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September 13, 2011

Information on (your hypothetical client) Ted Kaczynski and Ohio DP law

To give you a focus for examining modern death penalty statutes, the casebook encourages thinking about how you might help represent Ted Kaczynski if he were to be prosecuted under the applicable death penalty statutes in Texas and Florida.  Though not in the text, you should also consider how you think Ted might fare under Ohio's death penalty statute and its distinct specification of aggravating and mitigating circumstances.  (Ignore for purposes of this exercise that these states would not likely have jurisdiction.)

For a lot more information about "your client," here is a massive Wikipedia entry on Ted Kaczynski.  That entry has (too) many great links, though I would especially encourage checking out this short article toward the end of this link entitled "The Death Penalty Up Close and Personal" by David Kaczynski (Ted's brother).  Also worth a read is this 1999 article from Time magazine by Stephen Dubner.

Though I have given this sort of assignment to prior classes, I must note that this "case" has a disturbing new element.  As detailed in this press report from July 2011, "Anders Behring Breivik, the suspect in Norway's twin attacks that killed at least 93 people, appeared to plagiarise large chunks of his manifesto from the writings of Theodore Kaczynski."  Here is more:

The 32 year-old appears to have quoted verbatim large sections from the preaching of Theodore Kaczynski in his 1500 page online rant.  Breivik had “copied and pasted” almost a dozen key passages from the 69 year-old’s 35,000 manifesto, only changing particular words such as “leftist” with “cultural Marxist”.

It remains unclear what his motivations were, but experts said it appeared he had taken “inspiration” from Kaczynski whose two decade parcel-bomb terror campaign killed three people and 29 injured others. 

Despite meticulous university thesis-style referencing through the manifesto, Norwegian bloggers discovered that passages quoting Kaczynski were not credited....  It was published on the internet just hours before he killed at least 93 people and wounded nearly 100 more in twin attacks in Norway.

Ragnhild Bjørnebek, a researcher on violence for the Norwegian Police Academy, described the disclosures as “very interesting” and showed startling similarities between the two terrorists.  “The Unabomber was very intelligent and who was also a person that was very difficult to detect,” she told Norwegian media.

September 13, 2011 in Aggravators and mitigators, Class activities, Who decides | Permalink


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Not directly related to the issue presented, but this seemed like a timely article: http://www.huffingtonpost.com/2011/09/14/rick-perrys-controversial-execution_n_962660.html

Posted by: Heather W | Sep 14, 2011 6:43:18 PM

I guess Heather and I are on the same wave-length, because I saw an article about Perry's 10th execution of the year, and first of four to occur in the next two weeks and wanted to share it:

Posted by: Allison S. | Sep 15, 2011 12:00:00 AM

I give you The Daily Show's second installment of "Oh my God, Rick Perry is Going to be Our Next President", which includes the death penalty question from the GOP debate at the Reagan: library http://www.thedailyshow.com/watch/thu-september-8-2011/oh-my-god--rick-perry-is-going-to-be-our-next-president---second-installment

On the actual question of how I would argue for mitigating factors under Ohio's death penalty statute, I think an important factor would be the experiment Kaczynski underwent while an undergrad at Harvard. The way it was described on the wikipedia page it resemble something approaching torture. The fact that this was undergone when he was still a teenager and already showed signs of social awkwardness and isolation is all the more disturbing. But while I personally believe this to be an important mitigation factor because it seemed to foment much of his later antagonism towards the "technological" world, there is no clean place under the Ohio statute to argue such a traumatic (I would say childhood) experience except the generic B(7) catchall.

I understand there is probably a good slippery slope argument to be made that allowing childhood experiences, whether they be abuse, acute poverty, or other things that stunt development would mean we are removing a level of adult accountability from the process. It just that I guy with anti-social tendencies who is subjected to a form of psychological torture that inflames those tendencies presents a classic example of mitigating factors (notwithstanding the horrid nature of his crimes.

Posted by: Kevin S | Sep 15, 2011 2:12:06 PM

Kevin raises some good points. The thing that would really trouble me as TK's lawyer in Ohio is the fact that (at least based on what I read in the articles linked here) my client would likely resist any attempt to mitigate based on psychological issues.

One issue that might be good here under B(7) is a policy argument related to the fact that TK's brother turned him in to authorities. I would argue that it would be bad policy to sentence a man to death after a family member turned him in - such a sentence might deter family members from approaching authorities, even if they were 100% sure that a loved one had committed an awful crime. The Wiki entry notes that TK's brother was "horrified" to think his decision to talk to police would result in Ted's death. I think most family members would feel the same.

Posted by: Elbert A | Sep 16, 2011 8:43:41 AM

After reviewing R.C. 2929.04, I am not convinced that there is a strong argument for any mitigating factors under Ohio law that would abate the sentence imposed: Ohio's death penalty on Kaczynski. I disagree with Kevin that B(7) could be used to support the psychological experimentation conducted on Kaczynski while at Harvard. I doubt anyone else who underwent that experimentation killed someone, and it would open the door to calculated murderers who were subject to any sort of less-than-traumatic event to mitigate their sentences. (As noted, I do not even consider his experience to be traumatic to the point of psychological torture, but I might just be a cynic.) The possible lingering psychological "effects" could be basis for maybe (and that is a strong maybe) an insanity defense, but he rejected that firmly.

In addition, I would also disagree with Elbert's post about policy, because I cannot fathom that even a lay person would not consider that a family member who sent bombs to various people and caused the death of 3 of those people could not possibly be subjected to the death penalty. If my brother committed murder, I would automatically assume that my act of turning him in to the authorities would likely be sentencing him to death.

I just do not think he has a leg to stand on in the state of Ohio.

Posted by: Crystal M | Sep 16, 2011 10:51:58 PM

I agree that any layperson would know that turning a family member in for an awful killing/string of killings might subject them to the death penalty.

I would argue that being fully aware that my family member might face the death penalty is the problem – knowing that turning my family member in might subject them to a death sentence might deter me from turning them in at all.

I don't want people thinking twice about talking to police about the TK's of the world.

Posted by: Elbert A | Sep 17, 2011 2:44:57 PM

I think that Elbert makes an excellent point about people turning in family members. Imposing the death penalty in such a situation would likely deter this type of action in the future. But further, if states agree with Elbert, refusing to execute criminals in such situations could actually ENCOURAGE family members to turn in relatives. In such a situation, failing to turn in your brother could result in his execution if the police catch him on their own, and it could also result in the deaths of more innocent people in the meantime. So under this policy one would actually have an incentive to turn in a family member before the police got to him, because doing so could save his life (this, of course, assumes that most family members wouldn't want their relatives to be executed).

Such a policy would obviously result in some disparity, but if it could save innocent lives (by getting "the TKs of the world" off the street - or out of their cabins) it might be worth pursuing.

Posted by: Joseph Thompson | Sep 21, 2011 6:04:17 PM

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