Monday, January 17, 2011

Pulling the Plug on Capital Punishment

In 2011 and beyond, death penalty's cost will be a topic of consideration for legislators

Pennsylvania Law Weekly
January 17, 2011

The death penalty has been around in its modern form for about 35 years.

The U.S. Supreme Court outlawed the death penalty in the 1972 case Furman v. Georgia , ruling that the death penalty was unconstitutional, violating the Eighth Amendment ban against cruel and unusual punishment.

U.S. Supreme Court Justice Potter Stewart wrote, "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

The decision forced state legislatures to review the death penalty and eliminate the arbitrary, capricious and racially discriminatory aspects of capital punishment. The court suggested that states establish criteria to direct and limit death sentences and provide the sentencing authority with information about the accused's character and record.

In 1976, the court found in Gregg v. Georgia that three of five states that amended their death penalty statutes — Georgia, Florida and Texas — conformed to the directives of Furman .

The death penalty was back.

The first man executed after Gregg , was Gary Gilmore of Utah. Gilmore wanted to be executed and the state granted his wish. He was executed by firing squad on January 17, 1977.

Since Gilmore, 1,233 men and women have been executed nationwide. Texas is responsible for 464 of those executions and three took place in Pennsylvania.

Keith Zettlemoyer, Leon Moser and Gary M. Heidnik were the only men executed in Pennsylvania since 1976. The last execution in Pennsylvania was carried out on July 6, 1999.

What was the state of the death penalty as 2010 came to a close?

In Pennsylvania, although the death penalty exists and men and woman continue to be sentenced to death, the likelihood of being executed is nil.

The three men executed in Pennsylvania all waived their appeal rights and asked to be executed.

Nationwide the death penalty has slowed in its application, method and consummation. There were 46 executions last year compared with 52 executions in 2009. There were 114 death sentences imposed by juries in 2010. In 2009, there were 112 death sentences.

Those numbers are dwarfed by the numbers from the most prolific years of the death penalty. In 1999, for instance, 98 men and women were executed and 315 men and women were sentenced to death in 1996.

A closer look at the death penalty in 2010 provides some perspective for the future of capital punishment in America.

Some 12 states carried out executions last year. Texas led the way with 17 executions. Ohio was second with 8 — the state's most since reinstating the death penalty in 1999. Alabama carried out 5 executions, the third most nationwide.

In 2010, the average age of the condemned, at the time of execution, was 43.93 years of age. The youngest person executed was 28-year-old Michael James Perry who killed three people in 2001. The oldest was 72-year-old Gerald Holland who raped and killed a 15-year-old girl in 1986.

The average age at the time of the offense was 27.45 years of age. The youngest was Peter Catu who was 18 years and 1 month when he and fellow gang members raped and murdered two young girls near Houston in 1993. The oldest was Holland, who was 49 when he raped and murdered his victim.

The average time spent on death row for those executed in 2010 was 16.7 years. The longest time spent on death row was 32 years by David Lee Powell, who murdered a police officer with an AK-47 during a traffic stop. He was one of the longest imprisoned death row inmates in the country. In 2008, a prisoner in Georgia was executed after spending more than 33 years on death row.

The shortest time on death row was served by Gerald Bordelon. He sexually assaulted and murdered his girlfriend's 12-year-old daughter. He spent only seven years and three months on death row, because he waived his appeal rights and wanted to be executed.

The racial make-up of offenders included 27 white men and one white woman, 13 black men and five Hispanic men.

Although there were 46 killers, there were 63 victims as a result of multiple killings by some offenders. A racial breakdown for victims looks like this — 39 white victims, 15 black victims, 8 Hispanic victims and one Asian victim.

Of the 46 offenders executed, 45 were men. However, 29 out of 63 victims were women. More than half of the killers, 27, did not know their victim.

The method of execution has had the most significant impact on the declining number of executions across the country.

In 2008, legal challenges to lethal injection limited the number of executions to 37. A challenge to lethal injection in the state of Kentucky made its way to the U.S. Supreme Court. In 2008, the court ruled in Baze v. Rees that lethal injection did not violate the Eighth Amendment.

Last year, a nationwide shortage of one of the drugs used in all 35 death penalty states, sodium thiopental, required executions to be postponed or cancelled in Arkansas, California, Oklahoma, Tennessee and Kentucky.

Arizona was able to carry out an execution by importing sodium thiopental from the United Kingdom. The British government has since intervened and now restricts further export of the drug for purposes of executions.

California built a state-of-the-art execution chamber, but the state Supreme Court recently ruled that more time is needed to review a new execution protocol established by the Department of Corrections.

Oklahoma received federal court approval to use pentobarbital, a drug used to euthanize animals, to replace sodium thiopental. On Dec. 16, they became the first in the country to use pentobarbital when it executed John David Duty. Nearly ten years ago, Duty was convicted of strangling to death his cellmate in an Oklahoma prison.

Ohio and some other states are reviewing the Oklahoma execution to determine if pentobarbital is a feasible alternative to sodium thiopental.

Ohio and Washington have both moved away from the three-drug protocol utilized by all the other drug penalty states. They now use a single-drug protocol. Both states have successfully carried out executions with the new protocol.

With challenges to lethal injection having stalled and the drug shortage having been addressed, the next issue to take the forefront with regard to the death penalty will be cost.

In these difficult economic times, with state budgets incredibly tight, look for death penalty opponents to pound legislators with data on the cost of legal review, death row housing and ultimately carrying out executions.

County governments feel the pinch, as well. Legal defense costs, including lawyers and experts, can quickly deplete county court budgets. Abolishing the death penalty as a cost cutting measure will never be more tempting.

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