WASHINGTON -- The 2008 killing of a prison guard in Atwater, Calif., has prompted the latest challenge to the federal death penalty as cruel and unusual punishment.
The sweeping new legal challenge seems like a long shot, especially with a conservative majority controlling the U.S. Supreme Court. The challenge, though, elevates the slaying of correctional officer Jose Rivera by two intoxicated prisoners into the realm of constitutional conflict, a place where justices often struggle.
“There’s some value to alerting the judge to these constitutional issues,” Richard C. Dieter, the executive director of the Death Penalty Information Center, said in an interview. “These broaden things, and get the court thinking about these other issues.”
Besides, Dieter added, “you never know what’s going to stick.”
In at least two prior cases since 2002, federal trial-level judges have found the death penalty to be unconstitutional. One, New York-based U.S. District Judge Jed Rakoff, reasoned that the possibility that an innocent inmate could be executed made the death penalty “tantamount to state-sponsored murder.” In Rakoff’s decision and another one, from a Vermont-based judge, appellate courts later reversed the trial-level judges.
Separately, the Supreme Court continues to confront lingering death-penalty questions, including an upcoming challenge by a Georgia inmate who’s contesting the state’s standard for proving mental retardation.
“These motions are worth making,” Dieter said, “because you don’t know how the judge is going to rule.”
On Monday, defense attorneys for Joseph Cabrera Sablan asked a U.S. District Court judge to declare the federal death penalty in violation of the Eighth Amendment. Sablan and fellow inmate James Ninete Leon Guerrero are charged with first-degree murder in correctional officer Jose Rivera’s death.
Sablan and Leon Guerrero have pleaded not guilty, though it’s really the potential punishment rather than the underlying crime they’re contesting.
“Persons convicted of the premeditated murders of (more than) 100 victims have received sentences less than death; contract killers with double-digit numbers of victims have received sentences less than death,” Sablan’s defense attorneys wrote. “To impose death in this case of an unpremeditated killing of a single man by two drunken inmates is arbitrary and capricious.”
The defense attorneys acknowledge in their Sept. 9 legal filing that “Sablan suddenly stabbed Officer Rivera with the approximately 9-inch long, ice pick-shaped shank while Officer Rivera was locking Mr. Leon Guerrero in his cell.” Though Sablan stabbed Rivera “approximately 27 times,” the defense attorneys wrote, they say that Sablan “did not intend to kill him and has repeatedly expressed his remorse and regret for having done so.”
Videotape from U.S. Penitentiary Atwater shows the three-minute-long incident on June 20, 2008, which reportedly included the two inmates chasing the guard and Leon Guerrero holding down Rivera while Sablan stabbed the 22-year-old Navy veteran.
The case has since been entangled in extensive legal wrangling, with some of the key questions still unresolved. Defense attorneys have asked that U.S. District Judge Philip Pro try Sablan and Leon Guerrero separately. The attorneys also want a change of venue, to avoid possibly tainted juries, and they’re arguing that Leon Guerrero’s limited mental capacity renders him ineligible for the death penalty. In a 6-3 decision, the U.S. Supreme Court in 2002 banned the execution of mentally retarded inmates.
The motion filed Monday cites newly compiled statistics as evidence that the federal death penalty is applied arbitrarily and capriciously.
Justice Department figures show that 4,624 federal homicide defendants were prosecuted from 1995 to 2006. Of these, capital prosecutions were authorized for 331 defendants. Forty-seven were sentenced to death, and three have been executed.
“There simply is no penologically legitimate reason why the United States selects some for capital prosecution . . . while never even considering the majority of cases in which federal capital crimes were committed,” Sablan’s defense attorneys wrote.
The U.S. attorney general must sign off on any effort by federal prosecutors to seek the death penalty, following a review by Justice Department headquarters. The first death-penalty certifications made by Attorney General Eric Holder were for the prosecutions of Sablan and Leon Guerrero.
“Sablan committed the offense in an especially heinous, cruel or depraved manner,” federal prosecutors asserted in a legal filing earlier this year, further stressing that “capital punishment has an essential function as an expression of society’s moral outrage at particularly offensive conduct.”
As of June, 25 federal death-penalty cases were in court or awaiting trial, according to the Federal Death Penalty Resource Center Project, which advises federal public defenders and others.
The U.S. Supreme Court, meanwhile, continues to revisit the rules that govern the state-level death penalty.
On Sept. 30, justices are scheduled to review a petition from a Georgia death row inmate who murdered his girlfriend and then, later, a fellow prisoner. The inmate, Warren Lee Hill, has an IQ that’s been variously scored as 70 or 77, and he’s challenging Georgia’s uniquely strict requirement that defendants prove their mental retardation “beyond a reasonable doubt” in order to avoid execution.
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