Utah

Utah

Utah Prosecutor Drops Death Penalty in Prison Killing After Corrections Officials Withheld Evidence

A Utah judge has excoriated the Utah Department of Corrections for practices he called “sneaky” and “deceitful” and a state prosecutor has dropped the death penalty after learning that state prison officials had withheld nearly 1,600 pages of prison records from a defendant facing capital charges in a prison killing. Despite a court order to produce all prison records, the department had failed to disclose medical and mental health records detailing psychiatric medication Steven Douglas Crutcher (pictured, right) had been receiving in the months before he killed his prison cellmate. On March 28, 2018, following disclosure of the records, Sanpete County Attorney Kevin Daniels (pictured, left) withdrew the state’s notice to seek the death penalty and Judge Wallace Lee sentenced Crutcher to life. Preparing for an April 9 capital sentencing hearing, the defense learned in mid-February that the department had withheld medical and mental health records that Crutcher’s lawyer, Edward Brass, said “went to the heart” of the defense’s case. Brass alerted Daniels to the prison’s violation of the court order and Daniels, saying he was “irate” about the prison's misconduct, withdrew the death penalty from the case. “I hold myself to the highest ethical standard,” he said, “and any withholding of information is an affront to justice. The whole concept of justice is that you put all the evidence, all the cards on the table, and if you go where the evidence leads you, it’s a just result.” “This could have been a disaster,” Brass told reporters. “If it wasn’t for the integrity of the county attorney, it would have been a disaster.” Judge Lee said he was “beyond angry” over the department’s behavior. “This was totally wrong and makes me doubt the credibility of everything I hear about the Department of Corrections,” he said. In a statement, the department blamed its failure to produce the records on a “misinterpretation” of Judge Lee’s October order, but defense lawyers said medical doctors at the prison had been so difficult to work with that one doctor even refused to tell them what medical school he had attended. The judge questioned how the department could have misunderstood an order that had directed it to produce Crutcher’s “entire file,” including all mental health records. “That is something I would expect from Russia or North Korea, not a society like we have under the Constitution,” Lee said. “It’s got to stop. I’ve worried that if it’s happened in this case, it’s happening in other cases out there.” A prison spokesperson told the media that the department has retrained its clinical services records staff on responding to court orders and records requests and has started reviewing other cases to determine whether court orders had been responded to appropriately. Utah Association of Criminal Defense Lawyers executive director Stewart Gollan said the department also has been uncooperative in releasing prisoners’ medical records in civil rights cases.

Attempts Both to Repeal and to Restore Death-Penalty Statutes Fail in Legislatures Across the Country

In Washington and Utah, bipartisan or Republican-led efforts at death-penalty repeal fell short, a month after death-penalty proponents abandoned efforts to reinstate capital punishment in New Mexico and Iowa. In Washington, a bipartisan push to replace the death penalty with life without possibility of release was introduced at the request of Democratic Attorney General Bob Ferguson with the support of his Republican predecessor Rob McKenna, Democratic Governor Jay Inslee, and King County Prosecutor Dan Satterberg, a Republican from the state's largest county. With key votes from five Republican senatorsSB 6052 passed the state senate on February 15 by a vote of 26-22 and was favorably reported out of the House Judiciary Committee, but the Democratic leadership in the House did not schedule it for a vote before the legislative session ended. Ferguson said he was “deeply disappointed” by the bill’s failure, but said his disappointment was “tempered somewhat by the historic progress the bill made this year” and his belief that the state has moved closer to abolishing capital punishment. The Utah death-penalty repeal effort was led by Republican legislators, and the state’s Republican Governor Gary Herbert had said he would consider signing the bill. In 2016, a bill sponsored by Republican Sen. Steve Urquhart passed the state senate and a house committee, but was not voted on by the full House before the legislative session ended. This year, Republican Rep. Gage Froerer sponsored HB 379, and won the support of Republican House Speaker Greg Hughes. But on March 2, after the bill had passed the House Judiciary Committee, Froerer pulled it from consideration because he believed the bill would lose a close vote in the House. “I was hopeful that Utah would be one of the first red states to take this, because the trend obviously is to do away with the death penalty,” Froerer said. “I’m convinced whether it’s next year or five or 10 years from now the death penalty will go away.” The failure of the abolition bills came on the heels of death-penalty proponents’ abandonment of efforts to restore capital punishment in New Mexico and Iowa. After passing the New Mexico House last legislative session, a bill to bring back the death penalty was tabled in committee on February 2. It was the fifth failed attempt by Republican Gov. Susana Martinez to reinstate the practice, which was abolished under Gov. Bill Richardson in 2009. On February 13, the sponsor of Iowa’s Senate Study Bill 3134—Republican Sen. Brad Zaun, the chairman of the Senate Judiciary Committee—announced that he did not have enough votes to move forward with the bill in 2018 and would be “putting it to rest.” Proponents of Iowa's house bill had previously withdrawn it from consideration when a key Republican supporter changed his mind after researching the bill. Rep. Steven Holt said “conceptually and morally” he believes the death penalty is sometimes appropriate, but “[s]tatistics show, without a doubt, that those of lesser means are more likely to receive the death penalty than are those with greater assets and ability to hire the best attorney.” Holt said, “I support the death penalty in theory," but “practically, I arrived at a different conclusion than I expected. ... I have great issues with its practical and fair application.”

EDITORIAL: Salt Lake Tribune Says It's "Time to end the death penalty in Utah"

As Utah legislators renewed efforts to repeal the state's capital punishment statute, The Salt Lake Tribune editorialized that it is "[t]ime to end the death penalty in Utah." The Tribune editorial page wrote: "The conservatives who dominate the Utah Legislature are coming to realize — on their own, which is the only way to truly grasp an idea — that there is nothing conservative about capital punishment." The editorial noted that "the necessary safeguards and appeals that should always go along with the ultimate punishment are quite costly in terms of money, time and emotions," but found it even "more important [that] handing the state the power to end any human being’s life is not compatible with the idea that the government that governs best is the government that governs least." The paper wrote: "It has long been hard to understand that the same people who are often the most likely to object to the government’s claim that it can competently educate children, inspect automobiles or protect public lands are often comfortable with the idea that that same government is so infallible as to be empowered to put people to death." Referencing changed public perceptions of capital punishment, the editorial said that "[t]he death penalty is increasingly seen as a relic of a more barbaric time. ... 19 other states have done away with it. None of them has been burdened with an increase in violent crime as a result. ... There is no reason to believe that it has a significant deterrent effect or that it in any way makes life in our communities any safer." Advocating a maximum sentence of life without parole, the editorial said: "Putting a human being to death is, unavoidably, a gruesome and degrading affair that harms the decent public servants who are tasked with carrying it out, reopens the wounds of those whose loved ones were killed and creates a barbarically ugly circus atmosphere that a good conservative state like Utah should seek to avoid."

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As Support for Death Penalty Falls in Utah, New Study Again Says Life Without Parole Costs Less

An analysis by the Utah Commission on Criminal and Juvenile Justice of the cost of capital punishment has found that cases in which prosecutors seek the death penalty are more costly than cases in which life without parole was the maximum sentence. The Commission's Death Penalty Working Group reviewed recent studies of death-penalty costs in Utah and across the country and found that, while there was disagreement about the magnitude of the cost difference, there was consensus that the death penalty was more expensive than non-capital alternatives. The two Utah studies included in the report were a 2012 analysis that estimated the death penalty added $1.6 million over the life of each case, compared to life without parole, and a 2017 study of the last 20 years that found that Utah spent about $40 million on 165 death-eligible cases, which resulted in just two death sentences. The report also reviewed recent public opinion data on the death penalty from polls administered both nationally and in Utah. Noting what it called "somewhat discrepant" results from recent Utah polls depending upon the questions respondents were asked, the report concluded "based on national data ... and consistently lower support from younger respondents in the Utah polls" that "public support for the death penalty in Utah is declining over previous highs." The working group also examined Utah's aggravating circumstances, which make cases eligible for the death penalty, and the impact of the death penalty on victims' familiy members (whom it called "covictims"), but did not draw any conclusions on either. The report did note that victims in non-capital cases have a greater opportunity to be heard because their non-testimonial statements to the court are not limited by the rules of evidence that apply to testimony in capital cases. It quoted the academic literature on the impact of capital prosecutions, saying that the assumption that the death penalty provides closure is "unproven ... The process of dealing with murder and capital punishment is different for every covictim" and there is no guarantee that the death penalty will enhance recovery. While the commission did not make any policy recommendations based on its findings, Utah Conservatives Concerned About the Death Penalty said the report points to the need for a reconsideration of Utah's death penalty. "This report should give pause to anyone who thought that because capital punishment is so rarely used in Utah that the cost of maintaining a death penalty would be negligible," said Kevin Greene, the group's director. "We have been spending tons of money without much in return and we hope lawmakers will closely examine the report and agree that the death penalty is anything but fiscally conservative."

Political Analysis: Is Conservative Support the Future of Death-Penalty Abolition?

In a forthcoming article in the Journal of Criminal Law and Criminology, released online in July, Ben Jones argues that, despite the popular conception of death-penalty abolition as a politically progressive cause, its future success may well depend upon building support among Republicans and political conservatives. In The Republican Party, Conservatives, and the Future of Capital Punishment, Jones—the Assistant Director of Rock Ethics Institute at Pennsylvania State University—traces the ideological roots of the recent emergence of Republican lawmakers as champions of death penalty repeal to long-held conservative views. He writes, “there is a cogent and compelling conservative argument against the death penalty: it is incompatible with limited government, fiscal responsibility, and promoting a culture of life.” Jones says that for much of the 20th century, the death penalty was not a partisan issue, as Republican governors signed legislation abolishing the death penalty in Kansas in 1907 and Minnesota in 1911. Later, Republican governors commuted the sentences of all prisoners on death row in Arkansas in 1970 and in Illinois in 2003. Jones believes that Republican lawmakers’ increased interest in criminal justice reform “has created an opportunity to reframe the death penalty in a way that resonates with traditional conservative concerns.” Though Jones is uncertain whether the nascent Republican legislative opposition to capital punishment is “part of a longer-term trend,” he says, if it is, “Republican and conservative opposition will provide important opportunities—which otherwise would be absent—to advance efforts to end the death penalty in the U.S.” One opportunity may be in Utah, where conservative Republican state senator Stephen Urquhart led an effort that came close to achieving legislative repeal of the death penalty in 2016. A July 19 Salt Lake Tribune editorial argued that “[e]nding the death penalty would save money and save souls.” On the same day, Rethlyn Looker, the Utah state chair for Young Americans For Liberty, wrote in a Tribune op-ed, that "as fiscal conservatives," the cost argument to abolish capital punishment "should resonate with us" because, "in Utah, it costs at least $1.6 million more to sentence a person to death than to sentence them to life in prison without the possibility of parole." But, Looker writes, the "most compelling reason" to oppose the death penalty is still "the fact that we simply can't trust the government to get something this serious right." She says, "[f]or all of the reasons we distrust the government to do the right thing in so many other areas, we should distrust the government to end a person's life."

Lawyers Say Utah Is Underfunding Death-Penalty Appellate Defense

Utah is not providing sufficient funding to competently represent death-row prisoners during their appeals, according to a motion filed on behalf of Douglas Lovell, the man most recently sentenced to death in the state. Because of that, Lovell's lawyer Samuel Newton says, Lovell's death sentence should be vacated and he should be resentenced to life in prison. Newton bases his claim on a 2008 Utah Supreme Court opinion, Archuleta v. Galetka, in which the court warned that "low levels of public funding for capital cases" and "significantly diminishing numbers of qualified counsel able and willing to represent capital defendants" might force the court to overturn death sentences if it "impedes prompt, constitutionally sound resolution" of a capital case. Newton argues that a billing cap imposed by Weber County officials and threats and meddling by county officials are compromising his ability to zealously represent Lovell. Lovell has been granted an evidentiary hearing on his post-conviction claims — including whether The Church of Jesus Christ of Latter-day Saints interfered with the trial by limiting the testimony available from bishops who had worked with Lovell at the prison — and Newton estimates that the hundreds of hours required to investigate and prepare for the hearing would cost about $37,000. However, Weber County officials sent Newton an email accusing him of overbilling the county and meeting with his client too frequently, and threatening that, as a result, they may have to find other attorneys for future appeals. The county has capped his payment for the hearing at $15,000. "That's the bind," Newton said. "Do I represent my client zealously like I'm constitutionally required to do? Or do I tread lightly so I don't lose my livelihood?" Newton said that the financial strain of handling another death-penalty case has caused stress-related heart problems that led him to request to be removed from that case. Newton's motion is not the first time attorneys have expressed concerns about Utah's capital defense funding. In 2007, the Utah Association of Criminal Defense Lawyers filed an amicus brief in the case of Ralph Menzies. Affidavits submitted by well-known defense lawyers in connection with that brief reported that the final payments they received for handling death-penalty appeals had amounted to compensation at levels of $17 and $19 per hour — about one-tenth their normal billing rates. Defense attorney Richard Mauro said the pay rates make it almost impossible for private attorneys to take on capital appeals: "If you are doing the work the way it's supposed to be done — and trying to keep the lights on and run the copy machine — it's really not a feasible thing to do."

POLL: Nearly Two-Thirds in Utah Prefer Life-Sentencing Alternatives to the Death Penalty

According to a new poll, nearly two-thirds of Utah residents say they prefer some form of life sentence, rather than the death penalty, as the punishment for murder, and a majority support replacing the death penalty with a sentence of life without possibility of parole. The statewide poll of 784 Utah voters conducted by Public Policy Polling on January 13-15, 2017 and released on February 9 found that Utah residents preferred life-sentence alternatives over capital punishment by a margin of 35 percentage points. 47% said they preferred life in prison without parole, plus a requirement that the convicted person work in prison to pay restitution to the victims; 9% selected life in prison without parole; 8% chose life in prison with a possibility of parole after 40 years; and 29% preferred the death penalty. The preference for alternatives held true across political party, religion, age, gender, and race. The poll also found that a majority (53%) of Utahns said they would strongly or somewhat support a bill to replace the death penalty with life without parole, a measure estimated to save the state more than $1.6 million per case. 41% of respondents opposed the bill. “The death penalty is losing favor in our state because it wastes tax dollars, is ineffective in stopping violent crime, and risks possibly killing an innocent person, and none of those things align with our conservative principles,” said said Kevin Greene, Organizing Director of Utah Conservatives Concerned About the Death Penalty, a project of the Utah Justice Coalition. In 2016, a death penalty repeal bill sponsored by Republican Senator Steve Urquhart passed the Utah Senate and a House legislative committee, but was not considered by the full House before the legislative session ended.

Support for the Death Penalty by Republican Legislators No Longer a Sure Thing

One year after the Nebraska legislature voted to repeal the death penalty and overrode a gubernatorial veto of that measure, actions in legislatures across the country suggest that the state's efforts signalled a growing movement against the death penalty by conservative legislators and that support for the death penalty among Republican legislators is no longer a given. Reporting in The Washington Post, Amber Phillips writes that Republican legislators in ten states sponsored or co-sponsored legislation to repeal capital punishment during the current legislative sessions. She reports that although these repeal bills have not become law, they have made unprecedented progress in several states. In Utah, a repeal bill sponsored by Sen. Stephen Urquhart (pictured)—a former death penalty proponent who supported the state's firing squad law—came closest, winning approval in the state Senate and in a House committee. Missouri's bill saw floor debate in the Senate, and Kentucky's received a committee hearing for the first time in 40 years. An effort to return death penalty support to the platform of the Kansas Republican Party failed by a vote of 90-75, and the Kansas College Republicans passed a resolution calling for the abolition of the death penalty, highlighting a generational divide on the issue. Dalton Glasscock, former president of Kansas College Republicans, said, "My generation is looking for consistency on issues. I believe if we say we're pro-life, we need to be truly pro-life, from conception to death." The National Association of Evangelicals also changed their stance on the issue, acknowledging "a growing number of evangelicals," who now call for abolition. Though a majority of Republicans still support the death penalty, Phillips writes that "it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one."

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