Attorneys for indicted synagogue gunman Robert Bowers have officially filed arguments maintaining that the death penalty is unconstitutional.
Bowers is implicated of gunning down 11 congregants inside the Tree of Life synagogue in Squirrel Hill during Shabbat services on Oct. 27, 2018. Six others, including four Pittsburgh police officers, were wounded in the gunfire.
He’s pleaded not guilty to the 63 federal charges against him. The Department of Justice in August filed notice they plan to seek the death penalty, a punishment offered by 22 of the charges against Bowers.
Bowers’s attorneys – Judy Clarke and federal public defenders Michael Novara and Elisa Long – debated that the Federal Death Penalty Act violates the Fifth and Eighth Amendments plus a portion of the Tenth Amendment.
It’s similar to arguments made in other high-profile cases including Ted Kaczynski, known as the Unabomber, and Buford Furrow Jr., a white supremacist convicted of wounding five at a Jewish Community Center in California and killing a Filipino-American mail carrier, according to reports from their court cases. Both pleaded guilty and were sparred the death penalty.
Clarke has communicated her wish to ensure Bowers a plea deal that would transmit him to federal prison for life and take the death penalty off the table.
Executions carried out under the federal act, they wrote in the hundreds of pages of filings, violate four pillars of the Constitution because they are unreliable, imposed “arbitrarily and capriciously,” marked by racial bias and include “unconscionably long delays.”
The Fifth Amendment’s due process clause shields against punishment being applied arbitrarily. The Eighth Amendment forbids cruel and unusual punishments, as well as punishment that is not equivalent to the crime.
Bowers’s attorneys also contend that the Federal Death Penalty Act infringes the anti-commandeering provision of the Tenth Amendment. The provision prevents the federal government from coercing states or state officials to implement federal law.
The issue as it relates to the federal death penalty, his attorneys wrote, is that the act requires state employees to carry out executions in state facilities.
Clarke and her co-counsel, David Bruck, also appealed against the death penalty in the trial against Boston Marathon bomber Dzhokhar Tsarnaev, who killed three people and wounded hundreds with a bomb at the marathon’s finish line in 2013.
In that case, Clarke and Bruck wrote the federal death penalty “violates the Eighth Amendment because, as manifested by its seemingly ineradicable pattern of racially disparate enforcement and the risk it poses of executing innocent people, the death penalty constitutes cruel and unusual punishment,” according to the Boston Herald.
Tsarnaev was pronounced guilty and condemned to death in 2015. He is currently appealing his conviction and sentence.