Tuesday, April 9, 2013

NY Times Publishes Interesting Article on Death Penalty Statistics

The NY Times, on April 5th, published an article focusing on the death penalty and its enforcement in the 32 states that still observe it. It is no secret that the death penalty is enforced in an odd way, sometimes appearing sporadic and random. The article, focusing particularly on Arizona and its enforcement of the death penality, outlines a common situation courts face.

In our area, with the prevalence of gang activity, it is not hard to imagine a crime involving multiple defendants with different levels of responsibility.  In a murder case, the court might be faced with 5 or 6 defendants who were involved in various ways. Without going into many scenarios, one defendant would likely act as the instigator, while another may serve as a lookout. All are likely to be charged with murder. Which ones, if not all, are then chosen to face the death penalty? Should all 5 or 6 face the death penality? Should the instigator? Should the lookout?

The article highlights a case such as this in Arizona involving multiple defendants accused of murder. Three of the four defendants, as a result of plea bargaining, entered guilty pleas receiving sentences of various terms of imprisonment. Those three defendants included the instigator, and two others who helped with the beating. The fourth defendant, who "by all accounts was not directly involved in the killing," received the death penalty.

It is not uncommon for the defendant with the least amount of culpability to receive the harshest sentence. The most reasonable explanation for this would be the effects of plea bargaining. According to Richard Dieter, the executive director of the Death Penalty Information Center in Washington, D.C., "In an ideal world, the prosecution would have ironclad proof against all the co-defendants to be able to pick the worst for the death penalty, but we have an inequitable system, a bargaining system. If you give the prosecution some help, you'll get something out of it."

Another factor leading to inconsistency in death penalty enforcement is the cost. A capital case can cost at least $1 million to to try, from start to finish. A lot of times, this does not include the cost of the post-conviction appeals. Capital cases are extremely expensive, and oftentimes, that is a deterrent to its enforcement.

Lastly, the article points out that the laws by which prosecutors refer to when deciding whether to seek the death penalty in a certain case are extremely broad. For instance, Tennessee has statutory authority listing 15 aggravating factors for seeking the death penalty. If the jury finds, beyond a reasonable doubt that one of these aggravating factors occurred, the death penalty is appropriate. Some of the factors include;
  • If the victim was a government worker;
  • If the defendant has been previously convicted of a violent felony;
  • If the victim was under the age of 12 and the defendant was over the age of 18;
  • Plus many more. 
The full list of aggravating factors can be found here.  The reoccurring problem with lists such as this is that not every murder case which is found to include one of these factors is pursued as a capital case. It would be hard to find a murder that didn't involve one of these factors, and the death penalty is certainly not pursued on every murder case. The article discusses a group of public defenders in Arizona who examined more than 200 first-degree murder cases between 2010 and 2011 in Arizona, using the state's aggravating factors (Arizona has 14 factors), to see if the most egregious murder cases could be separated. Not surprisingly, the result was that nearly all 200 cases possessed at least one of the aggravating factors, and could be pursued as a capital murder case.

The article sought to shine some light on the broad statutory authority used to enforce the death penalty in 32 states, the inconsistencies of the death penalty in multiple-defendant cases, and the budget concerns that have prosecutors hesitating to enforce capital punishment. Mission accomplished!

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