Issue 348
October 7, 2005
q Serving Life, With No Chance of Redemption, by Adam Liptak – The New York Times
q Court tackles selection of juries by Shelley Murphy – The Boston Globe
q Pall of Racism Remains Over Neighborhood Repaired After Arson – The New York Times
q The Right to Die – Opinion – The New York Times
Serving
Life, With No Chance of Redemption
By ADAM
LIPTAK
LIVINGSTON,
Tex. - Minutes after the United States Supreme Court threw out the juvenile
death penalty in March, word reached death row here, setting off a pandemonium
of banging, yelling and whoops of joy among many of the 28 men whose lives were
spared by the decision.
But the news
devastated Randy Arroyo, who had faced execution for helping kidnap and kill an
Air Force officer while stealing his car for parts.
Mr. Arroyo
realized he had just become a lifer, and that was the last thing he wanted.
Lifers, he said, exist in a world without hope. "I wish I still had that
death sentence," he said. "I believe my chances have gone down the
drain. No one will ever look at my case."
Mr. Arroyo
has a point. People on death row are provided with free lawyers to pursue their
cases in federal court long after their convictions have been affirmed; lifers
are not. The pro bono lawyers who work so aggressively to exonerate or spare
the lives of death row inmates are not interested in the cases of people merely
serving life terms. And appeals courts scrutinize death penalty cases much more
closely than others.
Mr. Arroyo
will become eligible for parole in 2037, when he is 57. But he doubts he will
ever get out.
"This
is hopeless," he said.
Scores of
lifers, in interviews at 10 prisons in six states, echoed Mr. Arroyo's
despondency. They have, they said, nothing to look forward to and no way to
redeem themselves.
More than
one in four lifers will never even see a parole board. The boards that the
remaining lifers encounter have often been refashioned to include
representatives of crime victims and elected officials not receptive to pleas
for lenience.
And the
nation's governors, concerned about the possibility of repeated offenses by
paroled criminals and the public outcry that often follows, have all but
stopped commuting life sentences.
In at least
22 states, lifers have virtually no way out. Fourteen states reported that they
released fewer than 10 in 2001, the latest year for which national data is
available, and the other eight states said fewer than two dozen each.
The number
of lifers thus continues to swell in prisons across the nation, even as the
number of new life sentences has dropped in recent years along with the crime
rate.
According to
a New York Times survey, the number of lifers has almost doubled in the last
decade, to 132,000. Historical data on juvenile offenders is incomplete. But
among the 18 states that can provide data from 1993, the juvenile lifer
population rose 74 percent in the next decade.
Prosecutors
and representatives of crime victims applaud the trend. The prisoners, they
say, are paying the minimum fit punishment for their terrible crimes.
But even
supporters of the death penalty wonder about this state of affairs.
"Life
without parole is a very strange sentence when you think about it," said
Robert Blecker, a professor at New York Law School. "The punishment seems
either too much or too little. If a sadistic or extraordinarily cold, callous
killer deserves to die, then why not kill him? But if we are going to keep the
killer alive when we could otherwise execute him, why strip him of all
hope?"
Burl Cain,
the warden of the Louisiana State Penitentiary in Angola, which houses
thousands of lifers, said older prisoners who have served many years should be
able to make their cases to a parole or pardon board that has an open mind.
Because all life sentences in Louisiana are without the possibility of parole,
only a governor's pardon can bring about a release.
The prospect
of a meaningful hearing would, Mr. Cain said, provide lifers with a taste of
hope.
"Prison
should be a place for predators and not dying old men," Mr. Cain said.
"Some
people should die in prison, but everyone should get a hearing."
Television
and Boredom
In
interviews, lifers said they tried to resign themselves to spending down their
days entirely behind bars. But the prison programs that once kept them busy in
an effort at training and rehabilitation have largely been dismantled, replaced
by television and boredom.
The lot of
the lifer may be said to be cruel or pampered, depending on one's perspective. "It's
a bleak imprisonment," said W. Scott Thornsley, a former corrections
official in Pennsylvania. "When you take away someone's hope, you take
away a lot."
It was not
always that way, said Steven Benjamin, a 56-year-old Michigan lifer.
"The
whole perception of incarceration changed in the 1970's," said Mr.
Benjamin, who is serving a sentence of life without parole for participating in
a robbery in 1973 in which an accomplice killed a man. "They're
dismantling all meaningful programs. We just write people off without a second
thought."
As the years
pass and the lifers grow old, they sometimes tend to dying prisoners and then
die themselves. Some are buried in cemeteries on prison grounds by other
lifers, who will then go on to repeat the cycle.
"They're
never going to leave here," said Mr. Cain, the warden at Angola, of
inmates he looks after. "They're going to die here."
Some
defendants view the prospect of life in prison as so bleak and the possibility
of exoneration for lifers as so remote that they are willing to roll the dice
with death.
In Alabama,
six men convicted of capital crimes have asked their juries for death rather
than life sentences, said Bryan Stevenson, director of the Equal Justice
Initiative of Alabama.
The idea
seems to have its roots in the experience of Walter McMillian, who was
convicted of capital murder by an Alabama jury in 1988. The jury recommended
that he be sentenced to life without parole, but Judge Robert E. Lee Key Jr.
overrode that recommendation and sentenced Mr. McMillian to death by
electrocution.
Because of
that death sentence, lawyers opposed to capital punishment took up Mr.
McMillian's case. Through their efforts, Mr. McMillian was exonerated five
years later after prosecutors conceded that they had relied on perjured
testimony. "Had there not been that decision to override," said Mr.
Stevenson, one of Mr. McMillian's lawyers, "he would be in prison
today."
Other
Alabama defendants have learned a lesson from Mr. McMillian.
"We
have a lot of death penalty cases where, perversely, the client at the penalty
phase asks to be sentenced to death," Mr. Stevenson said.
Judges and
other legal experts say that risky decision could be a wise one for defendants
who are innocent or who were convicted under flawed procedures.
"Capital
cases get an automatic royal treatment, whereas noncapital cases are fairly
routine," said Alex Kozinski, a federal appeals court judge in California.
David R.
Dow, one of Mr. Arroyo's lawyers and the director of the Texas Innocence
Network, said groups like his did not have the resources to represent lifers.
"If we
got Arroyo's case as a non-death-penalty case," Mr. Dow said, "we
would have terminated it in the very early stages of investigation."
Mr. Arroyo,
who is 25 but still has something of the pimply, squirmy adolescent about him,
said he already detected a certain quiet descending on his case.
"You
don't hear too many religious groups or foreign governments or nonprofit
organizations fighting for lifers," he said.
Gov. Rick
Perry of Texas signed a bill in June adding life without parole as an option
for juries to consider in capital cases. Opponents of the death penalty have
embraced and promoted this alternative, pointing to studies that show that
support for the death penalty dropped drastically among jurors and the public
when life without parole, or LWOP, was an alternative.
"Life
without parole has been absolutely crucial to whatever progress has been made
against the death penalty," said James Liebman, a law professor at
Columbia. "The drop in death sentences" - from 320 in 1996 to 125
last year - "would not have happened without LWOP."
But some
questioned the strategy.
"I have
a problem with death penalty abolitionists," said Paul Wright, the editor
of Prison Legal News and a former lifer, released in Washington State in 2003
after serving 17 years for killing a man in a robbery attempt. "They're
positing life without parole as an option, but it's a death sentence by
incarceration. You're trading a slow form of death for a faster one."
Mr. Arroyo
shares that view.
"I'd
roll the dice with death and stay on death row," he said. "Really,
death has never been my fear. What do people believe? That being alive in
prison is a good life? This is slavery."
Murder
Follows a Kidnapping
Mr. Arroyo
was convicted in 1998 for his role in the killing of Jose Cobo, 39, an Air
Force captain and the chief of maintenance training at the Inter-American Air
Forces Academy in Lackland, Tex. Mr. Arroyo, then 17, and an accomplice,
Vincent Gutierrez, 18, wanted to steal Captain Cobo's red Mazda RX-7 for parts.
Captain Cobo
tried to escape but became tangled in his seat belt. Mr. Gutierrez shot him
twice in the back and shoved the dying man onto the shoulder of Interstate 410
during rush hour on a rainy Tuesday morning.
Although Mr.
Arroyo did not pull the trigger, he was convicted of felony murder, or
participation in a serious crime that led to a killing. He contends that he had
no reason to think Mr. Gutierrez would kill Captain Cobo and therefore cannot
be guilty of felony murder. "I don't mind taking responsibility for my
actions, for my part in this crime," he said. "But don't act like I'm
a murderer or violent or that this was premeditated."
That
argument misunderstands the felony murder law, legal experts said. Mr. Arroyo's
decision to participate in the carjacking is, they say, more than enough to
support his murder conviction.
Captain Cobo
left behind a 17-year-old daughter, Reena.
"I miss
him so much it hurts when I think about it," she said of her father in a
victim impact statement presented at trial. "I know he is in heaven with
my grandmother and God is taking care of him. I want to see the murderers
punished not necessarily by death. I feel sorry that they wasted theirs and my
father's life."
Ms. Cobo
declined to be interviewed.
Mr. Arroyo
said he was not eager to leave death row, and not just because of dwindling
interest in his case.
"All I
know is death row," he said. "This is my life. This is where I grew
up."
His lawyer
sees reasons for him to be concerned about moving off death row.
"He's
going to become someone's plaything in the general population," Mr. Dow
said. "He's a small guy, and the first time someone tries to kill him
they'll probably succeed."
That kind of
violence is not the way most lifers die. At Angola, for instance, two prisoners
were killed by fellow inmates in the five years ended in 2004. One committed
suicide, and two were executed. The other 150 or so died in the usual ways.
The prison
operates a hospice to tend to dying prisoners, and it has opened a second
cemetery, Point Lookout Two, to accommodate the dead.
On a warm
afternoon earlier this year, men in wheelchairs moved slowly around the main
open area of the prison hospice. Others lounged in bed.
The private
rooms, for terminal patients, are as pleasant as most hospital rooms, though
the doors are sturdier. The inmates have televisions, video games, coffeepots
and DVD players. One patient watched "Lara Croft: Tomb Raider."
Robert
Downs, a 69-year old career bank robber serving a 198-year term as a habitual
felon, died in one of those rooms the day before. In his final days, other
inmates tended to him, in four-hour shifts, around the clock. They held his hand
and eased his passage. Our
responsibility," said Randolph Matthieu, 53, a hospice volunteer, "is
so that he doesn't die there by himself. We wash him and clean him if he messes
himself. It's a real humbling experience."
Mr. Matthieu
is serving a life sentence for killing a man he met at the C'est La Guerre
Lounge in Lafayette, La., in 1983.
At Point
Lookout Two the next day, there were six mounds of fresh dirt and one deep
hole, ready to receive Mr. Downs. Under the piles of dirt were other inmates
who had recently died. They were awaiting simple white crosses like the 120 or
so nearby. The crosses bear two pieces of information. One is the dead man's
name, of course. Instead of the end points of his life, though, his six-digit
prison number is stamped below.
The sun was
hot, and the gravediggers paused for a rest after their toil.
"I'm
hoping I don't come this way," said Charles Vassel, 66, who is serving a
life sentence for killing a clerk while robbing a liquor store in Monroe, La.,
in 1972. "I want to be buried around my family."
The families
of prisoners who die at Angola have 30 hours to claim their bodies, and about
half do. The rest are buried at Point Lookout Two.
"It's
pretty much the only way you leave," said Timothy Bray, 45, also in for
life. Mr. Bray, who helped beat a man to death for falling behind in his debts,
tends to the horses that pull the hearse on funeral days, placing white and red
rosettes in their manes.
Wary of a
Transformed World
Not all
older lifers are eager to leave prison. Many have grown used to the free food
and medical care. They have no skills, they say, and they worry about living in
a world that has been radically transformed by technology in the decades that
they have been locked up.
Wardens like
Mr. Cain say that lifers are docile, mature and helpful.
"Many
of the lifers are not habitual felons," he added. "They committed a
murder that was a crime of passion. That inmate is not necessarily hard to
manage."
What is
needed, he said, is hope, and that is in short supply. "I tell them, 'You
never know when you might win the lottery,' " Mr. Cain said. "You
never know when you might get a pardon. You never know when they might change
the law.'"
Up the road
from Point Lookout Two, near the main entrance, is the building that houses the
state's death row. Lawyers for the 89 men there are hard at work, trying to
overturn their clients' convictions or at least convert their death sentences
into life terms. According to the Death Penalty Information Center, eight
Louisiana death row inmates have been exonerated in the last three decades.
More than 50, prison officials said, have had their sentences commuted to life.
But those
hard-won life sentences, when they come, do not always please the prisoners.
"I have
to put a lot of these guys on suicide watch when they get off death row,"
said Cathy Fontenot, an assistant warden, "because their chances have gone
down to this."
She put her
thumb and forefinger together, making a zero.
* * * * *
Court
tackles selection of juries
African-Americans
underrepresented
By Shelley
Murphy, Globe Staff
A federal
appeals court in Boston is set to hear arguments today on a long-simmering
issue that has galvanized legal and advocacy groups throughout the state: the
lack of African-Americans on federal juries.
''The
embarrassing and destructive existence of all-white jury panels in this
district has been tolerated far too long," wrote Michael Avery, a Suffolk
University Law School professor and president of the National Lawyers Guild, in
a brief filed with the US Court of Appeals for the First Circuit.
The NAACP,
the Massachusetts Black Legislative Caucus, and the Federal Defender Office are
among groups that have filed briefs supporting a plan by US District Judge
Nancy Gertner to try to get African-Americans on the jury that will decide the
federal death penalty case against two black men from Dorchester. The groups
say that every defendant has a fundamental right to have a jury that is
representative of the community, and that every citizen should have an equal
chance to serve on a jury.
But federal
prosecutors, who are urging the appeals court to throw out Gertner's plan,
argue that it does not matter how well-intentioned the plan is because the judge
has overstepped her authority by creating a unique jury-selection process that
applies only to her courtroom. Their briefs to the court said their challenge
to Gertner's plan was to its ''ad hoc" nature and not to ''the societal
merits of the court's order; or to whether the order establishes a better jury
selection plan."
In an
unprecedented move, however, US District Chief Judge William G. Young filed a
brief supporting Gertner's plan as ''a legitimate and a wise exercise of the
court's authority." In the brief filed on Young's behalf, Jackie Gardina,
a visiting assistant professor at the Vermont Law School, wrote that Gertner is
empowered to correct a violation of the federal Jury Selection and Service Act,
which guarantees the right to a trial before a cross-section of the community.
Last month,
Young appointed a panel of judges, including Gertner, to consider a new
jury-selection plan for the entire US District Court in Boston, which covers
all counties east of Worcester, that addresses the underrepresentation of
African-Americans on federal juries. In August, Gertner ordered her plan, which
involves targeting specific ZIP codes with additional jury summonses, be used
in the case of five defendants in a
racketeering case, including two, Branden Morris and Darryl Green, who
face the death penalty for allegedly killing a gang rival four years ago during
Boston's Caribbean Carnival. Their trial is set for next year.
Defense
lawyers had argued that it was unfair that the defendants would probably be
tried by a white or nearly all-white jury, based on statistics that indicate
that blacks are underrepresented in US District Court in Boston.
In August,
Gertner agreed, ruling that the court's reliance on flawed residency lists
provided by cities and towns to call jurors was resulting in an
underrepresentation of African-Americans in the jury pool. Gertner cited a
study that indicated that less diverse towns with fewer minorities do a better
job of keeping accurate residency lists than more diverse cities, including
Boston. As a result, she found a higher percentage of jury summonses sent to
minorities come back as undeliverable or go unanswered -- often an indication
that people have moved or that they do not actually exist.
While 7
percent of the available jury pool for the federal court in Boston is
African-American, the number drops to 3 percent after summonses are returned,
according to the judge. Federal court officials said they generally do not
follow up on unanswered summonses because they do not have the money or staff.
Under
Gertner's plan, when a summons is returned as undeliverable, court officials
would randomly send a new jury summons to another resident in the same ZIP
code. She also ordered court officials to send a second notice to the same
address if a summons goes unanswered, then, if it still goes unanswered, send a
new summons to another person in the same ZIP code.
Prosecutors
contend that Gertner's plan destroys the randomness of the jury-selection
process by sending additional summonses to a specific ZIP code. They also argue
that it is unfair to assume that an unanswered summons went to the home of
someone who moved, when the recipient may have received it but chose not to
respond. But the lawyers for Green, Morris, and their codefendants argued in
their briefs that Gertner's plan improves the randomness of the jury-selection
process. The current jury-selection
system, they say, gives residents of less diverse towns a better chance
of getting on a federal jury than those from communities that have more
minority residents.
The lawyers
also noted that the underrepresentation of African-Americans on federal juries
in Boston has been a longstanding problem, which the federal court attempted to
address in 1989, when it started using residency lists instead of voter lists
to summon jurors. The appeals court rejected a similar challenge to the system
in 1999, when it refused to grant a new trial for a New Jersey man who had been
convicted of mail fraud and
claimed his rights had been violated because blacks were underrepresented on
the jury. However, the court expressed concerns about the process and suggested
the court consider sending follow-up postcards to prospective jurors who did
not respond to summonses.
Citing a
study that indicated African-Americans are less likely to recommend the death
penalty than white jurors, the lawyers for Morris and Green wrote that in the
Dorchester case ''this court must ensure that the jury composition is fairly
racially balanced because of the strong possibility that a death verdict will
be influenced by the exclusion of
African-Americans from the jury."
* * * * *
Pall
of Racism Remains Over Neighborhood Repaired After Arson
By GARY
GATELY
INDIAN HEAD,
Md. - Even now, more than nine months later, 3-year-old Autumn Potts will not
sleep in her bedroom. She is afraid somebody will come during the night and
burn down her house.
On Dec. 6,
flames lighted up the night sky, and smoldering chunks of wood flew through the
air as Autumn and her family sped in cars up Cabinwood Court in Hunters Brooke,
an expensive new subdivision 25 miles south of Washington in Charles County,
Md. That night, 10 houses were destroyed and 16 others were heavily damaged at
a cost of $10 million.
"We
just saw the flames leaping from house to house, and we didn't know if we were
going to make it out alive," Autumn's mother, Terri Rookard, said.
But they did
make it, and although their home escaped damage, Ms. Rookard, who
is black,
has yet to figure out how she will tell her daughter what she believes is the
reason someone set fire to all those houses.
"I
never thought I would have to go through something like this," Ms.
Rookard, a program manager at the State Department, said. "Before the
fires, I never overtly experienced racism."
The
conviction in September of Patrick S. Walsh, 22, leader of five young men who
were charged in the arsons, has brought some relief to Ms. Rookard and other
residents of Hunters Brooke. The houses have been rebuilt, and the families,
some of whom were days away from moving in at the time of the fires, have
finally arrived.
But racist
statements attributed to three of the five suspects, all of them white, and
racial incidents in the area since the fires have left a pall that may take
longer to clear.
Most of the
families who lost their homes were black and looking for more in the way of
housing than their money could buy closer to Washington.
In recent
years, more middle- and upper-income families have moved to Charles County,
where builders have turned woods and tobacco fields into new developments with
homes that sell from $300,000 to more than $1 million.
Since 1990,
the population of the county has increased about 36 percent, to 137,000, and
the proportion of blacks has grown, to 33 percent from 18 percent. Some black
leaders here see the arsons as part of a pattern of racism in Charles County.
The Ku Klux Klan rallied a decade ago in La Plata, the county seat.
Anonymous
fliers distributed in the racially mixed community of Waldorf in 1999 urged
"White Brothers & Sisters of Charles County" to kill blacks.
And, in
January, before the rebuilding of the homes at Hunters Brooke had even begun,
thousands of racist and anti-Semitic fliers were thrown on driveways and lawns
within six miles of the community. Some of the fliers read: "Don't have
sex with blacks. Avoid AIDS."
The
sheriff's office recorded 15 racially motivated crimes in the first seven
months of 2005, including vandals spray-painting "K.K.K." on roads
and racial epithets and swastikas on roads and buildings. The county had 21
race-related crimes last year and 8 in 2003, the sheriff's office said.
Mr. Walsh,
prosecutors said, had an obsession with setting fires and had worried aloud
about blacks moving to Hunters Brooke. Jeremy D. Parady, another suspect,
admitted in a guilty plea in April that he had singled out the development
because many of the buyers were black, and a third suspect who pleaded guilty,
Aaron L. Speed, had made racist statements to investigators, according to court
documents. The three men are awaiting sentencing.
None of the
five suspects have been charged with a hate crime, and prosecutors declined to
say why, citing the coming trials for the two remaining suspects.
Some law
enforcement officials said searches of the suspects' homes, computers and cars
turned up no hate group or white supremacist materials or other evidence
suggesting racial motives.
Prosecutors
have suggested other motivations: an effort to gain notoriety for a local gang,
envy of people who could afford half-million-dollar homes and revenge on the
part of Mr. Speed, a former Hunters Brooke security guard, who told
investigators that he was upset that his security company showed little
sympathy when his infant son died.
But William
Braxton, president of the Charles County National Association for the
Advancement of Colored People, said investigators and some community leaders
"downplayed the arson as just a bunch of young boys who lost their
way."
"The
African-American community is not buying that at all," Mr. Braxton said.
"People see within their hearts that this thing was racially
motivated."
F. Wayne
Cooper, president of the five-member Charles County Board of Commissioners, said reports of possible
racism as a motive have hurt the county's reputation.
"It is
a poor image to set for the county," said Mr. Cooper, who is white. He
said some residents did comment about people from "up north" in
Prince George's County, which is predominantly black, moving to Charles and, in
turn, increasing crime and worsening schools.
But Mr.
Cooper said that racism did not underlie those concerns and that the county
embraced newcomers of any race or ethnic background.
Members of a
few white families said they believed envy, not racism, motivated the
arsonists. "They were jealous people other than them could afford these
houses," Judy Manning, a white homeowner in Hunters Brooke, said.
Whatever the
motivation, the fires disrupted lives and deferred dreams.
"Coming
here was like our escape from the city, going out to the country, to raise a
family here," said Jacque Hightower, a training officer at the Department
of Housing and Urban Development.
Mr.
Hightower, his wife and three children, who had planned to move into Hunters
Brook by Dec. 8, lived in a cramped apartment in Waldorf for eight months while
their house was rebuilt. "What a Christmas present we had that year,"
Mr. Hightower said.
But if Mr.
Hightower, who is black, and many others believe racism was a motivation for
the arsons, that has not driven them away. Hunters Brooke residents say only
one family in the community, which will ultimately have 319 homes, accepted the
offer of the builder, Lennar Corporation, to back out of their contract and
move elsewhere.
Charles S.
Gordon, a corrections officer, said he had second thoughts about living in
Hunters Brooke after the fires, even though his house was not burned. But, he
said, "If you run from racism, you'd be running the rest of your life,
because racism's everywhere."
After the
arsons, some families installed home security systems, and at least
one family
bought guns for self-protection.
Those who
have moved in say the aftermath of the arsons - meeting their future neighbors
amid charred ruins, commiserating, meeting with one another and the builder,
holding a nighttime vigil - has drawn them closer to one another.
The
diversity and friendship was easy to see one Saturday afternoon. Blacks,
whites, Pakistanis, Indians, Koreans and Filipinos savored the sunshine in
their yards, on porches and in driveways. Teenagers gossiped on front lawns. A
man hauled rocks for a patio. A woman, just moving in, unpacked boxes in her
garage. Families returned from soccer and football and cheerleading practices.
One
homeowner, Harold Jewett, a driver for United Parcel Service, recalled the
horror of watching his house burn down on television.
But now he
admires his rebuilt, airy home with a designer kitchen and two-car garage, and
he smiles.
"Racism's
still in the back of your mind, but, you know, you have to live your
life," he said. "It's healing time now."
* * * * *
The
Right to Die
The John
Roberts Court will hear its first high-profile arguments today, when the
justices take up a case involving doctor-assisted suicide. Oregon law allows terminally
ill people to take lethal drugs to end their lives. But the Bush administration
has tried to override this law by threatening to prosecute doctors involved in
such cases. The Supreme Court should make it clear that Oregon can allow
doctor-assisted suicide.
Oregonians
voted in favor of the Death With Dignity Act in 1994, and three years later
they voted against repeal. The Oregon law allows terminally ill people who are
likely to die within six months to receive drugs to end their lives. When John
Ashcroft, a longtime opponent of assisted suicide, became attorney general in
2001, he issued an edict that doctors who prescribe drugs that are used to commit
suicide can be prosecuted under the federal Controlled Substances Act. The
state of Oregon and a group of terminally ill patients challenged this Ashcroft
directive and won.
This case
nominally involves two hot-button issues: the right of terminally ill people to
end their lives, and the allocation of power between the federal government and
states. But the Court of Appeals was right to resolve it more simply, through a
careful interpretation of the Controlled Substances Act. Mr. Ashcroft claimed
that the law gave him the power to overrule Oregon's assisted suicide policy.
But when Congress passed the act, it clearly intended to prohibit ordinary drug
abuse, not to set out a federal policy on assisted suicide.
Opponents of
assisted suicide have never been able to persuade Congress to outlaw assisted
suicide directly. In the absence of a Congressional law, Mr. Ashcroft had no
authority to interfere with the decision of Oregon's voters.
In his zeal
to stop assisted suicide, Mr. Ashcroft, a self-described legal conservative,
turned his back on two principles that are sacred to legal conservativism.
First, he refused to strictly, or even accurately, construe a Congressional
statute. Instead, he inserted meaning in it that did not belong there, giving
himself power that he should not have had. Second, he ignored conservative
dogma about deference to the states, especially on matters like regulating
medical practice, a core state concern.
The impact
of today's case will be felt beyond Oregon. The Bush administration's position
has discouraged other states from enacting assisted suicide laws. But the
Supreme Court should make clear that Oregon, and all states, have the right to
allow terminally ill people to end their lives with a maximum of dignity and a
minimum of pain.
* * * * *