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| Louisiana's Death Chamber |
The unexpected victory of Donald Trump over Hillary Clinton has spilled a series of questions about how a Trump presidency might impact the death penalty -- for decades a lightning rod for debate in criminal justice.
19 states have outlawed death sentences while a relatively small number of other states -- including Louisiana -- regularly sentence people to death, reflecting the deep divide on the issue. But Louisiana experts say they don't expect the incoming 45th president to significantly impact the existence or use of capital punishment in the state.
Trump has branded himself as a law-and-order candidate and has trumpeted the use of the death penalty in certain situations. At the same time, most voters in 3 states that considered death penalty measures took pro-capital punishment positions.
It all points to a détente for states like Louisiana, a pro-death penalty state that incarcerates more people per-capita than anywhere else in the world, experts said.
"I don't think Louisiana has ever been a candidate to repeal the death penalty, and I don't see that changing one way or another," said Marjorie Esman, director of Louisiana American Civil Liberties Union.
Trump's biggest impact on the death penalty could be his appointment of a new U.S. Supreme Court justice, said Esman. She said the court has hinted it might take up the issue in the near future.
In addition to picking a president, voters in three states considered ballot initiatives related to the death penalty. In all 3 - California, Nebraska and Oklahoma - most voters sided with a pro-capital punishment position.
Sidney Garmon, director of the Louisiana Coalition for Alternatives to the Death Penalty, said despite those results, there remains a "definitive trend away from the death penalty that has been going on for some time now" in the nation, which shows up in public polling.
Gary Clements, director of the Post-Conviction Project of Louisiana, said he found it encouraging for opponents of capital punishment that the some of the pro-death penalty measures on the Nov. 8 ballot passed with a narrow margin. Unlike those states, Clements noted, Louisiana does not have the option of citizen-driven ballot initiatives.
Trump's opinion on the death penalty
Among the promises Trump has made on the campaign trail was a pledge late last year to mandate the death penalty for anyone convicted of killing a police officer. But experts say even the U.S. president lacks the power enforce such a mandate.
According to CNN, Trump made the announcement to a crowd of law enforcement officials in December 2015, after receiving the endorsement of the New England Police Benevolent Association.
"One of the first things I do, in terms of executive order if I win, will be to sign a strong, strong statement that will go out to the country -- out to the world -- that anybody killing a policeman, policewoman, a police officer -- anybody killing a police officer, the death penalty," Trump said, according to the network.
Clements said an executive order mandating a death sentence for a particular offense would not pass its first legal challenge. A critical factor in the Supreme Court's decision to strike down the death penalty in 1972 was that courts found it was unconstitutional to apply it as a mandatory sentence.
States that reinstated the death penalty afterwards were forced to tailor their laws to require 2, separate jury deliberations - 1 to determine guilt and a second to determine if the penalty should include death. The courts have made clear, Clements said, that jurors must weigh the circumstances of each individual case and defendant before sentencing someone to death.
Clements said Trump can make a proposal and say what he wants to do regarding death sentences for people convicted of killing officers. However, Clements said, the proposal "flies in the face" of how the death penalty is applied.
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| "An executive order mandating a death sentence for a particular offense would not pass its first legal challenge." |
Even if Trump did get such a proposal through U.S. Congress, Clements pointed out, the vast majority of death sentences are issued in state courts, not in federal court. There are currently about five dozen inmates on federal death row -- including former New Orleans Police Department officer Len Davis, who was convicted of arranging the 1994 killing of a woman who had filed a brutality complaint against him. Murder of a law enforcement officer is already among the circumstances for which the federal death penalty can apply.
Clements said Trump could possibly have more say about the handling of capital punishment cases on a federal level, but his power is still limited. He noted, too, that prosecutors in many states where the death penalty is legal already have laws in place to seek a death sentence in cases of convicted cop killers.
In Louisiana, the murder of a law enforcement officer already qualifies as an aggravated circumstance, which opens the door for a death sentence. Clements said district attorneys around the state have recently used this opening in cases of an officer's death.
Jefferson Parish District Attorney Paul Connick, for example, recently announced he will seek the death penalty against Jerman Neveaux Jr., who is facing a first-degree murder charge in the June 22 killing of Jefferson Parish Sheriff's Office Deputy David Michel Jr. Prosecutors in Lake Charles are currently seeking the death penalty against Kevin Daigle, who faces a 1st-degree murder charge in the August 2015 death of Louisiana State Trooper Steven Vincent.
Trump's stance on the death penalty in 1989, which he publicized by taking out newspaper ads in New York City, resurfaced in recent months during his presidential campaign.
In 1989, Trump paid to place full-page ads in four newspapers calling for the reinstatement of the death penalty, according to the Washington Post. The ad, which shouted in large, capital letters, "BRING BACK THE DEATH PENALTY. BRING BACK OUR POLICE!" referenced the Central Park 5 case.
The 5 juvenile defendants in that case, which involved the rape and beating of a woman in Central Park, had their convictions vacated in 2002 when another man confessed he acted alone in the attack and DNA evidence corroborated his story. Trump was asked by CNN about the case in October, and he questioned their innocence, prompting criticism from at least one member of the Central Park 5.
Trump has said he has a list of about 20 names to choose from for his appointment to fill the Supreme Court vacancy left by Justice Antonin Scalia's death. All the options are likely to restore the 5-4 conservative split that was in place before Scalia died.
Esman said the Supreme Court has hinted, in footnotes and in the body of decisions, that it might consider in the future the constitutionality of the death penalty. Trump's most lasting legacy regarding capital punishment might be realized if his judicial pick is on a panel that takes up the issue.
Death penalty on the ballot, public's position
Separate from a Trump administration, voters in some state are still supporting the death penalty. In Nebraska, voters last week reinstated the death penalty. The election reversed the Nebraska Legislature's decision last year to repeal capital punishment. Nebraska has not executed an inmate since 1997. Ten men currently sit on death row there.
Meanwhile, in California, voters weighed in on two competing death penalty measures. One proposal aimed to repeal the state's rarely used death penalty and the other to speed up appeals so convicted murderers may face execution faster. The repeal measure was rejected; the other measure received about 51 percent of the votes counted by Wednesday morning.
Additionally, Oklahoma residents approved a measure to make it harder to abolish the death penalty. It seeks to ensure the state has a way to execute prisoners even if a given method is blocked.
Despite those results, nationwide support for the death penalty appears to be waning. A Pew Research Center poll conducted in August and September found support for the death penalty for those convicted of murder was the lowest it's been in 4 decades. Just under 1/2 of Americans, 49 %, were in favor of capital punishment for murderers, down from 56 percent in March 2015.
Public support for the death penalty was at its highest in 1994, when 80 percent of Americans were in favor of the punishment for convicted murderers, according to the research center.
The death penalty in America is continuing its steady decline.
Garmon said in several states voters indirectly backed candidates who pushed against capital punishment. For example, 4 Kansas Supreme Court justices who faced criticism for blocking the death penalty in 5 cases were re-elected and district attorneys who often used the death penalty in Florida and Texas lost bids to keep their jobs.
Garmon said he expects this year to be marked by "historic lows" regarding the number of death sentences and executions. Increasingly, he said, capital punishment is "isolated the just a handful of counties." Caddo Parish has received national attention for its frequent use of the death penalty, for example.
Death penalty in Louisiana
The Louisiana Legislature in 2014 created the Capital Punishment Fiscal Impact Commission, which seeks to examine the cost of capital punishment in the state. The deadline for the commission's report has been pushed back to 2018, WAFB reports. Depending on the results, opponents could make a pragmatic case for ending the capital punishment in Louisiana, arguing it would save money. Esman said the ACLU has and will likely continue to work with the Louisiana Conference of Catholic Bishops on legislation opposing capital punishment, though she does not foresee the state legislature abolishing it in the foreseeable future.
While 77 people were on death row in Louisiana as of July 2016, the state has executed only 28 people since 1976, according the Death Penalty Information Center, a nonprofit group. In the same period, nine Louisiana death row inmates have been freed after they were exonerated, the Marshall Project reports.
It's unclear what role, if any, Trump could play in the challenge of states like Louisiana in acquiring the drugs needed to carry out executions by lethal injection -- a roadblock that held up executions in Louisiana and other states.
"We're all in for a bunch of surprises, I suppose," Esman said of the incoming Trump administration. "I don't think anybody has any idea what we're facing."
Source: nola.com, November 17, 2016
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