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December 17, 2010

Kentucky judge rejects death sentence for child killer claiming life term will be a "hell more suited to you"

A helpful reader alerted me to this remarkable new sentencing story from Kentucky in which a sentence judge rejected the prosecutor's death sentence request for a child killer claiming that such a sentence would be too easy for the defendant.  Here are the details:

Saying the death penalty was not a harsh enough punishment, a judge ordered for Cecil New II to serve the rest of his life in prison, surrounded by “bigger, meaner men who have nothing to lose.”

“He will fear for his life every day,” Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing outside his home near Churchill Downs in 2007 and was murdered by New.  “He will wish this court had put him on death row.”

Since a November hearing in which prosecutors asked that New be sentenced to death, McDonald-Burkman said she had investigated the differences between the life of a death-row inmate and one serving a life sentence.  On death row, she said, inmates are segregated from other prisoners and can have meals sent to their cell without ever having to be around anyone else, and typically an execution is not scheduled for at least 20 years. With the life sentence, New must congregate with other prisoners and “is never truly isolated.”

“Death is undoubtedly justified for you,” the judge told New. “There’s not one cell in your body, Cecil New, that can be rehabilitated, not one. But is a death sentence justice?”  The unusually frank language from McDonald-Burkman included scenarios on how New’s life would play out in the general population.  “Death is easy,” she said.  “Living outside of death row, in general population in fear of prison justice every day is a hell more suited to you, Mr. New, than living under the protective guise of death row.”

McDonald-Burkman reiterated that this was not a “sentence of mercy, not an act of mercy, not an anti-death penalty stance” but the harshest punishment she could hand down.... The judge also addressed Ivan’s family directly, saying she hoped they would find comfort knowing that the only contact New would have would be with bigger, meaner inmates and that “he will be the smaller, weaker, more defenseless.”

Ivan’s family left through a back hallway, away from the media, but activist Christopher 2X, spoke for the family, saying they understood the judge’s decision but felt that “a life for a life should be the appropriate penalty.”...

On Oct. 14, the day before his trial, New surprised many by pleading guilty to charges of murder, kidnapping, tampering with physical evidence and unlawful transaction with a minor.  However, New did not negotiate a plea bargain and entered what is known as an open plea, which made him eligible to receive the death penalty and waiving his right to an appeal.

Assistant Commonwealth's Attorney Jon Heck had asked McDonald-Burkman on Nov. 16 to give New the death penalty, saying he deserved to die for his actions. But Jay Lambert, New's attorney, argued that New's life should be spared because of a horrific childhood that, at least in part, helped make him into who he is.

After the sentencing, Heck said he agreed with the judge’s reasoning that the life sentence was the greatest penalty.  “He will serve out his life a tormented man,” Heck said. “And I think he deserves that.”

It is not uncommon to hear death penalty abolitionists claim that a life sentence is in fact worse than a sentence of death, but I cannot recall a case in which a jurist has expressly relied on such a claim in order to reject a prosecutorial request for a death sentence.  Intriguingly, though the victim's family seems displeased with this result, this press report suggests that the prosecution agrees with the sentencing judge here and thus likely will not seek an appeal (and I am not even sure if applicable state law would permit an appeal in any event).

December 17, 2010 at 02:28 PM | Permalink

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Comments

This sort of comment at sentencing is unbecoming any serious jurist. Not because there's anything wrong with harsh words at sentencing, and not because there's any objective truth or falsity to the statement "a life sentence is a fate worse than death," but because these comments effectively endorse the idea that prisoner-on-prisoner violence and intimidation are appropriate features of our system of punishment.

Judge McDonald-Burkman's remarks do serious damage to efforts to stop prison rape and prison violence. It is not the right or responsibility of prisoners to punish other prisoners. If no appeal is possible, I hope that she will hold a new sentencing hearing or that the appropriate voices quickly condemn this philosophy. Someone needs to tell this judge that the punishment intended by incarceration is loss of liberty, and that we send criminals to prison as punishment, not for punishment.

Posted by: Matthew G. | Dec 17, 2010 3:04:26 PM

I wonder how many abolitionists, if any, support LWOP for a child killer because the murderer will be more likely to be subjected to abuse (and that is the mild word) in the general population than he would be on death row.

Posted by: Bill Otis | Dec 17, 2010 3:32:39 PM

personaly i think she's now a CRIMINAL....what is the the da's like to say. she's now guilty of conspiracy of facilitation of multiple FEDERAL and STATE CRIMES! by her own statement!

" a judge ordered for Cecil New II to serve the rest of his life in prison, surrounded by “bigger, meaner men who have nothing to lose"

last time i looked assautl and RAPE are a crime....even in prison.

at the very least she's shown she's NOT NEUTRAL which is a REQUIREMNT for any judge.

Posted by: rodsmith | Dec 17, 2010 4:01:45 PM

Doug, this sentence has me again thinking about whether a death sentence is exempt from traditional analysis of cruel and unusual punishment as applied claims in the Harmelin/Ewing/Graham vein.

Since it seems to me that a majority of theCourt has now adopted Justice Kennedy's three step test set forth in his Harmelin concurring opinion, why can't a defendant in North Carolina argue that in the context of his case the sentence of death is grossly disproportionate to the crime. Then if the def satisfies the first step by showing there is an inference of gross disproportionality, steps two and three involve intra and inter jurisdictional comparisons. In showing the interjurisdictional analysis of what other states punish for the same crime, why can't I introduce evidence of the sentence in the Kentucky case?

This question has intrigued me ever since Graham came down and employed a categorical approach to a noncapital case. Can I employ a "non-categorical approach" to a capital case? If not, why not?

bruce

Posted by: bruce cunningham | Dec 17, 2010 4:24:42 PM

Some things are better left unsaid.

I'm an abolitionist of sorts, and I very much support the notion of LWOP because its actually worse than death row. But I agree that this judge's soliloquy was pretty flagrant. She easily could have said "I'm sentencing you to LWOP because I personally believe it is harsher than death row and because it is cheaper on the taxpayer." That would have conveyed her intent perfectly. Instead, she said the equivalent of "I hereby sentence you to a life of battery and rape." No matter how hard-line you are, you just can't do that. The real tragedy is that she has now given him all sorts of appellate issues.

Posted by: A.Nony.Mous | Dec 17, 2010 4:37:11 PM

"she has now given him all sorts of appellate issues"

Any appeal would have to overcome two significant hurdles:

1) I think he waived his right to appeal. As stated in the article: "New did not negotiate a plea bargain and entered what is known as an open plea, which made him eligible to receive the death penalty and waiving his right to an appeal." One could argue that the court's flagrant soliloquy is a miscarriage of justice, and an appeal should be allowed. But the waiver would be a hurdle nonetheless.

2) The defendant received the sentence he asked for. "Jay Lambert, New's attorney, argued that New's life should be spared." Consider that he requested life, what relief would be requested on appeal? That the death penalty be imposed? Perhaps one could argue that the relief would be re-sentencing before a different judge and without the possibility of a death sentence, but that likely won't get very far.

Posted by: DEJ | Dec 17, 2010 7:02:48 PM

While Cecil New certainly deserves prison rape, prison rape should not be tolerated in civilized society. This judge's comments to that effect are outrageous. I don't know if Brown Pride (a Latino gang in the Southeast) has a presence in Kentucky. New had better hope not.

Posted by: federalist | Dec 17, 2010 8:28:58 PM

I agree with federalist and DEJ. To say that the court's words were poorly considered doesn't really capture it, but they were dictum, and this guy is going to get life at a minimum from any judge on the planet. So there's really no where to go with this.

Posted by: Bill Otis | Dec 17, 2010 11:22:00 PM

well DEj maybe he did waive his right to appeal...of couse that was before she announced to the world she's an out of control wannabe nazi stormtrooper.....

and Bill yes he deserves LIFE in prison as a min if he's guildity... but at the very least he had an idiot for a lawyer!

"On Oct. 14, the day before his trial, New surprised many by pleading guilty to charges of murder, kidnapping, tampering with physical evidence and unlawful transaction with a minor. However, New did not negotiate a plea bargain and entered what is known as an open plea,"

Since ONLY an idiot would allow a plea like this.

but that's beside the point..this judge is a NUT and has broken the law. if nothing else...if he gets a BETTER LAWYER this time he could end up with a nice hunk of change to spend at the prison canteen the rest of his life.

Posted by: rodsmith | Dec 18, 2010 2:16:01 AM

"in fear of prison justice" WOW!!

Posted by: claudio giusti, italia | Dec 18, 2010 3:28:34 AM

did anyone take a look at the photograph of this icky perv??? i find what the judge said to the icky perv to be extremely distasteful because she endorsed and implicitly encouraged whatever abuse the other inmates and guards give him - and worse she endorsed it for any weak inmate. i find it absolutely appalling that a woman would endorse that anyone gets raped and imply that he deserves it. and then he prosecutor effectively endorses that the icky perv gets raped as well? seriously??? what sort of message does that send to rape victims? do they also believe that a woman who goes to a bar wearing a short skirt deserves to be raped? even if they don't believe that, do they realize that there are still a lot of people in the community who would and do routinely blame women and girls for their own attacks because they were asking for it? really for a judge - especially a female judge - to tell someone that he deserves to be raped and beaten the rest of his life is just awful - and sends an awful message to the community that they do not take rape seriously. if even one woman or girl gets raped and does not report it out of fear tht the justice system will not take it seriously, that judge and prosecutor are responsible.

of course, i seriously doubt that mr. icky perv spends all that much time in general population - if he survives the initial assault and rape, he's probably going to solitary confinement for his own protection. the prison may even take one look at him and send him straight to protective custody. of course, the only thing that i disagree with about him spending the rest of his misarable life in solitary confinement is that he won't get castrated first. i guess that makes me cruel ;)

ginny :)

Posted by: virginia | Dec 18, 2010 8:29:25 AM

Bill Otis

I agree. It's not like another judge is going to give him a lesser sentence if the appellate court reverses and sends it back with instructions to assign it to a different judge. As much as the defendant is disgusting, the court was way out of bounds on this one.

Posted by: DaveP | Dec 18, 2010 9:27:38 AM

“He will fear for his life every day,” Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing outside his home near Churchill Downs in 2007 and was murdered by New. “He will wish this court had put him on death row.”

So if the logic is that LWOP is worse than death, can we argue that supermax is appropriate? If not, then what line is crossed with supermax that doesn't apply to LWOP or the death penalty?

Posted by: Steve | Dec 18, 2010 10:31:44 AM

The points above, though valid, are effectively moot because he will probably go straight to protective custody. This child-killing rapist will be spared everything he deserves at the hands of the state and other criminals.

Posted by: MikeinCT | Dec 18, 2010 11:46:27 AM

"This child-killing rapist will be spared everything he deserves at the hands of the state and other criminals."
lynch era not yet finished

Posted by: claudio giusti, italia | Dec 18, 2010 4:13:06 PM

@claudio
A lynching means there was no trial or representation, racism and innocence. He was tried, he was represented, he is not the victim of racism and he is guilty. Crack a book and read about the injustices of the era of public lynchings before you spout more rhetoric.

Posted by: MikeinCT | Dec 19, 2010 1:40:18 PM

I am sorry for you, I red a lot of books about lynching. Many occurred after a verdict and a sentence, even if it was a not guilty verdict.

Posted by: claudio giusti, italia | Dec 19, 2010 3:04:36 PM

Mr. New is in for quite an ordeal. You best believe that the Kentucky newspaper article will be read and distributed by both inmates and staff. The Judge has given them a license and encouragement to torture and kill this pervert. Personally, I am not too upset about this, given that Mr. New murdered a 4 year old child in cold blood.

Posted by: mike | Dec 20, 2010 3:29:38 PM

@claudio
Then it's still not an execution, it's a murder. The comparison doesn't work. I feel sorry that you can't understand that.

Posted by: MikeinCT | Dec 20, 2010 5:37:44 PM

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