‘The judge was just wrong to insert it into this case.” That was the take of the Seventh Circuit U.S. Court of Appeals in an unusual Sunday ruling, issued because a lower-court judge had manufactured a bogus reason to try to prevent a death sentence from being carried out today. This is par for the course in capital-punishment litigation. It is why, if Daniel Lee is actually executed as scheduled on this afternoon, his will be the first federal death sentence carried out in 17 years.
Lee committed a brutal triple murder in 1996, killing the family of an arms dealer during a robbery aimed at obtaining arms and money for a white-supremacist organization. Under the heading of “heinous,” it would be hard to check more boxes than that. But murder is a grisly business, and there are many that would rightly be described as heinous. There are so few executions, though, that we’d have to call them “statistically negligible” were it not for the seriousness of empowering the state, in all its patent imperfection and incompetence, to take any human life.
The number of executions as a percentage of total homicides is infinitesimal because, over the last half century, the law has made them so difficult to carry out. Many states, whether out of philosophical qualms, court rulings, or sheer exhaustion at the extensive, expensive litigation involved, no longer abide capital punishment. The Death Penalty Information Center reports that 22 states and the District of Columbia have abolished capital punishment. Of the 28 that retain it, three — California, Pennsylvania, and Oregon — have suspended it.
There was a federal moratorium for 16 years after the Supreme Court, in its series of confusing, conflicting opinions in Furman v. Georgia (1972), invalidated three state death sentences. The Court’s most left-wing justices opined that capital punishment is unconstitutional under the Eighth Amendment’s proscription against cruel and unusual punishment (which is applicable to the states under the 14th Amendment). The majority of the Court either would not go that far or flatly rejected this view. Nevertheless, the justices’ varying opinions impelled Congress and the states to assess their procedures to determine whether capital cases were being conducted fairly, with particular attention to racial discrimination.
There should be no question that capital punishment is constitutional. It is referred to repeatedly in the Constitution. Indeed, in the Fifth Amendment alone, there are two allusions — in the double-jeopardy clause (a person may not “for the same offense . . . be twice put in jeopardy of life”) and in the due-process clause (government cannot deprive a person of “life, liberty or the pursuit of happiness without due process of law”) (emphasis added).
The claim that something to which the Constitution approvingly refers is somehow unconstitutional is premised on “living Constitution” drivel: Because society’s sensibilities evolve, the Eighth Amendment’s conception of “cruel and unusual punishment” evolves with them.
Of course, the Framers well understood that society would change, and therefore provided a process for amending the Constitution. If the people of the nation wanted to repeal the death penalty, they could do so. The idea was not for robed ideologues to update the meaning of the Constitution’s provisions to accord with their progressive pieties (which, as we’ve recently seen, is how the word “sex” suddenly evolved into “gender identification”).
In any event, the federal death penalty was reinstated in 1988. Thereafter, in two Clinton-era crime bills, Congress overhauled federal death-penalty procedures (1994) and undertook to streamline death-penalty litigation (1996). This expanded to about 60 the number of “death penalty eligible” federal offenses (murders of federal officers; narcotics, racketeering, bombing and terrorism crimes in which death results; etc.). Yet in the 32 years since Congress reinstated capital punishment, there have been only three executions — all during the Bush 43 administration, and none since 2003.
With over five dozen federal convicts on death row, some for over 20 years, Attorney General Bill Barr has undertaken to clear the legal hurdles. As Lee’s case shows, however, such hurdles are energetically erected each time a move is made to carry out the sentence — often by judges who are ideologically opposed.
Lee was convicted of capital murder in aid of racketeering — specifically, on behalf of the “Ayran Peoples’ Republic, a white-supremacist enterprise. As the Seventh Circuit recounted, Lee and a co-defendant raided the Arkansas home of arms dealer William Mueller, stealing a cache of weapons and money. With stun guns, they shot Mueller, his wife, Nancy, and their eight-year-old daughter, Sarah. Then they duct-taped plastic bags over the parents and little girl to asphyxiate them, weighted their bodies down with rocks, and threw them into the bayou. The bodies washed up in a lake about six months later.
Lee is to be executed at the federal prison in Terre Haute, Ind. Indiana federal district Judge Jane Magnus-Stinson, an Obama appointee, recently stayed the execution, raising an argument in support of allowing family members of the victims to attend it, based on a legal theory that the family members themselves did not advance. The family members, who have no legal right to attend, oppose capital punishment; they wanted to be invited to attend and then to have the execution postponed because the COVID-19 pandemic makes it too dangerous for them to attend. On Sunday, the Seventh Circuit found Judge Magnus-Stinson’s position to be frivolous. Unless there are further judicial interventions, the execution is to go forward today.
For what it’s worth, I am a reluctant proponent of capital punishment. I have no doubt that it is constitutional. As a practical matter, though, its questionable value has to be weighed against the significant downsides: It is prohibitively resource-intensive to litigate; and, because much of the bench is hostile to the death penalty, judges are wont to fashion reasons not to impose it, some of which have nothing ostensibly to do with the death penalty and make prosecution of other types of criminals more difficult.
On the other hand, the punishment is appropriate for monstrous offenders, such as Lee. And for some offenders, it is the only effective punishment. I came around to that point of view largely because of the notorious terror master I prosecuted in the early to mid 1990s, Omar Abdel Rahman (the Blind Sheikh). Though he was sentenced to life imprisonment, he still managed to get instructions to terrorists from federal penitentiaries. Osama bin Laden credited him with issuing the fatwa that approved the 9/11 attacks, in which nearly 3,000 Americans were killed.
Moreover, if they managed to eradicate the death penalty, progressives would next argue that life imprisonment is too harsh and somehow amounts to cruel and unusual punishment. For now, they need life imprisonment because it is their best argument against capital punishment (to wit, “Why put people to death when we can imprison them for life and thus prevent them from threatening others?”). If there were no death penalty, however, there would be a campaign, just like in Europe, to keep lowering the maximum penalty for homicide offenses. In Germany, for example, the maximum penalty for intentional homicides is generally just 15 years’ imprisonment. And though there is an exception permitting life imprisonment for especially heinous cases, such sentences are rare, and even when they occur, the murderer can apply for parole after 15 years.
Insufficiently severe penalties for murder inevitably lead to more violent crimes. That said, retaining capital punishment entails a great deal of effort and divisiveness, even though we put very, very few people to death.