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Capital punishment debate renewed: What society demands

Published June 11, 2010 7:51 pm

Death penalty » Both sides agree it's broken, but proponents argue it can be fixed.
This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Gary Gilmore earned Utah a special place in history when his 1977 execution by firing squad reopened the door to capital punishment in the United States.

The practice has remained problematic ever since.

Otherwise, Ronnie Lee Gardner -- sentenced to die for the 1985 courthouse slaying of attorney Michael Burdell -- wouldn't have spent 25 years on Utah's death row awaiting his fate.

Most countries and 15 states, as well as the District of Columbia, have found the death penalty untenable and abandoned it.

Now, as the nation again turns an eye toward Utah and its preparations for Gardner's Friday execution by firing squad, capital punishment proponents insist death is the only just penalty for the worst crimes.

But for opponents, questions persist: Is the death penalty administered arbitrarily? Is justice served when inmates languish for decades on death row? Can states afford to spend the millions of dollars capital cases require? And does the death penalty deter crime and lead to a better society?

Is it fair?

The U.S. Supreme Court halted capital punishment in 1972, convinced the penalty had been arbitrarily applied in the case of Henry Furman, who shot a Georgia homeowner during a burglary. The same concern will end the practice again, opponents maintain.

They say one well-known Utah case -- that of Dan and Ron Lafferty -- highlights the uneven way the death sentence is applied.

The brothers were convicted of the July 24, 1984, homicides of Brenda Lafferty, their sister-in-law, and her 15-month-old daughter, Erica, in American Fork. Ron Lafferty awaits execution; his brother is serving two life terms in prison.

The brothers, who believed themselves to be prophets, saw Brenda standing in the way of their evolving belief system and were convinced God had commanded the deaths.

They were tried separately. Unlike Ron, Dan represented himself at trial. Two jurors refused to give Dan the death penalty, although he claimed it was he who slit the victims' throats.

"The law is not very good at specifying who should live and who should die," argues Franklin E. Zimring, a law professor at University of California at Berkeley.

Zimring was among those who recently convinced the American Law Institute -- an association of about 4,000 lawyers, professors and judges -- to abandon its support of the death penalty based on arbitrary application.

The American Law Institute was the force that led the U.S. Supreme Court in 1976 to reinstate the death penalty in Gregg v. Georgia. The group established a legal framework of aggravating and mitigating factors to standardize the death penalty.

Without the backing of the professional organization, the death penalty has lost its "intellectual underpinnings," said Roger S. Clark, a law professor at Rutgers University.

"We have to compare crimes and criminals, and we just can't do it very well," he said. "The jury makes the call, but the criteria [upon which they make their decision] doesn't make sense."

In Utah, the law requires 12 jurors to go through a two-step process to hand down a death sentence. The jurors must first have no reasonable doubt that aggravating factors such as a defendant's criminal history outweigh mitigating factors such as a troubled childhood. Jurors must then be persuaded imposing death is "justified and appropriate."

Thomas Brunker, capital case coordinator for the Utah Attorney General's Office, says the criteria work, but admits the nature of the process means "you can't have 100 percent fairness in every case." Setting absolutes for jurors could prevent them from showing mercy, he said.

The two jurors who voted to spare Dan Lafferty were never interviewed about their decision. The jury foreman after trial chalked the verdict up to an emotional attachment that developed between a female juror and Lafferty.

Should it take so long?

In some cases, such as that of the mother and stepfather charged in the recent torture killing of 4-year-old Ethan Stacy, society demands execution, said Kent Scheidegger, director of Sacramento-based Criminal Justice Legal Fund.

"There are some crimes for which any lesser penalty is not justice," Scheidegger said.

Although he contends there is no way to make capital punishment "completely consistent," Scheidegger said the system does "by and large only sentence the worst killers to death."

For capital punishment to be effective as a deterrent, Scheidegger said, states must streamline the appeals process. He pointed to Virginia, which limits the number of appeals in capital cases to an automatic appeal followed by a second review. An execution date is set immediately after the second review is denied, forcing inmates to turn the federal courts, according to the Office of the Virginia Attorney General.

Behind Texas, Virginia has executed more people since capital punishment was reinstated than any other state. It took seven years to execute the state's so-called "D.C. Sniper," John Allen Muhammad, believed to have killed up to 10 people in the 2002 Beltway shootings. Virginia's five-year average from sentencing to execution compares with a national average of 11 years, according to Northern Illinois University.

In Utah, legislation proposed by Utah Attorney General Mark Shurtleff to limit death penalty appeals met with opposition. A compromise measure passed last year allows judges to reject appeals on a procedural basis, such as missing a filing deadline, without assessing other arguments that often trigger more litigation.

But streamlining capital cases could be even more expensive because more attorneys and judges would be needed, cautioned Salt Lake City civil rights attorney Brian Barnard. The time it takes to execute someone can't be blamed on defense attorneys, he said.

Appeals on death-penalty cases are dealt with painstakingly, he said, and that takes time, given the finite resources of prosecutors and courts, as well as defense counsel.

"When society is imposing something that is irreversible, the judicial system says we must be careful because [death penalty] mistakes are irreversible."

And mistakes have been made. The Death Penalty Information Center points to the exoneration of 138 death-row inmates since 1973.

Like most death penalty proponents, Paul Cassell, a University of Utah law professor, would like the time between conviction and execution to be reduced. But otherwise, he contended, the death penalty works well in this country and is structured to be lenient, rather than barbaric.

"We could make the death penalty apply evenly, but if it's applied evenly, everyone who commits murder gets the death penalty," he said. "The sorting is done by the jury."

Does it improve society?

The last person executed in Utah was Joseph Mitchell Parsons, who was put to death in October 1999 for the 1987 murder of California resident Richard Ernest in Iron County.

Then-Iron County Attorney Scott Burns sought capital punishment because, he said, the crime was especially heinous: Parsons robbed Ernest and stabbed him more than a dozen times with a screwdriver.

Ernest had picked up the hitchhiking Parsons in California. The pair were near Parowan in southern Utah when Parsons attacked Ernest. After the killing, Parsons took the man's car and credit cards.

"My thought was to let a jury decide whether he deserved the death penalty," said Burns, now the director of the National District Attorneys Association. "It's a difficult thing. I carry it with me every single day."

Parsons tired of life on death row and halted his appeals. Unlike John Albert Taylor, who was executed by firing squad in January 1996, Parsons chose death by lethal injection.

Ernest's sister, Jana Salais, witnessed the execution but seemed not to be unburdened by it.

"It's justice, but it's not fair," she said after the execution. Parsons deserved a brutal death, Salais said. "[But] he just laid there and went to sleep."

Salt Lake City defense attorney Ken Brown, a death penalty opponent, argued capital punishment doesn't lead to a better society. Beyond that, Brown said it isn't fair to the victim's families, either -- particularly in an era where an execution, such as Gardner's, can be 20 years or more in coming.

"Prosecutors should tell the victim's families, 'Every time we deal with this case that wound will be reopened,' " he said. "Calmer minds need to be saying, 'Nothing we do can bring your [loved one] back. We can kill someone else, but at what cost?' "

That is borne out by the families of Gardner's victims, who say they relived the horrors of their loved-one's deaths every time Gardner has made headlines over the past quarter century. Gardner was appearing in court for slaying Melvyn Otterstrom when he fatally shot attorney Michael Burdell and wounded court bailiff Nick Kirk during an escape attempt.

But like the rest of the country, the families of Gardner's victims have mixed views on the death penalty.

Kirk's widow and daughters say they can't rest until Gardner has been executed. Donna Nu, Burdell's fiance, says she would do anything to stop Gardner's execution. Otterstrom's widow, Kathy Potter, and son, Jason Otterstrom, have not weighed in on Gardner's death sentence, although his son said Thursday he wants a final resolution in the case.

"I don't know which path should be followed. But our family needs peace," he said. "I ask that whatever decision is reached, that it be permanent."

csmart@sltrib.com

Pamela Manson contributed to this report.