House Bill 147 (Death Penalty Modifications), sponsored by Rep. V. Lowry Snow and Sen. Daniel McCay, is now before the 2022 Utah Legislature. The bill prohibits the state from seeking the death penalty for aggravated murder committed after May 4, 2022. It does not affect the sentences of the seven men who are now on Utah’s death row. It will not impact a death sentence imposed in any case in which the prosecutor asks for the death penalty before May 4, 2022.
If HB147 passes both houses, as it should, and if Gov. Spencer Cox signs it, as he should, Utah will join 23 other states that have done away with the death penalty.
Since Utah became a territory in 1850, 51 men have been put to death by state or territorial authorities. Of the 40 executions carried out after statehood in 1896, I participated in three as an assistant Utah attorney general; Gary Gilmore, put to death by firing squad on January 17, 1977, for a murder he committed in July 1976; Dale Selby Pierre, executed by lethal injection on August 28, 1987, for the murders of three people during a robbery of the Hi-Fi Shop in Ogden, Utah, in April 1974; and William Andrews put to death by lethal injection on July 30, 1992, for his part in the Hi-Fi Shop murders.
There is no question the men I helped execute were guilty. Nor is there any doubt that the crimes they committed were senseless and brutal. The victims and their families suffered terribly and irredeemably. I have no professional regrets about helping execute Gilmore, Pierre and Andrews.
But in addition to my personal misgivings about whether the state should execute any human being, misgivings that derive from prosecuting murder cases in both state and federal court and from investigating and prosecuting war crimes and crimes against humanity in Bosnia and The Hague, I struggle with doubts I have about the irreversibility of what I helped the state do in the Gilmore, Pierre and Andrews cases and what that means in future.
Among criminal punishments, death is unique. An enormous mental, moral, emotional and physical price is paid by everyone involved in getting someone executed. It is formidably expensive and protracted. Everyone currently under sentence of death in Utah has been on death row for more than 20 years; the longest, Douglas Stewart Carter, for more than 36 years. It puts families and survivors of the victims through years and years of drama and pain.
But despite doing everything to ensure that no one is put to death for a crime without the benefit of careful, painstaking, seemingly endless process, nothing can be undone once a person is executed. In the end, executing someone removes any chance for fixing mistakes, correcting for human error or mitigating the influence of conscious or unconscious prejudice in the application of the death penalty. Neither does it permit advances in science, or improvements in the law to change the outcome.
Enough people have been exonerated after spending years on death row for crimes they did not commit to make any reasonable person ask whether we should not simply admit that finality is not worth the risk of executing someone who should not be put to death.
If we cannot be sure we are going to be right every time in future, rather than execute someone, shouldn’t we limit ourselves to imposing sentences that protect the community and properly address the damage done to victims, but allow us to fix it if we do get it wrong? The answer is HB147.
HB147 would not do away with the crime of aggravated murder or excuse the person who commits it. HB147 provides for sentences that are the most severe possible under state law save death. By removing the offender permanently from the community, as provided for in HB147, the state faithfully discharges its obligation to protect the public against any threat posed by a person convicted of aggravated murder.
HB147 would properly serve the interests of victims and survivors by saving them the years of uncertainty, of having to endure the unworthy attention on the offender and the constant reminders of their pain that come with litigation that is an unavoidable fixture of the death penalty. HB147 ensures those who commit aggravated murder are not only held to account but are also made to pay a heavy price for the damage they caused.
Life in prison is not mercy. HB147 simply makes it clear that it is not necessary for the state to kill the offender to punish him or her for aggravated murder. It is time to acknowledge that, make HB147 the law, and move on.
| Courtesy Photo David Schwendiman
David Schwendiman, Park City, investigated and prosecuted criminal cases and handled criminal appeals, including death penalty appeals, as a former assistant Utah attorney general in 1976 and 1977 and again between 1984 and 1987. Before retiring from the U.S. Department of Justice in 2014, he served over 25 years as an assistant U.S. attorney in the District of Utah. He was the interim U.S. attorney in 1998.