Of Course If We Took the Constitution Seriously, We'd Never Execute Anyone. Then Where Would We Be?

GEORGIA ON MY MIND

I wrote about Warren Lee Hill a couple of weeks ago.  He's on death row in Georgia and the powers that be in the Peach Tree State are intent on killing him.  Of course, it'll be unconstitutional for them to do that, but so far nobody much seems to find that troubling.

Warren Lee Hill

See, he's mentally retarded.  All seven experts, including those hired by the state, who've examined him agree.  But Georgia doesn't find that sufficiently compelling evidence.  See, originally the state's experts disagreed, and in Georgia retardation only counts if it's proved beyond a reasonable doubt.  Which, they say, it wasn't.  So just because the expects who once said Hill wasn't retarded have reconsidered in light of new understandings of retardation and now say he is - well, if we let actual understanding get in the way we'd never kill anyone. Besides, there are all these procedural things that make it pretty much impossible for Hill to get relief.

But the Supreme Court, they can fix it.  Surely the won't let an obviously unconstitutional execution go forward.  They, after all, are the last word on what the Constitution does and doesn't allow.  And they're the ones, remember, who said that the constitution doesn't allow the execution of people who are mentally retarded.

Monday the Supreme Court refused to intervene.  

Hill's case is still mired in the courts with other legal issues, but they're likely to be resolved against him.  Then, with the blessing of the Supreme Court, Georgia can violate the Constitution and kill him.

SO GOES THE NATION

Much more legislation is proposed than is enacted.  That's not just true in Washington where it seems that nothing of substance can be done.  It's true in the state legislatures, too.  So it was that back in August when Representative John Becker, with not a single co-sponsor, introduced House Bill 244 for consideration by the Ohio General Assembly I determined to ignore it and suggested to those who expressed their concerns to me that he was just grandstanding.

Oh, Becker did what legislators do when they introduce a bill in order to get a headline.  He issued a press release.   Here's the whole thing.

Becker Introduces Bill To Broaden Death Penalty For Sex Crimes

COLUMBUS - State Representative John Becker (R-Union Township) today announced that he has introduced House Bill 244, legislation that provides prosecutors with the option of pursuing the death penalty for certain sex-related crimes.

“In light of the Ariel Castro kidnapping case of three young women in Cleveland, I wanted to give prosecutors the option to pursue the death penalty for repeat sexual offenders,” Rep. Becker said. “For various reasons, I anticipate that the death penalty would be pursued in only the most heinous crimes.”

The crimes in the legislation include aggravated rape, aggravated rape of a child, aggravated sexual battery, aggravated sexual battery of a child, and aggravated unlawful sexual conduct with a minor.

“If House Bill 244 becomes law, prosecutors would be able to use the death penalty threat as a tool for plea bargain negotiations,” Rep. Becker said. “Nobody in this country has ever been executed for a sex crime, but that could change.”

The legislation will soon be referred to a House standing committee for further consideration.

It would be clearly unconstitutional.  In 2008, the Supreme Court said in Kennedy v. Louisiana that the death penalty for an offense that didn't involve a homicide was unconstitutional.  And it's stupid.  Becker's announced purposes, after all, are to both ensure that some folks are killed and to use the threat of execution to get plea bargains.   Really, he can't have it both ways.  Either he wants to see these guys executed or he wants to scare them into pleading guilty.  

Representative John Becker

Becker was inspired by the Ariel Castro case which made him realize that something had to be done to execute (or scare in pleading) people like Castro.  You remember Castro.  They threatened to bring capital charges and he entered a guilty plea.  Guess they didn't need this bill, which is a good thing, because it actually wouldn't apply to people who do what he did.

Anyhow, after a brief flurry in response to the press release, the thing disappeared from everyone's radar.  No one paid it any attention at all.  Until this week when there've been another bunch of stories in the press.  Becker's been running around saying that he thinks this can be used to convince the Supremes to overrule Kennedy.*  Because Ariel Castro.  To whom the thing wouldn't apply.  

And who, it should perhaps be noted, executed himself without Becker's assistance.  

On the other hand, the Supremes are perfectly happy to let Georgia conduct an unconstitutional execution.

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*Over at A Public Defender, Gideon wrote:

In Kennedy, Kennedy wrote that the 5 states that had authorized such a penalty did not constitute a “national consensus” and that it violated the prohibition against cruel and unusual punishment.

Rep. Becker wishes to create that “national consensus”, stating that the bill is modeled after the law in half a dozen states. Which is 6. 6 states out of 50. And which is decidedly not the law. See, Kennedy, supra.