NEW VOICES: Author of Arizona’s Death Penalty Law Says Time is Ripe for a Re-Examination

Rudolph J. Gerber served as a prosecutor and as a judge on Arizona’s Court of Appeals for 13 years. Earlier in his career, then-state senator Sandra Day O’Connor asked Mr. Gerber to draft the statute that eventually became Arizona’s death penalty law. In a recent op-ed in the Sacramento Bee, he expressed his concerns about the practice of capital punishment and said that states should use the present period in which no executions are occurring as an opportunity to re-examine their commitment to the death penalty. Excerpts from his article follow:

The [Supreme] court’s ruling Wednesday on lethal injection will undoubtedly prompt some eager politicians to schedule executions in the immediate future. The disparity of opinions in that decision - seven differing opinions by the nine justices - suggests, however, that the topic of capital punishment remains such a hot-button issue that agreement on principle and method still escapes us. In particular, Justice John Paul Stevens’ opinion ought to give pause to resuming executions: The conservative Republican (when appointed) now says after 33 years on the court, that our executions fail both constitutional and practical tests, and ought to end.
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The halt in executions does demonstrate that the death penalty is not essential to our society. Many people are probably unaware, as its absence has no effect on people’s daily lives, that the death penalty has been on hold since September.

The cases, however, are stacking up. At some point, executions may resume in greater numbers than we have been used to. This present period of quiet could be used to reflect on whether the death penalty is doing us any good.

Only 10 states had executions in 2007. The overwhelming number of executions carried out occurred in just one state - Texas. Are the residents of those states with no executions any less safe than the inhabitants of the few states in which executions occurred?

The death penalty without executions is just another term for life without parole. Based on opinion polls, that is already the punishment of choice for the public, and that is the typical punishment that all but a small percentage of people convicted of murder receive.
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Some states have abandoned capital punishment; others may be moving in that direction. In December, the New Jersey legislature voted to end the death penalty; it had not carried out an execution for more than 40 years. It is estimated that capital punishment cost New Jersey $250 million since executions resumed in 1976. The savings can be used to help crime victims and on a host of crime prevention programs.

New York has also given up on capital punishment. It will save tens of millions of dollars that the state spent on the cost of prosecuting and defending capital cases.

North Carolina, Tennessee and California have initiated studies of their death penalty systems.

In other states, the death penalty remains on the books, gathering dust and absorbing millions of dollars, but is rarely carried out. The death penalty is overdue for examination as a public policy - its burdens and alleged benefits should be fairly weighed. For many years, we have only considered the death penalty in theory - whether it might be appropriate for the most horrible crime. But the death penalty in practice is what needs to be examined. The pause in executions presents an excellent opportunity to consider if we need to continue this practice any longer.

(R. Gerber, “Let’s stop, reconsider: Should executions continue?”, Sacramento Bee, April 21, 2008). See Lethal Injection and New Voices.