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September 21, 2011

Terry Nichols and a few other modern mass murderers who escaped death sentences

Sorry to have played an (evil?) game of guess the murderer at the end of class yesterday, but I think the story of Terry Nichols encounters with both the federal and Oklahoma capital punishment system provides a useful reminder that some (many?) high-profile US mass murderers can escape a death sentence in various ways.  Via his Wikipedia entry, here are the basics of Terry Nichols' crime and how he managed avoid a death sentence:

In 1994 and 1995, [Terry Nichols] conspired with [Tim] McVeigh in the planning and preparation of the Oklahoma City bombing -- the truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma on April 19, 1995 which claimed the lives of 168 people including 19 children.

After a federal trial in 1997, Nichols was convicted of conspiracy to use a weapon of mass destruction and eight counts of involuntary manslaughter for killing federal law enforcement personnel.  He was sentenced to life imprisonment without the possibility of parole because the jury deadlocked on the death penalty.  He was also tried in Oklahoma on state charges of murder in connection with the bombing, and was convicted in 2004 of 161 counts of first degree murder, which included one count of fetal homicide, first degree arson, and conspiracy.  As in the federal trial, the state jury deadlocked on imposing the death penalty.  He was sentenced to 161 consecutive life terms without the possibility of parole, and is incarcerated in ADX Florence, a super maximum security prison in Florence, Colorado. He shares a cellblock that is commonly referred to as "Bombers Row" with Ramzi Yousef and Ted Kaczynski.

As I mentioned in class, Jeffrey Dahmer (who killed at least 17 people in Wisconsin) and Dennis Raeder(the BTK Killer, who killed at least 10 people in Kansas) and Joel Rifkin (who kiled at least 17 people in New York) and David Berkowitz (the Son of Sam, who killed at least 6 people in New York) are just some examples of some infamous modern serial killers who escaped a death sentence because they committed mass murder in states without the death penalty at the time of their crimes.

In addition, some other modern mass murderers like Gary Ridgway (the Green River Killer who killed at least 49 people in Washington) and Charles Cullen (who killed at least 29 people in New Jersey and Pennsylvania) and Ronald Dominique (who killed at least 23 people in Louisiana) are just some examples of some infamous modern serial killers who escaped a death sentence because, after committig mass murder, they were able to cut plea deals with state prosecutors in order to take the death penalty off the table.

Does this kind of information make you more sympathetic (or less sympathetic) to claims of unconstitutional or just unfair sentencing disparity often made on behalf of folks who are sentenced to death in many states for only one murder (like Warren McClesky and Troy Davis)?

In light of this information, might you support a new federal death penalty law that defined the murder of,say, five or more people over an extended period of time to be a form of terrorism and thereby readily subjecting all of these sorts of serial killers to possible federal capital prosecution if/when state authorities are unable or unwilling to seek a death sentence for a mass murderer? 

September 21, 2011 in Death eligible offenses, Death penalty history, Who decides | Permalink


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These statistics make me even more leery about the system than the previous blog post solely about Troy Davis. I knew that there were murderers who were not sentenced to death, but to see some of the stats compiled into one place is staggering. For me, the fact that prosecutors of serial killers and mass murderers are unwilling to even seek the death penalty (and at the very least leave sentencing for the jurors to decide) is surprising. Under the notion that eliminating the death penalty is not an option, I would support a federal death penalty law mandating that the death penalty be at least presented as a sentencing option (not a definite) for all defendants who have murdered multiple people. Not only should all murderers deserve a fair trial, but they should all have the "same" trial. Juries and judges can filter out the differences between different fact patterns and sentence accordingly, but biased attorneys should not cut pleas for these murderers.

Although, I will note the other side of the argument that significant information may be obtained from murderers through the bargaining tool of plea agreements. Such information can include location of past victims, recent victims that have not been identified, etc. However, I am just not sold when so many victims have been harmed and such disparate effects are caused by these unfair sentencing practices.

Posted by: Crystal M | Sep 21, 2011 10:39:16 PM

I absolutely support a Federal capital-murder/terrorism charge for those that kill five or more people. Although there is probably a federalism issue here.

- I think that such a statute would lead to a more equitable application of the death penalty in states that have the sentence, because the current application increases the likelihood that innocent people may be executed presuming that guilty offenders plead to save their lives.
- As for states that do not have the death penalty, my guess (gut feeling, based largely on my own opinion about using the death penalty on these offenders) is that States without the death penalty won't be too upset at the Federal Government executing Dahmer, Nichols, Ridgeway, et al.

Posted by: JT | Sep 22, 2011 10:30:09 AM

I wonder a couple of things about the serial killer issue.

1. Is Dahmer the most famous OSU alum (non-sports division)? For me he's up there with Richard Lewis and RL Stein. Though I love Lewis on Curb I think it has to be Dahmer.

2. Are serial killers less frequently getting death because they are smarter than the average killer? - You don't get away with a series of murders over a long period of time without being pretty intelligent (at least that's my factual assumption). Maybe these guys are as cold and calculating in taking the plea as they are in performing those heinous murders, and maybe they are better equipped to present effective anti-death defenses if they do take it to trial.

3. An empirical issue, but are serial killers more likely to try and succeed on the insanity defense? I think back to the recent case of the I-270 sniper in Columbus who plead to involuntary manslaughter after a hung jury (http://moritzlaw.osu.edu/news/newsrel.php?ID=243) and he was found to be mentally ill. Sidenote: I drove that freeway to school daily, and was gunning it to 88, the cops were not pulling ANYBODY over.

As for the new statute, I'm not for it. If the states want to get innovative and go for mass-murderer statutes then cool, but I'm guessing they haven't done it because they think the current system is effective. I agree with JT that there are probably federalism problems unless the crimes involve federal property, etc.

Posted by: Colin P | Sep 22, 2011 10:56:23 AM

I wonder if Dahmer was the inspiration for 'Goosebumps'....

I would support a terrorism charge for the murder of five or more people, as anything that disrupts the security of an area, to me, constitutes an act of terrorism. I think that because many of them are mentally unstable -- often antisocial personality disorder (http://people.howstuffworks.com/serial-killer4.htm) -- and lack remorse. Because of their total disregard for the value of others' lives, I am of the opinion that they should be treated similarly. Also, unlike other criminals who could potentially be rehabilitated by time spend in programs, etc., in prison, the sociopaths are likely unfixable.

Posted by: Heather W | Sep 22, 2011 11:56:14 AM

I agree with Heather and would even say that the insane can often pose the biggest threat to the safety of society and should therefore also be subject to the charge.

I'm not sure it should really be so much of a numbers analysis (which people killed how many people) as much as a decision about who is so dangerous that they should be kept away from society. For example, McCleskey was convicted for only one murder, committed during a robbery, and I don't think it makes sense for police officers to be in a special category such that McCleskey received the death penalty (probably) for killing (one) cop. I think their lives are no more valuable than anyone else's (e.g., a teacher's or a prostitute's). In other words, are such convicts really a bigger threat than other murderers? In contrast, the people who cannot control their murderous behavior are the ones who should receive the death penalty (assuming the system worked better and it didn't cost more to put people on death row than to imprison them for life).

Posted by: Shawna | Sep 22, 2011 1:09:45 PM

Mr Dahmer, though he attended Ohio State, never graduated. So can't call him an alum.

I do think Colin's point as to what types of people become serial killers and whether that has an effect on their ability to navigate the legal system after being caught is fascinating. It encompasses both my concern about strategic pleading and trying to ensure the inherent system tilts are increasing the chances of an innocent person being executed (given the benefit of pleading guilty versus continuing to profess innocence until the end). Serial killers know they have bargaining leverage as to unsolved murders.

As to the the "terrorism" provision, I would not support it because I think the further we narrow the circumstances under which a death penalty can be leveled the less likely it is to be completely abolished. Because I am against the death penalty on normative grounds (See eg,http://bigthink.com/ideas/40312) I don't want society to feel more comfortable that we are only executing the worst of the worst.

Posted by: Kevin S | Sep 22, 2011 1:36:05 PM

I think it is very unfortunate that these people escaped the death penalty while others such as Troy Davis have had to endure death, however, I would still not be in favor of such a law. Despite the law seeming fair in that those that kill multiple people should be subject to the death penalty it still runs the risk of being applied unfairly. Until we can erase implicit bias out of the minds of humans the death penalty can not be applied fairly and therefore should not be applied at all.

Posted by: Carmen Smith | Sep 22, 2011 2:27:52 PM

Interesting ultimatum: http://www.nbcmiami.com/news/weird/Church-or-Jail-Alabama-Judge-Gives-Criminals-Choice-130444648.html

Posted by: Heather W | Sep 23, 2011 11:28:43 PM

Although I noticed that there exists a federalism issue for the federal government to impose a mandatory sentencing practice on states, you (Prof. Berman) posed the question from an opinionated perspective: "Might you support a new federal death penalty law?"... and my answer is still, "Yes, if there is no option to stop the practice altogether."

Posted by: Crystal M | Sep 26, 2011 10:06:30 AM

I'm not sure I'd support that law, because I am not convinced it cuts at why there is a discrepancy in the sentencing of a Davis vs. that of a Nichols.

Heather: there's room for research on the question of Stine's inspiration. His Wikipedia article asks for more on "inspiration and themes:" http://en.wikipedia.org/wiki/Goosebumps

Posted by: Jennifer H | Sep 26, 2011 10:55:22 AM

I can understand and appreciate the notion that perhaps a new federal death penalty law would help alleviate unfair sentencing disparity, but I think it would only be a temporary solution to the underlying problem. The problem we see with cases mentioned in connection to this post is that they did not just kill five people, but they killed more around the ballpark of dozens and dozens of people. In essence, we’re talking about the worst of the worst, modern, serial killers. While some people have no doubt these individuals should be put to death, as we have seen, they’re no guarantee that any one defendant would actually be sentenced to it. The reason — a serial killer’s fate is in the hands of the jury. Just look at Nichols’s case. He was put before a federal jury, and even after killing 168 people, the jury was still not able to come to a decisive verdict as to the death penalty. The fact that it deadlocked is the only reason why Nichols is still alive and most likely wearing an orange jumpsuit. So it was not the fact that Nichols, nor anyone else in a similar position, wasn’t imposed to the federal court system, but rather the randomness(?) of the jury composition itself. It was the jury, and the jury alone, that chose not to impose the death sentence and this, in my opinion, is this underlying concern that should be addressed more thoroughly. We can only do so much to alleviate the disparity in the system, but as we can see, even when one level of disparity is lessened, another one arises. The fear with the latter, however, is that it may be a disparity that we will never be able to curb or control, as juries will most likely never be without our grasps.

Posted by: Isabella | Sep 26, 2011 11:13:41 AM

Interesting article from today's New York Times.

"Sentencing Shift Gives New Leverage to Prosecutors" by Richard A. Oppel, Jr.


Posted by: Isabella | Sep 26, 2011 11:16:44 AM

Crystal makes an important point.

Authorities believed the Green River Killer was actually responsible for many more deaths than it could have proved at trial. The prosecutor himself said that they could have charged him with maybe 7 counts of murder, but by taking the death penalty off the table they were able to obtain a guilty plea to 48 counts. By the time he was sentenced, authorities had been able to locate 48 sets of remains--some of which they would not have found without his cooperation.

So while I share my classmates' outrage that serial killers are avoiding the death penalty in some instances, I cannot help but appreciate the prosecution's position in the Green River Killer case. They got a guilty plea to 48 counts and consecutive life sentences on each count with no possibility of parole, as well as information about the location of remains. Ridgway isn't going anywhere, ever. I think the prosecution won more than it lost in this deal.

Oh, and as for the argument that serial killers are all smart people, supposedly Ridgway was IQ tested as a child with very low results (82) and was a terrible student in school.

Posted by: Krystin Brehm | Sep 27, 2011 2:46:20 PM

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