New Voices

NEW VOICES: Prosecutors in Colorado and Nevada Call for Death-Penalty Repeal

Two prosecutors with different philosophical perspectives on capital punishment have called on their respective states to abolish capital punishment. Boulder County, Colorado, District Attorney Michael Dougherty (pictured, left), who opposes capital punishment in principle, and former Washoe County, Nevada, homicide prosecutor Thomas E. Viloria (pictured, right), who has successfully obtained four death verdicts, have added their voices to support efforts to repeal the death penalty in their states. Though approaching the issue with different ideologies, both prosecutors agreed that the death penalty should be eliminated because of its high cost, its ineffectiveness as a crime deterrent, and its potentially detrimental effects on victims’ families.

In comments to legislators on March 4, Dougherty said, “I’m strongly opposed to the death penalty, and it should be abolished in Colorado. … I don't believe any state or country should put its citizens to death.” The high costs in time and resources can’t be justified, he also stated, particularly in a jurisdiction such as Boulder in which juries don’t believe it should be imposed. “I talk to victims' families about it,” Dougherty said, “and one of the things we always focus on in these conversations, is it is up to the jury to decide on a sentence, and a Boulder jury would have to reach a unanimous verdict finding the death penalty sentence is morally just. As Boulder district attorney, I will not simply ignore the law that allows for use of the death penalty, but I must weigh a prosecutor’s ethical obligation to only pursue charges that can be proven beyond a reasonable doubt. I don’t believe a Boulder jury would reach a unanimous verdict finding a death sentence is justified.” Dougherty also expressed qualms about using the threat of death to obtain plea deals. “I have significant ethical concerns if people were ever to use the death penalty to motivate a guilty plea to a lesser sentence,” he said. “I would never want any prosecutor to say that a defendant has to accept life without parole in order to avoid the death penalty.”

Viloria has also come to oppose capital punishment, but he took a very different route in reaching that conclusion. In an op-ed for the Reno Gazette Journal, Viloria wrote about his experiences prosecuting five death-penalty cases and obtaining death sentences in four. “In each of the cases I prosecuted, the victim’s family members believed the death penalty would help close their emotional wounds,” Viloria said.  “Yet because none of those inmates have been executed many years later, family members haven’t received that promised closure.” He said “[d]eath penalty cases rightfully demand greater scrutiny, so murder victim family members often suffer more trauma than murder victim families in non-death penalty cases. They must endure more media coverage, court appearances, and appeals, plus, often times, a reversal of the death sentence.” Viloria also pointed to systemic problems in the administration of capital punishment, writing that the death penalty “is often unevenly and unfairly applied, partly because it is sought at the sole discretion of a particular prosecutor or prosecutorial administration. It is extremely costly to taxpayers and, because the state has no drug supply to administer an execution, it is uncertain if Nevada can even carry out the death penalty.” Viloria urged the Nevada legislators to conduct a hearing on the abolition bill “so lawmakers can decide the very serious issue of whether to maintain our broken death penalty system.”

Legislatures in Nevada and Colorado are both considering bills that would abolish the death penalty. Colorado’s bill, SB 19-182, passed the Senate Judiciary Committee by a 3-2 vote on March 6, 2019. Nevada’s bill, AB 149, has not yet received a hearing.

THE ARTS: Death-Penalty Film, ‘Clemency,’ Wins Sundance Festival Best Drama Award

Clemency, a film exploring the psychological toll of the death penalty, has been awarded the U.S. Grand Jury Prize for Drama at the prestigious Sundance Film Festival on February 2, 2019. The movie, written and directed by Nigerian-American filmmaker Chinonye Chukwu, tells the story of prison warden Bernadine Williams (portrayed by Alfre Woodard) as she prepares to oversee her 12th execution in the aftermath of a botched execution. Chukwu said she was inspired to write the script after the controversial execution of Troy Davis, a Georgia prisoner with serious claims of innocence, in 2011. “[T]he morning after [Troy Davis] was executed, so many of us were sad and frustrated and angry. And I thought, ‘If we’re all dealing with these emotions, what must it be like for the people who had to kill him? You know, what is it like for your livelihood to be tied to the taking of human life?’ And so, that was the seed that was planted, and it was a way for me to enter an exploration of humanities that exist between prison walls.”

Chukwu said she chose to focus on the perspective of the warden “to explore and challenge the system of incarceration,” and to broaden the reach and impact of the film. “I think it would really complicate people’s thinking around the death penalty and around incarceration and the humanities that are tied to incarceration, if it’s not told through the lawyer, through the defense attorney or through a protester, but somebody who is a part of the system, somebody who might embody the values that, you know, somebody who’s for the death penalty might embody,” she said. She conducted research for Clemency by meeting with death-penalty lawyers, death-row exonerees, and former wardens like Dr. Allen Ault, an outspoken critic of the death penalty. She also volunteered on a clemency campaign for Tyra Patterson, an Ohio woman who was a life sentence for a crime she says she did not commit. Patterson was paroled in 2017 after 23 years in prison.

In her speech accepting the Best Drama prize, Chukwu said she had made the film “so we as a society can stop defining people by their worst possible acts, that we can end mass incarceration and dismantle the prison-industrial complex, and root our societies in true justice and mercy and freedom, which is all tied to our joy inside, which nobody can ever incarcerate and execute.” Chukwu is the first Black woman director to win the Sundance Grand Jury Prize.

NEW VOICES: Basketball Star Stephen Curry—“I Don’t Believe in the Death Penalty”

Stephen Curry (pictured, right, during a 2015 visit to the White House), star of the NBA’s Golden State Warriors and executive producer of the upcoming documentary Emanuel, has publicly voiced his opposition to the death penalty. Emanuel tells the story of the murder of nine Black members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina by white supremacist Dylann Roof. It is the first film produced by Curry’s production company, Unanimous Media, and was co-produced by Viola Davis’s company JuVee Productions. After a January 23, 2019 advance screening at Howard University, Curry participated in a panel discussion of the movie’s themes, including faith, race relations, forgiveness, gun violence, and the death penalty. Asked about his views on the death penalty and Dylann Roof’s death sentence, Curry said, “I don’t believe in the death penalty. I feel like there are situations where an individual can be redeemed or be healed and mentally or physically with whatever the issue is and the root of why they are in that situation.” Curry also spoke about taking inspiration from the forgiveness that victims’ family members offered to Roof. “It’s hard for me to put myself in their shoes and empathize with what they’re going through. But it’s so inspiring the way they handled it. They chose forgiveness. They chose faith. They chose to support each other and the community. That alone speaks volumes for humanity and hope of humanity.”

Curry also addressed the issue of athletes becoming involved in social causes. “Athletes in general, especially in the NBA, guys are educated. They know what they’re talking about,” he said. “They know what they believe. And there’s a reason when you say something there are headlines. People want to hear what you have to say. We shouldn’t shy away from it.” He praised the NBA and its commissioner, Adam Silver, for “support[ing] us in using our voice to speak for those who can’t speak for themselves. And I think this era of athlete is unafraid to be unapologetically themselves, whatever that means.”

Emanuel will be released in select theaters on June 17, 2019, the fourth anniversary of the shooting at Emanuel AME Church.

Bill to Abolish Wyoming’s Death Penalty Introduced with Bipartisan Support

A bipartisan coalition of Wyoming legislators has introduced a bill to abolish the state’s death penalty. On January 15, 2019, Cheyenne Republican State Representative Jared Olsen (pictured, left) and Republican State Senator Brian Boner (pictured, right), introduced HB145, which would repeal the death penalty and replace it with a judicially imposed sentence of life without parole or life imprisonment. The bill, co-sponsored by sixteen other representatives and senators, has the backing of several legislative leaders, including Speaker of the House Steve Harshman, R-Casper, and Senate Minority Leader Chris Rothfuss, D-Laramie. “You’ve got social conservatives and libertarians and that’s a little more of a mix than we’ve had before,” Olsen said. “And then if you look at the heavy hitters on the bill, we’ve got three-quarters of the House leadership on the bill.”

A coalition of outside organizations that includes he League of Women Voters of Wyoming, the Catholic Diocese of Cheyenne, and the ACLU of Wyoming also are supporting the repeal effort. The groups released a statement on January 16 calling the death penalty “a costly and unfair practice that does not enhance public safety or promote justice in Wyoming.” The breadth of the support distinguishes this year’s effort to abolish capital punishment from prior efforts over the past five years, according to Rep. Olsen. “The momentum and desire behind all those groups is just flourishing right now,” he said. “They’re coming to me every day, working different legislators and reporting back to me on what they’re doing. I think there’s a lot of outreach in the community as well. There’s a lot of momentum.”

Proponents of the bill say that Wyoming’s death penalty is impractical and costs too much. The state has only carried out one execution since 1976, and does not currently have any prisoners facing an active death sentence. (The death sentence imposed on Dale Wayne Eaton, who had been the state’s only death-row prisoner, was overturned in 2014, and federal appeals relating to that grant of relief are still pending.) Despite the rarity of the death penalty in Wyoming, the fiscal note that accompanies the abolition bill estimates it would cost the state $750,000 to maintain capital punishment in 2020. “We continue to spend hundreds of thousands of dollars every year to maintain the death penalty,” Sen. Boner said. “I believe the availability of a life without parole sentence adequately balances the need to protect public safety while recognizing the need to reduce the strain on taxpayer resources.”

The Casper Star-Tribune editorialized in 2013 that life without parole was a better option than the death penalty for many family members of murder victims. The current abolition efforts have also gained the editorial support of the Powell Tribune, which wrote on January 22 that “[i]t seems that, for all practical purposes, the death penalty has already been abolished in Wyoming.” Noting that “like anything else that involves people, [the Wyoming legal system] will sometimes get it wrong,” the paper said that when someone is wrongfully executed, “that mistake is irreversible. And it’s a risk that’s not worth taking.”

New Voices: Former Texas Criminal Appeals Judge Suggests “Pause” on Texas Death Penalty

Retiring Texas Court of Criminal Appeals judge and former prosecutor Elsa Alcala now believes that the death penalty is unreliably and discriminatorily applied in the nation’s most aggressive capital punishment state. In a new Houston Chronicle “Behind the Walls” podcast, Judge Alcala – who calls herself “a Republican hanging on by a thread” – told reporter Keri Blakinger, “I think we know enough right now to even call for a moratorium or just to pause all of this and to say, you know, ‘What is going on? Why does Texas have such a high percentage of people who get the death penalty and are executed as compared to the rest of the country?’”

Hired as a prosecutor by Harris County District Attorney Johnny Holmes, who gained notoriety as one of the nation’s deadliest prosecutors, Alcala spent nine years trying capital cases in the DA’s office of the country’s leading death-sentencing county. She then served as a county trial judge before being appointed by then-governor George W. Bush to serve on the state’s highest criminal court, the Texas Court of Criminal Appeals. As she was exposed to a range of problems in Texas death penalty cases, her views on the capital punishment evolved. She became a skeptic of capital punishment, often dissenting from denials of death-penalty relief and, in the case of Julius Murphy, called on the court to consider whether the state’s death penalty was constitutionally administered. When she left the bench, Judge Alcala accepted a policy role at the Texas Defender Service, where she will advocate for criminal justice reform. In an interview with the Texas Tribune, she joked, “[m]aybe I can have more success at the legislative level to get somebody to understand that there are some real true problems.”

In the podcast interview, Alcala cites a range of factors that changed her views about capital punishment. She discusses ineffective lawyers and parole laws that, at the beginning of her career, forced jurors to choose between a 15-year prison sentence and a death sentence for death-eligible defendants. “What do you do with these people who ... got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. “And then the question is, as they come up to be executed, are we going to continue to execute them and tolerate the fact that things were done imperfectly? … I think, still percolating through all of that is that a lot of those [cases] are subject to that old parole law.”

When asked about the decline of the death penalty in Texas, Alcala said, “It is on the decline significantly. Whether it will ever go away and when it will go away – I don't know, I think it is imperfect. More accurately, I should say it is unreliable – I have lost faith in the reliability of the death penalty. And that is what underlies my involvement with the Texas Defender Service. It is: If you're going to have the death penalty, then do it correctly. You know, give them a good trial lawyer, give them a good appellate lawyer, give them a good habeas lawyer at the state level, give them a good federal lawyer and don't let racial prejudice at all influence anything that's going on.” The death penalty, she said, “is just not reliable. It’s not something that I can say is being done the way that it should be done to give you confidence in it as a punishment form. … I think, why is Texas so out of line with the rest of the country? It can't be that our people are worse, right? I mean, Texans are good people. Are our crimes worse than the rest of the country? I don't think so. Are our people worse than the rest of the country? I don't think so.  So somehow we are out of line.”

NEW VOICES: Retiring Georgia Bureau of Investigation Director Predicts End of Death Penalty

As he prepared for retirement, the long-time director of the Georgia Bureau of Investigation (GBI) said he does not support the death penalty and believes the punishment is on its way out in Georgia and across the country. In a television interview on his final day of work as GBI director, Vernon Keenan (pictured) told WXIA-TV, Atlanta’s NBC television affiliate, that he has “never believed in the death penalty” and “[t]he day will come when we won’t have the death penalty in Georgia and in the United States.”

Keenan, a 45-year veteran of law enforcement who has run the state criminal justice agency for the past sixteen years, called the death penalty outdated and ineffective in advancing public safety. Keenan said, “I don’t believe the death penalty deters anyone. The people that commit crime, they don’t believe they’re going to get caught. The death penalty is just a way society gets retribution from the criminal.” He told WXIA that he believes declining public support for capital punishment will ultimately lead elected officials to reconsider whether the death penalty should remain part of the state’s criminal code.

Keenan’s belief that the death penalty is not a deterrent reflects the widely held beliefs of many senior criminal justice personnel. A 2008 study found that 88% of the nation’s leading criminologists believe the death penalty is not an effective deterrent to crime and that three-quarters of them believed that debates over the death penalty “distract legislatures from real crime solutions.” A 2008 poll of 500 police chiefs in the United States, commissioned by DPIC, found that police chiefs rank the death penalty lowest among crime fighting options as “most important for reducing violent crime.” The chiefs believed that increasing the number of police officers, reducing drug abuse, and creating a better economy were all more important in reducing crime. More than two-thirds (69%) said that “[p]oliticians support the death penalty as a symbolic way to show they are tough on crime.” “I believe life in prison without parole is punishment enough,” Keenan said. “Probably worse than death.”

Georgia was one of only eight states to carry out executions in 2018. No Georgia jury has recommended a new death sentence since 2014.

National Think Tank Calls on Conservatives to Reject Death Penalty

The R Street Institute, a Washington-based policy think tank, has joined the growing number of conservative voices advocating for death-penalty abolition. In a commentary in the November/December 2018 issue of The American Conservative, the institute’s criminal justice and civil liberties policy director Arthur Rizer (pictured, left) and its Southeast region director Marc Hyden (pictured, right) argue that “the closer conservatism remains to its core values, the more credibility it brings to the table,” and that the core values of conservatism—promoting “government restraint, fiscal responsibility, morality, and public safety”—ideally situate conservatives to “champion capital punishment’s demise.” “If conservatives want to convince others that a smaller, more nimble government is best,” Rizer and Hyden write, “then those values should be reflected in all policy areas, including the death penalty.”

Rizer’s and Hyden’s argument against capital punishment starts from the premise that “skepticism of state power is at the heart of the American identity and conservative philosophy.” This, they write, is “for good reason. The United States government has a history of incompetence and malfeasance.” Criminal justice policies, they say, should not be immune from the traditional conservative “suspicion of government”—particularly policies such as capital punishment, in which “the United States has a track record of acting in an arbitrary and biased fashion.” Addressing issues ranging from racial bias, the possibility of executing an innocent person, the costs of capital punishment, its failure to make society safer, and the mistrust of big government, the article catalogues why the authors believe conservatives should oppose the death penalty.

On race, Rizer and Hyden write: “The simple matter is that the death penalty has an extensive history of overt bias.” Despite the advances of the civil rights movement, they say, “we still have not been able to banish the bias that permeates the justice system. … Justice must not only be blind, but also color blind.” In the U.S., however, “a murder victim’s race also seems to influence whether or not the accused will be put to death,” the authors write, leaving the implication “that, at least through the criminal justice lens, some lives are more valuable than others.” The death penalty, they write, falls short on another core conservative belief, “that the government is too often inefficient and prone to mistakes." They ask: “Why should the death penalty’s administration by government bureaucrats be any different?” Recognizing the certainty that there will be some wrongful convictions, they say the death penalty carries with it inevitably “irreversible consequences.” “Conservatives take great pride in championing the sanctity of life and respecting its intrinsic value," but—citing historical evidence of wrongful executions and data showing that there is one exoneration for every nine executions in the U.S.—the authors say, “a death penalty system that repeatedly and unnecessarily risks innocent lives does neither.” Likewise, they say, “numerous cost studies have examined the death penalty’s expense and found that it far outweighs the price of life without parole (LWOP).… Given the death penalty’s high costs compared to LWOP, it’s clear that capital punishment is antithetical to fiscal conservatism.”

The article concludes by urging conservatives to adhere to their core values in judging the death penalty: “Conservatives should return to the root principles of liberty and dignity to ensure that the criminal justice system is fair, just, and respects life…. Perhaps more than anything else, opposition to the death penalty should boil down to a lack of faith in a woefully error-prone government. After all, how willing are you to trust your life to this system?”

Report on “Principles for the 21st Century Prosecutor” Calls for Prosecutors to Work to End Death Penalty

A group of justice-reform organizations has issued a new report, 21 Principles for the 21st Century Prosecutor, that calls on prosecutors to “work to end the death penalty” as part of its recommended reforms in prosecutorial practices. The report, prepared jointly by the organizations Fair and Just Prosecutionthe Brennan Center for Justice, and the Justice Collaborative, sets forth a series of principles that the groups say are designed “to improve the overall fairness and efficacy of the criminal justice system.”  The report sets forth 21 principles of prosecution for a “21st Century vision for meting out mercy and justice.” Ten of the principles address ways to reduce incarceration. Eleven are proposals to increase fairness in the criminal justice system. Because prosecutors “wield enormous influence at every stage of the criminal process, from initial charging decisions to the sentences sought and imposed,” the report says, they are “well positioned to make changes that can roll back over-incarceration.”

The groups’ proposals on the death penalty fall within their recommendations on increasing fairness. “Countless studies have shown that the death penalty is fraught with error, provides no more public safety benefit than other sentences, and is routinely imposed on people with diminished culpability,” the report says. “Studies also show that the death penalty is applied in a racially discriminatory manner[,] … is expensive and puts victims through decades of litigation and uncertainty.” The report recommends that prosecutors “[o]ppose legislation to expand or expedite the death penalty”; establish a review committee to determine whether to prosecute a case capitally; consider alternative punishments in cases in which the death penalty has already been imposed, “particularly when there is substantial evidence of reduced culpability”; and “[d]on’t threaten to seek the death penalty to coerce a plea.” It quotes two big-city prosecutors, Denver’s Democratic District Attorney Beth McCann and Kings County (Seattle) Republican Prosecuting Attorney Dan Satterberg, in support of the principle that prosecutors should work to end the death penalty. Shortly after her election, McCann said, “I don’t think the state should be in the business of killing people.” Satterberg spoke out in favor of abolishing Washington’s death penalty, saying that the death penalty “no longer serves the interests of public safety, criminal justice, or the needs of victims.”

Election results in 2018 continued a trend away from prosecutors known for their aggressive pursuit of capital punishment. Since 2015, voters have removed prosecutors in 11 of the 30 most prolific death-sentencing counties in the country, replacing most of them with reform candidates. This year, prosecutorial candidates who ran on reform platforms won election in St. Louis County, Missouri; Jefferson County (Birmingham), Alabama; Bexar (San Antonio) and Dallas, Texas. Two of the nation’s most aggressive pro-death-penalty prosecutors also were ousted in Orange and San Bernardino counties in California.

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