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South Dakota Takes Death Penalty Off Table At Victim’s Family’s Request

At the urging of the victim’s family, Rapid City, South Dakota prosecutors have withdrawn their request for the death penalty against two murder defendants in the only capital trials pending in the state. On April 16, Pennington County State’s Attorney Mark Vargo withdrew the state’s notice of intent to seek the death penalty against Jonathon Klinetobein—charged with arranging the May 2015 murder-for-hire of his ex-girlfriend, Jessica Rehfeld—after her father, Michael Rehfeld told the court the family no longer wanted the death penalty to be imposed. On April 19, prosecutors also withdrew their notice of intent against a second defendant, Richard Hirth, the accused killer. A third defendant pleaded guilty to the murder in January in exchange for receiving a life sentence. Mr. Rehfeld said that he had been “consumed with anger” at the time the capital charges were initially sought and that he had “fully supported” that decision. However, he said, with time, he had reconsidered his position. Mr. Rehfeld said the lengthy appeal process following the imposition of a death sentence in the case would keep his daughter’s killers in the news, permitting “the guilty to become famous,” as a prolonged traumatic courtroom saga that relegated his daughter to a sidelight prevented the family from healing. He also said that the family would be unable to recover his daughter’s personal belongings—including a cellphone with the last pictures taken of her—as long as the case remained on appeal. Klinetobein and Hirth now face life without parole if convicted. Victims’ family members, concerned that the capital trial and appeals process interferes with or delays healing, are increasingly requesting that prosecutors not pursue the death penalty. A University of Minnesota study found that just 2.5% of victims family members reported achieving closure as a result of capital punishment, while 20.1% said the execution did not help them heal. Another study, published in the Marquette Law Review, found that family members in homicide proceedings in which the death penalty was unavailable or had not been imposed were physically, psychologically, and emotionally more healthy and expressed greater satisfaction with the legal system than family members in death-penalty cases. Pennington County Commission Chairman Lloyd LaCroix said the decision to withdraw the death penalty would save the county money, although he was uncertain how much. In September 2017, the commissioners granted requests by the county courts and the public defender’s office for half-million-dollar increases to their 2018 budgets. The director of the public defender’s office had previously estimated that taxpayers could "reasonably expect" to pay between $500,000 and $1 million in prosecution and defense costs for the cases. Rapid City last imposed a death sentence in 1993. Charles Rhines' appeals in that case reached the U.S. Supreme Court before being sent back for additional appeals that are still in progress.


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Arizona Prosecutors Drop Death Penalty in Two Cases, Citing High Costs and Lengthy Legal Process

Prosecutors in Mohave County, Arizona announced in February that they will drop the pursuit of the death penalty in two murder cases in the county. Justin Rector and Darrell Ketchner were separately charged with first-degree murder, and officials said their defense teams had already spent over $2.2 million preparing for trials that are still far from taking place. Mohave County Attorney Matt Smith said, “Everybody’s looking to save money and these death penalty cases are extremely expensive." The murders happened in 2009 and 2014, but because of the thorough investigation and preparation required to competently defend a death-penalty case, Smith said, "[t]he anticipated soonest trial date in this case will be 10 years after the events charged." Even if the defendants were sentenced to death, "there is no reasonable likelihood of the death penalty actually being imposed in a realistic and efficient timeframe given the current state of affairs surrounding persons sentenced to death," he said. Bob Allison, whose granddaughter, Ariel, was allegedly killed by Ketchner, said he approves of the prosecutor's decision, in part because his other grandchildren were being bullied as a result of publicity around the case. “We’re OK with it because we want to protect the kids,” he said. “It’s a waste of money in my opinion and the end results are going to be the same.” Between fiscal years 2010 and 2018, Mohave County has spent nearly $3.6 million on defense costs in death-penalty cases. Because no lawyers in the county public defender’s or legal defender’s office meet the state's qualifications to handle death penalty cases, the county must contract out for those services, paying lead counsel at a rate of $125 per hour and $90 an hour for second-chair counsel. In 2016, the Mohave County Board of Supervisors authorized $344,000 in county funds to cover the costs of trying Rector and Ketchner. A Mohave County Superior Court judge granted the prosecution's motion to withdraw the death penalty in Rector's case on February 20, and allowed death-penalty counsel to withdraw from representing Rector. The court granted the motion to drop the death penalty in Ketchner's case on February 14. Only one case originating in Mohave County has ever resulted in an execution.


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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."


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Bipartisan Effort to Abolish Death Penalty Gains Momentum in Washington

With the backing of the state's governor and attorney general, Democratic and Republican sponsors of a bill to repeal Washington's capital-punishment statute have expressed optimism that the state may abolish the death penalty in 2018. In 2017, Attorney General Bob Ferguson, a Democrat, was joined by former Attorney General Rob McKenna, a Republican, in calling on the legislature to end the state's death penalty. Ferguson, who has said "[t]here is no role for capital punishment in a fair, equitable and humane justice system," is pressing legislators to take up the bill this year. Governor Jay Inslee featured the bill in his January 9, 2018 State of the State address, urging legislators to "leave a legacy that upholds the equal application of justice by passing a bill to end the death penalty in the state of Washington." The bill, now numbered SB 6052, has bipartisan backing: two of its sponsors in each house are Republicans. And Senator Jamie Pedersen (D-Seattle), the chair of the Senate Law and Justice Committee, to which the bill has been referred, said "[t]he stars may be aligning now for support of doing away with the death penalty." Both Republican sponsors in the Senate have questioned the value of the death penalty for murder victims' families and stressed that capital punishment runs counter to conservative values. Sen. Mark Miloscia (R-Milton) wrote in a recent op-ed, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." He said continuing with the death penalty is unjustifiable given its failure to contribute to public safety, its high cost, and the "ever-present risk of killing an innocent person." Sen. Maureen Walsh (R-Walla Walla) said, "The death penalty isn’t really accomplishing a wonderful relief to [victims'] families." The repeal bill was stalled in 2017 when Senator Mike Padden, the former judiciary committee chairman, refused to hold hearings on the bill. When Democrats gained control of the state senate after the November 2017 elections, Pederson replaced Padden, paving the way for committee action on the bill. “The votes are there,” Attorney General Ferguson said. “I’m reasonably optimistic that this could be the year.” Miloscia said he, too, is “highly optimistic .... I think this is something that people on both sides of the aisle want to get done.” Washington has a similar profile to other states that have recently abolished the death penalty. Its murder rate is significantly below the national average and, as with most of the states that have done away with capital punishment, it has a very low rate of murders of police officers. The high cost of the death penalty is also a factor for legislators. According to a 2015 Seattle University study, each death-penalty prosecution cost an average of $1 million more than a similar case in which the death penalty was not sought. In an email to the Washington Newspaper Publishers Association, Senator Walsh said "taxpayers foot the multi-million dollar appeals process for the accused and we spend $50,000/year for incarceration. ... A life sentence with no chance of early release saves money and issues the ultimate punishment by denying the convicted their freedom and liberties for life.” Washington has not carried out an execution since 2010, and Governor Inslee—who imposed a moratorium on executions in February 2014—has said he will not allow executions to take place while he is in office.


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Idaho County Considers Leaving State Defense Fund As Way to Deter Capital Prosecutions

To deter future use of the death penalty in their county, the Blaine County, Idaho County Commissioners on January 2 voted to consider withdrawing from the state's Capital Crimes Defense Fund as a way to choke off state funding in capital prosecutions. “This is a way for our county to say we don’t support the death penalty, and that we don’t want the prosecutor seeking it in Blaine County,” said Commissioner Larry Schoen (pictured), who proposed the withdrawal. Two days later, however, the commissioners backtracked after learning that participation in the fund was a prerequisite for the county to be eligible to receive the services of the State Appellate Defender's office in a wide range of non-capital appeals. The commissioners had believed that, by requiring the county to absorb the entire cost of defending death penalty cases, pulling out of the fund would create a disincentive for local prosecutors to seek the death penalty. At a minimum, Schoen said, “the prosecutor would have to certainly be aware that [a capital prosecution] would be an enormous financial burden on the county.” Blaine County Prosecuting Attorney Jim Thomas, who has not sought the death penalty since assuming office in 2000, strongly opposed the proposal, saying that decisions to seek the death penalty should not be based on cost. “It’s probably the most important, weighty decision that I would make,” he said. “And to think that we would make it on the basis of finances, I think that’s probably what insulted me most, frankly.” After considering a letter from Thomas and reviewing the conditions of Blaine County's agreement with the appellate defender's office—under which the county would lose an estimated $22,000-$25,000 annually in state appellate assistance in non-capital felony cases if it withdrew from the Capital Crimes Defense Fund—the commissioners decided against withdrawing. “My underlying thoughts haven’t changed," Schoen said. “But at this point, there would likely be too many unintended consequences and negative implications involved with not participating.” As a result, he recommended that the county “continue participation in the Capital Crimes Defense Fund, though I hope we can pursue a legislative solution to decouple that from access to the state’s public defenders.” A 2014 study of death-penalty costs in Idaho by the Idaho Legislature’s Office of Performance Evaluations found that the State Appellate Public Defenders office spent 44 times more billable hours on the average death-penalty appeal than on cases in which a life sentence had been imposed. The study also concluded that, on average, capital trials took seven more months to reach a conclusion than non-capital cases. More than half of the 40 people sentenced to death in Idaho since 1977 have had their death sentences overturned on appeal and then received lesser sentences. In November, the commissioners in Ada County—the state’s largest county and the county that most aggressively seeks the death penalty—voted to leave the fund to reduce payments for capital defense services. The commissioners reconsidered that decision after realizing that withdrawal from the fund would make the county responsible for hundreds of thousands of dollars in appellate costs for non-capital cases.


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Conservative Voices Continue to Call for End of Death Penalty

From October 2016 to October 2017, support for capital punishment among those identifying themselves as Republicans fell by ten percetage points. Two op-eds published towards the end of the year illustrate the growing conservative opposition to the death penalty. Writing in The Seattle Times on December 27, Republican State Senator Mark Miloscia (pictured, l.) called for bipartisan efforts to repeal Washington's death-penalty statute. In a December 13 commentary in the Washington Times, conservative political strategist Richard Viguerie (pictured, r.) describes what he calls the "stunning" surge in Republican sponsorship of bills to end capital punishment. Setting forth moral and practical reasons for his support of Washington Senate Bill 5354, Miloscia writes that "[i]t is time to pass a strong, bipartisan repeal of the death penalty." Miloscia cites his Catholic pro-life beliefs as the primary reason for his opposition to capital punishment and highlights Pope Francis' calls for an end to the death penalty. He writes, "Given our modern prison system and ability to neutralize individuals as threats without killing them, it is never imperative to execute someone." But beyond religious beliefs alone, Miloscia sees "many practical reasons why conservatives of all faiths are rethinking the death penalty." Among them, he cites the high cost of capital punishment and the "ever-present risk of killing an innocent person," which he says are "even more unjustifiable" given the absence of any valid evidence that executions affect murder rates. Further, he writes, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." Miloscia sees a major shift underway in Republican thinking on the issue, paving a path for bipartisan repeal: "Republicans are turning against the death penalty, which means that opposition to capital punishment is no longer a partisan stance. As the death penalty slowly loses its supporting constituency, the punishment’s future becomes doubtful." Conservative leader Richard Viguerie also sees a dramatic change in how conservatives view the death penalty. Viguerie cites a 2017 report by Conservatives Concerned About the Death Penalty, which found a surge in Republican sponsorship of death-penalty abolition bills that Viguerie says "has been gaining momentum." As part of this "massive shift," he writes, one-third of all sponsors of death-penalty repeal bills in 2016 were Republicans. Viguerie writes, "conservatives are recognizing that capital punishment is a broken government program that runs counter to conservatism’s foundational tenets of valuing life, fiscal responsibility and limited government." He, too, points to religion, and Catholicism in particular, as a reason for conservative opposition, but says that the Tea Party movement—with its support of limited government—and the election of younger legislators who are statistically more likely to oppose the death penalty, has contributed to the change. He foresees a continuing decline in conservative support for the death penalty: "As state legislatures undergo their makeovers, the public turns against the death penalty, and political leaders voice their capital punishment concerns, we should expect to see even more from Republican officials. Republicans will likely continue to sponsor repeal bills with increasing frequency and reverse the flawed criminal justice policies once advocated by their ideological predecessors of the 1980s and 1990s."


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