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.
…
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.
…
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.

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