Attorneys for suspected Tree of Life gunman argue death penalty is unconstitutional

Attorneys for accused synagogue gunman Robert Bowers have made a familiar argument in cases where the defendant faces the federal death penalty.

The death penalty is unconstitutional, Bowers’s attorneys stated in a flurry of court filings this week.

Bowers is accused of gunning down 11 congregants inside the Tree of Life synagogue in Squirrel Hill during Shabbat services 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 intend to seek the death penalty, a punishment carried by 22 of the charges against Bowers.

Bowers’s attorneys – Judy Clarke and federal public defenders Michael Novara and Elisa Long – argued the Federal Death Penalty Act violates the Fifth and Eighth Amendments plus a portion of the Tenth Amendment.

It’s a move similar to arguments the anti-death penalty Clarke has made in the cases against other high-profile clients she’s represented 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 expressed her desire to secure Bowers a plea deal that would send him to federal prison for life and take the death penalty off the table. She’s written in court filings that prosecutors have rejected a plea deal.

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 protects against punishment being applied arbitrarily. The Eighth Amendment prohibits barbaric and cruel punishments, as well as punishment that is not proportional to the crime.

Bowers’s attorneys also argue the Federal Death Penalty Act violates the anti-commandeering provision of the Tenth Amendment. The provision keeps the federal government from forcing states or state officials to enforce 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.

Bowers’s attorneys cited the 2002 Supreme Court case Ring v. Arizona in their filings. That case, though referring to a state case, held that the aggravating factors needed to sentence a defendant to death must be found by a jury.

Attorneys argued that in Bowers’s case the indicting grand jury did not find the aggravating factors, rather they were tacked on in the prosecution’s notice that they intended to seek the death penalty against Bowers.

Clarke and her co-counsel, David Bruck, also argued against the death penalty in the trial against Boston Marathon bomber Dzhokhar Tasarnaev, 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.

Tasarnaev was found guilty and sentenced to death in 2015. He recently appealed his conviction and sentence.