By Toby Tabachnick
Shortly before the Department of Justice filed notice last August that it would seek the death penalty against the alleged murderer at the Tree of Life building in Pittsburgh, two of the congregations attacked in the massacre — New Light and Dor Hadash — sent letters to U.S. Attorney General William Barr, imploring him to accept a guilty plea in exchange for a life sentence instead.
Rabbi Jonathan Perlman of New Light said the death penalty was contrary to Jewish teachings. Other congregants expressed dread in anticipation of what could be a drawn-out trial and appellate process, the trauma witnesses would endure in recounting the events of Oct. 27, 2018, and the descent of an intrusive media on the Squirrel Hill neighborhood once again.
Still, the DOJ is pursuing the most severe punishment available under federal law against the accused anti-Semitic killer of 11 Jews in their place of worship, and, as is typical in capital cases, the defense attorneys are fighting it.
Failing to negotiate a deal with the DOJ for a life sentence in exchange for a guilty plea, defense attorneys filed motions in federal court last month seeking to strike the death penalty as a sentencing option, challenging its constitutionality on several grounds.
One of the defendant’s attorneys, Judy Clarke, is considered an expert in capital cases. She has successfully negotiated plea deals for several high-profile clients, including the Unabomber, Ted Kaczynski; a 9/11 hijacker, Zacarias Moussaoui; and white supremacist Buford O. Furrow Jr., who stormed a Los Angeles Jewish Community Center in 1999 with a semiautomatic weapon, wounding five and killing one.
She also represents the Boston Marathon bomber, Dzhokhar Tsarnaev. In the case of Tsarnaev, Clarke failed to negotiate a plea deal for life in prison, and he is currently in custody at a supermax prison in Colorado, awaiting appeal of his conviction. None of Clarke’s clients so far have been executed.
Clarke and her co-counsel argue that the death penalty is unconstitutional on the grounds that it violates the due process clause of the Fifth Amendment, which protects against punishments being applied arbitrarily; that it violates the Eighth Amendment’s prohibition against cruel and unusual punishments; and that it violates the anti-commandeering provision of the 10th Amendment, which prohibits the federal government from forcing states or state officials to enforce federal law.
The anti-commandeering argument is based on an interpretation of the Federal Death Penalty Act of 1994, which the defense says requires state employees to execute federal defendants in state facilities.
While the Fifth and Eighth Amendment arguments are fairly typical in capital cases, the anti-commandeering theory is not, and, in practice, state employees have not been required to carry out federal executions in state facilities. Since the federal death penalty’s reinstatement in 1988, only three people have been executed by the United States, all by lethal injection at the federal penitentiary in Terre Haute, Indiana.
Bruce Ledewitz, a constitutional law professor at Duquesne University School of Law in Pittsburgh, thinks it is unlikely “that there is a command in the federal statute” for states to carry out federal executions. But, he said, “if that’s the case, yeah, it would be unconstitutional.”
If any of the defense’s arguments against the death penalty were to gain traction in court, it would be the anti-commandeering argument, according to Ledewitz. The challenges on Fifth and Eighth Amendment grounds, he said, “don’t amount to anything in my opinion. They would apply to any death penalty statute. And so, since we still carry out executions, the general challenges don’t hold up — the Supreme Court has rejected the general challenges previously.”
J. Richard Broughton, a criminal and constitutional law professor at the University of Detroit Mercy, who formerly served in the Criminal Division of the United States Department of Justice in Washington, D.C., agreed that “it is very unlikely that (the federal death penalty) will be held to be unconstitutional. There is no authoritative case law for that. There is no binding case law on the district court in the Western District of Pennsylvania that would require the court to hold that the death penalty is unconstitutional.”
Support for the death penalty has been waning in the United States, with a 2019 Gallup poll showing that, for the first time in 34 years of tracking, more Americans favor life imprisonment without the possibility of parole over the death penalty, 60% to 36%.
Ledewitz, who founded the Allegheny County Death Penalty Project and co-founded the Western Pennsylvania Coalition Against the Death Penalty, explained that the existence of the death penalty is one reason why the case against the alleged Pittsburgh synagogue murderer is proceeding so slowly. A trial date still has not been set.
“This is entirely a gift from the death penalty — murder cases don’t take this kind of time,” Ledewitz said. “Everything slows down in a death penalty case. If the death penalty were off the table, I mean if it weren’t a potential death penalty case, it would have been tried already as a regular murder case. Or if they were willing to take a plea, the case would have been over many months ago.”
In a death penalty case, Ledewitz explained, “everyone is especially careful, all legal arguments are looked at especially carefully. All the experts are prepped especially carefully. Everything slows down, not just the death penalty part. No one wants to make a mistake in a death penalty case.”
The trial necessitated by the DOJ’s decision to pursue the death penalty will cause the community to relive the nightmare of Oct. 27, 2018, and also force it to hear the life story of the alleged killer, Ledewitz pointed out.
“I mean, we’re going to have hear all about his damn character,” he said. “And I don’t care. I mean, I don’t want to hear about this guy. All the death penalty does is make him into a celebrity. He was willing to be killed that day, presumably, and, you know, the fact that he’s going to become a martyr to the cause one day and be executed is not a problem for him.
“This is true with every single death penalty case. The victims, the family members, the community, they have to relive the whole thing,” Ledewitz continued. “And then, worse than that, they have to have this sentencing hearing in a death penalty case in which we have to pretend to care, you know, that he was abused as a kid. And I don’t want to hear about it. My opposition to the death penalty has nothing to do with sympathy for these killers. I think it’s bad for everybody.”
Although support for the death penalty is fading in the United States, there are still vocal proponents, including Robert Blecker, a professor at New York Law School, and a nationally recognized expert on the death penalty who spent decades inside prisons getting into the heads of convicted murderers. Author of the book “The Death of Punishment: Searching for Justice Among the Worst of the Worst,” Blecker refers to himself as a “retributivist,” and says he is less concerned with any deterrent effect on crime that the death penalty might have than he is with apt punishment.
“Sometimes the death penalty does act as a marginally greater deterrence than life without parole,” Blecker explained. “But none of this is my issue, because I’m a retributivist and I don’t care if it is or it isn’t a greater marginal deterrent. The principal justification for the death penalty is that some people deserve to die and we have an obligation to execute them. And this racist mass murderer is definitely one of them.”
Although the views of the victims’ families should be considered when deciding whether to pursue the death penalty, Blecker opined, they should not be dispositive.
“Let’s remember that these people saying they don’t want (the death penalty) are not the victims,” he said. “They are the victims’ families or loved ones. The victims are dead. I want to know what the victims’ views were on the death penalty. And if I am convinced that none of the victims wanted the death penalty — none of them — that should count heavily against it, in my view.
“Remember, the prosecution is in the name of the People,” he continued. “It’s ‘the People versus.’ And though the victims should get a voice, they should not get a veto.”
Although Broughton noted that the opinions of the families and the victims regarding the death penalty are “taken seriously” by the DOJ, “they don’t decide the issue one way or the other.”
The federal government has “an obligation to uniformly enforce federal law,” noted Broughton, who has advised senior Justice Department leaders and federal prosecutors on issues of law arising in federal death penalty matters. “Even if one particular community has an objection to the enforcement of the death penalty, the Department of Justice has to consider what it will do if the very same crime is committed somewhere else, in a different community. Federal law is the same in Pennsylvania as it is in North Dakota. It is the same in Texas as it is in New York. So the DOJ has to get beyond local concerns about the death penalty and consider more broadly how it is applying federal law across the country.”
A trial in the case of the murderer at Tree of Life would be useful, Broughton said, to remind the country of what happened in Pittsburgh on Oct. 27, 2018.
“The trial is going to tell the story of what happened,” he said. “ And that’s an important story to remember. There’s hasn’t been a lot of national news stories about this crime recently, and it is entirely possible that those outside of Pittsburgh and outside of the Jewish community may not fully recall the details of what happened with respect to this crime. So while I certainly respect the objections to having a trial, because it will, you know, put a lot of the same people through the ordeal again, it is important that the story be told. And the trial is one of our mechanisms for telling that story.”
Toby Tabachnick is the senior staff writer at the Pittsburgh Jewish Chronicle, a Jewish Exponent-affiliated publication.