Opinion: This is no time to repeal the death penalty
Arguments against capital punishment don’t grapple with two critical issues: whether it is wise to spare killers who have proven that they pose a continuing threat and whether a punishment less than death will be true justice for every murder.
Death penalty opponents are taking another run at repeal. But Utah has reserved the death penalty for the worst of the worst. For them, sentences less than death fall short of assuring public safety and achieving true justice.
As in the past, death penalty opponents say it isn’t a deterrent, is too expensive, takes too long and may result in executing an innocent person. But these arguments don’t grapple with two critical issues: whether it is wise to spare killers who have proven that they pose a continuing threat and whether a punishment less than death will be true justice for every murder.
It is particularly ill-advised to repeal the death penalty for those who kill while in prison, while on escape, or while attempting to escape. A life sentence means they will pose a continuing threat to inmates who have a right to serve their sentences in safety, corrections officers, law enforcement and the general public if they escape or kill while trying to escape.
Ronnie Gardner, for example, murdered someone during an escape from a courthouse. He was there for a hearing on yet another murder charge for a murder he committed while on a prior escape. And Troy Kell stabbed a fellow inmate 67 times, including nine times in the eyes, in a murder motived by racial hatred. The murder occurred in a maximum security unit.
On the issue of whether something less than death will always be true justice, the Supreme Court recognizes that a death sentence allows society to express its “moral outrage at particularly offensive conduct,” and that it “is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.”
Those sentenced to death in Utah exemplify this “moral outrage” justification. In addition, to those who have killed while in prison or trying to escape, the killers on Utah’s death row did one or more of the following: tortured their victims; raped their victims; kidnapped their victims; killed their victims in their own homes; or killed their victims to keep them from testifying about the other crimes perpetrated against them. They mostly targeted victims who were extremely vulnerable. And most had very lengthy criminal histories.
The arguments against the death penalty don’t address these public safety or proportional justice issues. And under scrutiny, the repeal arguments lack sufficient weight to counter them.
First, death penalty opponents often say that the death penalty has been proven not to be a deterrent. But to paraphrase one commentator: If we have the death penalty and it actually is not a deterrent, then we will have executed murderers. But if we don’t have the death penalty and it actually does have some deterrent effect, we will have condoned the killing of innocent people.
Further, the National Research Council — an arm of the National Academy of Sciences — has cautioned policymakers not to rely on deterrence to decide whether to retain or repeal the death penalty because the science on whether it is a deterrent simply isn’t there. And the studies relied on to claim that it isn’t a deterrent are really saying that there is no statistically significant deterrence. They can’t prove that it has never deterred any murders.
Second, opponents argue that repeal will result in significant savings in cost and time. But those arguments ignore the realities of Utah’s use of the death penalty. When viewed in that context, there will likely be no savings and a high potential for cost and delay increases.
The proposed repeal purports to leave existing capital cases unaffected. Those cases will immediately see increased costs and delay (causing more pain for the surviving family members) while the killers litigate a new issue about whether they have a constitutional right to have their death sentences vacated under the general repeal. If the state wins those arguments, the cases will then have to pick up where they left off and run their full, but delayed, course.
Based on Utah trends, repeal is unlikely to save money and time even after those cases conclude. There hasn’t been a new death sentence in Utah in 14 years. Prohibiting a sentence so rarely imposed will not produce the savings touted by death penalty opponents. Rather, it is more likely to increase cost and delay in aggravated-murder litigation because no one will ever again plead guilty and agree to life-without-parole sentences. Expensive trials and appeals will become the norm for many murderers who currently plead guilty.
And if the death penalty does deter some murders, what is the value of each life saved because the would-be killer feared a death sentence? Are the minimal or nonexistent savings worth putting innocent Utahns at risk?
While opponents often raise the specter of executing an innocent person, in Utah, it is just that — a specter. No person sentenced to death in Utah has been found to be innocent. While that risk can never be eliminated, it approaches zero in Utah due to Utah’s exacting standard for getting a death sentence in the first place.
In short, Utah has reserved the death penalty for the worst of the worst. And in those cases, sentences less than death either create continuing threat, under-punish for the horrific crimes committed, or both.
Tom Brunker is the deputy solicitor general, criminal appeals, for Utah. Andrew Peterson is Utah’s assistant solicitor general.