Day: August 31, 2015

What’s the Future of the Death Penalty in America?

Two recent high-profile cases have once again highlighted America’s complex relationship with the death penalty. In Colorado, a jury declined to impose the death penalty on theater shooter James Holmes. And in Connecticut, whose legislature had recently abolished capital punishment prospectively, the state supreme court held that the Connecticut constitution barred the execution of those whose offenses had preceded that legislative change.
Both cases contributed to the ongoing national capital punishment debate. Some openly wondered whether the availability of the death penalty in Colorado still has any practical meaning, if jurors couldn’t be convinced to impose it on someone like Holmes. And the Connecticut court’s opinion included an extensive discussion of the various trends taking shape across the country. It’s clear that the question of the future of capital punishment in America remains a lively one. (Full disclosure: I’m a criminal defense attorney, and my practice includes capital cases, including one that is currently pending.)
It’s not hard to understand why this debate generates such strong feelings on both sides. Although my work has been on the defense side, anyone involved in the justice system gets a first-hand look at the heinous nature of violent crime. Crime scene and autopsy photos, and the visible emotions on the faces of the family members who attend every hearing, are constant reminders of the horrific harms that human beings can inflict on one another and the irreparable damage caused to those left behind.
On the other hand, some believe that regardless of the circumstances it’s simply unacceptable for the state to take the life of one of its citizens. Others who can accept capital punishment in theory question whether our existing system is sufficiently reliable to support that penalty (a concern I’ve come to share based on my time in that system).
With such powerful motivations on both sides and the highest of stakes involved, it shouldn’t be surprising that this is such a passionate debate. And one development that’s significantly affected the course of capital punishment in America is the fact that death penalty opponents have been extremely effective in making it increasingly difficult to actually secure and impose a death sentence.
First, they’ve devoted an extraordinary amount of effort and resources to training defense lawyers at the trial level to avoid death sentences for their clients. (Colorado, where the Holmes trial took place, is a national center for this type of education; the “Colorado Method” of jury selection is a staple of capital defense training.)
And of course, an initial death penalty determination doesn’t end the matter. There are several layers of appellate review through a series of courts, and cases involving death sentences get extra appellate scrutiny. The actual legal rules are more demanding, and those rules may be applied in an especially exacting way–particularly if some of the judges along the way have their own reservations about capital punishment. The result is that death-penalty cases are regularly reversed and sent back for new trials or sentencing proceedings. For example, in Oregon, where my practice is based, the State is about to take its fourth shot at securing a death sentence for serial killer Dayton Leroy Rogers; Rogers was convicted back in 1989 and has been sentenced to death 3 times, with the Oregon Supreme Court ordering resentencing each time.
Finally, even if a death sentence survives all of this review, it still has to be imposed, and this is no mere formality–again, partly because of the efforts of abolitionists, who have made it difficult for companies to supply the chemicals needed for executions. The result is that even some states with large numbers of prisoners on death row virtually never actually execute anyone. In recent years, several governors have gone as far as declaring moratoria on executions in their states, in some cases formalizing what had already been the rule in practice.
All this means that it takes a lot of political will to actually carry the process to its end and execute someone–a point illustrated by some intriguing facts cited in the Connecticut court’s opinion. Apparently, the vast majority of American executions are concentrated within a small band of states–in 2014, for example, Texas, Missouri, Florida and Oklahoma collectively accounted for approximately 90 % of the nation’s 35 executions, and similar concentrations within small subsets of states appear across broader time periods. Presumably, these are the states where legislators, prosecutors and others not only believe strongly in the death penalty themselves, but understand that their constituencies share that belief and will support them in the face of vigorous opposition.
So what’s the future of the death penalty in America? I don’t see it going away at the national level. Abolitionists have fought for decades to have the Supreme Court declare capital punishment categorically unconstitutional, but although they’ve come close at times and clearly have the ears of some current justices, I don’t expect that the Court will ever go that far–at least not anytime soon. So I expect that capital punishment will remain constitutionally permissible, and that those states with steadfast support will continue imposing it.
Meanwhile, those states whose residents are more ambivalent about the death penalty may increasingly reconsider whether a capital punishment regime is worth the immense costs, burdens and endless litigation required to keep it in place–especially given the increasingly significant possibility that even a defendant sentenced to death may never actually be executed. These questions may be mulled over by legislatures, governors, prosecutors, and others. (A judge in Kentucky, for example, recently forbade the state from seeking the death penalty in a murder case based on her apparent conclusion that that penalty would never actually be imposed, so that the enormously increased costs and burdens compared to a non-capital case would end up being wasted.) And through it all, Americans of goodwill will continue to debate the questions of whether and when the ultimate penalty should be imposed.
Source: Huffington Post, Kevin Sali, August 29, 2015. Mr. Sali is a criminal defense attorney in Portland, Oregon, USA.

Nebraska death penalty repeal on hold

Supporters of retaining the death penalty in Nebraska turned in thousands more signatures than necessary on Wednesday to suspend the repeal and place the issue before voters.
Nebraskans for the Death Penalty turned in petitions containing 166,692 signatures. Leaders of the group called that a surprisingly large number and said it signaled that voters in the 2016 general election will retain the ultimate penalty for the most heinous murders, reversing the repeal enacted by the State Legislature this spring.
A lot of senators will find out that their constituents have a different view, I really believe that,” said State Sen. Mike Groene of North Platte, a death penalty supporter who circulated petitions.
Opponents of the death penalty, meanwhile, said that they expect Nebraska voters to come to the same conclusion as 30 of the state’s 49 state lawmakers. Voters will learn that the risks of executing innocent people, the “tremendous waste” of taxpayer dollars and the hurdles in obtaining the necessary drugs have made the death penalty immoral, unjust and unworkable, said the Rev. Stephen Griffith of Nebraskans for Alternatives to the Death Penalty.
“Just like the legislators they elected, we believe the more Nebraskans learn about the failures of capital punishment, the more they will be inclined to get rid of it,” said Griffith, the group’s new executive director.
The pro-death penalty group formed in June and launched its petition drive just after state lawmakers overrode Gov. Pete Ricketts’ veto and repealed the death penalty.
The vote drew national attention as Nebraska became the first conservative state since North Dakota in 1973 to do away with the death penalty. Currently, 31 states have capital punishment.
But the victory by death penalty opponents in Nebraska now appears to be in jeopardy.
The pro-capital punishment group turned in nearly 3 times as many signatures as is necessary to place the issue on the ballot: 5 % of the state’s registered voters, about 57,000 signatures. The drive must also meet that 5 % threshold in 38 of the state’s 93 counties.
But Nebraskans for the Death Penalty also appears to have a comfortable cushion to suspend the repeal of the death penalty until voters decide its fate at the ballot box.
To do that, the drive needed to submit valid signatures of 10 percent of the state’s voters, or about 114,000 signatures.
Typically, 15 % to 25 % of signatures are invalidated, either because a signer wasn’t registered to vote or for other technical reasons. Even if 25 % of the signatures were disqualified, the drive would still have 125,000 valid signatures, more than enough to suspend the repeal.
State Treasurer Don Stenberg, a former attorney general who was an honorary co-chairman of the pro-death penalty group, said there was “a lot of significance” to collecting so many signatures.
“It’s reflective of the tremendous support that Nebraskans have in keeping the death penalty,” Stenberg said.
He was one of several supporters of capital punishment who spoke at an afternoon press conference, staged in front of an 8-foot-high wall of boxes holding petitions gathered by the group’s nearly 600 paid and volunteer circulators. Signatures were collected in all 93 counties.
Officials in the counties are expected to take more than a month to count and validate the signatures.
Stenberg, as well as the Attorney General’s Office, both said the signatures are presumed valid when they are turned in, until the count proves otherwise.
So, they said, the repeal of the death penalty – which was scheduled to go into effect on Sunday – is on hold until the count is completed.
“There will be some uncertainty in the law,” Stenberg said. But, he added, “It’s not unusual to have uncertainty in the law.”
Nebraska lacks the necessary drugs to carry out an execution via its only legal means, lethal injection. But Stenberg, who as attorney general presided over the state’s last 3 executions in the 1990s, said that if the state obtains the necessary drugs, there’s nothing preventing current Attorney General Doug Peterson from asking for execution dates for the 10 men on death row.
Peterson, on Wednesday, said he was reviewing the cases.
The State Supreme Court would have to approve any requests for execution dates. It’s unclear if the court would do that while a referendum on the issue is pending and after the Legislature voted to repeal the death penalty.
One of the senators who voted for the repeal, Bob Krist of Omaha, said death penalty supporters will need a lot more support to overturn the repeal in the 2016 election.
He said the referendum should not be about vengeance but “justice and fiscal conservatism.” Krist said the state has spent millions and only executed 3 people in the last 6 decades.
He also questioned if the drive collected most of its signatures from Omaha and Lincoln, or from areas like Norfolk and Falls City, where there have been horrible murders and support for capital punishment is higher.
“So here we go. Game on,” Krist said.
Officials with Nebraskans for the Death Penalty said they collected enough signatures to qualify the issue for the ballot in the 1st month, then used a last-minute push to qualify the measure in the necessary 38 counties.
Chris Peterson, the drive’s spokesman, said the group expects to spend about $800,000 to $900,000 on its petition-gathering effort, which included hiring hundreds of paid circulators and an Arizona consulting company.
That spending, he said, is comparable to what a group spent last year to get an initiative petition on the ballot to increase the state’s minimum wage. Nebraskans for Better Wages turned in 134,899 signatures after a 60-day drive.
Ricketts and his family were among the prime financiers for the pro-death penalty drive. The Republican governor contributed $200,000 in the first 2 months, and his father, TD Ameritrade founder Joe Ricketts, gave $100,000.
Officials with the pro-death penalty group said that petition signers overwhelmingly said they deserved a chance to vote on the issue.
“It’s too important of an issue to be left to the give-and-take of politics,” said Groene.
Vivian Tuttle of Ewing, whose daughter Evonne was 1 of 5 people slain during an attempted robbery at a Norfolk bank in 2002, said she put 8,000 miles on her car seeking support for the referendum drive.
“Wherever I went, people said ‘I want to help do this,'” Tuttle said.
The last time a referendum petition appeared on the ballot was in 2006, when voters were asked whether to overturn a law mandating the consolidation of Class I school districts.
Source: lexch.com, August 29, 2015