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for Muzzling a Murderer |
To avoid facing the death penalty for his part in the pistol-whipping death of Shepard, McKinney signed on to a sentencing agreement that muzzles him, his lawyers, and the media for the rest of his life. It's difficult to work up a lot of sympathy for the homophobic defendant in this case, but the sentencing agreement does raise significant issues for a society that values both freedom and justice. The sentencing agreement, drawn up in consultation with Shepard's parents, stated that: McKinney could not appeal his sentence. He could not talk to the news media about the case. His attorneys, the public defender, the mitigation specialist and other members of the defense team could not talk to the news media. Any proceeds arising out of the case for McKinney must be given to the Matthew Shepard Foundation.
Dennis and Judy Shepard had endured for many months not just the brutal loss of their son but slights and innuendoes about him from one of his murderers. It seems clear that they wanted to put all of that to an end. They wanted to make sure that McKinney did not further sully the memory of their son. They wanted to make sure that he did not use the news media to turn his infamy into celebrity. Even so, the sentencing agreement has raised a lot of eyebrows and a good bit of controversy. Editorialists and civil rights activists have complained about the extent of the Shepards' involvement in the conduct of the trial and the formulation of the agreement, as well as the silencing of the defendant. There are real concerns in such an arrangement. First, it flouts the public's First Amendment right to hear all voices in a significant public-policy dialogue about hate crimes and other crime-and-punishment issues.
Second, such an agreement raises serious questions about how the courts might enforce it. Certainly adding a few years to the two life terms McKinney will be serving doesn't give a judge much leverage if McKinney violates the agreement. So what does a judge do? Deny access to the prisoner by family, friends, lawyers and journalists? Punish lawyers who talk out of school? Imposeprior restraints on the press? Allow the Shepards to successfully sue a news organization that published or broadcast stories thought to be in violation of the agreement? Third, there is the larger picture, and that is that the American public systematically and increasingly is being excluded from the criminal justice public-policy debate. Lawmakers are fine-tuning so-called "Son of Sam" laws, ruled unconstitutional in 1991, to prevent prisoners from profiting from their crimes by writing or talking about them. State and federal prison officials are establishing policies that deny public and media access to prisoners. Courts are gagging defendants, prosecutors and attorneys in trials; sealing court documents; and restricting public scrutiny in a variety of ways. A democratic society must measure its commitment to justice by encouraging the public to monitor the judicial process and judge its results. A democratic society must measure its commitment to freedom by protecting the speech of even the least deserving of that liberty. By those measures, we are falling short. There is a reason we keep the victims of crime at arm's length in the dispensation of justice. To do otherwise is to invite society to sink to the levels of the monsters among us. There is a reason we protect the speech of even the lowliest and most odious among us. To do otherwise is to say that we are incapable of learning from our mistakes or our murderers. There is a reason we have invested so much in making sure that even a murderer doesn't face the ultimatum of "shut up or die." To do otherwise is to muffle the strong voice of both freedom and justice. |
Convicted murderers of Matthew Shepard: Russell Henderson and Aaron McKinney 
Matthew Shepard's parents, Dennis and Judy 
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