Dylann Roof and the Laws of Physics
Aug. 3, 2015 (Mimesis Law) — In Sweden, Maj Sjöwall and Per Wahlöö had a character say in one of their Martin Beck police procedurals, “all things are either required or forbidden.” Regardless of the accuracy of the underlying description of Swedish society, it was something of an exaggeration. Still, it wasn’t hard to see that a sufficiently rigid dictatorship could almost work that way.
In the United States, the Supreme Court has told us, in defiance of the laws of physics, that all things that are not constitutionally prohibited can in fact (not in theory, in fact) be done. It is, the court says, a logical necessity. A tautology.
If something is “constitutional,” Chief Justice Balls and Strikes Roberts wrote for a plurality in Baze v. Rees, and Sam Alito cited as binding for a majority in Glossip v. Gross, “It necessarily follows that there must be a means of carrying it out.”
Their subject was executions. Their claim was about technology. Executions are constitutionally permitted. Therefore the technology must exist to execute people. Now, if you’ve been wanting to visit the 13th Century, this is good news. It’s constitutional for you to do that, therefore it’s technologically possible. So say the berobed ones in our nation’s capital.
All that is essentially an aside to what happened the other day in a federal court in South Carolina. It was Dylann Roof’s arraignment on those federal hate-crime and related charges that could, if Loretta Lynch wants them to, become capital charges. Arraignment is when the defendant pleads not guilty. Except when it isn’t.
David Bruck, a soft-spoken and gentle-mannered, but hard-nosed (enough with the compound adjectives, Gamso) defense counsel.
Mr. Roof has told us he would like to plead guilty.
Which would tend to cut short a whole lot of opportunities for government grandstanding, though there’d still be plenty of chances. Turns out, though, Bruck added a very substantial caveat.
Until we know whether the government is seeking a death penalty, we will not be able to enter a plea of guilty at this time.
Which, as you’ll recall from the top of this post, is something the government absolutely can enforce. Even though it doesn’t actually have the drugs to do it. Because the Supremes said that it can even though it can’t.
Okay, that doesn’t really matter. However enthusiastic General Lynch may prove to be about the prospect of offing Dylann Roof – and whether he ultimately wants to help them in the task (his desire to plead guilty indicates nothing about his eagerness for a death sentence) – it would be years before the feds could execute him. And that assumes that South Carolina wouldn’t get there first, though there too the person who gets to decide whether to go after a death sentence claims to be undecided.
But let’s go back to the Supremes for a moment, because parsing their absurd claim about the laws of nature and technology (whatever is not prohibited can be done), especially within the context of Dylann Roof’s present inclination to plead guilty (he can change his mind), points to what is certainly true: If Dylann Roof is found guilty of the crimes with which he’s charged, he’ll die in prison.
He faces, ultimately, two sentences. Both are life in prison. The difference, the sole difference, is how and when that life is supposed to end. Should he be sentenced to die, then his death is to be scheduled and effected by some means of execution. That is, he would be killed by government (state or federal) employees. Until the moment of his death, he’ll remain a prisoner. Hence, it’s a sentence of life in prison plus being murdered.
Should he not be sentenced to death, then he’ll simply stay in prison until he happens to die. The sentence might last longer, though it might not. And, in fact, more than a few people sentenced to life plus being murdered have in fact died before the government could perform the killing.
And that brings us back to David Bruck. Who, in the peculiar world of capital litigation, hopes to win the case by getting his client locked up for the rest of his life. Andrew Knapp in the Post and Courier.
Before Friday’s arraignment, the victims’ family members and some survivors gathered in an area of the courthouse away from the media waiting outside the courtroom. They heard from U.S. Attorney Bill Nettles, the chief federal prosecutor for South Carolina, and from Bruck, the renowned death penalty lawyer appointed to defend Roof in federal court.
Bruck’s purpose is not to contest the charges, he told the families, but to seek a lifetime of imprisonment for Roof.
Lock my client up, David Bruck is saying. Deny him sunshine. Ensure he’ll never be free. Punish the hell out of him. Death in prison without murder.
In the peculiar world of capital defense, that’s a win.
And it helps preserve the Constitution from an active conflict with the space-time continuum.