Posts filed under 'Notable Jurisprudence'

2008: Jose Medellin, precedent

4 comments August 5th, 2015 Headsman

On this date in 2008, Mexican national Jose Medellin was executed by Texas, pleasurably sticking its thumb in the eye of the International Court of Justice.

U.S. state and local officials have often displayed the ugly-American tendency to view binding treaty obligations as a Washington thing of no moment to the likes of a Harris County prosecutor. So when Medellin was arrested for the 1993 rape-murder of two teenage girls in a Houston park, the idea of putting him right in touch with Mexican diplomats to assist his defense was, we may safely suppose, the very farthest thing from anyone’s mind.

Yet under the Vienna Convention, that is exactly what ought to have occurred. The idea is that consular officials can help a fellow on foreign soil to understand his unfamiliar legal circumstances and assist with any measures for his defense — and by common reciprocity, every state is enabled to look after the interests of its nationals abroad.

A widespread failure to do this, in death cases and others, has involved the United States in a number of international spats over the years.

Jose Medellin was among more than 50 Mexican prisoners named in one of the most noteworthy of these: the Avena case, a suit by Mexico* against the United States in the International Court of Justice.

In its March 31, 2004 Avena decision, the ICJ found that U.S. authorities had “breached the obligations incumbent upon” them by failing in these instances to advise the Mexican nationals it arrested of their Vienna Convention rights, and of failing in almost all those cases likewise to advise Mexican representatives that a Mexican citizen had been taken into custody.

“The appropriate reparation in this case,” the 15-judge panel directed, “consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals.”

If you think the Lone Star State’s duly constituted authorities jumped right on that “obligation,” you must be new around here.

Several years before, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions visited the United States and filed a report complaining “that there is a generalized perception that human rights are a prerogative of international affairs, and not a domestic issue.”

“Domestic laws appear de facto to prevail over international law, even if they could contradict the international obligations of the United States,” the Special Rapporteur noted.

Texas, famed for not being messed with, took a dim view indeed to being bossed about from The Hague. Indeed, the very concept of foreign law and international courts is a gleefully-thrashed political pinata among that state’s predominant conservative electorate.

U.S. President George W. Bush — a former Texas governor who in his day had no time at all for appeals based on consular notification snafus — in this instance appealed to Texas to enact the ICJ’s proposed review.† In fact, he asserted the authority to order Texas to do so.

Texas scoffed.

“The World Court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court,” a spokesman of Gov. Rick Perry retorted.

This notion that America’s federalist governance structure could insulate each of her constituent jurisdictions from treaty obligations undertaken by the nation as a whole naturally seems preposterous from the outside. But in the U.S., this dispute between Washington and Austin was resolved by the Supreme Court — and the vehicle for doing so was an appeal lodged by our man, Medellin v. Texas.

The question at stake in Medellin was whether the treaty obligation was binding domestic law on its own — or if, by contrast, such a treaty required American legislative bodies to enact corresponding domestic statutes before it could be enforced. The high court ruled for the latter interpretation, effectively striking down Avena since there was zero chance of either Texas or the U.S. Congress enacting such a statute.

Medellin, the decision, spelled the end for Medellin, the man — and, at least for now, the end of any prospect of effectual intervention in American death penalty cases by international tribunals.

* Mexico, which no longer has the death penalty itself, has the heavy preponderance of foreign nationals on United States death rows at any given time.

** The Texas Attorney General’s press release announcing Medellin’s execution included a detailed appellate history of the case which pointedly excluded anything that happened in the ICJ.

† The Bush administration did take one effective step to avoid a similarly embarrassing situation in the future: it withdrew the U.S. from the consular notification convention.

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1729: James Cluff, on appeal

Add comment July 25th, 2015 Headsman

From the Newgate Calendar:

This unhappy young man was born in Clare-market, and lived as a waiter at several public-houses, in all of which he maintained an extraordinary character for diligence, obligingness, and integrity.

Mr. Payne, master of the Green Lattice, in Holborn, hired Cluff [or Clough -ed.] as a servant, and during his residence there, he fell in love with Mary Green, his fellow-servant; but she being courted by another man, constantly rejected his addresses, which frequently agitated his mind in the most violent degree.

Green’s other lover coming to see her, sat in the same box with her, and was received by her in an affectionate manner; but this did not seem to be much regarded by Cluff, who was then engaged in attending the customers: but when the lover was gone, Mr. Payne, perceiving that something had discomposed Cluff’s mind, asked him the reason of it; but could not prevail on him to tell the cause.

While Mr. Payne and his wife were at dinner in the parlour, and the girl was eating her dinner in one of the boxes, Mrs. Payne heard a noise, as if two persons were struggling, and going into the tap-room, Cluff said, “Come hither, madam.” On this she advanced, and saw the prisoner holding the deceased by the shoulders, who was sitting on the floor, and speechless, while the blood streamed from her in large quantities.

Mrs. Payne called out, “What have you been doing, James?” He said, “Nothing.” He was asked if he had seen her hurt herself? He said, No; but that he had seen her bring a knife from the cellar where she had been to draw some beer for her dinner. Mr. Payne now entered the tap-room, and then went into then cellar to discover if there was any blood there; but finding none, he accused Cluff on suspicion of having committed the murder; and instantly sent for a surgeon. When the surgeon arrived, he found that a knife had been stabbed into the upper part of the thigh, and entered the body of the girl, in such a manner that she could not survive the stroke more than a minute. [i.e., it gashed her femoral artery -ed.]

A bloody knife was found in the room, and Cluff was committed to Newgate for the murder. On his trial, the surgeon deposed that the knife fitted the wound that had been made, and that he believed the woman had not killed herself: but the jury acquitted the prisoner, from what they deemed insufficiency of evidence.

A discharge of the accused party would now have followed of course; but William Green, the brother and heir of the deceased, immediately lodged an appeal in consequence of which Cluff was brought to trial at the next sessions but one, when his case was argued with the utmost ingenuity by the counsel for and against him, but this second jury found him guilty, and he was sentenced to die.

Holy double jeopardy! Though rarely used, it was indeed formerly an option for a victim or a victim’s heir to lodge a private appeal against the purported malefactor, even one who had already been acquitted — indeed, even against one who had been convicted and then pardoned.

The distinction between a “public” and a “private” prosecution was usually more theoretical than real, since — at least until Sir John Fielding began organizing professional police in the late 18th century — even normal Crown trials often depended mostly on the exertions of the victim or friends to bring a man to book with sufficient evidence to punish him.* But in a close case, like Cluff’s, the rarely-used private appeal option could occasionally offer what amounted to a second bite at the apple.** (See Whores and Highwaymen: Crime and Justice in the Eighteenth-century Metropolis)

Perhaps tracing to the ancient weregild system of atoning crimes via direct redress by offenders to their victims, private prosecutions were completely immune from interference by a sovereign pardon. (However, they could be dropped any time the prosecuting party wished — which also made them leverage for extracting cash settlements.)

Back to the Newgate Calendar:

“I earnestly press’d upon him to glorify God by a plain Confession of his Crime, and urg’d to him the most material Circumstances, in Consideration whereof scarce any Body doubts but he committed the Fact. He could not pretend that his Master, or Mistress, who gave him the Character of a good Servant, had any Prejudice, or Ill-will to him, upon which Account they might be easy, whether he lived or died. He neither reflected on them, nor none of the Witnesses, as if they had any View in Prosecuting him, but that Justice might be executed. I urg’d him with the Surgeon’s Opinion, that it was improbable, if not impossible, for the Maid to give herself such a Wound; that she had no Knife in the Cellar; that in the first Trial, three Persons had sworn that he was Rude and Barbarous to the Deceased upon many Occasions, and upon that Account she made grievous Complaints to her Mother, and others … he continued Peremptory in his Denial. At first, indeed, he seem’d to be in Confusion, at the many pressing Instances which were made to extort a Confession from him; but recollecting himself, he denied that he gave the mortal Wound, and said, that he knew nothing at all how she came by her Death … Many of his Friends and Acquaintances came daily to visit him, while he was under Sentence, and I wish they did not divert him too much from his Duty, and that some of them did not under-hand, buoy him up with false Hopes. He hop’d to be sav’d only by the Mercy of God, through the Merits of Jesus Christ, and that he forgave all the World any Injuries done him, as he expected Forgiveness from Almighty God.”

-James Guthrie, the Ordinary of Newgate

After conviction, his behaviour was the most devout and resigned that could be imagined; he exercised himself in every act of devotion, but solemnly declared his perfect innocence with respect to the murder. He was visited by his friends, who earnestly entreated him to make a sincere confession; especially as in his case it was not in the power of the king himself to grant him a pardon. In answer hereto, he freely confessed all his other crimes; but, saying he would not rush into eternity with a lie in his month, again steadily denied the perpetration of the crime of which he had been convicted. The clergyman who attended him urged him to the confession of his guilt, and even refused to administer the sacrament to him on the morning of his execution, on any other terms than those of acknowledging his crime, but nothing could shake his resolution; he still steadily persisted in his innocence.

On his way to the place of execution, he desired to stop at the door of his late master, which being granted, he called for a pint of wine, and having drank a glass of it, he addressed Mr. Payne in the following terms:

“Sir, you are not insensible that I am going to suffer an ignominious death, for a crime of which I declare I am not guilty, as I am to appear before my great Judge in a few moments to answer for all my past sins. I hope you and my good mistress will pray for my poor soul. God bless you, and all your family.”

At the place of execution he behaved in the most composed, devout, and resigned manner; and seemed to possess in the consciousness of innocence. There was a great concourse of spectators to witness his fatal end; to whom he spoke in the following manner: “Good people, I am going to die for a fact I never committed, I wish all mankind well; and as I have prayed for my prosecutors, I hope my sins will be forgiven through the merits of my ever blessed redeemer. I beg you to pray for my departing soul; and as to the fact now die for, I wish I was as free from, all other sins.”

He was hanged at Tyburn on the, 25th of July, 1729, exhibiting no signs of fear to his last moment.

The case of this man is very extraordinary. The evidence against him was at best but circumstantial; and this not supported with such strong corroborative proofs as have occasioned conviction in many other instances. No person was witness to his commission of the murder; nor was there any absolute proof that he did commit it; and from the steady perseverance with which he denied it, under the most awful circumstances, and at the very concluding scene of his life, charity would. tempt one to believe that he was innocent. Ought not this case to afford a lesson of caution to juries how they convict on circumstantial evidence? Is it not better that the guilty should escape, than the innocent be punished? All the decrees of mortals are liable to error; but the time will come when all mists shall be cleared from our sight; and we shall witness to the wisdom of those laws of Providence, which are now inscrutable to mortal eyes. Then shall we see that what appeared inexplicable to us was divinely right; and learn to admire that wisdom which, at present, so much exceeds our finite comprehension. In the mean time, we ought to adore that goodness we cannot comprehend, and rest satisfied with those dispensations, which are eternally and immutably just.

After Cluff’s hanging, his friends published a paper delivered them by the dead man “wherein [Cluff] makes a solemn Declaration that he was innocent of the Murder, and that several material Circumstances given in Evidence against him (which he particularly mentions) were untrue.” (London Journal, Aug. 2, 1729)

* Most notoriously, Jonathan Wild profiteered wildly from this system of privatized law enforcement by extracting a cut both from thieves whom he could threaten to shop for a reward, and from victims whose effects he could recover for a percentage.

** Though such proceedings would normally be handled, as Cluff’s was, by a jury trial, it was for private prosecutions that trial by combat still remained a possibility; one wonders if the accused servant considered taking his chances in the lists. This archaic legal artifact would not be abolished for ninety more years yet — after an 1818 case, Ashford v. Thornton, in which the burly accused in a private appeal successfully sued for the right to fight his wispy accuser in arms rather than in court. The magistrate gave an embarrassed ruling in the brawler’s favor (“however obnoxious I am myself to the trial by battle, it is the mode of trial which we, in our judicial character, are bound to award. We are delivering the law as it is, and not as we wish it to be”), leading the appellant to wisely back out of the case … and leading Parliament to ban private appeals and trial by combat in 1819.

When such an abolition was mooted as a means of soothing the American colonies in the early 1770s, however, conservative Lords decried the innovation as tending to “a system of ministerial despotism” that would remove a failsafe for crime victims — although Edmund Burke did allow that the ugly remnant of judicial combat “was superstitious and barbarous to the last degree.”

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1946: Ion Antonescu

Add comment June 1st, 2015 Headsman

Romania’s wartime fascist dictator Ion Antonescu was shot on this date in 1946.

Antonescu (hand raised) and Adolf at Nazi headquarters in June 1941. Behind them are Ribbentrop and Keitel.

An army officer who worked his way up to the brass via his exploits in the Second Balkan War and then in World War I, Antonescu emerged as a major nationalist politician in the interwar period. He was the elite political figure who allied with Corneliu Codreanu‘s Iron Guard movement.

Antonescu became the Defence Minister in a a far-right government, was temporarily shouldered out of the state by King Carol II‘s coup, and then re-emerged as the leading alternative when Carol’s government was undone by the tectonic political crises in the run-up to World War II. After territorial concessions wrung by Romania’s neighbors triggered protests against the king in Bucharest, Antonescu on September 5, 1940, forced Carol to transfer dictatorial power to him — and shortly thereafter, he forced Carol to abdicate altogether.*

That left Carol’s son Michael the figurehead of state, and Ion Antonescu the actual strongman — at least, once he tamed the Iron Guard.

Antonescu oriented Romania towards Hitler’s Germany, including a fairly enthusiastic involvement in the Holocaust.**

For Germany, it was an important alliance: Romania’s oil fields were essential to powering the Reich’s mechanized army. And Romania ultimately fielded the largest Axis army other than Germany and Italy themselves with well over one million men under arms by the summer of 1944. For Romania, well, opportunism is as opportunism does: as Antonescu put it, echoing an ancient argument, “in today’s circumstances a small country which is under threat, such as ours, does not do what it wishes, but what it can.”

The Romanian “General Antonescu Army Group” joined the fateful invasion of the Soviet Union. Romanian divisions were prominent at Stalingrad where some 150,000 were lost as casualties or prisoners.

The turn of the war’s tide put Romania in a grievous dilemma whose parameters ran something like this:

  • Maintain Antonescu’s personal grip on power
  • Maintain the territorial expansion Romania had achieved early in the war
  • Exit the war without going down in Germany’s Gotterdammerung

… pick one of three. Provided it’s the last one.

As the Red Army approached from the northeast and American bombers struck from Italy and North Africa, Antonescu scrambled to sound out what kind of a deal he could cut with the Allies.

Antonescu might perhaps have negotiated without the desperation due his position,† and dilated with his decreasingly patient enemies while the Germans flattered him with the dream that he could still retain conquered Bessarabia (present-day Moldova). Only with the Soviet army on his doorstep was Antonescu finally disabused of the statesman’s dream and office both — when King Michael ousted Antonescu and immediately switched Romania to the Allied side.‡ This move accepted the Soviet occupation that was about to become a fait accompli, and put Romanian soldiers into the field for the last months of the war fighting against their former German allies.

It also put Antonescu into Soviet custody. He rode out the war under guard in Moscow, then was shipped back to postwar Romania where he would serve as the feature attraction of the People’s Tribunals.

One hundred eighty-seven people answered war crimes charges to these bodies; there were 13 death sentences, but only four were actually executed.§ All four — Transnistria governor Gheorghe Alexianu, Interior Minister Constantin Vasiliu, and Foreign Minister Mihai Antonescu (no relation — were shot on this date at Jilava. The executions were filmed.

* Carol went into exile, never to see his native soil again. He died in Portugal in 1953.

** “Of all the allies of Nazi Germany, Romania bears responsibility for the deaths of more Jews than any country other than Germany itself,” according to a 2003-2004 commission. “Efforts to rehabilitate the perpetrators of these crimes are particularly abhorrent and worrisome. Nowhere else in Europe has a mass murderer like Ion Antonescu, Hitler’s faithful ally until the very end, been publicly honored as a national hero.” (The full report is available here; the quoted lines come from its executive summary.)

† Berlin was keeping an eye on Romania’s separate-peace feelers, too, and had prepared a plan to occupy Romania should it attempt to desert the Axis. This is precisely the fate that befell Nazi-allied Hungary … but in Romania’s case, Germany never had the moment to implement the plan.

‡ Michael was, like his father, forced into exile in 1947; he did not return to Romania until after the collapse of Communism. Now in his nineties, King Michael is still alive as of this posting and remains the claimant should Romania ever re-establish its monarchy.

§ Six of the 13 death sentences were delivered in absentia. Notable among those fled souls was the Hungarian writer Albert Wass: Wass had escaped to the United States, which refused repeated appeals by Communist Romania to deport him. There is a running struggle in both Hungary and Romania over whether to rehabilitate Wass or posthumously rescind his death sentences. (Postwar Hungary condemned him, too.)

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1929: Nikolaus Karlovich von Meck, wrecker

Add comment May 22nd, 2015 Headsman

On or about this date in 1929, Russian railway magnate Nikolaus (Nikolai) Karlovich von Meck was shot as a saboteur.

Von Meck (Russian link) had the iron horse in his blood: his father Karl was among Russia’s first railroad-builders after the Crimean War clock-cleaning motivated the tsar to make with the modernizing.

While von Meck pere was busy laying crossties in the 1860s, the St. Petersburg Conservatory was germinating the young composer Tchaikovsky. In time, the two men would be linked by the union of their kin: our man Nikolaus Karlovich von Meck married Tchaikovsky’s niece, Anna.

It wasn’t just a glancing association with the musical colossus for the von Mecks. Karl’s widow — Nikolaus’s mother — Nadezhda was Tchaikovsky’s main financial patron for 13 years. They weren’t lovers: Tchaikovsky was gay, and the reclusive Nadezhda von Meck demanded as a condition of her patronage that they never meet. But they kept up a voluminous correspondence, and Tchaikovsksy dedicated several works to her — like this Sympohony No. 4 in F minor.

So Nikolaus von Meck was the genius’s patron’s son as well as the genius’s niece’s husband.

He was also a brilliant engineer and entrepreneur in his own right; over the 26 years preceding the Russian Revolution, he chaired the Moscow-Kazan Railway firm that his father had begun back in the 1860s. Under the son’s leadership its rail-mileage multiplied more than tenfold. He was also one of Russia’s first motorists.

Von Meck remained in Russia after the Bolshevik Revolution, continuing to work on developing the now-Soviet state’s rail infrastructure — his means reduced, he remained no less the conscientious and patriotic artificer. That held even after the man was arrested as a counter-revolutionary a few different times in the revolution’s early years; each time he was soon released.

But by the late 1920s, Stalin was in full control and the industrialist would become the first subject of a new Soviet law against “wreckers”.

Ostensibly designed to target the saboteurs that were supposedly retarding economic growth, it would prove its utility in the frightful years ahead as a first-rate instrument of the Terror. The prospect that any economic setback, inefficiency or controversy could be lethally attributed to a cabal of global capitalists intent on strangling communism in the crib made “wrecking” as flexible and as devastating a charge as witchcraft had once been. How do you even begin to rebut that? Wrecking would in time be attributed to innumerable purge victims, great and small, and an implied whip against every worker who might be slacking on his production quota.

This potent juridical apparatus went for its first spin in the North Caucuses city of Shakhty in 1928-29. The Shakhty Trial of 53 engineers and technicians as “wreckers” also has the distinction of being Stalin’s first show trial. Von Meck and four other men* were condemned to die, a comparatively modest harvest of blood next to what was to come; 44 others went to prison.

“What accomplished villains these old engineers were! What diabolical ways to sabotage they found!” Solzhenitsyn mused of those luckless soulsin The Gulag Archipelago.

Nikolai Karlovich von Meck of the People’s Commissariat of Railroads, pretended to be terribly devoted to the development of the new economy, and would hold forth for hours on end about the economic problems involved in the construction of socialism, and he loved to give advice. One such pernicious piece of advice was to increase the size of freight trains and not worry about heavier than average loads. The GPU [forerunner of the NKVD, which in turn became the KGB -ed.] exposed von Meck, and he was shot: his objective had been to wear out rails and roadbeds, freight cars and locomotives, so as to leave the Republic without railroads in case of foreign military intervention! When, not long afterward, the new People’s Commissar of Railroads, Comrade Kaganovich, ordered that average loads should be increased, and even doubled and tripled them (and for this discovery received the Order of Lenin along with others of our leaders) — the malicious engineers who protested became known as limiters. They raised the outcry that this was too much, and would result in the breakdown of the rolling stock, and they were rightly shot for their lack of faith in the possibilities of socialist transport.

Nikolaus and Anna’s daughter Galina Nikolayevna von Meck — who did time in Siberian exile herself in the 1930s — wrote a memoir of her famous family in 1973, As I Remember Them.

* Notably Peter Palchinsky, whose life is dealt with in some detail in Loren Graham’s The Ghost of the Executed Engineer: Technology and the Fall of the Soviet Union.

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1865: Not Lambdin P. Milligan, ex parte man

Add comment May 19th, 2015 Headsman

This date in 1865 was the originally scheduled hanging of Indiana pro-slavery gadfly Lambdin P. Milligan — a sentence respited two days prior by President Andrew Johnson, and then subsequently commuted, for which reason Milligan survived to attach his surname to a landmark Supreme Court decision the following year.

During the Civil War, the state of Kentucky was a borderlands claimed by, and viciously fought over, by both North and South. “I hope to have God on my side, but I must have Kentucky,” Abraham Lincoln wrote in 1861.

Kentucky’s northern neighbor, the Union breadbasket Indiana, had little fighting and no hint of Confederate power — but it was a hotbed of so-called “Copperheads”, northern Democrats who opposed Lincoln’s willingness to prosecute the civil war. So fraught was the Hoosier political situation that in 1862, Indiana’s Republican governor refused to call the Democrat-dominated legislature for fear that it might vote a secession bill or attempt to withdraw Indiana from the war.

The inevitable existence of northern domestic opposition to the war came joined at the hip to impossible statecraft conundrums. Just how much wartime dissent and/or resistance could be countenanced — as a legal matter, and a practical one? President Lincoln would not have received an A+ from the American Civil Liberties Union; he suspended the writ of habeas corpus in the Union and resorted to military tribunals and martial law in some places.

Our man Milligan was one of these Copperhead Indiana Democrats born to test Washington’s elasticity. He was an exponent of the Knights of the Golden Circle,* a pro-slavery secret society whose name denoted their aspiration to the antebellum filibusters‘ dream of a human-bondage empire to ring the Caribbean basin.

An attorney,** Milligan briefly became the toast of Democrats nationwide (whatever was left of the nation) for his robust defense of Clement Vallandigham when the former Congressman was prosecuted under the anti-Copperhead General Order 38.

At this point, Milligan was very well-known in what was then called the Northwest, and he was a major political player in Indiana — a pivotal state in the 1864 election.

But according to federal spies who tailed him in 1863-64, his interests in governance ran to more illicit grants of state power. Milligan was arrested in October 1864 as a principal in what was dubbed the “Northwestern Conspiracy”: a plot to mobilize the antiwar factions in that part of the country. This was no mere matter of pamphleteering; the “visionary and desperate” scheme aimed to prolong the hopes of the now-fading South by instigating an armed uprising in the Northwest that would relieve Union pressure on Dixie and perhaps turn the tide of the war.

Milligan was among several of the conspirators swept up in arrests in the following weeks, then tried by military tribunal for treason and sedition. It’s hard to argue that the plot was anything but.

But why a military court? This is the question in Milligan’s great legacy to posterity, the Supreme Court ruling Ex Parte Milligan.†

Milligan himself was not a soldier, and had not been in a war zone. He was a civilian, and Indiana’s regular civilian courts had never ceased to function. The question at stake in Milligan’s appeal to the Supreme Court was whether there was any legitimate recourse to a military tribunal under such conditions — well behind the lines, as it were.

On the morning of March 5, 1866, 34-year-old Republican U.S. Representative James Garfield — the future president whose assassin would command contentious caselaw all his own — strode into the U.S. Supreme Court to eloquently argue Milligan’s side.

“Such a doctrine,” Garfield intoned of the civilian courts’ being intentionally bypassed on national security grounds, “is too monstrous to be tolerated for a moment; and I trust and believe that … it will receive its just and final condemnation. Your decision will mark an era in American history. the just and final settlement of this great question will take a high place among the great achievements which have immortalized this decade. It will establish forever this truth, of inestimable value to us and to mankind, that a republic can wield the vast enginery of war without breaking down the safeguards of liberty; can suppress insurrection, and put down rebellion, however formidable, without destroying the bulwarks of law; can, by the might of its armed millions, preserve and defend both nationality and liberty … if the protection of the law shall, by your decision, be extended over every acre of our peaceful territory, you will have rendered the great decision of the century.

The high court found for Milligan unanimously, establishing as a constitutional bedrock Garfield’s proffered principle that civilian courts must try civilians wherever those courts are open, and ordered Milligan’s release. Although re-indicted by a civilian grand jury, Milligan was not re-prosecuted; he resumed his law practice and died near Fort Wayne, Indiana on December 21, 1899.

* Also known as the Sons of Liberty, a callback to revolutionary patriots.

** Milligan studied law in Ohio, his native soil; his class of nine also included Edwin M. Stanton — Lincoln’s War Secretary during the events of this post. Milligan himself reflected that “I should have probably been hung” but for his fortuitous ancient friendship with Stanton.

† Court precedents with names like Furman v. Georgia are most familiar to us, signifying two disputing parties; by contrast, the phrase ex parte (by/for the party) theoretically indicates a decision issued on behalf of the named party, without need of any opposing party’s intervention. (Ex parte Quirin is another notable death penalty case using this terminology.)

While the ex parte locution was once a common one for habeas corpus appeals, such cases were in practice almost invariably contested by some organ of the state — as Milligan’s was.

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1401: William Sawtre, Lollard heretic

March 2nd, 2015 Headsman

On this date in 1401, Lollard priest William Sawtre(y) was burned at Smithfield for heresy — the first known heresy execution in England.

The highlight of late 14th century English literature, Piers Plowman, was a great favorite of Lollards. Though this lengthy allegorical poem is not itself a Lollard text, it spawned a Piers Plowman tradition with many spinoffs that are overtly Wycliffite.

Witness Wycliffe, who told them the truth;
For in good nature he greatly warned
To mend their wickedness and sinful works.
Who these sorry men damned his soul
And overall lolled him with heretics’ works!

-Piers Plowman’s Creed*

Sawtre was a follower of John Wycliffe, the Biblical translator and church reformer 16 years dead as we lay our scene.

Wycliffe anticipated much of Luther’s later critique of the Catholic Church. His call to study Scripture directly without the intercession of doctors in Rome touched a spiritual thirst; his summons to apostolic poverty for the wealthy vicars of Christ was a message with a ready audience.

“From about 1390 to 1425, we hear of the Lollards in all directions,” notes this public domain history, “so that the contemporary chronicler was ale to say that of every two men found on the roads, one was sure to be a Lollard.”

Lollardy did not immediately manifest as an outlaw movement; it had many adherents among England’s elites and even the royal household. Although the papacy had declared various Wycliffe doctrines heretical in that prelate’s time, England had shown little appetite for calling an Inquisition — a step that would project papal authority into the kingdom.**

But with a ferocious ecclesiastical pushback and a change in the occupancy of the throne,† the English state gradually shifted over the course of the 1390s and 1400s towards recognizing Wycliffe’s principles as heresy — and towards treating that heresy into a capital crime. Through spectacles like Sawtre’s burning, Lollards were gradually made to understand that the price of their scruples might run all the way to martyrdom.

This was novel territory for English jurisprudence, and part of a centuries-long European transition towards treating doctrinal dispute as capital crime. There are only a bare handful of alleged quasi-precedents in English history, sketchily documented — like the unnamed apostate deacon burnt to ashes for Judaizing. It was only as late as William Sawtre that Old Blighty clearly established the practice and legal machinery for putting men and women to death for heresy.

Many Lollards capitulated as they came under pressure. This was true of our man Sawtre, a humble parish vicar. When put to questioning by the bishop in 1399, Sawtre initially recanted his unorthodox skepticism as to the transubstantiation of communion bread into Christ’s own literal body — a doctrinal mystery that would be a tougher and tougher sell to dissidents yet to come.

But upon moving from Lynn to London where he served at St. Osyth’s, Sawtre relapsed — and some stirring moved his soul to vindicate himself in the face of mortal peril.

Charged before Parliament, Sawtre now defended his heresies under close questioning by the Archbishop of Canterbury, Thomas Arundel. Arundel was even then pressuring this same Parliament for a statute, which he did indeed soon receive — one with the ominous title De Heretico Comburendo, at last elevating heresy to a death penalty offense and making the bishops themselves the decisive arbiters on the matter. It is overtly and all-but-explicitly aimed at the Lollards.

divers false and perverse people of a certain new sect, of the faith of the sacraments of the church, and the authority of the same damnably thinking and against the law of God and of the Church usurping the office of preaching, do perversely and maliciously in divers places within the said realm, under the color of dissembled holiness, preach and teach these days openly and privily divers new doctrines, and wicked heretical and erroneous opinions contrary to the same faith and blessed determinations of the Holy Church, and of such sect and wicked doctrine and opinions they make unlawful conventicles and confederacies, they hold and exercise schools, they make and write books, they do wickedly instruct and inform people, and as such they may excite and stir them to sedition and insurrection, and make great strife and division among the people, and other enormities horrible to be heard daily do perpetrate and commit subversion of the said catholic faith and doctrine of the Holy Church …

the diocesans of the said realm cannot by their jurisdiction spiritual, without aid of the said royal majesty, sufficiently correct the said false and perverse people, nor refrain their malice, because the said false and perverse people do go from diocese to diocese and will not appear before the said diocesans…

[let] none within the said realm or any other dominions subject to his Roval Majesty, presume to preach openly or privily, without the license of the diocesan of the same place first required and obtained, curates in their own churches and persons hitherto privileged, and other of the Canon Law granted, only except; nor that none from henceforth anything preach, hold, teach, or instruct openly or privily, or make or write any book contrary to the catholic faith or determination of the Holy Church, nor of such sect and wicked doctrines and opinions shall make any conventicles, or in any wise hold or exercise schools; and also [let] none from henceforth in any wise favor such preacher or maker of any such and like conventicles, or persons holding or exercising schools, or making or writing such books, or so teaching, informing, or exciting the people, nor any of them maintain or in any wise sustain, and that all and singular having such books or any writings of such wicked doctrine and opinions, shall really with effect deliver or cause to be delivered all such books and writings to the diocesan of the same place within forty days from the time of the proclamation of this ordinance and statute.

Any Lollard not so complying could be arrested on the say-so of the diocesan bishop and tried for the offending heterodoxy; if convicted, the clergy was then empowered to hand the unfortunate fellow over to the civil authorities who were obliged to carry out an execution without any further inquiry or say-so. Judge, jury, and (virtually) executioner … the same as the guy waiting for you in the confessional.

[I]f any person … do refuse duly to abjure, or by the diocesan of the same place or his commissaries, after the abjuration made by the same person be pronounced relapsed, so that according to the holy canons he ought to be left to the secular court … [then] after such sentence promulgate shall receive, and them before the people in an high place cause to be burnt, that such punishment may strike fear into the minds of others, whereby, nosuch wicked doctrine and heretical and erroneous opinions, nor their authors … be sustained or in any way suffered.

With such wicked doctrine and heretical and erroneous opinions afoot Sawtre was not suffered to live even the enactment of the law that killed him: De Heretico Comburendo was passed only on March 10, but Sawtre was eight days’ dead by that point. It’s a bit unclear how the sentence was legally effected, but it would seemingly have proceeded under canon, not civil, law.

Both the law and the execution were great victories for the Church. “The king and the archbishop hurried to burn their victim to show that they could send a heretic to the stake whenever they wished, without relying on statute” Leonard Williams Levy writes. “Parliament could neither give nor take the authority to burn a heretic. If the scepter supported the miter, canon law prevailed.”

Be that as it may, the victims of the Lollard-burning period were not nearly so numerous as the chilling language of De Heretico Comburendo might lead one to anticipate. The next Lollard to go to the stake was John Badby in 1410; two merchants were executed in 1415, and the Lollard rebel John Oldcastle was burnt “gallows and all” in 1417. Another handful suffered in the 1420s. It’s thought that about 50 people overall (Lollards and otherwise) were executed as heretics from the enactment of De Heretico Comburendo until Henry VIII broke with Rome 133 years later — an occasion that made heresy-hunting a whole different animal.

* My artless rendering from the Middle English version given in D.A. Lawton in “Lollardy and the ‘Piers Plowman’ Tradition”, The Modern Language Review, Oct. 1981.

** Despite overall caution about the authority of Rome onto Albion’s soil, the English had no overall principled rejection of Inquisitors as such: they convoked such a tribunal to deal with Joan of Arc.

† The political situation in the realm was also been a factor: the usurper Henry IV had taken the crown only in 1399 by deposing, and later murdering, King Richard II. One readily supposes Henry’s keen interest in shoring up the loyalty of the church and keeping tabs on itinerant rabble-rousers, the latter of whom appear to have disproportionately skewed towards Richard’s faction. (All those heretics in the king’s household were in Richard’s household.)

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1914?: K., in Kafka’s The Trial

Add comment July 2nd, 2014 Headsman

This date, the second of July, would in 1914 have been the eve of the thirty-first birthday of Franz Kafka, so it seems a fit occasion — shall we call it the centennial? — to mark the death of the the character “Josef K.” in Kafka’s great novel The Trial. In this captivating work — it does not feel sufficient to call it a dystopia of the emerging bureaucratic state, although this story surely helped as much as any other to put the word Kafkaesque in the dictionary — K. has spent the whole novel since his arrest on his 30th birthday grappling with an absurd trial on charges he is never told and upon evidence he cannot know.

In the last, two insipid functionaries arrive at K.’s apartment to whisk him away to his death.

Historically, Kafka began this book in August 1914, a few weeks yet from our spurious dating. It was only published in 1925 — posthumously.

Chapter Ten: End

The evening before K.’s thirty-first birthday — it was about nine o’clock in the evening, the time when the streets were quiet — two men came to where he lived. In frock coats, pale and fat, wearing top hats that looked like they could not be taken off their heads. After some brief formalities at the door of the flat when they first arrived, the same formalities were repeated at greater length at K.’s door. He had not been notified they would be coming, but K. sat in a chair near the door, dressed in black as they were, and slowly put on new gloves which stretched tightly over his fingers and behaved as if he were expecting visitors. He immediately stood up and looked at the gentlemen inquisitively. “You’ve come for me then, have you?” he asked. The gentlemen nodded, one of them indicated the other with the top hand now in his hand. K. told them he had been expecting a different visitor. He went to the window and looked once more down at the dark street. Most of the windows on the other side of the street were also dark already, many of them had the curtains closed. In one of the windows on the same floor where there was a light on, two small children could be seen playing with each other inside a playpen, unable to move from where they were, reaching out for each other with their little hands. “Some ancient, unimportant actors — that’s what they’ve sent for me,” said K. to himself, and looked round once again to confirm this to himself. “They want to sort me out as cheaply as they can.” K. suddenly turned round to face the two men and asked, “What theatre do you play in?” “Theatre?” asked one of the gentlemen, turning to the other for assistance and pulling in the corners of his mouth. The other made a gesture like someone who was dumb, as if he were struggling with some organism causing him trouble. “You’re not properly prepared to answer questions,” said K. and went to fetch his hat.

As soon as they were on the stairs the gentlemen wanted to take K.’s arms, but K. said “Wait till we’re in the street, I’m not ill.” But they waited only until the front door before they took his arms in a way that K. had never experienced before. They kept their shoulders close behind his, did not turn their arms in but twisted them around the entire length of K.’s arms and took hold of his hands with a grasp that was formal, experienced and could not be resisted. K. was held stiff and upright between them, they formed now a single unit so that if any one of them had been knocked down all of them must have fallen. They formed a unit of the sort that normally can be formed only by matter that is lifeless.

Whenever they passed under a lamp K. tried to see his companions more clearly, as far as was possible when they were pressed so close together, as in the dim light of his room this had been hardly possible. “Maybe they’re tenors,” he thought as he saw their big double chins. The cleanliness of their faces disgusted him. He could see the hands that cleaned them, passing over the corners of their eyes, rubbing at their upper lips, scratching out the creases on those chins.

When K. noticed that, he stopped, which meant the others had to stop too; they were at the edge of an open square, devoid of people but decorated with flower beds. “Why did they send you, of all people!” he cried out, more a shout than a question. The two gentleman clearly knew no answer to give, they waited, their free arms hanging down, like nurses when the patient needs to rest. “I will go no further,” said K. as if to see what would happen. The gentlemen did not need to make any answer, it was enough that they did not loosen their grip on K. and tried to move him on, but K. resisted them. “I’ll soon have no need of much strength, I’ll use all of it now,” he thought. He thought of the flies that tear their legs off struggling to get free of the flypaper. “These gentleman will have some hard work to do”.

Just then, Miss Bürstner came up into the square in front of them from the steps leading from a small street at a lower level. It was not certain that it was her, although the similarity was, of course, great. But it did not matter to K. whether it was certainly her anyway, he just became suddenly aware that there was no point in his resistance. There would be nothing heroic about it if he resisted, if he now caused trouble for these gentlemen, if in defending himself he sought to enjoy his last glimmer of life. He started walking, which pleased the gentlemen and some of their pleasure conveyed itself to him. Now they permitted him to decide which direction they took, and he decided to take the direction that followed the young woman in front of them, not so much because he wanted to catch up with her, nor even because he wanted to keep her in sight for as long as possible, but only so that he would not forget the reproach she represented for him. “The only thing I can do now,” he said to himself, and his thought was confirmed by the equal length of his own steps with the steps of the two others, “the only thing I can do now is keep my common sense and do what’s needed right till the end. I always wanted to go at the world and try and do too much, and even to do it for something that was not too cheap. That was wrong of me. Should I now show them I learned nothing from facing trial for a year? Should I go out like someone stupid? Should I let anyone say, after I’m gone, that at the start of the proceedings I wanted to end them, and that now that they’ve ended I want to start them again? I don’t want anyone to say that. I’m grateful they sent these unspeaking, uncomprehending men to go with me on this journey, and that it’s been left up to me to say what’s necessary”.

Meanwhile, the young woman had turned off into a side street, but K. could do without her now and let his companions lead him. All three of them now, in complete agreement, went over a bridge in the light of the moon, the two gentlemen were willing to yield to each little movement made by K. as he moved slightly towards the edge and directed the group in that direction as a single unit. The moonlight glittered and quivered in the water, which divided itself around a small island covered in a densely-piled mass of foliage and trees and bushes. Beneath them, now invisible, there were gravel paths with comfortable benches where K. had stretched himself out on many summer’s days. “I didn’t actually want to stop here,” he said to his companions, shamed by their compliance with his wishes. Behind K.’s back one of them seemed to quietly criticise the other for the misunderstanding about stopping, and then they went on. The went on up through several streets where policemen were walking or standing here and there; some in the distance and then some very close. One of them with a bushy moustache, his hand on the grip of his sword, seemed to have some purpose in approaching the group, which was hardly unsuspicious. The two gentlemen stopped, the policeman seemed about to open his mouth, and then K. drove his group forcefully forward. Several times he looked back cautiously to see if the policeman was following; but when they had a corner between themselves and the policeman K. began to run, and the two gentlemen, despite being seriously short of breath, had to run with him.

In this way they quickly left the built up area and found themselves in the fields which, in this part of town, began almost without any transition zone. There was a quarry, empty and abandoned, near a building which was still like those in the city. Here the men stopped, perhaps because this had always been their destination or perhaps because they were too exhausted to run any further. Here they released their hold on K., who just waited in silence, and took their top hats off while they looked round the quarry and wiped the sweat off their brows with their handkerchiefs. The moonlight lay everywhere with the natural peace that is granted to no other light.

After exchanging a few courtesies about who was to carry out the next tasks — the gentlemen did not seem to have been allocated specific functions — one of them went to K. and took his coat, his waistcoat, and finally his shirt off him. K. made an involuntary shiver, at which the gentleman gave him a gentle, reassuring tap on the back. Then he carefully folded the things up as if they would still be needed, even if not in the near future. He did not want to expose K. to the chilly night air without moving though, so he took him under the arm and walked up and down with him a little way while the other gentleman looked round the quarry for a suitable place. When he had found it he made a sign and the other gentleman escorted him there. It was near the rockface, there was a stone lying there that had broken loose. The gentlemen sat K. down on the ground, leant him against the stone and settled his head down on the top of it. Despite all the effort they went to, and despite all the co-operation shown by K., his demeanour seemed very forced and hard to believe. So one of the gentlemen asked the other to grant him a short time while he put K. in position by himself, but even that did nothing to make it better. In the end they left K. in a position that was far from the best of the ones they had tried so far. Then one of the gentlemen opened his frock coat and from a sheath hanging on a belt stretched across his waistcoat he withdrew a long, thin, double-edged butcher’s knife which he held up in the light to test its sharpness. The repulsive courtesies began once again, one of them passed the knife over K. to the other, who then passed it back over K. to the first. K. now knew it would be his duty to take the knife as it passed from hand to hand above him and thrust it into himself. But he did not do it, instead he twisted his neck, which was still free, and looked around. He was not able to show his full worth, was not able to take all the work from the official bodies, he lacked the rest of the strength he needed and this final shortcoming was the fault of whoever had denied it to him. As he looked round, he saw the top floor of the building next to the quarry. He saw how a light flickered on and the two halves of a window opened out, somebody, made weak and thin by the height and the distance, leant suddenly far out from it and stretched his arms out even further. Who was that? A friend? A good person? Somebody who was taking part? Somebody who wanted to help? Was he alone? Was it everyone? Would anyone help? Were there objections that had been forgotten? There must have been some. The logic cannot be refuted, but someone who wants to live will not resist it. Where was the judge he’d never seen? Where was the high court he had never reached? He raised both hands and spread out all his fingers.

But the hands of one of the gentleman were laid on K.’s throat, while the other pushed the knife deep into his heart and twisted it there, twice. As his eyesight failed, K. saw the two gentlemen cheek by cheek, close in front of his face, watching the result. “Like a dog!” he said, it was as if the shame of it should outlive him.

The Trial can be enjoyed (if that’s the right word) in a public domain English translation here.

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1936: Arthur Gooch, the only execution under the Lindbergh Law

Add comment June 19th, 2014 Headsman

This date in 1936 marks the first and only occasion that the federal government hanged a (non-murdering) kidnapper under the Lindbergh Law.

Even before the notorious Lindbergh baby kidnapping case, the “snatch racket” of kidnappings for ransom had claimed a firm foothold among Depression-era America’s moral panics. The bill that would become known as the Lindbergh Law was actually introduced in Congress three months before little Charles Lindbergh, Jr. disappeared out the window of his New Jersey nursery. Its sponsors were Missouri lawmakers concerned that gang-ridden St. Louis was becoming a kidnapping hub, like the high-profile 1931 abduction of Dr. Isaac Kelley.*

The theory behind the bill — and this was particularly relevant to St. Louis, a border port right across from Illinois and accessible via the Mississippi River to the whole Midwest — was that kidnappers could more easily ply their nefarious trade by carrying their hostages over a convenient border and exploiting the respective states’ inability to coordinate with one another. By elevating interstate kidnapping to a federal felony, the idea was to put manhunts into the hands of the FBI, whose jurisdiction was the entire United States.

The Lindbergh case provided just the right impetus for Congress to advance into law a bill that might otherwise have died quietly in committee. There’s just something to be said for being the one with a plan at the right time … even though the Lindbergh baby was found dead four miles away from the house he was plucked out of, and probably never crossed a state line himself.

At any rate, the Lindbergh Law also made kidnapping alone a capital crime, even if the abductee was not harmed. And it is for this that Arthur Gooch ascended into barstool trivia.

Gooch’s life and case are the focus of this 125-page Master’s thesis (pdf), but the long and short of it is that Gooch and a buddy named Ambrose Nix were on the lam after busting out of the Holdenville, Okla., jail, and ended up heading south to Texas.

They committed a robbery in Tyler, Texas on November 25, 1934. The next day, while stopped with a flat at a service station in Paris, Texas — close by the Texas-Oklahoma border — two policemen approached the suspicious vehicle. In the ensuing struggle, Nix managed to pull a gun on everyone and force the subdued cops into the back of their own patrol car, which the fugitives then requisitioned to high-tail it over the Oklahoma border. There they released their captives unharmed. There had never been a ransom attempt.

A month later, Gooch was arrested in Oklahoma — while Nix died in the shootout, leaving his partner alone to face the music.

Arthur Gooch was a career criminal, and the fact that he violated the Lindbergh Law was easy to see, but his crime also wasn’t exactly the scenario that legislation’s drafters had foremost in mind. In fact, Gooch also underscores one of the oft-unseen dimensions of the death penalty in practice: the discretionary power of prosecutors and judges at the intake end of the whole process.

Gooch attempted to plead guilty to his charge sheet, but his judge, former Oklahoma governor Robert Lee Williams, refused to accept it. Williams was explicit that his reason was that the Lindbergh Law’s language required a jury verdict to impose a death sentence.

By contrast, in October of 1934 — a month before the legally fateful confrontation at the Paris service station — a black farmhand named Claude Neal suspected of the rape-murder of a white girl was dragged out of protective custody in Alabama and taken across the adjacent Florida state line, where an angry mob lynched him. Despite the urging of the NAACP, FDR’s Attorney General Homer Stille Cummings completely refused to interpret Neal’s abduction as a Lindbergh Law kidnapping. The two cases even turned on the same phrase of the Lindbergh statute: interstate kidnapping “for ransom or otherwise.” While Cummings decided pre-emptively that “or otherwise” didn’t cover lynch law, one of his U.S. attorneys would go to the Supreme Court in January 1936 to argue for a broad interpretation of that phrase in the context of Gooch’s appeal.

But even without a comparison to Claude Neal’s murder, the justice of executing Arthur Gooch was hotly disputed by a vigorous clemency campaign. The chance intercession of a state line had elevated a small-time crime committed further to avoiding arrest into a capital offense, basically on a technicality. “It would be a rotten shame to hang that boy when a short jail term is his desert,” one Oklahoma City society woman argued to the Jeffersonian Club. “Gooch was given an application of the poor man’s law.” It seems clear that for Judge Williams as for President Roosevelt (who denied Gooch’s clemency appeal) the result was heavily influenced by the political exigencies of pushing a tough-on-crime standard, and by Gooch’s previous history as a crook. (He’d broken out of jail in the first place because he was a member of a group of local hoods in Okmulgee that committed several armed robberies.)

Gooch was philosophical at the end. “It’s kind of funny — dying,” he mused. “I think I know what it will be like. I’ll be standing there, and all of a sudden everything will be black, then there’ll be a light again. There’s got to be a light again — there’s got to be.” We can’t speak to what Gooch saw after everything went black, but it definitely wasn’t “all of a sudden”: Oklahoma’s executioner, Richard Earnest Owen, was an old hand with his state’s electric chair, but the federal execution method was hanging, which Owen had never before performed (and never would again). Gooch took 15 minutes to strangle at the end of the rope.

Arthur Gooch on the gallows

* The Kelley kidnapping, unsolved for several years, eventually traced to the strange character Nellie Muench. Readers (at least stateside ones) who follow that trailhead should be sure to keep an eye out for the cameo appearance of Missouri judge Rush Limbaugh, Sr. — grandfather of the present-day talk radio blowhard.

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2003: Scott Hain, the last juvenile offender executed in the United States

7 comments April 3rd, 2014 Headsman

On this date in 2003, the state of Oklahoma executed Scott Hain for a Tulsa carjacking that netted $565 and two dead bodies.

The Hain that was strapped down on the gurney that evening was a 32-year-old with a nebbishy middle manager look, high forehead pursuing his hairline to the scalp’s horizon where it had drawn up a wilting rearguard picket fringing an egg-bald pate.

But back in 1987 when he stuffed Laura Lee Sanders and Michael Houghton into the boot of their own car and set it ablaze, Scott Hain was 17 years, 4 months, and 4 days of age.

American jurisprudence through the ages has regularly compassed the execution of minors, sometimes astonishingly young ones. But come the late 20th century the still-ongoing execution of a few men (they were all men) for crimes they had committed when still only boys was a deeply contentious subplot of the death penalty drama.

Because of the protracted judicial processes, there was no longer any question at this point of boosting wispy teenagers into electric chairs as South Carolina had done in 1944. The Scott Hains of the world were grown men by the time they died: grown up on death row.

They were, to be sure, nearly men when they killed as well.

The prevailing jurisprudence at this point was the 1989 Supreme Court decision Stanford v. Kentucky, which set the minimum age for death penalty eligibility at 16.*

And so 17- and even sometimes 16-year-old offenders not considered equal to adult responsibility** in most other spheres of life continued to face the executioner through the 1990s and into the 21st century, a period when the death penalty itself picked up steam.

This became an increasingly awkward situation. For one thing, it placed the United States internationally among a very small handful of countries with unsavory human rights records. Maybe it was a matter of the raw numbers; on the day Stanford came down, the United States had executed only 114 people in its “modern” era, and just three of them were juvenile offenders. For the 1990s, there would be an average of 48 executions every single year, and (again on average) one of those would be a juvenile offender.

But even as the numbers grew, only 20 of the 38 death penalty states permitted such executions, and only three states — Virginia, Texas, and Hain’s Oklahoma — actually conducted any such executions at all after 1993.

Foes argued over those years that the diminishing scope of the juvenile death penalty reflected an emerging national consensus against it — which could in turn be held to create a constitutional prohibition under the 8th Amendment’s proscription of “cruel and unusual punishment.”

Most of the death-sentenced juveniles made similar arguments in the course of their appeals, hoping to be the case that would catch the conscience of the court. Hain’s appellate team made this argument, too. It didn’t take, like it didn’t for any of the others who tried it.

Except, it was taking. Those evolving standards of decency were about to evolve right past a tipping point: in 2004, the justices accepted a new case from Missouri that placed the juvenile death penalty question before it once more.

The nine-member high court’s inconstant swing vote Anthony Kennedy — who had once upon a time (call it a youthful indiscretion) voted with the majority in Stanford to permit juvenile executions — wrote the resulting 2005 decision Roper v. Simmons, barring the execution of juvenile offenders in the United States.†

Scott Hain remains the last person executed in the United States for a crime committed in his childhood.

* The bright-line court ruling was necessary because states had indeed death-sentenced even younger teenagers. For example, Paula Cooper was condemned to death by an Indiana jury for a murder committed at age 15; her sentence was commuted to a prison term, and she was eventually released in 2013. The victim’s grandson, Bill Pelke, notably supported Cooper and has become a leading anti-death penalty activist in the intervening years.

** The notion of age 18 as the age of majority predominates worldwide, but is of course as arbitrary as any other, and has not been the threshold selected in all times and places. The Austrian empire declined to execute Gavrilo Princip for assassinating Archduke Ferdinand in 1914 and precipitating World War I because it could not establish that he had reached the age of 20 when he did so.

† Among the notable cases affected was that of Lee Boyd Malvo, the underaged collaborator of Beltway sniper John Muhammad. Malvo was being considered for capital charges in Virginia at the time Roper came down.

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1253: P. Morret, poor guesser

Add comment January 29th, 2014 Headsman

Henry Charles Lea‘s A History of the Inquisition of the Middle Ages brings us the following anecdote of the Kafkaesque legal trap in which those denounced to the Inquisition found themselves.

In reality no advocate could be of material service to the accused, save in the most exceptional cases. The men who organized the Holy Office knew too well what they wanted to leave open any possibilities of which even the shrewdest advocate could take advantage, and it was admitted on all hands as a recognized fact that there was no method of defence save disabling the witnesses for the prosecution. It has been seen that enmity was the only source of disability in a witness, and this had to be mortal — there must have been bloodshed between the parties, or other cause sufficient to induce one to seek the life of the other. If, therefore, the case rested on witnesses of this kind, their testimony had to be rejected and the prosecution fell. As this was the only possible mode of escape, the cruelty of withholding from the prisoner the names of the adverse witnesses becomes doubly conspicuous. He was forced to grope around in the dark and blindly name such persons as he imagined might have a hand in his misfortunes. If he failed to hit upon any who appeared in the case, the evidence against him was conclusive, as far as it went. If he chanced to name some of the witnesses, he was interrogated as to the causes of enmity; the inquisitor examined into the facts of the alleged quarrel, and decided as he saw fit as to the retention or the rejection of their testimony. Conscientious jurists like Gui Foucoix and inquisitors like Eymerich warned their brethren that as the accused had so slender a chance of guessing the sources of evidence, the judge ought to investigate for himself and discard any that seemed to be the product of malice; but there were others who sought rather to deprive the poor wretch of every straw that might postpone his sinking. One device was to ask him, as though casually, at the end of his examination, whether he had any enemies who would so disregard the fear of God as to accuse him falsely, and if, thus taken unawares, he replied in the negative, he debarred himself from any subsequent defence; or the most damaging witness would be selected and the prisoner be asked if he knew him, when a denial would estop him from claiming enmity. It is easy to imagine other tricks by which shrewd and experienced inquisitors could save themselves the trouble of admitting the accused to even the nugatory form of defence to which alone he was entitled. As to allowing him to call witnesses in his favor, except to prove enmity of the accusers, it was never thought of in ordinary cases. By a legal fiction, the inquisitor was supposed to look at both sides of the case, and to take care of the defence as well as of the prosecution. If the accused failed to guess the names of enemies among the witnesses and to disable their testimony, he was condemned.

In England, under the barbarous custom of the peine forte et dure, a prisoner who refused to plead either guilty or not guilty was pressed to death, because the trial could not go on without either confession or defence. Cruel as was this expedient, it was the outcome of a manly sense of justice, which based its procedure on the rule that the worst felon should have a fair opportunity to prove his innocence. Far worse was the system of the Inquisition, which was equally resolved that its culprits should have no such easy method of escape as a refusal to plead. It had no scruples as to proceeding in such cases, and the obstinacy of the accused only simplified matters. The refusal was an act of contumacy, equivalent to disobeying a summons to appear, or it was held to be tantamount to a confession, and the obdurate prisoner was forthwith handed over to the secular arm as an impenitent heretic, fit only for the stake. The use of torture, however, rendered such cases rare.

The enviable simplicity which the inquisitorial process thus assumed in the absence of counsel and of all practical opportunities for defence can perhaps best be illustrated by one or two cases. Thus in the Inquisition of Carcassonne, June 19, 1252, P. Morret is called up and asked if he wishes to defend himself against the matters found in the instructio or indictment against him. He has nothing to allege except that he has enemies, of whom he names five. Apparently he did not happen to guess any of the witnesses, for the case proceeded by reading the evidence to him, after which he is again asked thrice if he has anything further to say. To this he replies in the negative, and the case ends by assigning January 29 for the rendering of sentence. Two years later, in 1254, at Carcassonne, a certain Bernard Pons was more lucky, for he happened to guess aright in naming his wife as an inimical witness, and we have the proceedings of the inquest held to determine whether the enmity was mortal. Three witnesses are examined, all of whom swear that she is a woman of loose character; one deposes that she had been taken in adultery by her husband; another that he had beaten her for it, and the third that he had recently heard her say that she wished her husband dead that she might marry a certain Pug Oler, and that she would willingly become a leper if that would bring it about. This would certainly seem sufficient, but Pons appears nevertheless not to have escaped. So thoroughly hopeless, indeed, was the prospect of any effort at defence, that it frequently was not even attempted, and the accused, like Arnaud Fabri at Carcassonne, August 26, 1252, when asked if he wished a copy of the evidence against him, would despairingly decline it. It was a customary formula in a sentence to state that the convict had been offered opportunity for defence and had not availed himself of it, showing how frequently this was the case.

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