Friday, October 28, 2011

Judge Brad Zell and Miguel de Cervantes

We've seen it before.  (Here, for instance.)
The request demand to be executed.
I will kill again if you don't kill me.  I promise.
They're not just death penalty volunteers.  They're not just saying
  • I deserve to die for what I did, or
  • I'd rather die than have a life sentence, or
  • I'd like to commit suicide, but I'm either too incompetent or too scared.
No.  Oh, maybe they say those things, but it's much more.  They're actively courting the desire to be murdered.  So committed are they to it, so passionate about it, that they are prepared to kill again.  And again.  And again.  Until the state gives them the satisfaction of killing them.
If they got a sexual charge out of it (and who knows?) we might call it an extreme form of masochism.
This time it was in South Dakota and the guy who wants to be murdered is Eric Robert.  He entered a guilty plea to the murder of Ronald Edward "RJ" Johnson, a corrections officer at the South Dakota State Prison, during an escape attempt.  Robert was serving an 80 year sentence for kidnapping.
And he wasn't done.  The judge, Brad Zell, wrote in his sentencing opinion:
Robert has expressed on numerous occasions the fact that he has already killed a correctional officer and in less than a moment, he can and/or will do the same if given the opportunity. Robert expressed a similar state of mind to the Court on September 16, 2011, during his change of plea hearing when he indicated that his plan on April 12, 2011, involved killing as many correctional officers as it took to free himself from his oppressors or to be killed in the process of freeing himself. Robert provided under oath that he attempted to bait a guard to get close enough to him during the end of his foiled escape attempt so he could grab his gun to continue killing. Robert further told the Court that he would have killed anyone in the way of his escape during the April 12, 2011, escape attempt. Robert also stated that he would most likely in the future hurt and/or kill anyone who would oppress him from his freedom. Robert expressed that in his state of mind no one was a "human being" in the war he believe needed to be waged against his oppression.
As Doug Berman wrote,
I have long thought that murders of officers by inmates already serving life terms while trying to escape present the most compelling of all cases for the death penalty, in part because merely imposing another life sentence functionally means the inmate will suffer no additional punishment for the murder and in part because the inmate would then also have no reason not to again try to escape and kill in the process (unless we are prepared to allow prison officials to torture the inmate instead of executing him).  In this case, not only has the defendant killed as part of an escape attempt, he is stating directly that he will do so again if he is not sentenced to death.
Well, sure, maybe.  Except no.
Robert's a lousy example because he mucks it all up by wanting the state to kill him.
So much for that "no additional punishment for the murder part."  Give him what he wants and it isn't additional punishment, it's a reward.
And he's prepared to bully the system into giving it to him.  That threat:
I will kill again if you don't kill me.  I promise.
Do we bow to it?  Supposedly, we don't negotiate with terrorists.  Zell understood that and tried to get around it.
The Court understands Robert's wishes. The Court has found no authority to support a person's wishing to die constitutes an aggravating circumstance. It does not. If the Court would fmd such wish a circumstance, the ·Court would be assisting Robert in his suicide wish. There can be many circumstances in our society where a person for a number of valid reasons wishes to die. South Dakota law, however, does not recognize assisted suicide as a legal justification for death. Thus, this Court will not consider Robert's wish to be put to death as an aggravating circumstance for considering the death penalty.
Easy enough for Zell to say.  Helluva lot harder to do.
And at some level, the result is a sham.
Don't be pleased with this death sentence.  You're getting it as punishment, not as reward.  So it won't be the same thing.  Even if it's identical.
The great Argentine writer Jorge Luis Borges wrote of a novelist who set out to write Don Quixote ("Pierre Menard Author of the Quixote").
He did not want to compose another Quixote —which is easy— but the Quixote itself. Needless to say, he never contemplated a mechanical transcription of the original; he did not propose to copy it. His admirable intention was to produce a few pages which would coincide—word for word and line for line—with those of Miguel de Cervantes. 
Borges compares brief passages from Cervantes and Menard, word for word identical, yet altogether different.
The contrast in style is also vivid. The archaic style of Menard—quite foreign, after all—suffers from a certain affectation. Not so that of his forerunner, who handles with ease the current Spanish of his time. 
As Pierre Menard, so Judge Zell. He imposes the sentence Robert wants, but it is Zell's sentence, not Robert's.  It is the sentence imposed, not the sentence desired.  Except Borges was intentionally writing fiction.
Berman's also wrong, as is Zell, in thinking that there's no alternative way of ensuring the safety of others.  Robert will kill again.  He's assured everyone of that.  The only way to stop him is to kill him.
We know better.  Death doesn't stop Freddie Krueger.  Friday the 13th Part 11 is coming to a theater near you. Hannible Lector will escape.
The Golem cannot be stopped.
But wait.  That's all fiction, too.
Run the prison competently, and Robert won't have the chance.  Isolate him as needed.  He's vicious, not a thaumaturge.
Berman's real question doesn't depend on Robert of course.  He asks how we punish those who are getting the most sever punishment we can give if we don't have a more severe punishment to offer.  The problem is that they're all like Robert, failing to comport neatly with the generic issue.  Every case is unique.  Every one.  The question Berman asks ignores that.
People on death row have killed, too.  If death is all we can do, they can't be punished, either. So maybe death isn't much of a deterrent after all.
And maybe punishment isn't really the answer.
And maybe we continue to do this backwards.
South Dakota, by the way, has three men on death row (Robert will be number four.).  They've executed one person, Elijah Page, in 2007.

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