Utah Bar Journal

Is it time for Utah to reconsider its death penalty? This article does not purport to be an exhaustive scholarly analysis, but is meant to provoke discussion. The article discusses seven questions that we in Utah’s bar, state policy makers, and citizens should consider in addressing the issue of the death penalty, including: (1) Is the high cost of seeking the death penalty justified given its infrequent use?; (2) What are the moral implications of intentional killing by the state?; (3) How does religious doctrine affect the decision to kill?; (4) Is there a danger of executing innocent defendants?; (5) Is the death penalty imposed in an arbitrary or discriminatory manner?; (6) How are victims’ rights impacted by the lengthy death penalty process?; and (7) Is life without parole a viable alternative to the death penalty?

Question No. 1: Is the high cost of seeking the death penalty justified given its infrequent use?
The current economic crisis has resulted in massive governmental budget shortfalls. Governor Jon Huntsman’s recommendations for the 2010 budget constitute a 36.9% reduction from the Authorized Fiscal Year 2009 budget, a reduction of almost $467 million. See Office of the Governor, State of Utah, Budget Recommendations, Fiscal Year 2010, at 162 (Dec. 4, 2008), available at http://governor.utah.gov/budget (follow “2010 Budget Recommendation Book” hyperlink) (last visited June 1, 2009).

The costs of successfully executing a criminal defendant are staggering. Data compiled for more than 25 years in virtually all of the states studied consistently show that the death penalty
costs millions more than keeping someone in prison for life. See Jonathan E. Gradess, Andrew L. B. Davies, The Cost of the Death Penalty in America: Directions for Future Research,
The Future Of America’s Deat h Penalty: An Agenda For The Next Generat ion Of Capita l Punishment Research 411 (Carolina Academic Press, Eds. Charles S. Lanier, William J. Bowers, James R. Acker, 2009) (hereinafter “America’s Death Penalty”). For example, a
2005 study by New Jersey concluded that the death penalty had additional costs amounting to $4.2 million per death sentence, or $28 million per death sentence after reversals. See id. at
404. Kansas found that the additional costs to seeking a death penalty were over $4.26 million per execution. See id. In Maryland, the Urban Institute reported that a case resulting in a death sentence cost $3 million, almost $2 million more per case than when the death penalty was not sought, and $37.2 million for each execution. See Death Penalty Information Center, http://www.deathpenaltyinfo.org/costs-death-penalty (last visited June 1, 2009). Why is the death penalty so much more expensive than life in prison? Death penalty prosecutions
cost more because the consequences of error and procedural unfairness are magnified when life is in the balance; thus, courts have imposed stringent due process protections. See Woodson v. N. Carolina, 428 U.S. 280, 305 (1976). The American Bar Association has promulgated the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Revised Edition (February 2003), available at http://www.abanet.org/legalservices/downloads/ sclaid/indigentdefense/deathpenaltyguidelines2003.pdf (last visited June 1, 2009) (hereinafter “ABA Guidelines”). And appellate courts often reverse convictions or remand cases for re-sentencing where the guidelines are not followed. See e.g., Rompilla v. Beard, 545 U.S. 374, 387 (2005).

The trials and appeals required in capital cases can take over a decade. The costs of each of these proceedings are broken down in more detail below.

Trial Level Costs
Death penalty cases typically involve additional investigative costs, more numerous pretrial motions, and a far lengthier jury selection process and trial than non-death penalty cases.
Recent studies indicate that several thousand hours are typically required to provide appropriate representation in death penalty cases. See ABA Guidelines, at 40.

Moreover, death penalty cases require a mitigation investigation, including the collection of all medical, educational, and employment records of the defendant. Records relating to members of the defendant’s extended family may also be important. Multiple interviews of the defendant’s family, friends, employers, school teachers, and others are standard, and require travel to wherever they live. The chairman of the Utah Association of Criminal Defense Lawyers’ Capital Case Committee estimated that an adequate mitigation investigation requires 800-1000 hours.

Appellate Costs
The appeal process for capital cases is far more extensive and costly than for a non-death penalty case. In the vast majority of non-capital cases, this direct appeal is the end of the appellate process. However, in capital cases, there are post-conviction or habeas appeals. Studies cited in the ABA Guidelines indicated that such appeals can take up to 3300 lawyer hours. See id. at 41.

In addition to two lawyers, the habeas appellate team should also have a qualified mitigation specialist, investigators and experts. Consistent with ABA Guidelines, both trial and mitigation phase investigations must be redone from the beginning. The mitigation specialist must reinvestigate and assemble “a more-thorough biography of the client than was known at the time of trial…to discover mitigation that was not presented previously.” Id. at 128.

Once the post-conviction investigation is complete, a petition is filed in the state trial court. If relief is denied, an appeal is taken to the Utah Supreme Court, and then to the United States
Supreme Court. If relief is denied in state court, a similar series of appeals may be brought in federal court.

Corrections Costs
It is more expensive to house inmates on death row because of enhanced security measures. Expensive appeals by death row inmates continue, in some cases, for two decades. According to a report obtained from the Department of Corrections and cited in a recent Deseret News article, “it is common knowledge that to try, house and execute an offender costs as much as three times what it costs to house an offender for an average life term.” Jacob Hancock, Utah bucking U.S. death penalty trend, Deseret News, May 3, 2009, at A1.

Cost-Benefit Analysis and Opportunity Costs
Attempting to kill people is a bad investment. Despite the tremendous additional resources spent prosecuting and defending capital cases, Utah rarely executes anyone. Only six, including five volunteers, have been executed since the death penalty was reinstated in 1976.

If the death penalty is repealed, the savings could be used for more beneficial and cost effective programs such as increased law enforcement, resulting in reduced crime rates.

For example, a state official in New Jersey said that the $11 million spent on the death penalty in 2005, with no executions, could have paid for 160 new police officers to be deployed. See America’s Death Penalty at 412. Such an investment would surely help reduce crime across the board. Additionally, victim advocates supported legislation in Colorado proposing that money used in capital cases would be better spent investigating 1400 cold case murders. See Erica Grossman, Crime and Punishment: Can killing Colorado’s death penalty help the state catch murderers?, Boulder Weekly, March 19-25, 2009, at 10, also available at http://www.boulderweekly. com/20090319/coverstory.html (last visited June 1, 2009).

In sum, given the expensiveness and ineffectiveness of the death penalty system, is it worth the cost?

Question No. 2: What are the moral implications of intentional killing by the State?
Presently, Utah is aligned politically on the death penalty issue with such “axis of evil” countries as Iran, Iraq, and North Korea. The top five countries in executions in 2008 were China, Iran, Saudi Arabia, Pakistan, and the United States. On the other hand, 135 civilized countries in the world have abolished the death penalty. See Death Penalty Information Center, http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries (last visited June 1, 2009).

In the United States, 15 states do not have the death penalty. New Mexico’s repeal of its death penalty statute has helped to partially restore our nation’s standing in the world as a human
rights leader. On April 15, 2009, Pope Benedict XVII honored Governor Bill Richardson in an audience in Rome. The Roman Coliseum, once the arena for gladiator combat and executions,
was specially illuminated to celebrate the repeal. Governor Richardson said, “I didn’t want America to continue being isolated with this position, because the world was moving in another direction. It’s about time that America starts following along with the rest of the world in abolishing the death penalty.” The Associated Press, New Mexico’s Gov to Be Honored at
Colosseum, April 15, 2009, available at http://abcnews.go.com/International/wireStoryid=7342094 (last visited June 1, 2009).

This year, Maryland’s governor Martin O’Malley promoted a bill to repeal his state’s death penalty, saying, “The death penalty is fundamentally and irredeemably incompatible with the most important foundational truths of our republic [and] the fundamental civil and human rights bestowed on humankind by God.” Governor Martin O’Malley, On the Repeal of Capital Punishment in Maryland, Testimony Before the Senate Judicial Proceedings Committee (Feb. 18, 2009), available at http://www.governor. maryland.gov/speeches/090218c.asp (last visited June 1, 2009).

Most people probably agree that killing people is wrong. But what about the “worst of the worst,” shouldn’t we kill them? After all, what they did was abhorrent. In fact, most of them
intentionally killed other people.

Here’s the crux of this moral issue: It’s not about them, it’s about us! That is, should we do that which we abhor? Should we intentionally kill?

In sum, should we be killing people who kill people to show that killing people is wrong? It’s cruel and barbaric, not worthy of us. The vast majority of civilized countries in the world have abolished the death penalty. As a state that asserts a duty to demonstrate moral leadership in the world, perhaps we should too.

Question No. 3: How does religious doctrine affect the decision to kill?
Doesn’t “Thou Shalt Not Kill” say it all? After all, whom would Jesus kill? In Utah, the vast majority of those who ascribe to a religion are Christian. Almost all major Christian religions in
the United States that have taken a position are opposed to the death penalty.

Some people believe that the largest church in Utah, The Church of Jesus Christ of Latter-day Saints, supports the death penalty. It does not. The Church regards the question of whether, and in what circumstances, the state should impose capital punishment, “as a matter to be decided solely by the prescribed processes of civil law.” The Church of Jesus Christ of Latter-day Saints, http://www.newsroom.lds.org/ldsnewsroom/eng/public-issues/capital-punishment
(last visited June 1, 2009). So, the LDS among us can decide for themselves what is morally right.

What does the Bible teach about capital punishment? Death penalty supporters cite such Old Testament language as in Exodus 21:12: “He that smiteth a man, so that he die, shall surely be put to death.”

In Old Testament times, retribution was the rule. But Dale Recinella analyzed the Bible and Talmudic commentary to identify substantive and procedural laws concerning how and when the death penalty was applied in the Old Testament. See Dale Recinella, The Biblical Truth About America’s Deat h Penalty 329 (Northeastern University Press 2004). Then he compared and contrasted those findings with how and when the death penalty is applied in American
today. After an exhaustive analysis, Recinella stated: “Our conclusions are not ambiguous. The American death penalty fails miserably under the revelations of biblical truth. It cannot be
conducted under biblical authority.” Id.

Moreover, whatever one’s feelings about the modern day applicability of Old Testament teachings, for Christians, Jesus completes the perfection of God’s revelation of his will. Jesus said, “Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth. But I say unto you, That ye resist not evil: but whosever shall smite thee on thy right cheek, turn to him the other also.” Matthew 5:38-39. And,

Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you; That ye may be the children of your Father which is in Heaven; for he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust.

Id. at 5:43-35.

In the New Testament, love and mercy replace retribution. As the Apostle Paul taught, “Recompense to no man evil for evil.” Romans 12:17. Similarly, “Dearly beloved, avenge not yourselves, but rather give place unto wrath; for it is written, Vengeance is mine; I will repay, saith the Lord.” Id. at 12:19. So God has said he will handle the vengeance. “Thou shalt not kill” appears to remain his will for us.

Question No. 4: Is there a danger of executing innocent defendants?
There is indisputable evidence that despite the extra procedural safeguards provided in death-eligible cases, the death penalty process is fraught with error. Innocent people have been convicted and sentenced to death. Since 1973, a total of 135 people in 26 states have been released from death row with evidence of their innocence. See Death Penalty Information Center, http://www.deathpenaltyinfo.org/innocence-and-death-penalty (last visited June 1, 2009).

New Mexico Governor Bill Richardson cited death row exonerees in support of his decision to sign the bill repealing New Mexico’s death penalty this year. He said,

In a society which values individual life and liberty above all else, where justice and not vengeance is the singular guiding principle of our system of criminal law, the potential for wrongful convictions and, God forbid, execution of an innocent person stands as anathema to
our very sensibilities as human beings.

Editorial, Governor Bill Richardson Signs House Bill 285: New Mexico Death Penalty Repealed, SantaFe.com, March 19, 2009, available at http://santafe.com/articles/governor-billrichardson-
signs-house-bill-285 (last visited June 1, 2009).

Evidence of wrongful death sentences was also the reason given by Illinois Governor George Ryan in 2003 when he commuted the death sentences of 167 Illinois death row inmates. See Canad ian Coalition Against the Death Penalty, News – Illinois Governor Ryan Commutes ALL Deat h Sentences (2003), http://www.ccadp.org/news-ryan2003.htm (last visited June 1, 2009).

Just this year, Maryland addressed the wrongful-conviction problem by significantly limiting the types of cases that will be death-eligible. The death penalty can only be imposed if there is either DNA or other biological evidence connecting the defendant to the crime, a videotape of the crime, or a video-recorded confession by the accused. See Julie Bykowicz, Md. House OKs death penalty reform, The Baltimore Sun, March 27, 2009, at A3, also available at
http://www.baltimoresun.com/news/local/politics/bal-md.penalt y27mar27,0,1903193.story (last visited June 1, 2009).

Should we consider putting such limitations on death penalty prosecutions in Utah? We in the criminal bar like to the think we are infallible, but why take the chance on the unforgivable?

Question No. 5: Is the death penalty imposed in an arbitrary or discriminatory manner?
In Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court declared the death penalty unconstitutional as being cruel and unusual under the Eighth Amendment based
on its arbitrary and discriminatory application. Justice Potter Stewart, in a concurring opinion, observed, “the petitioners are among a capriciously selected random handful upon whom the
sentence of death has in fact been imposed,” and concluded that the Eighth and Fourteenth Amendments cannot tolerate sentencing procedures that allow the penalty to be “so wantonly
and so freakishly” inflicted. Id. at 309-10.

New capital punishment laws, presumably designed to limit the application of the death penalty to only the worst cases and to provide for its consistent application, were upheld in Gregg v.
Georgia, 428 U.S. 153 (1976). Nevertheless, there is evidence that the death penalty is still far from being consistently applied.

Many factors other than the gravity of the crime or the culpability of the offender appear to affect death sentences, including and especially geography, and race.

In 2008, 95% of all executions occurred in the South, with 62% in Texas alone. See Death Penalty Information Center, http://www.deathpenaltyinfo.org/arbitrariness (last visited June 1,
2009). Is there any more arbitrary death selection process than mere geography?

Racial discrimination has been found in 96% of the states where there have been reviews of race and the death penalty. There was a pattern of either race-of-victim or race-of-defendant discrimination, or both. See David C. Baldu et al., In the Post-Furman Era: An Empirical and Legal Overview, With Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998). Similarly, an analysis of twenty-eight studies by the U.S. General Accounting Office found a “remarkably consistent” pattern of racial disparities in capital sentencing throughout the county. See Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial
Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433, 434 (1995). In Utah, for example, Mark Hoffman, a white male Mormon, committed two murders via premeditated bombings, and was offered a lesser plea, whereas William Andrews, a black man, who did not kill anyone, was executed.

But, can’t all these problems be remedied? In Callins v. Collins, 510 U.S. 1141 (1994) (denying a death row inmate’s petition for certiorari), a dissenting Justice Blackmun wrote:

For more than 20 years I have endeavored – indeed, I have struggled – along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.… I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.…[N]o combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question – does the system accurately and consistently determine which defendants deserve to die? – cannot be answered in the affirmative.…The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Id. at 1145 (J. Blackmun, dissenting).

Given the apparently intractable problems in attempting to achieve any significant consistency and fairness in the application of the death penalty, should we consider limiting the maximum punishment for any crime to life without possibility of parole?

Question No. 6: How are victims’ rights impacted by the lengthy death penalty process?
Victims’ families undoubtedly experience a high level of frustration with the criminal justice system. Because of the extensive constitutional due process requirements in death penalty litigation, trials are engthy, and appeals can go on for decades. For families of victims, there is no closure.

Instead of repealing the death penalty, would a limitation on habeas appeals help victims? During Utah’s 2009 Legislative session, Utah Attorney General Mark Shurtleff offered a plan
to limit the appeal process by amending the state Constitution. Senate Joint Resolution 14 provided that, following a direct appeal, “a person may challenge the legality of the conviction or
sentence only in the manner and to the extent provided by statute.” S.J. Res. 14, 58th Leg., Gen. Sess. (Utah 2009), available at http://le.utah.gov/~2009/htmdoc/sbillhtm/SJR014.htm (last
visited June 1, 2009). In other words, the amendment would give the state legislature the sole authority to decide which cases could be appealed.

While the idea of reducing appellate time may have superficial political appeal, Shurtleff’s proposal is unlikely to withstand a constitutional challenge. The proposal has been criticized
as violating the bedrock principle of the separation of powers among the three branches of government, and making it likely that federal courts will become much more active in state court
affairs. See Linda Thomson, Shurtleff’s plan to cut appeals draws judicial criticism, Deseret News, Jan. 27, 2008, at B1; see also Editorial, Shurtleff offers travesty of justice, Salt Lake
Tribune, Feb. 15, 2009, at A12.

Another problem with limiting habeas appeals is that, if the defendant did not have competent counsel for defendant’s trial and direct appeal, the habeas review may be defendant’s first
opportunity to be represented by competent counsel. Thus, restricting habeas appeals would be problematic, especially in death penalty cases. As the Utah Supreme Court has explained:

We cannot allow a defendant’s life to be taken by the government without an adequate review of the conviction.…[I]t falls to us, as the court of last resort in this state, to assure that no person is deprived of life…without the due-and competent-process of law. Without a sufficient defense,
a sentence of death cannot be constitutionally imposed. This basic concept is bedrock upon which our constitutional government stands.

Archuleta v. Galetka, 2008 UT 76, ¶¶ 18-19, 197 P.3d 650.

Question No. 7: Is life without parole a viable alternative to the death penalty?
Two alternatives to the lengthy death penalty process come to mind. First, the district attorneys in the state could end the lengthy process in some aggravated murder cases simply by no longer seeking the death penalty. For example, once our previous district attorney took death off the table in the Destiny Norton case, the case was over in an hour. The defendant pled
guilty and was sentenced to life without possibility of parole. With no trial, and no appeals, the victim’s family had immediate and satisfactory closure.

Or, what would be the effect on victims’ families if the death penalty were repealed altogether, as in New Jersey? Richard Pompelio, Executive Director of the New Jersey Crime Victims
Law Center, said,

I don’t think it’s made much of a difference at all other than that some of the cases that were languishing out there are now getting tried. The important thing for crime victims is that the process have an end, and with the death penalty there never was an end.

Rudy Larini, A year later, state assesses justice without death penalty, New Jersey Sta r-Ledger, Dec. 15, 2008, at 1.

Prosecutors in New Jersey agree that eliminating the death penalty has not hindered them in obtaining tough sentences for the most violent offenders. Essex County Prosecutor Paula Dow,
head of the state association of county prosecutors, said,

Under the old system some prosecutors felt pressured to seek the death penalty, despite the lengthy, expensive trials and prolonged appeals. It was a very big drain on the limited resources of law enforcement. There were long delays in the resolution of the cases, multiple appeals and very high costs associated with the handling of the litigation.

Id.

Finally, to quote one of our state supreme court justices on the viability and propriety of a maximum sentence of life without parole: “Based on our experience, a sentence of life without parole may be less expensive to the state, more miserable for the guilty and more certain for the victims and society.” Menzies v. Galetka, 2006 UT 81, ¶ 123, 150 P.3d 480 (J. Wilkins, concurring).

Conclusion
The death penalty system is costly and ineffective, fundamentally immoral, violative of Christian principles, allows for the possibility of executing innocent people, is imposed in an arbitrary and
discriminatory manner, and lacks closure for the families of victims. Repeal of the death penalty may be appropriate but it is not necessary today. An immediate moratorium on death-penalty
prosecutions is appropriate however in order for a blue-ribbon commission to study the costs and options in more detail.

Ralph Dellapiana is a trial attorney with the Salt Lake Legal Defender Association and is Death Penalty Project Director for the Salt Lake Chapter of the High Road for Human Rights.