GateHouse: Unprecedented pursuit of the death penalty

Matthew T. Mangino
GateHouse News Service
May 24, 2013

The shocking news out of Cleveland — kidnapping, sexual assault, physical abuse, torture, false imprisonment, death of unborn children — has resulted in the call for Ariel Castro’s death. Not a lynch mob, but an unprecedented interpretation of Ohio law to pursue the death penalty.

Never mind that Castro has not been convicted; the death penalty “only” applies to capital murder; and support for the death penalty is on a downward trajectory. Prosecutors in Ohio think they have a way to make it work.

Cuyahoga County prosecutor Timothy McGinty has vowed to seek charges against Castro for “each act of aggravated murder he committed by terminating pregnancies that the offender perpetuated against the hostages during this decade-long ordeal.”

Ohio’s aggravated murder statute reads, “No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy.” In Ohio, aggravated murder is punishable by death.

McGinty specifically cited Ohio’s statute when he told NBC News that aggravated murder includes the unlawful termination of another person’s pregnancy “with prior calculation and design.”

According to the National Conference of State Legislatures, at least 38 states have fetal homicide laws that impose criminal penalties for crimes against pregnant women, and 23 states expand the law to cover the earliest stage of pregnancy, such as conception or fertilization.

“Nobody has ever been prosecuted [in] a full-fledged death penalty case based on pregnancy termination all the way through,” Douglas Berman, a law professor law at Ohio State University told The Christian Science Monitor.

The death of an unborn child should not be confused with the charges and recent conviction of Philadelphia abortion doctor Kermit Gosnell.  He was convicted of first-degree murder in the deaths of three babies born alive before having their necks cut with scissors. He was sentenced to life in prison.

The rush to pursue the death penalty for Castro seems to run contrary to what we are led to believe about America’s general feeling toward the death penalty. 

The decline of capital punishment marked a milestone just this month when Maryland became the first state south of the Mason-Dixon Line to abolish the death penalty in nearly 50 years.  Nationwide, Maryland is the sixth state in six years to abolish capital punishment.

A Washington Post Maryland poll early this spring found that 63 percent of whites and only 37 percent of African-Americans said they favor the death penalty for people convicted of murder.

However, an interesting about-face occurred in the wake of the Boston Marathon bombings. A large majority of white Americans, 75 percent, say they support the death penalty for 19-year-old Dzhokhar Tsarnaev if convicted in federal court, according to a new Washington Post-ABC News poll.

One in three people, who said they opposed the death penalty in the first poll, now support the death penalty for Tsarnaev. 

After Timothy McVeigh was convicted of the Oklahoma City bombing 81 percent of Americans supported his execution.  That was more people than admitted to supporting the death penalty at the time. In 2006, when 65 percent of people said they supported the death penalty, 82 percent supported the execution of Saddam Hussein.

Apparently, for some who oppose the death penalty there are exceptions — like being aware of the crime or personally touched by it even if being touched was through a television screen while sitting unscathed in the safety and security of one’s home.

Professor Berman concedes that getting the death penalty on a pregnancy termination will be very hard “to prove and establish.” More importantly, Amanda Berry, Gina DeJesus and Michelle Knight should be the primary focus of this investigation and prosecution. The diabolical way they were tortured and dehumanized demands nothing less.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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