Woodley is privileged enough to have the best of attorneys at her disposal to get her out of jail as quickly as she can get thrown in. Plus, as soon as her agent calls with the latest Divergent script, she is on the next plane back to Los Angeles. Guaranteed. Who do the people who live there all the time have to turn to when they get beaten, strip searched and imprisoned? Nobody, that’s who.

Dr. Jill Stein has been out there, but seeing as her future in politics is up in smoke, she may as well take up professional activism full-time. As for the Rev. Jesse Jackson? He just goes where the cameras are and has for the last thirty years. As nice as it may appear, it’s all just famous people making themselves feel good by going somewhere to have a camera pointed at them and say “Look at me! I’m progressive! I care about issues! And by the way, check out my new movie.” Don’t believe me? Then ask Ben Affleck about the attachment of this protest with promotion of the new Justice League movie set for 2017 release. Wow. Now that’s what I call heroism.

So what’s the solution? Let the Dakota Access Pipeline go though.

Seriously.

Let it go through and wait for catastrophe to strike. When white people start dying after the pipeline breaks down, which at some point in the future it will, you can rest assured that the Powers That Be will get their collective asses in gear and fast. When rich white people are getting hurt then things get done. That’s a fact. Things never get done when the people who were here thousands of years before America even existed are the ones getting hurt.

This is Terrorism…isn’t it?

Consider the following mass shooting scenarios: 1.) The Overland Park Jewish Community Center in Kansas, 2.) The Planned Parenthood Clinic in Colorado, 3.) The Emmanuel AME Church in South Carolina, 4.) The Inland Community Center in California and 5.)The Umpqua Community College in Oregon. In each of the 5 cases, multiple shots were fired with multiple fatalities. The identity of each shooter was not immediately known but authorities quickly made a determination and in some cases the perpetrator was captured and their backgrounds well established shortly afterward. The motive was not immediately clear in any of the cases but seemed obvious to most observers, especially to those who opine on television for a living.

Now let’s look a little closer. We will refer to the shooters as a singular “gunman” for argument’s sake and each shooting to be an “incident” or “engagement”.

A gunman at any Jewish center, regardless of ethnic background or religion, is going to be assumed to have anti-Semitic views. If the gunman is white, those views will be presumed to be neo-Nazi. The same is true with the incident at a Planned Parenthood. Any gunman will be presumed to have strong anti-abortion rights views and probably an evangelical or other Pentecostal Christian; possibly Roman Catholic. A white gunman opened fire at a predominately black church in the South. The logical conclusion is the motive is neo-Confederate, white-supremacist in nature. The incident at the Inland Community Center is presumed to be international terrorism because the gunman is Middle-Eastern in heritage and had made a trip to Saudi Arabia. The gunman in Oregon is reported to have had anti-religious or anti-government views in general but was also reported to have had long-term mental health issues. This makes it the only case where the justice system actually seemed to have a mass shooter with no discernible political, religious or ethnic axe to grind. Perhaps this was the only one of the 5 incidents listed above whom observers on the right quickly classify the perpetrator as “mentally ill”.

Setting aside incidents that are obviously criminal, such as a bank robbery or a narcotics related firefight, most Americans feel the inclination to see any mass shooting as “terrorism”. The FBI defines “mass shooting” as one where 4 or more people have been shot in one incident. Terrorism by definition is the use of violence to intimidate or coerce a civilian population, and as such, try and effect changes in government policy.  This presents us with an unsettling dilemma. Which, if any, of the incidents noted above, are “terrorism”, “hate crimes” or just “crime”? The answer is obvious. Who do you perceive the gunman to be? Your own ideology and worldview will shape how you view such incidents. You will be certain you know what really happened long before any hard facts arrive, long before the press conferences stop and the cable news talking heads fall silent.

Again, consider your perceptions if the following occurred:

What if the Overland Park Center incident was committed by an anti-religious gunman?

What if a Middle-Eastern man had engaged the Planned Parenthood in Colorado?

What if the gunman at the Emmanuel AME Church was black?

What if the Inland Community Center had been engaged by one gunman? Or multiple gunmen but all white?

What if the Community College in Oregon gunman had been devoutly and fervently religious but Jewish?

Suddenly, the line between what we define as “crime” and “terrorism” becomes blurred. Who is a completely sane yet dedicated fanatic and who is just “mentally ill” changes, does it not? What we want to see in huge red print on our online news feed or used as material for our particular political candidate is generally shaped not by facts, but by perceptions, which may turn out to be false and often do. We as Americans often like to say that someone is innocent until proven otherwise in a court of law. But we all know that is never the case in mass shootings. Definitions of who the gunman (or gunmen) are will always advance our pre-determined agenda. Events will be perceived in a way that suits our purposes for television and social media and will tend to prop up what we already know is going on.

Even if we actually have no idea.

Contrarian Quick Take: Today’s Murder Will Be Televised

It’s very rare to witness a murder first hand. It’s even rarer to have a murder recorded for posterity. So it was on November 22, 1963 that Abraham Zapruder made what is arguably the most famous and important 27 seconds in film history when he inadvertently filmed the assassination of President John F. Kennedy. The film shocked and horrified the nation when it was first publicly broadcast on TV in 1975. In 40 years since then, how times have changed. Then again, it’s both remarkable and unfortunate how little we ourselves have changed. Two reporters were brutally shot and killed in Virginia on live television today. I’m not going to address the issue of guns, since it would probably be good for America to not pretend anymore that anything will ever happen to mitigate their unchecked proliferation in our society. Rather, what strikes me harder is the insatiable fascination we seem to have for watching this loop over and over and over and over again. Even the camera still, which shows a young reporter conducting an interview with maybe a second or so to live, is eerily hypnotic to a culture with thrives on death and death imagery.

Think about it. Where would the anti-abortion movement be without carefully edited footage of dead fetal tissue? Where would the crusade to curb smoking in America be without a rogue’s gallery of people slowly and horribly dying of cancer? I know what you’re thinking. But you’re wrong. You are a ghoul and you should be ashamed of yourself. They say people who watch porn are deviants. Bull. You want deviant and sickening behavior? How about the millions of us who watched two lives being snuffed out in an instant on our handy YouTube mobile app; perhaps during a quick break along with your friends during lunch? Thanks also to the online news outlets to make sure we all got our collective fix. Some will simply say “Death is a part of life” to excuse themselves of the guilty pleasure of watching a murder as often as they like with the perpetuity that the internet grants us. A poor excuse for watching a cold-blooded killing on repeat. Death is a natural thing. But this is as far from natural as you can get. This is not “part of life”. This is Murder Live with Kelly and Michael and it’s entertainment. If your aim is to see public death, try 1793.

Face it. You love this. But sadly, no gray matter for you to see here and I know you were SO hoping for some. Mr. Zapruder was good, but not that good. In a moment of time captured purely by accident, he helped to create an America which will never get enough bloodlust on film. A media player like Lee Harvey Oswald (remember ”I’m a patsy!” in front of the cameras?) could never have imagined the kind of instantaneous, viral exposure his moment of abject violence would have brought him today in his most fevered dreams. A live killing as it happens is what we all wanted. It’s OK, though. I’m a deviant, too…and I’m ashamed.

Contrarian Quick Take: No Marines Were Harmed In This Terrorist Attempt

There is a tendency on the part of many people to assume that any and all brave, selfless and heroic actions conducted by American servicemembers while on leave in the civilian world, both here and abroad, must be done by members of the US Marine Corps. The bravery and courage of Marine Corps personnel has garnered such fame over time that even local media on the scene of such events simply come to the immediate assumption that any Americans involved who are in the armed forces and conduct themselves with heroism and courage are Marines.

Indeed, there were few news outlets in the US that did not report that 2 members of the USMC were responsible for neutralizing a gunman who began opening fire aboard a Thalys high speed train en route from Amsterdam to Paris yesterday. The gunman, as of this writing, is reported to be a Moroccan national familiar to Spanish authorities and with possible connections to terrorist elements. The gunman was armed with a Kalashnikov AK-47 assault rifle, a knife, a pistol and several clips of ammunition. The two American servicemen subdued the gunman, one of them sustaining serious injuries in the attack, and disarmed him. Due to their quick thinking and fast action, nobody was killed and what surely would have been a massacre was foiled.

But they weren’t Marines. The American servicemen were members of the US Air Force and US Army National Guard.

In the wake of the Charlie Hebdo shootings in Paris earlier this year and other similar attacks, we are reminded that even a train in Western Europe, tragically like so many other places in the world we assume are safe, can in an instant become the scene of death and carnage. This writer, for one, is grateful that there are people, ordinary people, civilian and military, who in their everyday lives face a terrifying circumstance and step up to the challenge to stop violence and hatred. There is a word for such people. The ones we should emulate and make us all wonder how we would react in a similar crisis. Would you or I face a man armed with an assault weapon and without hesitation engage him before lives were lost and a nation once again grieves? There is a word for such people and it has been much overused. The word is hero.

Let the record show that the two American servicemembers involved who averted what would almost certainly have been a horrifying bloodbath were Airman First Class Spencer Stone, US Air Force, 65th Air Base Group and Spec. Alek Skarlatos, US Army, 41st Infantry Brigade Combat Team, Oregon National Guard.

Thanks, guys.

The Ghosts of Appomattox

Exactly 150 years ago this past April, the American Civil War came to a close. The men on both sides of the conflict were sent home by their commanders and whether in victory or in defeat, there can be no doubt that all were glad to see their families once again. Many thousands had been killed on the battlefield. Hundreds of thousands more had died of disease and starvation.  Roughly 2% of the country’s population, an estimated 620,000 men, lost their lives in the conflict.  Taken as a percentage of today’s population, the death toll would have reached 6,000,000, a figure roughly equivalent to the Nazi Holocaust. In the midst of these sobering numbers, we as a country once again face a spectre from this past conflagration. But it is not in the horror of the Civil War itself that visits us, nor its causes, which have been endlessly debated by historians and scholars for generations. Rather, it is a symbol from those dark years that grips us like the possession of an evil spirit that will not go away on its own without a kind of national exorcism.

The debate over the Confederate Flag and what it symbolizes has the nation in thrall. With the brutal murders of nine black parishioners at the Emmanuel AME Church in Charleston, SC, by a man motivated by racial hatred and allegiance to what this emblem represents today has brought to our national consciousness the full weight of  what it means to have symbols from this conflict in our public places. To put a fine point on it, why are there Confederate flags and banners on public property? These are symbols of a war motivated by the Southern states rising up in armed insurrection against the Union in 1861, claiming “State’s Rights”, in an effort to retain the ability to own slaves.

Now, to be clear, slavery and indentured servitude existed in the North as well. The Revised Fugitive Slave Act of 1850 held that all United States citizens, whether in the North or the South, had to return any runaway slaves to their “rightful owners” or face severe penalties which could include 6 months imprisonment and a fine of $1,000; the equivalent of $28,000 today. New York did not completely abolish slavery until 1827. Pennsylvania did not achieve complete abolition until 1847. Connecticut had slaves until 1848. New Jersey and New Hampshire did not totally abolish slavery until the after the close of the Civil War and the passage of the 13th Amendment in 1865.

The stain of slavery and Civil War was not, and is not, borne by the South alone. But it is there that the grip of this flag is strongest. It is in the South where much of the Civil War’s legacy endures today. It festers like an open sore in the form of the so-called “Rebel Flag”. Ironically, despite the tragedy of the conflict and America’s involvement in slavery, we find ourselves in the odd position of realizing that the modern connotations that this banner holds do not lie in the events of 150 years ago, but rather as a symbol of defiance against federal intervention in the blossoming Civil Rights movement that began shortly after the Second World War.

Although a man with many personal prejudices about race of his own, President Harry S. Truman established the President’s Committee on Civil Rights (PCCR) on December 5, 1946, tasked with investigating the status of civil rights in the United States and propose measures at the federal level to protect such rights. Whether motivated by electoral politics, concerns that America’s Jim Crow laws in the South would be used by the Soviet Union as a propaganda tool, or simply because it was the right thing to do, the PCCR successfully led to new federal involvement in the cause of fighting racial injustice, which culminated in the signing of Executive Order 9981 on July 26, 1948. Using the authority granted the President as Commander-in-Chief under Article II of the Constitution, this order de-segregated the armed forces of the United States.

In the minds of many southerners at the time, Truman’s action went too far. In 1948, a breakaway group from the Democratic Party formed the States’ Rights Democratic Party, often referred to as the “Dixiecrats”. This faction ran on a platform of segregation. It opposed any efforts by the federal government toward integration and the preservation of Jim Crow laws in the South.  On August 14, 1948, South Carolina Gov. Strom Thurmond became the new party’s nominee for President in the upcoming election, which called for “…the segregation of the races and the racial integrity of each race…We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program.” The party’s nominee for the nation’s highest office himself stated at the convention: “I want to tell you, ladies and gentlemen, that there’s not enough troops in the army to force the Southern people to break down segregation and admit the N**** race into our theaters, into our swimming pools, into our homes, and into our churches.”

The symbol chosen by the States’ Rights Democratic Party for this revolt against the progressive policies taken by Truman and Democrats outside the South was the battle standard of the Army of Northern Virginia (ANV), more commonly known today as the Confederate Flag. The last time this flag was flown in any official capacity was on April 9, 1865, during the surrender of Confederate Gen. Robert E. Lee to United States Gen. Ulysses S. Grant at the McLean House in Appomattox County, Virginia, thus ending the Civil War.

Lee’s battle standard has become a symbol today for defiance against the United States and all it represents, just as it was on the bloody fields of Petersburg, Virginia in 1864. There are many today who say the ANV Battle Flag is simply part of American history and that is true. Some others, however, say that it is a source of ‘Southern Pride” or “Southern Heritage”. If it is, I submit that is a misguided heritage. Armed insurrection and yes, treason, for the stated purpose of maintaining the right to own slaves is not something any American should take pride in. Let no one be under the illusion that the motivation behind the rebellion was for anything else. All it takes is a cursory read of the secession declarations of the Confederate states to understand this was the reason for war.

In the post World War II era, the defiance continued in the form of Jim Crow laws designed to keep black citizens as close to their station prior to the 13th Amendment as possible. Is it any wonder that the Confederate flag can still illicit such a visceral reaction to all who see it? The flag was born of insurrection and defiance and has been reincarnated as a symbol of the way many in the South still dream that life should still be. A “whites-only” world, where there is nothing wrong with separate water fountains and segregated lunch counters. Simply measures to keep those who used to be the help from getting the wrong idea that they may be equal in the eyes of man and God. Tara remains undimmed in their world. It can therefore be no wonder that Dylann Roof had those 13 stars in his eyes when he walked into the Emmanuel AME Church, sat through an entire Bible study…and killed those in attendance anyway.

These are the ghosts of Appomattox. The spirits that haunt us today should have been laid to rest many years ago; their weapons, uniforms and flags sealed in storage trunks, museums and the history books. To those who say the outrage against the ANV flag is merely symbolic and perhaps we should be focusing our energies toward other endeavors, such as stronger gun control legislation, well, that is also true. But symbols are powerful. They have meaning and lend motivation to people’s actions and inactions. It is high time that we as Americans collectively decide that a flag that died on a spring morning in a Virginia courthouse, a symbol that has been used to cause so much anguish then and now, be relegated to a place where it is only a memory of a national tragedy. Can it ever be something we can glean important lessons from? Yes. If we can achieve this, then perhaps we might learn something from this banner after all and have it be something positive and life affirming instead of divisive.

The War On Drugs: A Conflict Really Nobody Wants to End

One can debate the merits of statements made by various public officials all day, but it really boils down to this. Until it is the official policy of the U.S. Government that marijuana is no longer classified as a Schedule 1 drug, Michele Leonhart, Director of the U.S. Drug Enforcement Agency, should not be fired for doing her job as the nation’s top drug enforcement officer. She will certainly not be fired and was very likely, even in her official capacity as DEA director, within her rights for criticizing the President’s remarks on marijuana use. But this needs to be put into perspective. The President made a comment expressing his views on the health risks associated with marijuana when compared to the health risks associated with consumption of alcohol. Fine. But he was not, as much as advocates for legalization would like to interpret his statements as such, setting official policy. It would be wonderful if everything the President said was official policy. But it isn’t. It may set the tone of a particular debate, such as it was when he expressed his views on gay marriage. But if everything President Obama said as a general comment or viewpoint became official policy, then there would be no debate on issues such as gay marriage, or income inequality, voting rights, healthcare, climate change, women’s reproductive rights, and yes, the legalization of marijuana among other things. It would also make us a dictatorship which nobody should want either.

A recent Huffington Post article notes that the Marijuana Policy Project issued a statement in regard to the comments made recently by Director Leonhart which said: “The DEA administrator’s continued refusal to recognize marijuana’s relative safety compared to alcohol and other drugs flies in the face of the president’s commitment to prioritizing science over ideology and politics…She is neglecting the basic obligations of her job and fundamentally undermining her employer’s mission. This would be grounds for termination in the private sector, and the consequences for Ms. Leonhart should be no different.”

This statement is laughable on its face.

First, the DEA director is not “neglecting the basic obligations of her job”. She is a federal law enforcement officer charged with (surprise) enforcing federal drug laws. Until federal drug policies change, it is not her responsibility or option to refuse to enforce said laws because of marijuana’s “relative safety compared to alcohol and other drugs”. To use this argument is akin to saying the NTSB should not enforce any laws regarding air travel because of its “relative safety” compared to driving an automobile. Also, it should be noted that this is not a private sector job and it is patently ridiculous to compare being the director of the U.S. Drug Enforcement Agency with a job at a private company. In the private sector, you are terminated from your job when you aren’t making money for the corporation. The federal government apparently long ago accepted the calculus that enforcement of marijuana prohibitions would be an unprofitable enterprise yet continue to pursue this agenda without any signs of abatement.

As to her “employer’s mission” of “prioritizing science over ideology and politics”, I would point to the termination of NASA’s Constellation project in 2011 by President Obama himself which turned most of the United States’ attempts to return to the Moon and Mars to (you guessed it) private corporations. Also, to quote a recent article from the Huffington Post from this past September: “Federal spending on research and development has declined by 16.3% since 2010, the fastest drop in a three-year period since the end of the space race in the 1970s, according to an analysis published on September 3 by the American Association for the Advancement of Science in Washington DC.

The most drastic reduction occurred on March 1, 2013, when across-the-board budget cuts known as sequestration lopped 5% from the budgets of most government agencies. Science powerhouses such as the NIH in Bethesda, Maryland, and the National Science Foundation in Arlington, Virginia, began to scrimp by reducing the values and durations of grants, and the number of recipients per application cycle.”

This is the vaunted commitment to science the Administration supposedly champions?

Over the years, representatives of this government have said all kinds of outlandish and moronic things. Regrettably, most of them are still on the job. If we are going to start firing public officials because they say things we don’t like or that collapse under the weight of evidence, then maybe we ought to start with those in Congress who hold the national economy hostage on a regular basis until they extract a political ransom. Or members of the judiciary who are all too happy to undermine the most fundamental of rights we have as citizens, the right to vote, in areas where racial discrimination is still the order of the day. Or how about the guy in the White House himself, who apparently still considers the civilian loss of life in drone attacks to be mere collateral damage and continues the program with only token regret for the colossal loss of innocent life that accompanies it? Sorry people, but the director of the DEA is small potatoes compared to what others in this government say, and do, every day.

As an aside, marijuana advocates have been calling for the dismantling of the DEA and the firing of every director since the agency was founded in 1973. This kind of thing really isn’t news. Even if nobody said anything, there would still be calls for the DEA to be shuttered and the director to be dismissed. So let’s be honest, what’s the story here? Evidence to support the decriminalization of marijuana hasn’t changed official policy on the national level over the years. Change seems to be occurring only at the state level and even there it isn’t the smashing success many hoped it would be, at least not yet. If the only argument you have is that the DEA is an oppressive, Nixonian hangover, and that’s a major argument, then you stand on thin ice. This issue is becoming the left’s version of the right’s argument that the ATF should be dismantled. We as liberals really do not want to go there.

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.