Demjanjuk, Unclean Hands and the "Death Row Phenomenon"

The deportation to Germany of 89-year-old John Demjanjuk may be an occasion to think about the so-called "death-row phenomenon." No, Demjanjuk does not face execution in Germany, which has no death penalty. However, one aspect of his case does raise an issue that has also arisen in the death penalty context.

At the end, Demjanjuk's lawyers argued that he is too old, sick and frail to be deported, an argument rejected by courts in both the U.S. and Germany. But only just barely. One could well imagine that had matters gone only slightly differently, Demjanjuk could have easily slipped into senile dementia or some other condition that would have precluded deportation and/or trial. Or he could have died before the process ran its course.

Yet clearly Demjanjuk himself bears substantial responsibility for his age, illness, and frailty. The Justice Dept initiated proceedings to strip Demjanjuk of his U.S. citizenship over 30 years ago, and it has been sixteen years since the Israeli Supreme Court reversed the finding that Demjanjuk was the notorious "Ivan the Terrible," even as it suggested that Demjanjuk was almost certainly a different Nazi war criminal. If Demjanjuk were now too old and frail to be deported or stand trial, surely that would have been proximately caused by Demjanjuk's own efforts to resist deportation and trial when he was younger and healthier.

Should Demjanjuk therefore have been precluded from even objecting on the basis of age and frailty due to his own unclean hands? That question is not different in kind from the death-row phenomenon. Death-row inmates sometimes argue that a long period on death row is itself an impermissible punishment (under various constitutional provisions or as a matter of international human rights law) because of the anxiety that accompanies living under sentence of death. Yet the death-row phenomenon is itself largely a product of death-row inmates' own willingness to use legal procedures to cause delay. Nonetheless, the Judicial Committee of the Privy Council found that factor ultimately unimportant, as it explained in its 1993 judgment invalidating the Jamaican death penalty:

a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence.

Note that this logic has not been accepted by U.S. courts, but suppose it were. Some death penalty proponents complain that the procedures available for capital appeals are themselves the result of rules announced by liberal judges hostile to the death penalty---and these death penalty proponents have a point. But they are wrong to suggest that the death row phenomenon is simply a backhanded way of abolishing the death penalty. With more courts and (much) more money for adequate defense in the first instance, a death sentence could possibly be carried out on a schedule that would satisfy the Privy Council (at least now that federal law limits the time taken by habeas review). But that in turn could only be accomplished if capital charges were rare and death sentences rarer still. Interestingly, in the years since the Privy Council ruling, Texas (the leader in capital cases) has imposed many fewer death sentences (although I'm not suggesting any causal relation).

And what about Demjanjuk? His argument was not that the very delay was itself harmful, and for that reason, his hands seem less unclean than those of the death row inmates who complain about the delay that they themselves caused (at least in part). If it really were true that travel to Germany would kill Demjanjuk (and that such travel was not part of his sentence!) or that he had lost his mind and was thus incompetent to stand trial, then it wouldn't matter that he was to blame for the delay. Trying a corpse or a vegetable for war crimes makes no sense, even if that means that the person who became that corpse or vegetable thereby escapes justice.

Posted by Mike Dorf