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PUBLIC POLICY BRIEF The High Price of Retribution: A Case for Repealing the Death Penalty

SUMMARY

In 2015, the Utah Legislature reauthorized the While the death penalty might appeal to our use of the firing squad as a form of capital emotional appetite for justice—or revenge—the . Unfortunately, the debate never reality is that it is not justly administered, the addressed the acceptability of the death risk of executing an innocent is too high, and penalty itself, despite lengthy consideration by it does not serve victims very well. the legislature of a comprehensive package of criminal justice reforms during the same time. Given the low value and high cost of the death penalty, does not give This missed opportunity can be corrected. taxpayers much bang for the buck. Instead The legislature should consider abandoning it has become a bloated and bureaucratic the use of capital punishment in favor of life policy that blindly seeks retribution despite without parole. a significant moral, social, and financial cost.

As with other government programs, freedom-minded individuals have strong reason to be skeptical of the government’s power and practice of executing people. PUBLIC POLICY BRIEF | THE HIGH PRICE OF RETRIBUTION: A CASE FOR REPEALING THE DEATH PENALTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

espite both personal and many wrongful convictions across the big government policy gone wrong. Dprofessional risk, John Adams country. The very real risk of executing passionately defended the British an innocent person is enough The rate of false convictions for soldiers charged with murder to abandon capital punishment death row inmates stands at 4.1%.5 in connection with the Boston altogether. In comparison, the error rate for Massacre. During his remarks to food stamp benefits is a mere 1%.6 the jury, Adams expanded on that This is not a theoretical risk. In 2015, When government can manage a famous doctrine established by for example, the FBI admitted that large welfare system more precisely English jurist William Blackstone: consistently flawed testimony provided and accurately than it does a limited by its agents had overstated—or and infrequent capital punishment It is more important that outright falsified—the accuracy of program, it becomes clear that a innocence should be protected, forensic evidence in 95 percent of reconsideration of the underlying than it is, that guilt be punished; criminal cases that investigators policy is needed. for guilt and crimes are so reviewed from a period spanning frequent in this world, that all of more than two decades.3 The cases What’s the Cost? them cannot be punished.... but included 32 defendants sentenced when innocence itself, is brought to death, 14 of whom had already The Utah Legislature often looks to the bar and condemned, been executed or died in prison. for ways it can squeeze more value especially to die, the subject from each tax dollar by reforming will exclaim, ‘it is immaterial to The has also government programs. This drive for me whether I behave well or ill, reported that 22% of its cases were tax efficiency was a primary impetus for virtue itself is no security.’ closed because of lost or destroyed behind the state’s comprehensive And if such a sentiment as this evidence, and 33 of the convicts they criminal justice reforms in the 2015 should take place in the mind of exonerated through DNA evidence general session. Capital punishment, the subject, there would be an had actually pled guilty to crimes however, has become far more end to all security whatsoever.1 for which they were innocent due expensive than its alternatives and to coercive plea deals.4 These facts thus consumes an outsized share Adams understood that a justice are an unacceptable side effect of a of resources—hardly a prudent use system colored with any desire of scarce resources. for retribution will inevitably catch innocents in its widely cast net, Death penalty cases are much more corrupting the morality of the entire costly than life without parole. In an system. Across the country, many effort to avoid the risk of executing who were not guilty of the crimes an innocent person, these cases for which they were accused and require, as a matter of law, a more convicted have been tragically caught robust and lengthy legal process in that net. at trial with a series of appeals. A 2012 legislative study in Utah Efforts led primarily by the Innocence found that the increased trial costs Project have led to the exoneration of administering the death penalty of at least eight inmates in Utah who were previously given life sentences, and over three hundred inmates around the country have been exonerated post-conviction by DNA evidence.2 Prosecutorial misconduct, faulty forensic evidence, mistaken eyewitness testimony, and coerced confessions have driven PUBLIC POLICY BRIEF | THE HIGH PRICE OF RETRIBUTION: A CASE FOR REPEALING THE DEATH PENALTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

made the punishment nearly $1.7 moral culpability, jury costs, and death penalty states are actually million more expensive to taxpayers special housing and confinement consistently higher than in states than the alternative—a conservative requirements for death row inmates. without the death penalty. After estimate, since the study did not take repealing capital punishment, New into account the increased cost of Utah’s numbers are not an anomaly; York, New Jersey, Connecticut, cases where the death penalty was other states have also found the death Illinois, and New Mexico each saw sought but not ultimately imposed. penalty to be costly. In California, their murder rates decline. A National for example, capital punishment Research Council study found that The fiscal estimate includes the is as much as twenty times more there was no credible evidence to following costs:7 expensive than the alternative of life support the deterrent effect of capital without parole, with nearby Idaho punishment.9 Moreover, experts in • $560,000 to the Attorney General’s finding it to be at least 70% more the field do not believe it works; 88 office for post-conviction death expensive. percent of criminologists nationwide penalty processing. do not believe the death penalty is • $25,000 to the courts for law clerk Because our system attempts and jury selection. • $100,800 from the Post-Conviction to provide robust due process Indigent Defense Fund for post- protections for those facing the death A poll of 500 police chiefs conviction defense of offenders penalty in order to avoid executing unable to pay. an innocent person, we now find revealed that the death penalty • $363,000 from the Indigent Capital ourselves with highly bureaucratic, Defense Trust Fund to pay for comprehensive, and increasingly is at the bottom of the list when defense costs (this fund receives costly death penalty cases. The it comes to wise and effective money from local governments). government’s resources are not • $5,000 from public safety for more infinite; each dollar spent on a death forensic testing and processing at spending to fight crime. penalty case is a dollar not spent the State Crime Lab and for forensic expert time. on other necessary public safety • $165,000 for the Department of priorities. This trade-off elicits the an effective deterrent.10 The study Corrections to handle the increased question of whether retribution is concluded that the consensus workload and materials related to worth the expense when it means among criminologists is that the the execution process. devoting fewer taxpayer resources to death penalty does not “add any • $27,700 for the Board of Pardons catching more criminals or preventing significant deterrent effect above and Parole for final case review crime. that of long-term imprisonment.” and hearings. • $460,000 from local governments Some may argue that the death for attorneys, investigators, and A True Public Safety Policy specialists. penalty would work better as a • $9,000 from local governments A national survey of police chiefs deterrent if it were quick and public. for special jailing of potential death found that law enforcement executives However, the constitutional demands penalty offenders. ranked the death penalty last as a of due process prevent this option. way of reducing violent crime, and With scarce resources, it would These costs—compiled in 2012—have rated it as the least cost-effective be better to focus public safety since increased due to rising attorney method for controlling crime.8 When programs on responding to crime fees, the cost of experts, the judicial compared to other public safety and preventing its root causes, rather unpredictability of changing legal priorities, police chiefs would prefer to than pursuing a policy of retribution. standards that prolong legal battles, devote funding to other programs that The high costs of the death penalty lengthy mitigation investigations that have broader impact like community siphon away these dollars, reducing gather comprehensive life records of policing and more training. the overall succes of the criminal the accused to determine if mitigating justice system, and subordinating evidence may have influenced the The death penalty also falls short the safety of future victims to the jury’s appraisal of the accused’s as a deterrent. Murder rates in desire for retribution for past victims. PUBLIC POLICY BRIEF | THE HIGH PRICE OF RETRIBUTION: A CASE FOR REPEALING THE DEATH PENALTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

Real Justice for Victims not made any better through state- The religious case against the death sanctioned revenge killings, nor are the penalty spans across denominations. While taxpayers bear a significant loved ones of the victim given comfort Pope Francis has declared the financial cost in capital punishment or closure through the protracted legal ’s opposition to the cases, we must not forget the emotional process of the death penalty. death penalty, calling it an “offence costs borne by the victims. While against the inviolability of life and the some victims desire retribution, nearly A Religious Argument dignity of the human person, which all prefer justice be swift and sure. contradicts God’s plan for man and An overwhelming majority of death Many people of religious faith society, and his merciful justice, and sentences—68%—are overturned proclaim a in the intrinsic value impedes the penalty from fulfilling on appeal, which means that the of human life. Some even oppose any just objective.”13 process starts over again.11 Each the practice of abortion on these appeal generates successive waves pro-life grounds. For many of these, Jay Sekulow, chief counsel for the of media attention and prolongs the the value of human life is a reflection American Center for Law and Justice, victims’ desire for closure and justice. of their belief that life is a creation a Messianic Jew, said: “I’m opposed The wounds of murder for the family of God and thus its preservation to the death penalty because… the members of victims are reopened with is a form of worship and honor for each sensational death penalty story taking of life is not the way to handle their creator. They also believe that about their perpetrator. Accordingly, even the most significant of crimes… for these reasons, God is the only some victims oppose the death penalty. Who amongst anyone is not above power that should decide to end redemption? I think we have to be Marietta Jaeger-Lane of Montana life; God’s will is manifest through careful in executing final judgment. lost her seven-year-old daughter to a death by natural means. The one thing my faith teaches me—I serial child kidnapper who snatched don’t get to play God. I think you are her from the family’s tent during a One exception many make is for self- short-cutting the whole process of camping trip, and later tortured and defense when taking one life is for the redemption… I don’t want to be the murdered her. Instead of focusing direct protection of another life. In the person that stops that process from on the horrors of the crime and the case of the death penalty, this purpose taking place.”14 evil perpetrated by this man, Marietta is non-existent. The victim is already describes beginning a journey of dead and the death penalty is never Mercy is also an important element of spiritual awakening that led her to carried out immediately, so one can Utah’s predominant . Former peace and ultimately forgiveness. hardly argue that execution is for the LDS Church President Gordon B. She now views her daughter’s death protection of others. There are those Hinckley taught, “Mercy is of the very as a sacrifice of sorts that became that sit on death row for decades essence of the gospel of Jesus Christ. a tool to bless the lives of others by before being executed. If executions The degree to which each of us is able teaching forgiveness. were about protecting society then to extend it becomes an expression they would be carried out swiftly— of the reality of our discipleship under Marietta now opposes the death penalty. something that cannot be done without Him who is our Lord and Master.”15 “Loved ones wrenched from our lives inevitably killing innocent people. by violent crime,” she says, “deserve Likewise, President Spencer W. Further, the self-defense exception more beautiful, noble and honorable Kimball wrote that “the spirit of does not apply in cases where the memorials than pre-meditated, state- revenge, of retaliation, of bearing sanctioned killings. The death penalty perpetrator has been neutralized and a grudge, is entirely foreign to the only creates more victims and more is no longer a threat. gospel of the gentle, forgiving Jesus grieving families. By becoming that Christ.”16 Elder Dallin H. Oaks also which we deplore—people who kill wrote that “revenge is never a proper people—we insult the sacred memory motive for a Christian.”17 of all our precious victims.”12 Seven states in seven years A government sanction is not the Marietta, and other victims who echo have now eliminated the same as a heavenly sanction, and her position, make a strong point many who respect both prefer not death penalty. that the lives lost through murder are to mingle the two. PUBLIC POLICY BRIEF | THE HIGH PRICE OF RETRIBUTION: A CASE FOR REPEALING THE DEATH PENALTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

A Red State Repeal pro-life views, but it’s also consistent purpose other than self-defense is to with trying to make government more corrupt the very purpose for which The Republican-controlled, efficient. With the death penalty, government exists. unicameral legislature in Nebraska taxpayers are not getting what they’re voted to repeal the death penalty paying for. If any other programs Because there is a risk of executing an in 2015. This is the first case of a were as costly or inefficient as this, innocent individual, the death penalty conservative state abandoning capital we would have gotten rid of them.”18 is therefore an acknowledgement punishment under a Republican that the government should be majority in over 40 years (the last state Two Nebraska legislators spoke able to execute innocent people was North Dakota in 1973). Moreover, with Utah lawmakers in an interim as collateral damage for the greater not only did a supermajority vote committee meeting about why they purpose of meting out retribution on three times for repeal, but 30 of supported the repeal in their state, behalf of victims who are now dead. those senators voted a fourth time and how their personal views had Government acts legitimately when it to sustain the repeal by overriding shifted on this issue over time. They does that which we all have a natural the governor’s veto. While Democrats and their colleagues contend that right to do—in this case of justice, in the state have called for repeal in while capital punishment is something to protect life by defending potential years past, the legislative tide didn’t that conservatives generally feel is victims from harm or imprisoning change until Republicans took up warranted in certain cases, the data those that would likely harm others. the issue as well. makes clear that it has no deterrent Capital punishment, however, is a effect, to say nothing of the other program that seeks retribution at The effort was co-sponsored by legitimate criticisms that support any fiscal or moral cost. Senator Colby Coash, a Republican its abolition. with strong religious-based, pro-life Nebraska has now shown to other views. Senator Coash personally Given these problems, the retention conservative states, including Utah, talked with all of his Republican of capital punishment in any state that there are moral, fiscal, religious, colleagues appealing to their mix of is an acknowledgment of mob rule, due process, and societal arguments views supporting limited government, as the perceived majority seeks to to be made in favor of an alternative fiscal restraint, and religious pro-life impose societal retribution over the path. Utah should follow their lead values. Senator Coash said of the wishes of the minority. To delegate and repeal the death penalty. effort, “This is consistent with my to government the right to kill for a PUBLIC POLICY BRIEF | THE HIGH PRICE OF RETRIBUTION: A CASE FOR REPEALING THE DEATH PENALTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

ONE EXAMPLE, OF MANY Gerald Hurst said, “There’s nothing to suggest to any reasonable arson In a small town in rural , investigator that this was an arson fire. Cameron Todd Willingham was a It was just a fire.”20 Former Louisiana young 23-year-old father. Two days State University fire instructor Kendall before Christmas in 1991, his house Ryland added, “[It] made me sick to caught fire, killing his three young think this guy was executed based daughters from smoke inhalation. on this investigation… They executed His wife had been away shopping this guy and they’ve just got no and Todd had fallen asleep. idea—at least not scientifically—if he set the fire, or if the fire was even Investigators began looking at arson intentionally set.”21 as a potential cause and concluded that there was evidence of accelerant Prior to the execution, Willingham’s in the fire. Willingham was charged predict with “100 percent certainty defense attorneys presented expert with the murder of his children. He that the individuals would engage testimony regarding the new arson was given a plea deal to confess in in future violent acts.”19 investigation to the state’s highest exchange for life in prison, otherwise court, as well as to Texas Governor prosecutors would seek the death The other pillar of the prosecution’s . No relief was granted, penalty. His court-appointed attorney case was testimony from a fellow and Willingham was executed on encouraged him to take the deal. inmate at the county jail, Johnny February 17, 2004. Some of the jurors Willingham rejected the offer and Webb—a bi-polar drug addict who who convicted him were troubled maintained his innocence until his claimed he heard Willingham admit to when told of the new case review. last breath on the execution gurney. starting the fire. In exchange for this Juror Dorinda Brokofsky asked, testimony, Webb was given favorable “Did anybody know about this prior Based on his troubled childhood treatment in his own case and was to his execution? Now I will have to and lifestyle, prosecutors painted released early. Years later he wrote live with this for the rest of my life. a picture of a satanic criminal to the prosecutors recanting his story Maybe this man was innocent.”22 sociopath. Investigators theorized just to turn around and recant his that lighter fluid had been sprayed recantation. Today, Webb now says A Texas court later even drafted in a pentagram pattern on the floor. his original testimony at trial was a an order to exonerate Willingham This didn’t play to Willingham’s favor complete fabrication and accuses posthumously, stating that “in light in the largely Christian community the prosecutor of telling him to say of the overwhelming, credible, and of Corsicana, Texas. The state it in exchange for a secret deal. reliable evidence presented by the hired expert witness psychiatrist Petitioners, this Court holds that the Dr. —nicknamed “Dr. Years later, just before the execution, State of Texas wrongfully executed Death” for his record of getting death the arson report was reviewed by Cameron Todd Willingham… the penalty convictions by testifying for national experts who concluded State of Texas has a duty to ensure prosecutors in over 100 cases—to that the original investigation was that such a tragedy never happens testify that the defendant was a flawed. This review was based again…” That order never became severe, incurable sociopath. Dr. on new scientific advances in fire official, as a higher court halted the Grigson had never actually met investigations that repudiate many inquiry on procedural grounds. Mr. Willingham, and was expelled of the flawed theories used by three years later by the American investigators. Even the theory about Willingham’s conviction—likely a Psychiatric Association for having the pentagram burn pattern was wrong one, and a single example of arrived at diagnoses without first rejected with experts finding the many—underscores the high stakes examining the individuals against burn marks to be consistent with in capital punishment and the reality whom he testified. In some cases the window placement and natural of the risk of tragically executing an he would even testify that he could air flow of the room. Arson expert innocent person. PUBLIC POLICY BRIEF | THE HIGH PRICE OF RETRIBUTION: A CASE FOR REPEALING THE DEATH PENALTY LIBERTAS INSTITUTE | ADVANCING THE CAUSE OF LIBERTY IN UTAH

A PROPOSAL TO REPEAL, WITH A “PLAN B” Utah has three penalties for capital felonies: execution, 25 years in prison up to life (25 to life), and the relatively new penalty of life in prison without the possibility for parole (LWOP, started in 1992). Because execution does not create any additional benefits for deterrence, is more costly than life without parole, and risks innocent lives, we propose that Utah eliminate execution as a penalty for capital offenses and continue to use 25 to life, and life without parole, as the penalties for a capital felony. This penalty is used by many states for capital murder cases.

Such a change would require amending and repealing a few sections of code dealing with capital felony penalties, the judgment of death, and the carrying out of executions: sections 76-2-404, 76-3-206, 76-3-207, 77-18-5.5, and 77-19 (sections 6-12 and sections 201-206).

As an alternative to the final elimination of execution as a penalty, Utah could also experiment with a ten-year moratorium on the imposition of the death penalty in current and future cases by placing a sunset on these reforms. Existing sentences could be commuted to life without parole for the next ten years. Additionally, the state could save money by not building an execution chamber or a special segregated “death row” in the new prison. After ten years, the legislature could revisit the issue for a sunset review to evaluate the results of the change.

Endnotes

1. “Adams’ Argument for the Defense: 3–4 December 1770,” Founders Online, National Archives. 2. “DNA Exonerations Nationwide,” The Innocence Project, October 26, 2015. 3. “FBI admits flaws in hair analysis over decades,” The Washington Post, April 18, 2015. 4. “When the Innocent Plead Guilty,” The Innocence Project, January 26, 2009. 5. “Rate of false conviction of criminal defendants who are sentenced to death,” Proceedings - National Academy of Science, 2014, 111 (20), 7230–5. 6. “SNAP Error Rates at All-Time Lows,” Center on Budget and Policy Priorities, July 2, 2014. 7. “Capital Punishment Fiscal Costs,” Memorandum for the Law Enforcement and Criminal Justice Interim Committee, Utah Office of the Legislative Fiscal Analyst, August 15, 2012. 8. “Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis,” Death Penalty Information Center, October 2009. 9. “Current Research Not Sufficient to Assess Deterrent Effect of the Death Penalty,” News from the National Academies, April 18 2012. 10. “Do Executions Lower Homicide Rates?: The Views of Leading Criminologists,” The Journal of Criminal Law & Criminology. Vol. 99, No. 2. 2009. 11. James S. Liebman, “A Broken System: Error Rates in Capital Cases, 1973-1995,” Columbia University School of Law. 12. Claudia Whitman, The Death Penalty (Biddle Pub. Co., 1997), 36. 13. “No Crime Ever Deserves the Death Penalty,” Vatican Radio. March 20, 2015. 14. “Conservatives Concerned About the Death Penalty National Supporters,” http://conservativesconcerned.org/what- conservatives-are-saying/. 15. Gordon B. Hinckley, “Blessed Are the Merciful,” Ensign, May 1990. 16. Spencer W. Kimball, The Miracle of Forgiveness (Salt Lake City: Deseret Book, 1969). 17. Dallin H. Oaks, The Lord’s Way (Salt Lake City: Deseret Book, 1991). 18. “Nebraska Bishops Welcome Override of Veto of Bill Ending Death Penalty,“ Catholic News Service, May 28, 2015. 19. Flores v. Johnson, United States Court of Appeals, Fifth Circuit, 99-40064. 20. “Man executed on disproved forensics,” , December 9, 2004. 21. Ibid. 22. Ibid. PUBLIC POLICY BRIEF | THE HIGH PRICE OF RETRIBUTION: A CASE FOR REPEALING THE DEATH PENALTY

PUBLIC POLICY BRIEF

The High Price of Retribution: A Case for Repealing the Death Penalty

FREQUENT RECURRENCE

TO FUNDAMENTAL PRINCIPLES IS ESSENTIAL

TO THE SECURITY

OF INDIVIDUAL RIGHTS

UTAH CONSTITUTION ARTICLE I, SEC 27

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