FEATURED POST

America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

My Turn: Why we want the Supreme Court to nix Arizona's death penalty

Arizona's death chamber
We’ve been tinkering with the death penalty for 40 years, but haven’t been able to remove mistakes and unfairness from the system.

As president of Arizona Attorneys for Criminal Justice, I joined with more than 20 former Arizona judges, former prosecutors and legal experts to urge the U.S. Supreme Court to accept a challenge to Arizona’s death penalty statute and end capital punishment in our state and nationwide.

Former Judge Rudy Gerber, who co-authored Arizona’s death penalty statute, has joined in our challenge to the statute, agreeing that it is now unconstitutional. Why? 


Most cases can't be 'worst of the worst'


The court has held that the death penalty is only constitutional if it is reserved for the “worst of the worst.” To comply with this narrowing requirement, prosecutors must prove there is at least one aggravating factor before the death penalty can be imposed.

Gerber, to help comply with this requirement, co-drafted the statute with six aggravating factors, any one of which qualifies a defendant for the death penalty. Over time, the Arizona Legislature has piled on more. Today, prosecutors have 14 aggravating circumstances to allege.

There are now so many aggravating factors that Arizona prosecutors can seek the death penalty in 99 percent of first-degree murder cases. Ninety-nine percent of cases cannot all be “the worst.”

The Legislature has failed its constitutional duty to narrow the death penalty to the most deserving offenders. The prosecuting agency has the right to decide in which cases it will pursue the death penalty, and the exercise of that discretion varies throughout the state, from zero in some counties to among the highest in the country in others.

Maricopa County leads the nation in death penalty sentences, with a far greater number of cases prosecuted as capital crimes. The Sixth Amendment guarantees that these defendants have the right to counsel and these attorneys must be specially trained and qualified.  


31 states have nixed the death penalty


One consequence is that the county, on multiple occasions, has run out of defense attorneys who are qualified to handle capital cases. As a result, capital cases often wait — sometimes for years — for justice for all parties involved.

There currently are a staggering 56 death penalty cases pending in Maricopa County’s Superior Court. Capital murder cases cost eight to 40 times more than first-degree murder cases where the death penalty isn’t being sought.

Increased costs include not only attorneys but court administration, housing, jury compensation and delays to other cases. And because some counties have the money to prosecute death penalty cases and some don’t, where the crime occurred can become more important than the facts of the case.

As a nation, we have moved away from capital punishment. Thirty-one states have stopped using the death penalty. Nineteen have formally abandoned it, four have instituted moratoria, and eight have not had an execution in the past decade.

Other states keep the public safe through sentences of life without parole. Arizona, which has already abolished parole for adults, can do the same.

The court should accept review of Hidalgo vs. Arizona and hold capital punishment unconstitutional in our state and everywhere else.

Regardless, the State of Arizona should take a hard look at why we are spending so much money to continue to engage in this failed experiment.  It is time to admit that the system is broken beyond repair.

Source: AZ Central, Opinion, Amy Kalman, November 7, 2017. Amy Kalman is a defense attorney in Maricopa County with experience in capital litigation, and is the president of Arizona Attorneys for Criminal Justice.




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

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