Feb. 9
PENNSYLVANIA:
Appeals court to mull death penalty in 2005 murder retrial
An appeals court hears arguments later this month on whether a man can face the
death penalty in his retrial in the murder of a woman whose body was found in a
central Pennsylvania park a decade ago.
42-year-old Paul Aaron Ross is charged in Blair County in the June 2004 murder
of 26-year-old Tina Miller, whose body was found partially submerged and bound
with duct tape at Canoe Creek State Park.
The (Altoona) Mirror reports that a Superior Court panel hears defense
arguments Feb. 25 that jurors couldn't agree in 2005 whether Ross deserved
execution, so prosecutors should be barred from seeking that.
Ross was granted a new trial after his attorney argued that he didn't have
enough time to prepare his defense for the 1st trial.
(source: Associated Press)
NEVADA:
Suspected killer of Fil-Am Walgreens worker could face death penalty
Prosecutors may seek the death penalty and a jury trial against the man accused
of a deadly robbery that killed a Filipino-American clerk at a Walgreens store
the day after Christmas.
Jin Ackerman, 25, is facing charges of murder, kidnapping, robbery and
burglary. He pleaded not guilty to all the charges, but on Thursday, February
5, Clark County court Judge Jennifer Togliatti denied his bid for bail.
Togliatti has set a March 5 meeting to set a 2016 date for Ackerman's trial. In
the meantime, the former Walgreens employee and father of 3 will be under
custody in county jail.
Tom Pitaro, Ackerman's attorney, had sought his client be set free pending his
trial. He argued that Ackerman, a Las Vegas resident all his life, has no
criminal record and is not a flight risk.
But in denying bail, the judge gave weight to prosecutors' argument that
evidence of guilt was strong, and the death penalty is being considered.
Ackerman is charged with robbing Walgreens stores at gunpoint December 24 and
December 26, and shooting 58-year-old Antonio Isnit as many as 11 times in the
2nd robbery.
Evidence against Ackerman includes a store receipt and the discovery by police
of money believed to have been stolen from the pharmacy.
Police presented security videos showing a man witnesses recognized as Ackerman
in the December 24 and December 26 Walgreens robberies.
"There are 4 different positive identifications of this suspect," said
Prosecutor Michelle Fleck argued during the bail hearing. "The question in this
case is not now and will never be whether or not the defendant is guilty."
"The question is, what is the appropriate penalty," Fleck said.
According to the prosecutor, the store receipt showed Ackerman bought surgical
masks and latex gloves at a Walgreens store just minutes before the alleged
robbery.
Police investigation showed that Ackerman robbed the Walgreens pharmacy on
Cheyenne Avenue and Durango Drive during the early morning hours of December
26, 2014.
Isnit, who was working the graveyard shift, reportedly knew the robber, who
worked at the store before.
Another employee, a female, was forced to open the store's safe, but was not
hurt. Ackerman shot Isnit, "because he knows me," according to police reports.
Detectives who arrived at the scene found 11 9mm shell casings near Isnit's
body.
Ackerman, who reportedly was fired in another Walgreens store in 2013, took
between $5,000 and $7,000 in cash, police reports said.
Death penalty cases in Las Vegas routinely take up to a year to complete.
(source: inquirer.net)
USA:
Feds to Seek Death Penalty Against Reputed Head of Drug Gang
Federal prosecutors in New Jersey will seek the death penalty for only the 2nd
time against a man they say led a violent street gang charged in 2013 with 6
murders.
Prosecutors on Monday filed formal notice of their intent to seek the death
penalty against 30-year-old Farad Roland. Roland is charged with running the
violent South Side Cartel, a subset of the Bloods street gang that prosecutors
say was known as "the most violent street gang operating in Newark."
U.S. Attorney General Eric Holder authorized seeking the death penalty against
Roland last month, U.S. Attorney Paul Fishman said. Federal prosecutors in New
Jersey last sought the death penalty in 2007, the same year the state abolished
capital punishment for state-level cases.
Roland and 2 co-defendants have pleaded not guilty to murder, kidnapping,
robbery, carjacking and drug conspiracy charges. His co-defendants will not
face the death penalty. Roland is scheduled to go on trial next January.
Roland's lawyers weren't immediately available for comment.
5 of the killings make Roland eligible for the death penalty. Prosecutors said
if Roland is convicted of any of those 5, a jury would then decide whether to
sentence him to death or life without the possibility of parole.
Those cases are the December 2003 killing of a rival gang member in a drive-by
shooting; the February 2005 killing of a fellow South Side Cartel gang member
to keep him from cooperating with authorities and implicating Roland in a
crime; the October 2007 killing of a member who prosecutors said "had fallen
into disfavor with the gang"; and the March 2008 "retaliation" killings of 2
people outside a bar.
Details of the 6th killing are not provided.
(source: Associated Press)
****************
Bill designed to increase penalties for killing first-responders in federal
cases
U.S. Rep. David Jolly will file legislation Tuesday that will make the murder
of any police officer, firefighter, or first responder an aggravating factor in
federal death penalty cases.
Called the Thin Blue Line Act, the bill would cover any law enforcement officer
killed in federal jurisdiction, such as working on federal land or as part of a
task force.
Current law only cites the murder of a federal official as an aggravating
factor in death penalty cases.
"This bill would close that loop hole and treat all police equally under
federal law," Jolly said in a news conference Monday.
(source: Tampa Bay Times)
********************
Executing Them Softly
I.
At the outset of his essay "On Pain," the philosopher Ernst Junger offers a
passage from a 19th-century German cookbook: "Of all animals that serve as
nourishment to man," it reads, "lobster must suffer the most torturous death,
for it is set in cold water on a hot flame." Whether or not lobsters suffer - a
crustaceous quandary that once left David Foster Wallace ambivalent, even after
devouring the scientific literature - it is difficult to see their wriggling as
a sign of jubilation. But all too rarely does the fact of their death grab our
attention. Rather, it is the spectacle of pain amid the roiling water that
sears itself into our minds.
Critics of botched executions fixate on the aesthetics of suffering: flailing
limbs, heaving chests and foaming mouths.
In the stream of reports and editorials responding to 4 botched executions in
the United States in 2014, and now an upcoming Supreme Court case that will
address the constitutionality of Oklahoma's 3-drug lethal injection cocktail,
the primary targets of outrage have been the pain experienced by the condemned
and the method of execution. In July, the execution of Joseph Wood III in
Arizona spanned 1 hour and 57 minutes. During the process, according to
reports, he "gasped" more than 600 times. Just 3 months before in Oklahoma,
Clayton D. Lockett reportedly writhed and screamed during his 43-minute-long
execution. And in January 2014, there were Dennis McGuire in Ohio and Michael
Wilson in Oklahoma. Before falling unconscious, Wilson's last words were: "I
feel my whole body burning."
In the wake of these executions, critics set their sights on the "barbarism"
and "inhumanity" of the punishments by citing the extraordinary minute counts
from injection to time of death, and the aesthetics of suffering: flailing
limbs, heaving chests and foaming mouths. Inside and outside courts, a number
of officials called for the improvement of chemical compounds (challenging the
"3-drug protocol"), while others demanded a return to the gallows or more
"foolproof" methods such as the firing squad.
In spite of harrowing witness accounts from these executions, the responses of
lawmakers and the media should attract our concern. As this Times editorial
points out, the fixation on the technologies of execution and the appearance of
pain often obscures the crucial debate over the abolition of capital
punishment.
In 1972, for instance, the Supreme Court's decision in Furman v. Georgia
skirted the issue of abolishing the death penalty by focusing on the cruelty of
the method of execution and the seemingly arbitrary imposition of the death
sentence across cases. With a 5-to-4 decision and no controlling opinion, the
justices ruled that an execution would violate the Eighth and Fourteenth
Amendments. Instead of debating the very principle of the death penalty itself,
the justices kicked the can down the road, and capital punishment returned in
full force with Gregg v. Georgia (1976) after only a de facto 4-year
moratorium.
And today, still skating around the issue, the Court has decided to take up a
case concerning Oklahoma's 3-chemical lethal injection procedure to adjudicate
on whether specific drugs, not capital punishment itself, violate the Eighth
Amendment. Justice Sonia Sotomayor remarked, "We should review such findings
with added care when what is at issue is the risk of the needless infliction of
severe pain." Yet again, the pain inflicted, and not the principle of capital
punishment, has gripped lawmakers.
II.
Since the late 19th century in the United States, critical responses to the
spectacle of pain in executions have continued to spur ardent calls for the
improvement of killing technology. One of the most prolific legal theorists of
capital punishment, Austin Sarat, has concisely referred to this history: "The
movement from hanging to electrocution, from electrocution to the gas chamber,
from gas to lethal injection, reads like someone's version of the triumph of
progress, with each new technique enthusiastically embraced as the latest and
best way to kill without imposing pain." Recent debates over the administration
of midazolam and pentobarbital, and in what dosage, seamlessly integrate
themselves into Sarat's grim progress narrative.
The inexhaustible impulse to seek out less painful killing technologies puts a
series of questions in sharp relief: What is, and should be, the role of pain
in retributive justice? And how has the law come to rationalize the condemned's
experience of pain during an execution? While the Eighth Amendment stipulates
the necessity of avoiding "cruel and unusual punishment," in 1890 the Supreme
Court decided this clause could mean that no method of execution should impose
"something more than the mere extinguishment of life." And then, in 1958, the
court also determined that the amendment should reflect the "evolving standards
of decency that mark the progress of a maturing society."
If we were to consider the "standard of decency" in our society today, we would
be pushed to ask: By what moral order have we continued to establish the
"extinguishment of life" as something "mere," and the pain of the condemned as
excessive? In other words, how has the pain experienced during an execution
become considered cruel and unconstitutional but not the very act of killing
itself? We should dial back to older histories of law to tap into pain's
perennially vexed role in retributive theories of justice.
Tracing the very origins of the legal subject in "On the Genealogy of Morals
(1887), Nietzsche writes about a most powerful idea, only the vestiges of which
lingered in 19th-century German jurisprudence: "the idea that every injury has
its equivalent which can be paid in compensation, if only through the pain of
the person who injures." According to Nietzsche, the genesis of this
"equivalence between injury and pain" can be found in Roman commercial law, in
the "contractual relationship between creditor and debtor." The relationship
between crime and punishment, more broadly, can then be understood as an injury
or a wrong in the eyes of the law that generates a debt, repayable only through
punishment.
Nietzsche's gripe is with the law's attempt to draw an economic equivalence
between 2 incommensurable concepts: the injury of the victim and the pain of
the punished. The problem is that for the debt to be settled, the injury and
the pain of punishment would each have to be somehow calculable - otherwise,
they could not be made equivalent.
When accounting for pain in any system of crime and punishment, the challenge
is not only the impossibility of calculating it with an objective metric, but
also pain's "unsharability" and "resistance to language," as the philosopher
Elaine Scarry has argued. Beyond the subject experiencing pain, who struggles
to account for the sensation - resorting to a handful of adjectives that
describe intensities (severe, sharp, mild, burning, searing, crushing and so
forth) or to analogies (painful as...) - there is also the witness, who is
called upon to interpret the pain of another, as if transmuting the body into a
text to be read. In the case of the death penalty, the condemned experiences
pain that survives only in the language of the witness.
Lawmakers, despite the often inscrutable nature of pain and the difficulty of
representing it through language, still carry the power to adjudicate on how
much of it is enough. When botched executions prompt courts to probe the limits
of the "cruel" and "unusual," as they often do, the tacit question is: How much
or how little pain is sufficient for the "debt," as Nietzsche frames it, to be
repaid and justice to be served? In the upcoming Supreme Court case, for
example, where the "needless" infliction of pain is the concern, precisely how
much pain is needed?
After each of the 4 botched executions in 2014, some critics claimed that the
pain of the condemned was simply too great, drawn out and unjustified, whereas
others attested that no amount of pain could be enough, that the convicted
"deserves" to suffer in the name of justice.
Modern criminal law, however, aims for the high road. Our 21st-century legal
system has mostly parted with that archaic notion of "an eye for an eye" so
fundamental to the origins of retributive justice. Kant, though he listed a few
exceptions, belonged to this camp, proclaiming, "Whoever has committed murder
must die." Today, even though the punishment is still supposed to fit the
crime, contemporary criminal laws in America tend toward more discreet
economies of pain, relying on prison sentences and painless deaths; punishment
now is no longer simply about matching pain to injury. Even when a state
sentences convicted murderers to death - a life for a life, if you will - the
intended painlessness makes the killing more palatable, seemingly procedural
and distinct from revenge.
Many legal scholars and philosophers see this turn toward supposedly less cruel
and painful deaths as a result of the gradual bureaucratization of executions.
Before the 20th century in Europe and the United States, as the philosopher
Michel Foucault showed in his celebrated 1975 book "Discipline and Punish,"
executions were not only public spectacles but events in which the state would
reconstitute its sovereignty. By publicly "beating down upon" and "mastering"
the body of the criminal, the state would aim to inspire lasting obedience in
the citizens who observed.
Gradually, though, states have sought to distance themselves from the brutality
of the very crimes they condemn. Aiming for retribution and not vengeance (the
former considered morally right), the law now compels the state to kill
"softly," "gently" and "quietly," as Sarat has noted. This movement toward a
quiet and medicalized death serves to dispel sympathy for the condemned: The
state's killing seems more civilized than barbaric and, in comparison to the
condemned's crime, appears even gracious.
III.
To better pre-empt instances of pain inflicted by the state, we would not only
have to abolish the death penalty but also to reckon with the conditions by
which it continues to exist. The problem is that abolitionism sets it sights
too narrowly. According to the philosopher Jacques Derrida, what makes the
abolitionist discourse "so fragile" is that it "banishes the death penalty at
home and maintains the right to kill at war." To interdict one kind of
execution and to legally sanction another reveals that abolitionism is often
concerned not with killing itself but rather a locale and a technique.
The logic that allows for railing against certain technologies of killing or
how much pain they produce has repercussions for state-sanctioned violence
abroad. One could argue that this was the case with President Obama's "red
line" (consistent with the international community's 1997 Chemical Weapons
Convention), which pronounced the use of certain weaponry, not killing itself,
as the breaking point for intervention in Syria. And, subsequently, it was the
gruesome method and spectacle of the decapitations by the Islamic State, or
ISIS, that seems to have justified an expanded air campaign over Iraq and
Syria.
While these grisly scenes can evoke our most impassioned responses, they
present a wound to be superficially sutured: disturbing problems and pains to
be rooted out, often with violence, only when they are seen and heard.
To attend to pain in a more systemic way, we would have to imagine a more
ambitious moral call. Emmanuel Levinas, a 20th-century French Jewish
philosopher, once wrote that "the justification of the neighbor's pain is
surely the source of all suffering." Levinas's conceit suggests that by
justifying the pain of others during an execution or even at war abroad,
whether criminals or foreigners, we risk perpetuating conditions that afford
more extensive kinds of violence, more enduring kinds of pain.
We should continue to challenge the beliefs that lead us to consider a painful
execution as excessively cruel or unusual, and a painless death as justified,
or worse, compassionate.
(source: Zachary Fine is a writer and a student at the New York University
Gallatin School for Individualized Study; Opinionator, New York Times)
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