on the law

Death For Extremist Speech?

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This past Wednesday, a Salem, Oregon jury sentenced a father and son to death for a bombing that killed two police officers. Regardless of how you feel about capital punishment–in general or in this particular case–there’s a part of the prosecutor’s argument that should worry you.

Bruce Turnidge and his son Joshua had been on trial for planting a bomb at the West Coast Bank in Woodburn, Oregon in December of 2008. The bomb went off while police technician William Hakim was trying to disarm it. He was killed in the blast, as was police Captain Tom Tennant. A bank employee and another police officer were injured.

On December 8, the jury found them both guilty of Aggravated Murder, which is Oregon’s only capital crime. This meant that the trial entered a penalty phase, during which the jury decided how the defendants should be sentenced, based on a four-part test:

The procedure doesn’t actually allow jurors to assign a death penalty. Instead they answer a series of four questions for each of the applicable charges: Was the crime committed deliberately? Does the defendant represent a continuous threat? Was the murder unreasonable given any provocation, and should the death penalty be applied?

Depending on how the jury answers, the judge will then sentence defendants to death, life in prison without parole, or life with the possibility of parole after 30 years.

On Wednesday, the jury unanimously answered yes to all four of these questions, which means the judge is going to impose the death sentence.

That may or may not bother you, but here’s something that should. It’s a description of the prosecution’s argument to the jury, explaining why the Turnidges deserved to die:

Prosecutors urged jurors to sentence the men to death to prevent them from endangering prison staff or preaching their hatred for authorities to young prisoners who will someday be released.

I think I understand why the prosecutors made this argument. They were addressing the second question to the jury, about whether the Turnidges represented a continuous threat. By arguing that the Turnidges could preach hatred to other prisoners who would then be released, they were attempting to show that the Turnidges represented a threat not just to the prison staff, but to the community, who might be harmed by the released prisoners because of something the Turnidges had said to them.

Therein lies the problem: The First Amendment to the U.S. Constitution guarantees our right to freedom of speech, so how can it be constitutional to punish the Turnidges because of what they might say?

I realize that prisoners lose a lot of their rights when they go to prison, but they lose those rights because they are being punished. What the prosecutors are arguing here, however, is that these people should be punished because they might exercise their right to free speech.

That can’t be right.

For one thing, the Turnidges have apparently said a lot of hateful things, but what if they’re right? What if the government (or the banks or whatever) is every bit as evil as they think it is? It’s easy to dismiss them as paranoid and deluded, because they probably are, but are we so absolutely sure they’re wrong that we’re willing to put them to death to prevent them from spreading their ideas?

On the other hand, if the Turnidges are wrong, it’s still not right to kill them for it. There’s a long free speech tradition which says that the correct remedy for bad speech is good speech. The proper response to the Turnidges’ hateful preaching is better preaching, not suppressing their speech by killing them.

That said, even if we accept that the Turnidges’ speech is harmful and should be suppressed, surely there’s a less extreme way to do it than killing them? It shouldn’t be too hard. After all, they’re going to be in prison. All the authorities have to do is segregate them from the other prisoners.

Speaking of those other prisoners, don’t forget that they too are moral actors. They can listen to the Turnidges’ hateful preaching and make decisions for themselves. They’ll have plenty of time to think about this before they can act on those decisions, and it’s well established that society can hold them responsible for their actions. The Turnidges’ speeches are hardly the incitement to imminent lawless action that is the standard for suppressing speech.

Finally, I know very little about how the penalty phases of trials work. For all I know, it could be well established that prosecutors are allowed to make arguments like this. If so, it’s time we put a stop to it.

These prosecutors are government employees who are advocating that some people should be executed to prevent them from saying hateful things about the government. There’s no place for that in a free country.

Mark Draughn has been blogging since 2002 at Windypundit, where he rants about legal issues, national politics, economics, and culture. Mark was born and raised in Chicago, which is also where he went to school, works, and lives with his wife and three cats.
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