"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde

Sunday, August 30, 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.

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