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| Kirk Bloodsworth |
Though it's been nearly 28 years since his time on Maryland's death row, Kirk Bloodsworth still can recall the suffocating, stale, wastewater stench of the prison.
"It was like several years before I could get the smell out of my nose," he said.
In 1985, Mr. Bloodsworth was wrongfully accused of the rape and murder of 9-year-old Dawn Hamilton. He served two years on death row and 7 more in the prison system.
While on death row, escaping in adventure tales such as Ernest Hemingway's "The Old Man and The Sea" helped the former waterman to cope with living in the cramped quarters - only an arm's length wide and three steps long, Mr. Bloodsworth said.
"It was a hole, a vault, a catacomb, anything that has to do with a living dead person, that's probably it," he said.
7 years later, he became the first American sentenced to death row who was exonerated by DNA fingerprinting.
"Prison life is pretty deplorable," Mr. Bloodsworth said, "especially for a person that doesn't belong there."
Mr. Bloodsworth shared his story during almost 3 hours of compelling testimony from legislators, police officers and state attorneys during Delaware's March 26 Senate hearing for Senate Bill 19, legislation that would repeal the death penalty in the First State.
The bill narrowly passed the Senate with a vote of 11-10, and awaits its fate in the state's House of Representatives after the General Assembly's spring recess.
The bill's primary sponsor, Sen. Karen E. Peterson, D-Stanton, issued an amendment the day it was voted on. The amendment removed the retroactive provision that "any person who has been sentenced to death prior to the effective date of this act shall instead be punished by imprisonment for the remainder of the person's natural life without benefit of probation or parole or any other reduction." That means the 17 men on Delaware's death row would still get the death penalty.
"I think Sen. Peterson needed an extra vote and I guess she got it," said Sen. Bruce C. Ennis, D-Smyrna, head of the Senate's Adult and Juvenile Corrections Committee.
A former state police trooper, Sen. Ennis voted against the bill. He suspects eliminating the death penalty will encourage assaults on police and correction officers as well as increase the likelihood of felons appealing their sentences and returning to society.
"There's no such thing as life," he said.
Delaware's attorney general's office has stood by its support of the death penalty in the most heinous cases.
"Can you imagine executing people on death row when we no longer have a death penalty going forward?" said state prosecutor Kathleen Jennings of the amendment that preserves capital punishment for those already sentenced.
Though Sen. Robert I. Marshall, D-Wilmington, supported the repeal bill, it was not without some reservations. If the bill were to pass the House and be signed by the governor in the current form, he said an individual who is convicted of a capital crime under the new law would still be able to appeal his or her case.
"We don't want to allow any appeal based on good behavior that would permit that inmate to enter the general population," Sen. Marshall said.
To remedy this, the General Assembly has two options. He said either the House could amend the bill or he would sponsor a Senate companion bill to eliminate the opportunity for inmates with capital status sentencing to appeal their sentences and potentially move to general population.
"In the end I recognize the moral issue, but then when you weigh the heinous crimes that have been convicted ... It was a very tough vote that I struggled with up until the day of the debate," he said.
On death row in Delaware
17 men currently await death as the ultimate punishment for their crimes.
As Delaware law stands, male inmates sentenced to the death penalty are housed at the James T. Vaughn Correctional Center in Smyrna. Though there are no women sentenced to death, those female inmates would be housed at the Delores J. Baylor Women's Correctional Institution in New Castle.
Christopher Klein, deputy chief of the state's Bureau of Prisons, said at the James T. Vaughn Correctional Center there are four buildings - 3 housing units (buildings 17,18 and 19) and the control room. One floor of building 18 houses death row inmates in maximum security.
Inmates in that Security Housing Unit, SHU, follow the "23 and 1" rule - 23 hours in the cell, 1 hour of restricted free time.
A death row inmate's cell is about 13 feet long, 7 feet wide and 8 feet high with a bunk-bed, stainless steel sink and toilet, desk, locker and television.
It is possible for inmates other than those sentenced to the death penalty to stay in SHU, but - unlike death row prisoners - they may earn their way out of that housing option by exhibiting good behavior and complying with various codes. There are 300 SHU cells.
"The ability for an inmate to move freely also relates to the amount of custody staff that would have to be involved with that inmate," Mr. Klein said.
There are approximately 5,500 offenders in Delaware's prisons - 2,601 inmates at James T. Vaughn, 1,180 at Howard R. Young Correctional Institution, 1,149 at Sussex Correctional Institution and 320 at Delores J. Baylor Women's Correctional Institution.
Mr. Klein said each institution determines housing and bunk options. On an institutional basis, the DOC's overall annual cost per offender is $36,268.17.
Though the department would not speculate on any adjustments they would have to make to their system if the death penalty repeal passes, Mr. Klein said the Bureau of Prisons would be responsible with the commissioner of the Department of Correction for facilitating any changes.
Jules Epstein, associate professor at Widener University and an expert on the death penalty, said he presumed any changes to Delaware's prison system with implementation of the death penalty repeal would be a relatively gentle transition.
"If they ended the death penalty tomorrow they wouldn't take everyone off of death row tomorrow," Mr. Epstein said. "We have a step-down process. I'm presuming that is what would happen and that is just good prison management."
Weighing punishment
Since the death penalty was reinstated in 1992, Delaware has carried out 16 executions, 2 in the last 2 years. In 2011,
Robert W. Jackson III was the 1st person to be executed in Delaware since 2005. He was sentenced to death by lethal injection for the 1992 killing of Elizabeth Girardi, 47, during a robbery at her home in Hockessin.
In April 2012, 28-year-old Shannon Johnson was sentenced to death by lethal injection for the 2006 gunshot murder of Cameron Hamlin near downtown Wilmington.
Chapter 42 in the Delaware Code provides the aggravating circumstances under which a death sentence can be imposed. The jury, unanimously, or the judge must find evidence proven beyond a reasonable doubt for the existence of one of the 22 aggravating circumstances, which include murder committed for the purpose of preventing an arrest, murder against a law-enforcement agent or murder of a person who was held hostage, among other factors.
In 2011 and 2012, 69 1st-degree murder cases were indicted statewide, and 42 of those cases have statutory aggravators that make them eligible for the death penalty, according to the state attorney general's office. In 23 of the 42 cases, the state sought the death penalty; all 23 cases are pending.
State prosecutor Kathleen Jennings said that, depending on the complexity of the case, one or more prosecutors may be involved.
Once a 1st-degree murder arrest is made, the office determines which, if any, aggravating factors exist. The homicide unit then presents a memorandum to the Death Penalty Review Committee, Ms. Jennings said, which is comprised of the head of the appeals unit, the state prosecutor and the chief prosecutors in all 3 counties in order to determine if the case qualifies as a capital case.
The committee then invites the defense counsel to present evidence of mitigating or factual circumstances, which would allow the case to be evaluated for the death penalty on a discretionary level, she said.
From 2011 to present, these first-degree murder cases have resulted in the imposition of the death penalty.
James Cooke, sentenced to death in September 2012, was found guilty of raping and killing University of Delaware student Lindsey M. Bonistall in 2005. Derrick Powell, sentenced to death in May 2011, was found guilty of 1st-degree murder in the shooting death of Georgetown policeman Chad Spicer on Sept. 1, 2009.
Leslie Small, sentenced to death in July 2011, for murdering 78-year-old June McCarson in her Lewes home in 2009, had his death sentence, but not 1st-degree murder conviction, overturned by Delaware's Supreme Court in September 2012.
Mr. Epstein said preparing for capital cases is comparable to preparing for 2 cases simultaneously. "You're doing more than double the work and that is why those cases take so much longer to prepare," he said.
"The more trials you have, the more chances you have of things going wrong," he added.
In 2013, 9 1st-degree murder cases have been indicted statewide and 7 of those cases have statutory aggravators eligible for the death penalty, according to Justice Department officials. However, the Capital Case Review Committee has not yet made its recommendation on those cases to the attorney general.
Costs of capital cases
While the costs for handling death penalty cases by the prosecution and defense are high, the death penalty repeal may not provide financial relief for both sides.
Ms. Jennings said on the prosecution side, there would not be a significant decrease in costs if the death penalty repeal was passed. The AG's office has a budget for DNA and forensic experts as well as psychiatrists for all cases, not just capital punishment trials. All experts are consulted and hired on both sides, she said. Once a case begins, she agreed it is difficult to pinpoint a timetable.
"If there's a psychiatric defense those cases often take quite a while," Ms. Jennings said.
During FY 2012, the Department of Justice spent more than $150,000 on expert witness and court transcript fees for capital and non-capital cases, which applies to homicide and all other violent felonies. Of that money, the department spent $55,548 on expert witness fees for 8 capital cases and $4,069 on court transcript fees for 6 capital cases.
For non-capital cases, the office spent $76,350 on expert witness fees for 9 cases, $20,863 on court transcript fees for 72 cases. Data for DNA expenses hasn't been compiled.
Brendan O'Neill, the state's public defender, said that since 2005, the James Cooke case has come with a price tag upwards of $400,000. He was 1 of the lawyers who 1st defended Cooke. In Fiscal Year 2012 his office spent $2.3 million on capital cases. Though he could not pinpoint an exact figure, he said if the death penalty repeal goes through, his office would see some cost savings.
"It would lighten the burden on everyone in our office," Mr. O'Neill said. "Defending these cases is very stressful ... there will not be 2 lawyers on every case. Those are savings that will definitely be realized."
The rule of thumb, he said, is the longer the case goes to trial, the more expensive it is.
"You only learn that in the course of preparing for trial and deciding what resources you need to bring to bear to defend the case properly," he said. "In many cases you need psychiatrist and expert testimony."
Though they both agree on a death penalty repeal, Mr. O'Neill said he is unsure of Sen. Marshall's suggestion to strength prison conditions and restrict appeal rights for inmates with capital sentences if the repeal goes through.
"Presently the people on death row are housed in very stringent conditions," he said. "They live in a small room, they receive their meals under a flap that's inside their door. They are allowed out into the larger contained area 1 hour a day at most. And they have very little opportunity for any human contact."
The state, he said, has constitutional and moral obligation to house inmates in a humane fashion as per the 8th Amendment - prohibiting cruel and unusual punishment.
"I don't know what more we can do to make the conditions of incarcerations more harsh," he said.
That issue, and emotional testimony from supporters and opponents of repealing the death penalty in Delaware, most likely will be considered by the House of Representatives when it acts on the legislation this month.
"I leave [the decision] up to the
41 elected leaders in the House to decide on the vote. I don't want to guess on how that will turn out," Sen. Marshall said. "I trust their judgement."
Source: Delaware Newszap, April 7, 2013
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