For the week of July 3 - 9, 2002

Attorneys predict slow end to death penalty in America

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By GREG MOORE
Express Staff Writer

Two recent U.S. Supreme Court decisions indicate that political momentum is "nibbling away" at the death penalty in the United States, a group of lawyers who have tried capital cases, said during a panel discussion in Ketchum last week.

The discussion — "The Death Penalty, Justice or Injustice?" — was sponsored by the American Civil Liberties Union of Idaho and took place June 26 at St. Thomas Episcopal Church. The title was somewhat of a misnomer, however, as all five panelists weighed in far more heavily on the "injustice" side of the question than the "justice" side.

The panelists’ conclusion was partly confirmed Friday when a U.S. District Court judge in New York ruled that the death penalty violates constitutional due process guarantees on the grounds that too many people on death row have been found to have been wrongly convicted.

About 3,500 people are on death row throughout the United States. Twenty-two of those are in Idaho.

On June 20, the U.S. Supreme Court ruled that mentally retarded killers can’t be executed. Four days later, it ruled that only juries, not judges, can impose the death penalty.

"We’ve got an evolving standard here," said panelist and Boise attorney Bill Mauk, who ran for U.S. Senate as a Democrat in 1998.

Mauk contended that if political momentum continues as it has, the Supreme Court will soon rule that the death penalty is "cruel and unusual punishment," banned by the Eighth Amendment to the U.S. Constitution.

Local attorney Andrew Parnes pointed out that it was only a little more than a decade ago that the Supreme Court decided in favor of executing the retarded and of allowing judges to impose the death penalty.

The crucial event that has happened in the meantime, panelists said, is that scientific advances have shown that innocent people have been condemned to death. Since 1989, over 100 people convicted of various crimes have been released from prison due to DNA tests. Twelve of those people had been on death row.

Judges, Mauk said, "have lost a measure of confidence in the system."

The U.S. District Court decision in New York affects only federal cases, and its long-term fate is in question. Federal prosecutors pointed out that the U.S. Supreme Court has ruled that the Fifth Amendment’s due process guarantees do not require perfect outcomes. They also pointed out that exonerations of convicted defendants on death row have all been in state courts.

During the panel discussion here, Idaho Falls attorney Fred Hoopes said he represented a man sentenced to death for killing a 7-year-old girl in Nampa in 1982. The man was on death row for more than a decade before a new form of DNA testing on hair samples proved him innocent.

Responding to audience questions about the rights of the families of victims to see justice done, Hoopes said that a decision to satisfy that impulse must recognize the "factor of error" in the system.

"I’ve decided it’s not worth it," he said.

Panelists agreed that many killers deserve to be put away for life, without any possibility of parole. Going further, former Blaine County Prosecuting Attorney Doug Werth said punishment needs to be made harsh enough to scare kids into staying out of prison.

"Prison needs to be a horrible place to be," he said.

Parnes said that in the most recent Supreme Court decision, Justice Stephen Breyer pointed out in a concurring opinion that there is no evidence that the existence of the death penalty deters crime. Breyer referred to statistics showing that the murder rate is 48 percent to 101 percent higher in states that have the death penalty than in states that don’t.

"It’s retribution," Parnes concluded.

Panelists disagreed on how the court decision will affect Idaho’s 22 death row inmates, at least six of whom will have their cases retried. Hoopes contended that juries will be more sympathetic than judges to stories of killers’ backgrounds or other mitigating factors.

Mauk, however, argued that they will be at least as sympathetic to the families of victims.

"You get this strange mix of emotions taking place," he said. "I particularly think that in the state of Idaho, there are juries that will have no reservations whatsoever in imposing the death penalty."

 

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