WHY the DEATH PENALTY, or EVEN a LIFE SENTENCE, is NO SOLUTION

On the following few pages, a young man's life or death will be decided. What is important here is not whether Nick G. committed the crime resulting in the death of a narcotics officer. What is important here is (1) the impulsiveness and lack of any planning or pre-disposition to commit a crime, (2) Nick's spotless background and education, and (3) the opportunity to rehabilitate someone who committed an impulsive, rash, not-thought-out act and turn him again into a productive citizen.

There are millions of people- including judges, attorneys and well-principled individual who see the Death Penalty as cruel and unusual punishment. Even in some of the most heinous crimes, it takes years before the sentence, if allowed to continue, is carried out. This brief is not to argue the merits of Capital punishment. It is well known that among Western nations, the U.S. tends to lead the way in executing criminals even, as has been learned later, some of them truly were innocent. There is a liberal opinion, also shared by many in seats of power, who will argue it is better to let one guilty man escape the death penalty than execute one innocent man. So, in this plea for a proper review of Nick's potential sentencing, it is not a matter of debating his execution or not. It is to find a reasonable means of assuring that this one-time rash act- criminal though it was- could nevertheless mean the beginning of rehabilitation for someone who, heretofore, has led an exemplary life- totally unlike his father or twin brother. With years of good behavior, graduation from, a prestigious Ivy League school, Harvard, it is reasonable to believe that the old axiom that behavior- ill or good- is in one's genes: "The fruit doesn't fall far from the tree." In this case, it was one unexplained, unpremeditated and sudden and, to use the word "impulsive" again- act that turned Nick from a law-abiding respected and respectful young man potentially into the felon label that has dogged father and twin-brother for some time.

The defense has made some strong arguments that need to be addressed before the sentencing takes place. First, in the midst of a graduation celebration, Nick was not aware that his twin brother was planning a crime, and therefore the idea of abetting a crime resulting in a homicide need not be considered. Second, the narcotics undercover officer never identified himself as an officer of the law and therefore, the idea that punishment needs to be more severe because the dead man was a police officer is also not to be considered. A third argument is also realistic: Nick thought that his twin brother, regardless of what he was or had been or was planning to do, was being attacked and in danger from an unknown person. In the sense that blood is thicker than water, Nick rushed to his brother's defense. He was, at that point in time, in the belief that he was committing an honorable act: saving his twin brother from harm.

Given the history of the two twin brothers- separated early in life and raised separately, it is obvious that the nurturing which Nick received in Arizona from his grandmother turned him into a decent human being, compared with the bad influences which Mike received and which caused him in his teens to begin a life of crime. We cannot and should not permit all those good years and positive influences to destroy Nick's life for the rest of his years. Therefore, in judging the sentencing guidelines, one needs to take into account all the good years of Nick's life to date, all come crashing down with one unpremeditated unthinking act. We need to differentiate between being guilty and being not innocent.

The death penalty, even when it may be deemed necessary, is designed to remove an evil from the public- an evil that has no means of being rehabilitated and would not only cause continuous violence, but would become a public burden. The death penalty is reserved for brutal violence where one or more people are killed in the commission of a planned, pre-determined premeditated crime. The death penalty may also be assessed for the murder of a lawman or woman. In Nick's case, the death penalty should not be even considered despite the fact the dead man was a police officer. As mentioned earlier, he gave no warning that he was a policeman. So, at best, the sentence should be judged a homicide rather than murder.

There is no doubt that Nick's rash actions merit some sort of punishment. But exactly what? And, how could Nick's education and previous spotless reputation be utilized not only for his benefit but for others?> One recommendation, therefore, is that he be given a short sentence in a minimum-security institution where he could become an instructor or guide for others in that institution. He certainly has the educational background for that.

The purpose of a sentence is to recognize that a crime has been committed- for whatever reason or circumstances- and some sort of restitution to the public in general needs to be made. But, unlike hardened criminals, Nick's time behind bars is not to make vain efforts at rehabilitation to lure him from criminal ways that had soiled his past. Nick's was a single, emotional act that resulted in tragedy. But, this one tragedy should not be compounded by a second one- taking Nick's life and potentially positive future where he might make valuable contributions to society. We cannot forget the crime or the loss of a police officer. But, we- society- can forgive the perpetrator. And the way to begin this forgiveness is to make certain that Nick's life is not merely spared, but subject to community service to repay the debt to society which this impulsive act has created.

How do we do that? We need to establish priorities that set Nick apart from the common criminal element, and put his education and values (heretofore unblemished) to the best use for our society. It would seem, therefore, that incarceration be held to a minimum- given the suggestion of utilizing Nick's background to become a guide and instructor at the facility. Then, we need to establish a maximum amount of time for community service. The types of service to be determined, depending on when and where Nick will be able to serve both his sentence, his parole and his community requirements.

It may be necessary to provide some sort of financial restitution to the slain officer's family. If he left minor children, then Nick's financial obligations would include covering their education. Surely, this one moment will scar Nick for life, no matter what punishment or rehabilitation society may offer. Our task, however, is not to let Nick-0 or any of us- forget that moment, but to find a means to get past it- and to return Nick to the level of his contributions he had started to make to his community.

Sadly, we find that in every community there are "disposable" people: criminals who can seldom if ever be rehabilitated and never again become a threat to our safety. Those are the people who crowd our prisons and strain our financial means. Nick is not such a human being. He deserves- and should be entitled- to a meaningful life to help him get past this one awful moment. We may be able to turn our backs and put away the Mikes. We need to save and nurture the Nicks.