Wednesday, March 6, 2013

Noblesse Very Oblige

Back in the 1950s, Bob Hope used to tell this joke.
An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.
"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."
The Russian responded.
"It's no different here.  Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."
I. Ohio

By the time I get around to posting this, Fred Treesh will be dead, killed by employees of the Ohio Department of Rehabilitation and Correction. (Ain't no rehabilitatin' for Fred, and any correctin' involved is in fixin' a mistake god made, but I digress.)

Treesh was indicted by a grand jury in Lake County on a charge of aggravated murder with two death specifications, tried before a jury in the court of common pleas which found him guilty and said he should be killed.  The judge agreed.  Represented by appointed counsel, Treesh appealed the verdict and death sentence.  He filed for and pursued post-conviction relief in Ohio's courts and habeas corpus relief in federal court.  The Parole Board recommended that the governor deny clemency, and the governor did.

It was, then, all nice and legal.  And so, at 10 this morning, Fred Treesh will be strapped to a table at the Southern Ohio Correctional Facility (no pretense of rehabilitation there) and murdered.

It is murder, specifically aggravated murder (Ohio's only capital offense).  The crime is set out in section 2903.01(A) of the Ohio Revised Code.  It's a duly enacted law, passed by both houses of the General Assembly, signed by the Governor.
No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.
No pregnancy involved here, but that's just an alternative.  When they strap him down to a table, stick needles into him, and pump him with pentobarbital so he will die, that's purposely causing the death of another with prior calculation and design.  It's all nice and proper, procedures followed: indictment, trial, appeals, court orders, gubernatorial authorization, the whole nine yeards.  But murder it is.  (The Nuremberg defense, "I was just following orders," is not an established part of Ohio's criminal jurisprudence.)

Still, there's a procedure.  Whatever you or I may think, the courts say it's fine.  No tribunal has yet declared this version of Ohio's death penalty law unconstitutional or said that the death penalty generally is.

Ohio is, of course, one of the 50 states.  Some authorize murder, some don't. 

II. The United States

The federal government, too, has a death penalty law.  Passed by both houses of Congress, signed by the President. There are, currently, 60 people on federal death row.  Like Fred Treesh, they were indicted and charged and tried and duly sentenced and have had and are proceeding with appeals and habeas petitions and clemency requests and whatever.  It is a safe bet that some number of them will, in time, be executed.

We are, ostensibly, a nation that honors the Rule of Law.  No one, we say, is above the law. 

This is the Fifth Amendment to the Constitution.  It's the law of the land.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Notice that there's a part that reads, "nor shall any person . . . be deprived of life, liberty, or property, without due process of law."

OK, we routinely stretch the point.  See, for instance, what we did to José Padilla or what we're doing to Bradley Manning.  Hell, see the whole fucking mess at Gitmo.  But we have in those cases at least a pretense of process (though the courts needed to force it at Gitmo).  Here's what we don't have.

Virtually everyone agrees, Nixon was wrong.
I'm no particular fan of Chief Justice Roberts, but when he's right, he's right.  In United States v. Stevens, he wrote the opinion for the not-quite unanimous Court (Alito alone dissented) declaring that the statute making visual depictions of animal cruelty a crime.  Sure, he said, Clinton promised that the law would be used wisely when he signed the legislation.  So what.
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” Reply Brief 6–7. The Government hits this theme hard, invoking its prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).
Of course, it's just a week since the Court decided Clapper v. Amnesty International USA holding that regardless of whether the federal program of wiretapping under Section 1888(a) of the Foreign Intelligence Surveillance Act is constitutional, nobody can go to court to challenge it.  You have a right not to be subject to unconstitutional surveillance, but you have to trust the government's good sense and good will about it.  Roberts signed off on the opinion.
Still.  That's just phone calls.
This one, as they say, is murder.
You may recall that when Obama ran for President in 2008 his campaign championed "Yes, we can."  Who knew this is what he meant?

As we've said before, 
Trust us, we won't abuse the power
just isn't a working model for government in a democratic republic.

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