NEW VOICES: Conservative Judge Who Imposed Death Sentences Changes His Mind

As a Superior Court judge in Delaware, Norman Barron was referred to as ​“the hang­ing judge” because of his will­ing­ness to impose death sen­tences. In a recent op-ed for Delaware Online, the now-retired judge expressed how his views on the death penal­ty have changed: ​“I believe the appli­ca­tion of the death penal­ty is quirky and capri­cious… it is impos­si­ble to jus­ti­fy why some mur­der­ers receive the death penal­ty while oth­ers, whose crimes are arguably worse in degree or sav­agery, do not.” He also dis­cussed the costs of impos­ing the death penal­ty, the risks of exe­cut­ing an inno­cent defen­dant, and its fail­ure to pro­vide time­ly clo­sure to vic­tims’ fam­i­lies as rea­sons for his cur­rent oppo­si­tion to the death penal­ty. ​“In Delaware,” he con­clud­ed, ​“if a con­vict­ed mur­der­er in a cap­i­tal case does not receive a death sen­tence, he receives an auto­mat­ic sen­tence of life impris­on­ment with­out the pos­si­bil­i­ty of parole or any type of ear­ly release. Such a sen­tence ensures that the defen­dant is locked away in a state prison until he dies. There is noth­ing incom­pat­i­ble with this type of life sen­tence and being a law-and-order con­ser­v­a­tive on mat­ters of crime and pun­ish­ment, which I still con­sid­er myself to be. In this age of shrink­ing bud­gets and increased costs, the time has come, in my view, to adopt a more enlight­ened approach to crim­i­nal jus­tice.” Read full op-ed below.

Costs of impos­ing death penal­ty out­weigh ben­e­fits
by Judge Norman Barron

At one time in my career, I was referred to as ​“the hang­ing judge” due to my will­ing­ness to impose death sen­tences in cap­i­tal mur­der cas­es. I sen­tenced five defen­dants to death in Delaware, and two thus far have been exe­cut­ed. (A third had his death sen­tence reduced on the eve of exe­cu­tion to life in prison with­out pos­si­bil­i­ty of release based upon a curi­ous rec­om­men­da­tion of the Board of Pardons.) I have no doubt these mur­der­ers com­mit­ted the crimes for which they were con­vict­ed and that they deserved the sen­tences which I imposed based upon the law, the evi­dence and the sen­tenc­ing rec­om­men­da­tion of the jury. Nevertheless, hav­ing per­son­al­ly observed the exer­cise of the death penal­ty statute over the past two decades, I now con­clude that the process under that law is flawed.

I believe the appli­ca­tion of the death penal­ty is quirky and capri­cious. In oth­er words, it is impos­si­ble to jus­ti­fy why some mur­der­ers receive the death penal­ty while oth­ers, whose crimes are arguably worse in degree or sav­agery, do not. Beyond the hit-or-miss real­i­ty of the death penal­ty, an even stronger rea­son exists, in my mind, for my oppo­si­tion to its application.

Strictly on a cost-ben­e­fit analy­sis, the costs of impo­si­tion of the death penal­ty far out­weigh the ben­e­fits of its appli­ca­tion. Recent stud­ies in California, Kansas and Maryland have all con­firmed that the death penal­ty costs much more than life impris­on­ment. These stud­ies are not talk­ing about how much it costs for the actu­al exe­cu­tion. It’s the legal process that, by its very nature, must be long and involved.

When the state seeks death, the addi­tion­al resources expend­ed are copi­ous. Hundreds of thou­sands of tax­pay­er dol­lars are spent seek­ing and oppos­ing its impo­si­tion. From per­son­al expe­ri­ence, I can say that the time giv­en by judges and attor­neys to these cas­es is stag­ger­ing, and I am not mere­ly talk­ing about the tri­al phase and the penal­ty phase. They just begin the process. Appeal fol­lows appeal and years of brief­ing, argu­ing and opin­ion-writ­ing fol­low in its wake. No leaf goes unturned in ana­lyz­ing the tri­al court’s deci­sions and the tac­tics of tri­al coun­sel. Yet this care­ful appel­late review results in at least two undesirable effects.

First, there is no time­ly clo­sure. Eighteen to 20 years will have elapsed before the case approach­es its res­o­lu­tion. During the ensu­ing years since the sen­tence was imposed, the lives of the victim’s fam­i­ly have no doubt changed. Some might have died, or some might have moved far away. Others might have even lost inter­est in the case over the frus­tra­tions of wait­ing for a defin­i­tive result. What val­ue can exe­cu­tions be for vic­tims’ fam­i­lies when they must wait so long in lim­bo for ​“jus­tice” to pre­vail, and for some, to begin their process of heal­ing and closure?

Second, with such a huge gap, mea­sured in years, between the time of sen­tence and its impo­si­tion, it is dif­fi­cult to imag­ine that the death penal­ty pro­vides even one iota of deterrence.

It is rather pathet­ic that in our state the death penal­ty works only for those defen­dants who opt to for­go all appeals and ​“vol­un­teer” to be exe­cut­ed. In such cas­es, the state aids and abets the defendant’s desires by assist­ing in his sui­cide. This hard­ly jus­ti­fies main­tain­ing the current system.

There are oth­er rea­sons which one might sug­gest for abol­ish­ing the death penal­ty, not the least of which is the pos­si­bil­i­ty of exe­cut­ing an inno­cent per­son. Parenthetically, the more time one scru­ti­nizes a death penal­ty case for errors, the chances of exe­cut­ing an inno­cent per­son lessens, at least the­o­ret­i­cal­ly. Conversely, the less time one scru­ti­nizes a death penal­ty case for errors, the chances of exe­cut­ing an inno­cent per­son increas­es. Thus, and so as to avoid a mis­car­riage of jus­tice, the length­i­er mul­ti­year appel­late process will always take prece­dence. As a result, one of my major objec­tions to its appli­ca­tion can nev­er be rectified.

In Delaware, if a con­vict­ed mur­der­er in a cap­i­tal case does not receive a death sen­tence, he receives an auto­mat­ic sen­tence of life impris­on­ment with­out the pos­si­bil­i­ty of parole or any type of ear­ly release. Such a sen­tence ensures that the defen­dant is locked away in a state prison until he dies. There is noth­ing incom­pat­i­ble with this type of life sen­tence and being a law-and-order con­ser­v­a­tive on mat­ters of crime and pun­ish­ment, which I still con­sid­er myself to be.

In this age of shrink­ing bud­gets and increased costs, the time has come, in my view, to adopt a more enlight­ened approach to crim­i­nal jus­tice. Therefore, I urge the gen­er­al assem­bly to con­sid­er favor­ably the death penal­ty repeal bill now before it and for the gov­er­nor to sign it into law this year.

Retired Superior Court Judge Norman Barron left the bench in 2001, after serv­ing for 13 years.

(N. Barron, ​“Costs of impos­ing death penal­ty out­weigh ben­e­fits,” Delaware Online, April 23, 2013). See more New Voices on the death penal­ty. The Delaware Legislature recent­ly con­sided a bill to repeal the death penal­ty. It passed in the Senate, but was not vot­ed out of the House Judiciary Committee.