Arizona Republic


The constitutional defect the U.S. Supreme Court found in Arizona’s death penalty last month is easily fixed.

Currently, judges decide whether there are aggravating circumstances that warrant, weighed against mitigating factors, death rather than life in prison.

Arizona law spells out the aggravating circumstances to be considered, such as a murder especially cruel or depraved, a murder for hire, or one of a police officer.

All the court decision in the Timothy Ring death-penalty case really requires is that the existence of such aggravating circumstances be determined by a jury rather than a judge. That would render Arizona’s death penalty comparable to that of 29 other states, constitutionally sound and secure.

Until the U.S. Supreme Court changes its mind again.

Undoubtedly there will be a demand for the Legislature to do exactly that: Fix the problem and move on.

Instead, the Legislature should join 12 other states and abolish the death penalty, leaving the maximum punishment under Arizona law as life in prison without parole.

We urge that course of action with great respect for the arguments in favor of the death penalty and those who make them. After all, until now we were among their ranks.

But the argument against the death penalty has become more profound and salient. Simply put, we now know beyond dispute that the criminal-justice system wrongly sentences people to death. We even know their names, because since 1970, 101 of them have subsequently been found innocent. Moreover, the pace of exonerations has been accelerating, due in part to the wider use of DNA evidence.

And we know it can happen here in Arizona, because it did. Ray Krone, who spent 10 years in Arizona prisons, nearly three of them on death row, was No. 100 of the 101.

The theoretical argument that the criminal-justice system, being a human institution, is bound to be fallible is no longer theoretical. It’s a reality, and public policy must confront it.

Certainly the arguments in favor of the death penalty continue to be powerful. For most people, there are some crimes so heinous that death is the only appropriate punishment. The vile attacks of Sept. 11 underscore that sentiment. And the sense of closure the families of many victims report experiencing after executions is real and important.

But society can no longer ignore the practical consequences and risks of the death penalty.

Arguments about deterrence are fruitless. Supporters of the death penalty point out that national murder rates increased after the court basically shut down the death penalty during the 1970s but declined once states resumed executions.

But opponents point out that the 12 states without the death penalty have lower murder rates than those with it, and experienced similar trends during the same time periods.

In reality, execution does not follow the capital offense either quickly or consistently enough to know whether the death penalty serves as a deterrent.

Nor will it. Neither the courts nor society will ever again permit a quick trigger on the death penalty.

And if the death penalty were more swiftly applied, 101 innocent people may very well have been executed.

Nor can we have confidence that better forensics, such as DNA evidence, will eliminate such errors in the future. The bounds of human error are limitless. And the criminal-justice system is a profoundly human one, a search for truth among often cloudy circumstances and murky motives.

Perhaps it can be argued that, perfectly applied, the death penalty is still the most appropriate penalty for some crimes. But an injustice isn’t served by sentencing a murderer to life in prison without parole. That is the punishment prescribed by 12 other states and most of the industrialized world.

Most important, life imprisonment permits the correction of error. Given what we now know, justice requires retaining that possibility.