PATENTS, PEDOPHILIA, AND PUNISHMENT: Should Intelligence, Good Acts, And Achievements Have Helped David Westerfield Avoid The Death Penalty?

By MARK ALLENBAUGH

Monday, Sep. 23, 2002

Some time either late in the evening of Friday, February 1, or on the morning of the next day, Danielle van Dam, a precocious second-grader, was abducted from her bedroom. It was the first in a string of high profile child-abductions our Nation witnessed throughout the spring and summer.

Within days, David Westerfield, an engineer, neighbor, and acquaintance of Danielle's parents, became the prime suspect. Soon afterwards, Westerfield was charged with, and ultimately convicted of, abducting and murdering Danielle, as well as possessing child pornography.

On Monday, September 16, a California jury recommended that Westerfield receive the sentence of death by lethal injection. On November 11, the judge will impose a sentence. It is highly likely that he will follow the jury's recommendation, though he could also choose to impose life imprisonment without possibility of parole.

To avoid a death sentence, Westerfield's attorney's tried, and failed, to convince the jury that his achievements and intelligence were mitigating factors in his favor. That makes his sentencing both an interesting and a rare one. Generally speaking, those who commit capital offenses tend not to be educated professionals with patented inventions. Such persons, if they commit offenses at all, are more likely to engage in white-collar crimes rather than violent, sex offenses.

The Factors Relevant to the Westerfield Jury's Deliberations

The potential mitigating factors included, besides a number of specific, listed circumstances, a catch-all for "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Similarly, the jury instructions stated that the jury could consider "any sympathetic or other aspect of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the offense for which he is on trial." In short, it was more or less up to the defendant, according to the law, to proffer any type of evidence he thought might save him from death.

Taking advantage of the law's broad language, Westerfield's attorneys introduced testimony during the penalty phase emphasizing Westerfield's engineering achievements. According to defense witnesses, some of whom were engineers and physicians, Westerfield was a talented and creative engineer who had designed and patented prosthetic knuckle implants and a rehabilitation device for knee injuries.

Evidence showed that one of Westerfield's devices, the "shoulder flexer," was purchased by more than 600,000 people to assist in increasing shoulder flexibility. And Westerfield's engineering talent was not just limited to the medical rehabilitation market; he also designed an airport security device currently being used in San Francisco.

According to his lawyers, Westerfield's professional talent and achievements showed that, despite the brutal murder of Danielle, Westerfield had left a "footprint" of good on the world. His lawyers suggested that even if Westerfield had committed unspeakable acts against one little girl, he did at least help others in some ways - ways that improved their health and safety. And that, they suggested, might be a reason for the jury to spare his life.

The jury was not convinced - but should it have been? Indeed, should Westerfield's intelligence and achievements have been relevant at all in the death penalty phase of his trial, when criminal intent - "mens rea" - for the offense had already been proven? In other words, why should his character matter?

Westerfield Versus Avila: If Avila Is Convicted, How Should He Be Punished?

Obviously, Westerfield's bid to use his achievements and intelligence to mitigate his penalty failed. But it does raise an interesting question: How should achievement and intelligence be considered for purposes of sentencing?

Consider two men charged with very similar offenses that amount, in essence, to kidnapping, molesting and murdering a young girl. One is accomplished, like Westerfield. The other is apparently not very accomplished, like Alejandro Avila - the alleged killer of five-year old Samantha Runnion. If both are convicted, should Westerfield get a lesser sentence than Avila for the very same crime?

To answer this question, let's first consider the converse: Should destructive "achievements" and low intelligence count at the sentencing stage? The answer has traditionally been yes - but they cut different ways.

If one has a series of prior convictions, for instance, such a history often is used to enhance the penalty. (Consider, for instance, the many "three-strikes-and-you're-out" sentencing statutes.)

On the other hand, just this past term, in Atkins v. Virginia, the U.S. Supreme Court held that executing the mildly mentally retarded was per se unconstitutional - because, in effect, a low I.Q. automatically serves as such a strong mitigating factor, the penalty cannot be imposed.

What About Good Acts and High IQ? Should They Count, Too?

If bad achievements aggravate, should good achievements mitigate? If the idea is that a repeat offender deserves death because he cannot be rehabilitated, poses a continuing threat, and is evil to the bone, then shouldn't the converse hold: that a first-time offender with good works in his past does not deserve death?

Past good works may in some cases (though perhaps not in the case of a crime as brutal as Westerfield's) suggest a given crime is an anomalous departure, that the criminal can be rehabilitated, and that he may not be entirely evil.

Consider, for instance, the current scandals rocking the Catholic Church. Should not a priest, active in his parish, who has devoted his life to helping others, but who engages in a one-time act of indecency with a minor, be punished less severely given his past good works? Do not past good works make at least some difference?

They may, but the argument probably cannot work for Westerfield. His crime is too brutal - and while Westerfield may have contributed significantly to society through his patented inventions, his "footprint of good" was different, and arguably less convincing, than a priest's, for it was far less direct and personal. After all, it is hard to argue from his patents that Westerfield was a compassionate, caring person who simply took a step down the wrong road, as might be the case for another high-achieving defendant whose single, lesser aberration was outweighed by many good deeds.

Meanwhile, if low intelligence mitigates culpability, why cannot high intelligence aggravate it? Those of low intelligence may have poor impulse control and the inability to fully understand the import of their acts. Should we not presume that the highly intelligent are more likely to know precisely what they are doing, and the harm it will cause, and to know how to get help for their compulsions?

The answer may be yes and no. Dr. Hannibal Lecter's calculating crimes may seem worse due to his high intelligence. But mathematical brilliance arguably did not make the Unabomber more culpable than he otherwise would have been; instead, it may have isolated him and increased his apparent mental illness.

But if Westerfield suffered no such sickness, his intelligence and station in society does seem to make his offense all that more menacing and evil.

Intelligence and Achievement Are Probably Best Assessed Case By Case

In a way, the Federal Sentencing Guidelines already recognize that intelligence and achievement actually can be an aggravator when used to further an offense: Those who abuse their positions of trust and authority receive a more severe sentence. The CEO who embezzles may face a stiffer penalty than the lowly clerk who does the same. Or, despite his good works, a priest who molests actually may deserve a more significant punishment because of the abuse of trust and authority. That is, of course, as is it should be.

Other than in this respect, the relevance of intelligence, achievement, and good acts at sentencing is probably best assessed on a case-by-case basis - just as the law in Westerfield's sentencing prescribed. Not every record of achievement mitigates, nor does every IQ point aggravate, but sometimes they might.

The Westerfield sentencing shows the wisdom of this approach. The jury didn't buy the attorney's citation of Westerfield's impressive record of patents, and it probably shouldn't have. In the end, Westerfield certainly left a footprint on this earth. Whether it was any good, however, is highly doubtful. As the jury may have believed, when good people do bad things, sometimes that is worse.


Mr. Allenbaugh is an Associate with the firm of Montedonico, Belcuore & Tazzara, P.C. in Washington, D.C., and is an Adjunct Professor in the Philosophy Department at the George Washington University. Prior to entering private practice, he served as a Staff Attorney for the United States Sentencing Commission. Mr. Allenbaugh has published numerous articles on sentencing and criminal justice, and is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2d ed., Foundation Press, 2002). He can be reached at Mark.Allenbaugh@mbt-legal.com

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