It's Debatable: Should Congress pass mandatory death penalty for firearms killings?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate whether Congress should pass a mandatory death penalty applicable to all states when there is “indisputable evidence” that a homicide has been committed with the use of a firearm. Rosen retired as a professor from the Texas Tech University School of Law and is a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

MOSTER – 1

Another deadly weekend is about to end, and thousands of people are being murdered in gun violence across America. Catch the evening news on local TV anywhere and the story is always the same. It could be gang violence in Harris County, a stray bullet immediately killing a child in Chicago at the wrong place and time, anyone – anywhere. It could be you.

Whether Americans want to admit it or not, there is an epidemic of gun violence across the country and the tired solution is to ban guns which is a violation of the Second Amendment. My solution, and the topic of this debate, is whether the correct constitutional solution is to impose a mandatory death penalty when there is “indisputable evidence” that the defendant was (1) at the scene of the crime, (2) discharged the firearm, and (3) murdered the victim. This new standard would constitute photographic evidence which definitively proves that the suspect committed the homicide. A hypothetical example would be the photographic evidence of security cameras at a bank which depict the suspect carrying a weapon, pointing to the intended human target, discharging, and killing the individual. This could also be established by any photographic device including a mobile phone activated at the scene. Additionally, I would add situations such as the horrific massacre at Uvalde where the gunman gained access to classrooms and shot to death 21 people behind closed doors including 19 third and fourth graders. There may not be photo evidence of the actual killings, but the obvious fact that the gunman entered alone and committed the acts constitutes “indisputable evidence”.

Individuals charged with murder in these circumstances need to be expeditiously prosecuted subject to the application of a mandatory death penalty and without the benefit of an appeal. I would also add that the death sentence be administered within three weeks of the finding by the Jury and final sentencing.

From a public policy standpoint, I have no problem eliminating these vermin from the face of the earth. As a taxpayer, I do not want to incur a dime to support these miscreants. As a human being, my intent is to prevent these monsters from not only seeing the light of day but the opportunity to commit another offense.

I do not accept the criminal justice theory of rehabilitation as a justifiable option. Whether rehabilitation is possible or not is irrelevant to me. My rationale is entirely based on the accepted doctrines of retribution (punishment) and deterrence. These miscreants need to be eliminated from the planet with certainty and immediacy. The “immediate” part will definitely facilitate the deterrence goal.

As to the constitutional objections, I would argue that the same theory which upholds the great civil rights laws would apply to my mandatory gun sanction. If the Commerce Clause justifies imposing prohibitions on restaurants, public transportation, and the like, from discriminating against interstate commerce, so would the prohibition of gun violence. Who in their right mind would want to visit Chicago on the weekend, which routinely has more gun violence than our soldiers encountered in Iraq and Afghanistan? If that doesn’t interfere with interstate commerce, what does?

In numerous articles and in my recent book, Parenthethical Thinking – Intelligent Life Outside the Margins, I have predicted the hemorrhaging of gun violence in our urban areas will grow exponentially this decade and invade not only the suburbs but more exclusive havens. We need a law on the books now to fight back aggressively and decisively against senseless murders and remove these monsters, not only from America, but the face of the earth.

ROSEN – 1

Noting increasing gun violence, Charles advocates a federal law imposing a mandatory death sentence for cases in which there is “indisputable evidence” that a perpetrator used a firearm to murder another. He would allow no appeal and require the execution to take place within three weeks of a guilty verdict. I am as horrified as Charles by growing gun violence; however, his draconian approach is unconstitutional and unlikely to significantly reduce gun violence.

First, most murders occur within a single state. Congress generally does not have the power to enact a criminal statute for purely intrastate offenses. Charles cites cases sustaining Congress’ use of the Commerce Clause to prevent discrimination in places of public accommodation. These cases are inapposite: they deal with the regulation of intrastate commercial activities having an impact on interstate commerce. In Heart of Atlanta Motel v. United States and Katzenbach v. Morgan, the Supreme Court found such discrimination—taken in the aggregate—obstructed interstate travel and commerce in goods. On the other hand, Charles’ proposal is akin to the federal statutes in United States v. Lopez, where the Court sustained a challenge to a federal law making it an offense to possess a firearm in a school zone, and United States v. Morrison, where the Court struck down the federal civil remedy under the Violence Against Women Act. The focus of those laws was intrastate noneconomic activity, which the Court refused to aggregate to determine whether they had a substantial impact on interstate commerce. Gun violence is no different—it’s a matter for the states.

Second, Charles’ proposal is flatly unconstitutional. The Supreme Court has held that mandatory death sentences violate the Constitution (Woodson v. North Carolina). Instead, “the Court has insisted … on judging the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death” (Kennedy v. Louisiana). Moreover, unless Charles finds a constitutional basis by which to suspend the writ of habeas corpus, federal appellate courts, including the Supreme Court, will be able to review convictions using the writ.

Third, Charles’ proposal is unlikely to have a significant impact on gun violence. I suspect few murders are caught on film or have “indisputable evidence.” In addition, minors involved in gang violence cannot be sentenced to death (Roper v. Simmons). And finally, not all gun violence-related killings constitute capital offenses.

MOSTER – 2

I will concede that Rick has raised two seemingly insurmountable constitutional objections to my mandatory death penalty proposal. I will first address his argument based on my alleged misapplication of the Commerce Clause. I disagree.

Rick correctly interprets the seminal civil rights decision, in Heart of Atlanta Motel v. United States which relied on the Commerce Clause to validate the Civil Rights Act of 1964. The Court was persuaded that the discriminatory policies pursued by the hotel in question impeded interstate commerce as 75% of the clientele came from out of state. Accordingly, it upheld an injunction issued by the lower court to require the hotel to accept lodging from guests of all ethnicities.

The identical rationale would support the constitutionality of my mandatory death sanction based on indisputable evidence of gun homicide. In the same way that the Court determined that interstate commerce to Atlanta was burdened by lodging discrimination, the threat of gun violence in the murder capital of the United States – New York (for example), would prove the same point. In 2021, there were a reported 3,500 shooting victims in the Big Apple. This is consistent with the national average of 48 murders per 100,000 people or the brutal slaughter of 158,216 people annually.

If that doesn’t affect the flow of people or tourism involved in interstate commerce, what does? Tourism is the second largest service industry in the U.S. which directly supports over 204 million jobs and produces in excess of $100 Billion in revenue annually. The logical argument would be that tourism is adversely affected by the rising crime in urban areas. This appears to be a much stronger argument for causation then the plight of a single hotel as relied upon by the Court in Heart of Atlanta Motel v. United States.

Unfortunately, I must concede that Rick is correct as to the suspension of Habeas Corpus and imposition of a mandatory death sentence although I have an angle on that, too.

As to the writ of Habeas Corpus, it would seem to have no possibility of successful application given the mandatory elements of my proposed act, however, I would revise the legislation to make this constitutional requirement applicable. My sense is that the Federal Courts would reject these applications as frivolous, discard them, and allow justice for the victims to be done rapidly.

As to the decision of the liberal court in Woodson v. North Carolina (1976), the holding which struck down a mandatory death penalty was not based on specific language in the Constitution. It is a classic case of “judge made law” ripe for being struck down in the same fashion as Roe v. Wade.

Finally, Rick speculates as to whether the proposed act will have a significant impact on gun violence related murders. Respectfully, Rick is incorrect as to the inability of cameras to document killings. The placement of cameras across America is pervasive and in almost every commercial establishment and street corner. It would certainly be 100% effective should any monster think of repeating another school massacre as every school across America has cameras everywhere.

My proposed legislation is Draconian and severe; however, these tragic times necessitate the passage of extreme laws to protect all of us.

ROSEN – 2

Gun violence is horrendous; however, Charles’ solution is neither constitutional nor effective.

First, Congress doesn’t have Commerce Clause authority to enact Charles’ legislation. The difference between Charles’ proposal and the anti-discrimination statute in Heart of Atlanta Motel v. United States is that a hotel is a commercial enterprise. The Court held that Congress may aggregate the effect of intrastate economic activities on interstate commerce. Taken by itself the motel may not have had a significant impact on interstate commerce, but when combined with all other hotels that discriminated on the basis of race, the effect was substantial.

Charles argues that murders in cities like New York have an adverse impact on interstate tourism. The Supreme Court in United States v. Morrison rejected a similar argument in a case involving a civil remedy under the Violence Against Women Act. The Court ruled that “[g]ender-motivated crimes of violence are not, in any sense of the phrase economic activity…. [T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intastate activity only where that activity is economic in nature.” The same reasoning applies to gun violence, which is generally not economic in nature. The Court stated that “the regulation and punishment of instrastate violence that is not directed at the instumentalities, channels, or goods involved in interstate commerce has always been a province of the states.”

Second, Charles acknowledges that a mandatory death penalty for murder is unconstitutional. He contends that Woodson is judge-made law and can be overruled. The likelihood that the Court will overrule Woodson is less than remote. “Subsequent decisions have elaborated on the requirement that capital defendants have an opportunity to advance, and the judge or jury a chance to assess, any mitigating factors, so that the death penalty is reserved only for the most culpable defendants committing the most serious offenses” (Miller v. Alabama).

Third, Charles’ proposal is unlikely to have a major impact on gun violence because few murders are caught on film or have “indisputable evidence.” Charles’ posits that because of the pervasiveness of cameras in this country, they would be “100% effective” against school massacres. Perhaps, but Charles’ proposal is not limited to school shootings. In April, NPR noted that the rate at which murders are solved or “cleared” has dropped for decades, and was below 50% in 2020 and in the mid-30% range in big cities. The ubiquity of cameras has not decreased the number of unsolved murders, and few appear on film.

This article originally appeared on Lubbock Avalanche-Journal: It's Debatable: Should Congress pass mandatory death penalty?