Ariel Castro and the Death Penalty

First up, apologies for the radio silence all, however, I unfortunately did something to my shoulder and neck about a week ago which has thankfully healed but I decided typing outside of work was probably not the best idea.

We’ve all seen and been glued to watching the rescue of three girls in Cleveland and especially the now viral video of their rescuer Charles Ramsey on an ABC affiliate telling us how it all came about.

Normally, I am not particularly interested in these type of events, however, I would be lying if I didn’t say that Charles has definitely made this cruel, macabre story for being so down to earth, for telling it as it is. However, what has further got my interest now is the fact that Ariel Castro, the man behind the kidnapping, torture, rape and a whole host of other offences he has perpetrated against Amanda Berry and others, may now face the death penalty in Ohio.

a castroNow, I am not going to weigh in on the debate about whether one should be for or against the death penalty (personally, I am against it), however, as someone who has sat and passed the state bar exam of New York state, I do remember looking at the death penalty in a number of questions or case studies and in circumstances where someone was raped, beaten and/or kidnapped, the assailant would not face the death penalty as they had not killed someone. In essence, the rule boiled down to one where the death penalty can only be applied to someone who has taken a life. This was supposed to be the case not just in New York but in the United States as a whole.

This leads us to the state of Ohio.  Douglas Berman over at the Guardian has a short piece discussing the matter and the law as it stands in the State:

Under Ohio law, if there is significant evidence showing that the offender, through physical abuse and forms of torture, “purposely … cause[d] … the unlawful termination of another’s pregnancy,” there is a real case to be made for a charge of aggravated murder, which carries the death penalty as a possible (but not mandatory) punishment.

So, what is the legal basis for the death penalty in the United States? The Eight Amendment of course! It states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Further, the death penalty and rape is detailed in two cases. The first is Coker v Georgia, 433 US 584 (1977) where the Court deliberated that the death penalty for rape was excessive as no death had occurred . The second is specifically to do with the rape of child where Coker was extended. Kennedy v Louisiana, 554 US 407 (2008) , again the Supreme Court upheld that the death penalty is excessive when no life has been taken.

Now, we could argue about whether or not an unborn child/foetus is a life or not, but for the purposes of the law, it is not in the United States. This begs the question, if the prosecution does push for the death sentence for Castro under the following parts of the Ohio Revised Code 2903.01, it begs the question, is it constitutional?

(A) No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.

(B) No person shall purposely cause the death of another or theunlawful termination of another’s pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in a habitation when a person is present or likely to be present, terrorism, or escape.

I am not a US constitutional lawyer, however, as someone who has had to study it previously, I was always struck by how interesting a subject area it is and how it has a massive practical application in the everyday life of the United States. I know it’s a bit of a macabre subject for a Saturday morning but still, fascinating stuff.

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