Two cas­es in which pros­e­cu­tors have elect­ed to pur­sue the death penal­ty against aging or infirm defen­dants who will almost cer­tain­ly nev­er be exe­cut­ed have raised ques­tions about the costs and ben­e­fits of cap­i­tal charges and the arbi­trary exer­cise of pros­e­cu­to­r­i­al dis­cre­tion. Federal pros­e­cu­tors in Missouri are seek­ing the death penal­ty against 61-year-old Ulysses Jones Jr., a man with ter­mi­nal renal dis­ease, for the 2006 killing of anoth­er pris­on­er at a fed­er­al prison hos­pi­tal. At the same time, Philadelphia’s judi­cial­ly-appoint­ed inter­im dis­trict attor­ney, fill­ing the unex­pired term of a dis­trict attor­ney con­vict­ed of pub­lic cor­rup­tion charges, is pur­su­ing the death penal­ty against 64-year-old Robert Lark in the retri­al of a 1979 mur­der. Lark won a new tri­al in 2014, sev­en years after Philadelphia pros­e­cu­tors appealed a low­er fed­er­al court rul­ing that they had uncon­sti­tu­tion­al­ly struck African Americans from serv­ing as jurors in Lark’s case because of their race. Jones is cur­rent­ly fac­ing a cap­i­tal sen­tenc­ing hear­ing in the United States District Court for the Western District of Missouri after hav­ing been con­vict­ed on October 4 of mur­der­ing 38-year-old Timothy Baker with a makeshift knife in January 2006 at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri. Jones has been receiv­ing dial­y­sis for the last 30 years, and the med­ical cen­ter, known as Fed Med, hous­es the nation’s largest dial­y­sis cen­ter. Two oth­er pris­on­ers, Wesley Paul Coonce Jr. and Charles Michael Hall, are on fed­er­al death row for anoth­er mur­der at Fed Med. Jones’s lawyer, Thomas Carver, argues that the cap­i­tal tri­al is sense­less, both because Jones is already serv­ing a life sen­tence for two unre­lat­ed rob­beries and mur­ders, and because, if he is sen­tenced to death, he will like­ly die before his appeals process is com­plete, and almost cer­tain­ly before an exe­cu­tion would be sched­uled. ​“We’re talk­ing mil­lions of dol­lars here,” Carver said. Carver believes Jones — whom the defense says has sig­nif­i­cant intel­lec­tu­al and cog­ni­tive impair­ments — was not indict­ed until 2010 ​“because the gov­ern­ment was hop­ing he would die.” In Lark’s case, Interim Philadelphia District Attorney Kelley Hodge has decid­ed to seek the death penal­ty even though Lark’s appeals in his case, if he were sen­tenced to death, would not be com­plet­ed before Lark was in his late-70s or his 80s, far beyond his expect­ed sur­vival on death row. Marc Bookman, a long­time Philadelphia pub­lic defend­er who now serves as Director of the Atlantic Center for Capital Representation, called the deci­sion to seek death, made ​“by a pros­e­cu­tor cho­sen by Philadelphia judges rather than one cho­sen by the com­mu­ni­ty[,] … a need­less step back­ward” for Philadelphia. Quoting Lawrence Krasner — who over­whelm­ing­ly won the Democratic nom­i­na­tion for Philadelphia dis­trict attor­ney after cam­paign­ing on a promise not to seek the death penal­ty and is heav­i­ly favored in the November gen­er­al elec­tion — Bookman says, ​“We have to stop light­ing mon­ey on fire.” Krasner has said that the death penal­ty ​“has cost Pennsylvania tax­pay­ers over $1 bil­lion, yet no one on Pennsylvania’s death row has been put to death invol­un­tar­i­ly since 1962,” and his Republican oppo­nent, Beth Grossman has pub­licly ​“wonder[ed] whether [the death penal­ty] is at this point even eco­nom­i­cal­ly fea­si­ble.” In February 2015, Pennsylvania Gov. Tom Wolf declared a mora­to­ri­um on exe­cu­tions, not­ing that Pennsylvania’s fail­ing death-penal­ty sys­tem forced ​“the fam­i­lies and loved ones of vic­tims to relive their tragedies” with each reversed death sen­tence. The only cer­tain­ty in the cur­rent sys­tem, he said, ​“is that the process will be drawn out, expen­sive, and painful for all involved.”

[UPDATE: On October 16, Jones was sen­tenced to life in prison with­out parole after the jury did not unan­i­mous­ly agree to a sen­tence. You can read the jury’s spe­cial ver­dict form here. The jury con­vict­ed Lark of all charges on Friday, November 3. On November 9, the jury report­ed that it could not reach a unan­i­mous sen­tenc­ing ver­dict, result­ing in Lark being sen­tenced to life without parole.]

(H. Keegan, ​“Man con­vict­ed of mur­der in Springfield Fed Med; death penal­ty pro­ceed­ings begin,” Springfield News-Leader, October 4, 2017; H. Keegan, ​“Federal death penal­ty tri­al under­way for ail­ing man in Springfield,” Springfield News-Leader, September 30, 2017; M. Bookman, ​“Opinion: The last death-penal­ty case in Philadelphia before a new DA,” Philadelphia Inquirer, September 27, 2017.) See Arbitrariness, Costs, and Federal Death Penalty.

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