When The Hammer Hits The Right Nail

Nebraska Senior District Court Judge Richard Kopf is a crafty old man.  He knows how to play an audience, and does so with finesse when he writes of a death* he can “cheerfully” support.

Last Sunday, Michael Ryan died on death row in a Nebraska prison. He was 66. He had been there 30 years. According to the Omaha paper, he was suffering from terminal brain cancer.

For me, Ryan’s death is a pleasant surprise. I know that sounds bad, but it is manifestly the truth.

It’s not an arbitrary bomb tossed into the blawgosphere to goad those of us who are steadfastly against the death penalty.  Judge Kopf backs it up.

Consider what I wrote when denying his habeas corpus case:

This is a death penalty habeas corpus case. It involves the most horrendous torture and sickening murder imaginable. There is not the slightest doubt about the petitioner’s guilt. If any man deserves to be put to death, that man is Michael Ryan.

Michael Ryan (Ryan or the petitioner) was sentenced to death for torturing and then killing James Thimm. Ostensibly in the name of his God, and over a period of two days, Ryan and others at his direction tied and chained Thimm in a hog confinement shed; on several occasions sodomized Thimm with a shovel handle or a pick handle to the point that the man’s guts ruptured; whipped and beat Thimm; shot off some of the victim’s finger tips; partially skinned Thimm alive; and caused the man’s bones to be broken, once using a piece of lumber and a block of wood to complete the fracture of a leg with one blow. After that, Ryan stomped Thimm to death. Although a five-year-old child, Luke Stice, was also killed a month or so earlier as the events culminating in Thimm’s death boiled up, Ryan did not receive the death penalty for that crime [but was sentenced to life in prison].

Ryan v. Clarke, 281 F. Supp.2d 1008 (D. Neb. 2003).

I defy anyone reading that description of Ryan’s conduct not to harbor a visceral feeling of anger and disgust strong enough to want to push the plunger themselves.  I told you he was a crafty old man.

At bottom line, it’s necessary to accept one reality. There are people who are sick enough, dangerous enough, disgusting enough, horrible enough, that it’s hard to justify why they should be allowed to waste another breath of oxygen that might be used by someone else.  Such people exist.  Sure, if one searches hard enough, one might find some redeeming value in their early childhood, but what sort of diseased human being could do such things to another human being?

That’s the trick.  Hold out the absolutely worst among us, and then pose the question: why is capital punishment of this man wrong?

The obvious retort is to point at Cameron Todd Willingham, and ask the same question back.  The point is that this time, at least if we take as true the finding, there is no doubt whatsoever that Ryan is as evil as portrayed, that if the hammer is to fall on anyone’s head, let it be Ryan.  We may not trust the hammer very much, but Ryan is the one who needs to be nailed.

Yet, while we may not cry too hard for the soul of someone like Michael Ryan, the horror of what he did offers little insight as to how a young boy, much like any other young boy, ended up so twisted that he would do such things.

Ryan was a white supremacist. He and his group of followers had loose ties to the Posse Comitatus and links to the Christian Identity movement. His teachings included the supremacy of the white race, the inherent evil of Jews, and a distrust of all established earthly authority, including governments.

Was it something Ryan was taught by a fiery preacher?  Was it an angry father, filled with hatred for his own failures, that taught this young boy to dehumanize the targets of his anger to the point where he could engage in such vile conduct?

In school, was he taught from books that ignored basic science because those who decided curriculum thought it more important that they impart religious fervor than knowledge?  Did his teachers find him unworthy of the effort to break through the wall of anger and show him a path to a future of success?

Was Michael Ryan suffering from such serious psychopathy, unrecognized and untreated before he first pulled the wings off a fly?  Did he go to jail, to prison, where no one bothered to figure out what sort of misfired sparks were happening in his head, and instead spent their time fueling his insanity, stoking the fire of crazy, so that when he came out there would be no doubt he would explode?

Michael Ryan didn’t arrive on this earth fully grown and so filled with hatred that his diseased mind found it acceptable, maybe compelling, to engage in such horrific conduct.  If we only speak of the horrors he committed, we can well understand why Judge Kopf found the news of his death cheerful.

If only a little more attention was paid to him before the hammer fell, before he became the nail about whom no one will shed a tear.

*  Michael Ryan cheated the executioner by dying on his own. But the fact that nature took him before the executioner did does not change the question posed by his death.

35 thoughts on “When The Hammer Hits The Right Nail

  1. Pete

    “found the news of his execution cheerful”

    The Star Journal article that you linked says that Ryan died in prison of natural causes.

  2. Vin

    SHG, Im not sure it’s as important to consider how he became what he was, or just that he ultimately was what he was.

    The strongest case against the death penalty is that it offers no redemption for a person who may ultimately be proven innocent.

    It is indeed a tragedy that the Michael Ryan’s of the world are “created” by the experiences of their youth, but once created, if they pose the threat they pose, why would we keep them around?

    1. SHG Post author

      but once created, if they pose the threat they pose, why would we keep them around?

      Why execute them. Why not? Deep, Vin. I am sorry that you missed the point of this post, but I can’t help that.

      1. Vin

        SHG, I agree with you that this is certainly not cheerful. Nothing like this is something to have a party over, or celebrate.

        I got distracted by what appeared to be, as a secondary point, that the death penalty is wrong because people are not born sociopathic.

        1. SHG Post author

          Vin, the rationale that militates against the death penalty, as a concept, applies to all cases, not to those where we “all” agree that the guy needs killing. We don’t put execution up to popular vote to see if society, as a whole, agrees that we hate one individual enough to kill them.

          More to the point, the way we feel about death in a particular case is grounded in what we are told. Here, we’re told there is no doubt whatsoever that Ryan is guilty of horrific conduct, so we can confidently hate him. What if that was wrong? What if that was the sanitized conclusion after all the evidence, the argument, that it wasn’t him were swept under the legal carpet before the news reached us? We wouldn’t know, but we would still feel certain in the righteousness of our choice.

          That’s why it’s not as easy as “why not?”

          But the point here is that even someone who has done something as horrible as Ryan comes from somewhere, and we pay no attention to the Michael Ryans in training, but are cheerful at his death. If Thimm was given the choice, address Ryan’s insanity before it manifests in Thimm’s death or execute him afterward, what choice do you suppose he would make?

          If you want to do something for Thimm, and every other Thimm to come, fix the problem that doesn’t get a fraction of the attention spent on killing monsters afterward.

          1. Vin

            SHG, when I comment here, I try to be brief because I know how much you hate soap box comments. As a result, much of my intent is lost.

            My point in my first comment is this. That the problems that contributed to Ryans development are not addressed, and will likely never be addressed in total, doesn’t help to resolve what to do with Ryan now that he is developed.

            Im not a fan of the death penalty because of its absolute nature. There is no turning back from it.

            While I am with you 100% that we should be working to address the problems that lead to the creation of a sociopath, Im not with you as it pertains to what we do with the sociopath once created.
            It could be that my logic is flawed, but I do think punishment should be considered on an individual basis, and in extreme cases, death is a reasonable consideration.

            I apologize in advance if this contributes to the stupidity of the world.

            1. SHG Post author

              I appreciate your concern for brevity, but the death penalty either is or isn’t, and if it is, it’s not limited to the Ryans (who, I again emphasize, we’re so certain deserved it because someone told us so, not because we actually have a clue that he deserved it). To kill a Ryan, we have to kill a Willingham. There is no magic way to do one without the other.

  3. AH

    I’ve argued to people before (mostly with no effect unfortunately), that just because there is a person who deserves killing, does not mean the State, and by extension the People, should do it. If anyone deserves killing, it is likely to be Mr. Ryan. However by that same logic, he also deserves torturing. Few who would argue for the death penalty would also argue for State-sanctioned torture. At least I hope that to be the case.

    Just as with free speech has no value if it only applies to popular speech, mercy is a hollow gesture if reserved only for those who can prove without a doubt that they deserve it. The death penalty says much more about the people delivering it than the people receiving it.

    1. SHG Post author

      However by that same logic, he also deserves torturing.

      I don’t see how the argument follows from death to torture. We don’t execute because to make the defendant suffer death, but to eliminate his existence. It’s supposed to be painless, swift, medical and sanitary. The idea is that the killer, by his actions, has forfeited his right to live, and so his life is taken, but we don’t make him suffer in the course of it. It is merely the ultimate specific deterrent.

      The Blecker view, that inflicting pain and suffering on the “worst of the worst” as a human and moral imperative, is an outlier position. Some agree with it, but it is not how our jurisprudence rolls.

      1. AH

        I hope and believe that people wanting to inflict actual sadistic pain are in the minority. But those people who premise their belief in the death penalty on the foundation that some people deserve to die do wish to see the recipient suffer, even if that suffering is meant to be painless, swift, medical, and sanitary. If, for example, Michael Ryan had died painlessly in his sleep the night after he was sentenced, I think we would hear lots of people saying he got off “too easy”. People argue that lethal injection is getting off too easy (while still not supporting torture). As a point of logic, I wonder where the line gets drawn for those people. With all that being said, I recognize that this is not about what I think or wonder. Thank you for the post and the dialogue.

        1. SHG Post author

          I see your connection more clearly now. I’m still not sure that it’s true, but I’m also not sure that it isn’t. No doubt that somewhere in the multitudes of survey done on the death penalty, someone has asked people whether they would prefer the guy go painlessly or suffer, at least just a little. If so, I don’t know what the results are, but I want to believe that most people do not want the defendant to affirmatively suffer, even if they don’t want to be “cheated” out of executing him.

  4. John Barleycorn

    The robbed rider from Nebraska may be clever but the cobwebs are just fucking with him as he reflects on the topography of his ride this far?

    Let’s take a ride with the honorable judge and twist his “struggle”…

    ~~~~I don’t believe in Heaven or Hell. It is enough for me that Ryan is dead and gone.

    The foregoing said, if the death penalty were repealed, I would sleep better at night. How’s that for being both irrelevant and selfish at the same time.~~~

    The second paragraph is from a previous post of his the first from his post today.

    I don’t think the robed rider is looking to play the crafty card necessarily. I think he just simply can’t resist taking the pale horse out for some perplexing rides when the light of current events twist his aggregating dark side.

    I would however argue that his frustration disappoints, even himself, when he mounts the aggregating pale horse while reassuring us, he remembered to carefully pack his rule book.

    But in the end perhaps it will be his frustration that settles him on this issue?

    Of all the guilds it is yours and the judge’s guild that perplex me most when it comes to the practitioners thoroughly understanding the limitations of the mounts upon which they ride in an effort to get the job done.

    You two are given no real choice and ride must you must perhaps, but I don’t think the judge is covertly pushing the distorted tranquillity of vengeance as much as he is pondering his own frustration with himself and for lack of a better word justice.

    He will not be making my benevolent dictators council short list just yet but he might one of these days? We will just have to wait and see how he continues to adjusts to falling off his mount. One would think he is sure to have a heart to heart conversation with his horse sooner or later.

    Then we will see.

    In the meantime if you or any of your readers ever have an opportunity to get him around a campfire don’t let him keep riding the fence line when dawn breaks.

    1. SHG Post author

      I’m hoping to get him around the campfire some day, but for my own purposes. There are some stories I want to hear, and I suspect I’ll be needing a big pitcher of White Russians.

            1. John Barleycorn

              I am still trying to get my head around the physics of how long it will take the ice to melt in a pitcher of white russians and whether or not the esteemed one regularly mixes his cocktails by the gallon.

              It’s possible but this suggestion is more likely a fraternal challenge by the esteemed one to gain some subtle advantage while on unfamiliar turf. This is going to fail miserably. Thus, at this juncture I have my money on the robed rider especially after he dropped his historical experience with the concoction in question. Even if the esteemed one has been practicing with the six cases of smuggled Finnish vodka from his long over due vacation that ended too soon.

              In the end it breaks down like this:

              There is simply no way the esteemed one is going to be able to metabolically deal with Nebraska cream, let alone the homemade Kahlua that the robed rider probably buys by the case in half gallon hard plastic orange juice containers from the the DEA agent in Omaha who is the designated federal warrant signature gatherer.

              So with all due respect, if anything good is to come of this the smart phones and their cameras will be left on the foyer table and over a three o’clock brunch the next afternoon the robed rider and the esteemed one, will talk each other into an annual summer legal jamboree conference/party to be held somewhere in “flyover country” each year a week or so before or after the summer solstice so the “children” in their twenties and thirties can stop by on their travels to various festivals around the country and be un-propagandized by a cranky atheist federal judge from the prairie plaines who is a closet optimist and a self described curmudgeon-ie “been there done that” criminal defense lawyer from the big city who will at long last have the proper forum to put on the mother of all grand jury presentations not to mention a good excuse to drive his Aston Martin across the Mississippi River and take more vacation time. And their guests from the best the blawg-o-sphere has to offer.

              It’s their destiny really and between their two blawgs and the countless other blawgers and commenters within their guild who they share many similar angsts with, even when their angsts are dissimilar it is really a no brainer.

              The only questions that remain are can the robed rider pull some strings with the Nebraska Alcoholic Beverage Control Board to allow pitchers of white russians
              to be served to individuals, can the esteemed one function without smashed bagels the morning after the kick off party, and whether or not they can convince their peers that if you can’t get “their” attention through the front door throwing a proper party yearly will have “them” buying scalped tickets from the second year on.

              I will chip in the initial ten grand and help organize the inaugural jamboree on the condition that the cheap seats are allowed to display banners over the balcony, camping will be allowed, I get to sign the band that will be providing the Saturday evening entertainment on the nearest reservation for the mid-conference retreat, I get to supervise the recruitment of college college students that will be building the stage props, and Fubar agrees to write and present the introductions.

              In the meantime I don’t think anyone wants to see the robed rider and the esteemed one attempting to keep up with melting ice after the stories start flying and there is no way a recording of such an encounter could capture the context.

              Cheers, and don’t forget that there is never an excuse to let that pint of heavy cream about to expire in your refrigerator go to waste. There is training to do.

  5. Peter Gerdes

    The worry I have about abolishing the death penalty is this:

    People who are sentenced to die draw a massive amount of scrutiny. Indeed, it seems to be the only place in the criminal justice system where either the media or the courts pay significant attention to claims of actual innocence (at least that fall short of incontrovertible evidence of another person’s guilt falling into the justice system’s lap). This shines a hugely important light on the failings of the justice system in general and the potential for wrongful convictions in non-capital cases. Unfortunately, the lack of any definite deadline to exonerate someone languishing with a lifetime sentence tends to mean that exonerating information is never examined.

    If we didn’t have the death penalty I worry that we would never discover just how flawed many forensic techniques and various kinds of witness testimony really are and never introduce reforms (sure academics might show the results in a lab but people easily dismiss experiments with undergrads as irrelevant to courtroom deliberation).

    Personally, I wouldn’t find a sentence of death (especially the slow way it is carried out in the US today) much worse than a sentence of life in prison or even 15 years (especially if it was for a repugnant crime like rape). So, if keeping the death penalty around helps reform the rest of the criminal justice system maybe it’s a necessary evil.

    1. SHG Post author

      I know Imma gonna regret publishing your comment, but what the hell. First, how cool that you were able to read between the lines and see that this post was all about, “what does Peter Gerdes worry about the death penalty.” A lot of people would have missed that, but not you. Bravo.

      Second, you confuse things you, as an outsider, see as a result of the death penalty from what we, as participants in the system, have seen all along. It’s like summer reruns; if you missed them the first time around, then they’re new to you! So you’re conflating “discovery” with the trickle down effect to those who are clueless about the legal system. Happens all the time.

      Third, it would all be a lot more palatable if we didn’t, you know, actually kill people first and figure out they’re innocent later. It kinda puts a damper on my enthusiasm for keeping it around so clueless people can eventually figure out that the system has issues.

      And finally, if we give life for rape as well as murder, then it provides an incentive for rapists to murder their victims, both to silence evidence against them and because two life sentences isn’t any longer than one. Trust me on this.

      1. Peter Gerdes

        Because it’s not the case that almost all the other posts here and the original post aren’t about the morality of inflicting the death penalty. C’mon, If a string of comments of the form “the death penalty is bad because X” are on topic so is “The death penalty may not be bad because Y” is as well.

        As for your responses.

        Yes, *you* may know about these flaws in the judicial process but what matters is discovery by those who can (and will) change the system as a result. That means members of the public, deliberately ignorant judicial committees, and politicians. What matters is whether the existence of the death penalty ACTUALLY brings about more reforms of the justice system than would occur in it’s absence.

        Yes, it is a loss that people get executed before appropriate changes are made…but it is a question of costs and benefits. Surely, 100 wrongful (and never overturned) sentences of life without parole are worse than one wrongful execution. The reason I brought up how bad I feel it is to be executed vs. get life in prison was to suggest that it’s probably something < 2 wrongful life sentences to be worse than 1 wrongful death penalty.

        The question is which situation is overall worse. Injustice is always bad but don't we want to overall minimize it?

        I was never suggesting we increase the use of the death penalty and given how infrequently it is currently applied (excepting maybe certain rules about killing law officers) the incentive to kill victims because you will get death anyway doesn't really apply. Besides, this perverse incentive bit is actually worse without the death penalty. Since far more crimes regularly warrant sentences of life without parole if there is no possibility of the death penalty the criminal is now incentivized in all these cases to kill witnesses.

        1. SHG Post author

          My God, are you prolix. There is a huge difference between discussion of an issue and discussion of someone’s feelings about an issue. You keep missing this detail. This isn’t your lean-in group, and nobody gives a damn about how you feel about anything. Got a point? Make it. Got a feelz? Save it for reddit.

          …but what matters is discovery by those who can (and will) change the system as a result.

          You can’t seriously be that naïve. The public neither knows nor cares until it touches their life. And just because you discover it when they fry someone doesn’t mean “the public” does. You are not the public. Sorry.

          …but it is a question of costs and benefits.

          Is it? This is important: how many innocent people should die and it’s still good with you? We can change the old Blackstone Ratio to the Geddes Ratio. So what’s the number you find acceptable? I’m sure everyone else in society will bend to your will and go along with it, so give it up.

          Since far more crimes regularly warrant sentences of life without parole…

          Really? Like what. Please give up the names or numbers, whatever evidence you have of this. TIA

          1. Peter Gerdes

            (oops accidently posted this in wrong place)

            First the substantive points:

            >You can’t seriously be that naïve. The public neither knows nor cares until it touches their life.

            SOME reforms of the criminal justice system do occur… It’s rare but it happens and it happens substantially more often when it has the punch of finding out innocent people were executed.
            It’s not about making things perfect but slightly decreasing the badness.

            For instance, reforms granting greater access to DNA testing of old evidence were motivated to a large extent by concern about wrongful execution but helps exonerate prisoners who aren’t on death row as well. And the public response to these wrongful executions (or almost executions) played a part in advancing these reforms. I can find more examples if you want.

            If you have some better way to force these reforms to happen let me know.

            > This is important: how many innocent people should die and it’s still good with you?

            Society MUST make choices like this. No matter what we do we will destroy innocent lives with wrongful convictions. Any choice we make implicitly balances the frequency of various undesirable outcomes. I mean any criminal prosecution poses some chance of a wrong result…but we balance the harm of letting the guilty go unpunished (lack of deterence..) with the harm of occasional wrongful convictions.

            We have to reach a consensus about how many guilty men should go free for each innocent convicted and we must also decide (at least implicitly) how many wrongful life sentences are worse than a wrongful death (be it at the hands of the state or at the hands of the criminal we let go).

            What you criticize as sharing my feelings was simply a proposal (akin to better 10 guilty people should go free than 1 innocent…) about how to make that trade off. It WILL be made even if you don’t like it so if you disagree with the tradeoff I suggest pose another one. Ultimately, such tradeoffs are always justified in individual intuition about the badness of various situations but that doesn’t mean one can’t find consensus.


            LWOP vs. Death Penalty

            From http://sentencingproject.org/doc/publications/inc_federalsentencingreporter.pdf the number of LWOP offenders in 2008 was ~40,000. From here http://deathpenalty.org/article.php?id=86 the number of death row inmates is ~3,000. (Now since some death row inmates are killed by executions there is a correction but since the average length of time before execution is > 15 years and death row inmates wouldn’t live more than 75 extra years on average anyway the largest possible correction would be a factor of 5).

            1. SHG Post author

              1. All sort of fights, reforms and changes happen, and you know nothing of it. What you know or don’t has no bearing on anything. The public is clueless, which doesn’t mean changes don’t happen, just that the public is unaware.

              2. “Society MUST make choices like this.” No. And more importantly, you don’t get to recreate the entirety of law because of your feelz. It has been decided, even if you don’t know about it or don’t like it.

              3. “…the number of LWOP offenders in 2008 was ~40,000.” Not criminals. Crimes. Enough. You waste way too much bandwidth and murder far too many words, for absolutely no contribution whatsoever.

            2. Dan

              Aside from being insufferably long-winded, you are one of the scariest commenters I’ve ever seen here. You are obviously very smart and very well-educated (you write like an academic), yet you grasp nothing. We are doomed.

  6. Motorcycle Enthusiast

    Not one commenter here has mentioned RICO even once yet? I thought this was a law blog.

  7. Bartleby the Scrivener

    I am flatly against the administrative execution of human beings. The execution of a single innocent person is far too many for me. Add the flaws in the application of the death penalty and that it costs a whole lot more than lifetime imprisonment and it seems clear that it’s an emotional decision that errs on the side of vengeance, and I cannot help but think that when emotion influences our justice system, it should do so in the direction of mercy.

  8. Lawyertrainee

    I’ve read enough of your blog to know you’re against the DP. I’m curious on what grounds. Are you deontologically against the DP? Or just the DP as administered in its current state? Or something else.

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