2017-04-02 14:41:32 UTC
Smith County judges eye pay increase for court-appointed attorneys in capital
murder death penalty cases
The dwindling number of Smith County defense attorneys who are willing to take
on capital murder death penalty cases for indigent defendants has prompted
local district court judges to consider raising the hourly compensation.
During a recent meeting of the Smith County Council of Judges, Judge Jack Skeen
Jr. with the 241st District Court said he believes the number of local
attorneys on the list is down because the compensation is not sufficient to
take the attorneys away from their regular practice and to make up for the
stress they are going to incur while working the case.
In addition, he said, the hourly rate is insufficient to compensate them for
"I just think it's time for us to look at it," he said.
The issue has come into play recently with Judge Christi Kennedy of the 114th
District Court having to hire 3 out-of-county attorneys to represent defendants
in a case in her court.
In another example, criminal defense attorney Jeff Haas, who is representing
Gustavo Zavala-Garcia in a capital murder case, said he had been unable to find
a 2nd-chair attorney for the case and believed the compensation rates were part
of the problem.
Another part of the problem comes down to the circumstances after a conviction,
Because of the mandatory appeals, the case isn't over when there is a
conviction, and some attorneys don't want to be as tied up as long as they are
when they do this type of case.
The fee schedule as outlined by an October 2001 local order calls for lead, or
first chair, attorneys in capital cases, in which the state seeks the death
penalty, to be paid $80 per hour for out-of-court time and $100 per hour for
Co-counsel, or 2nd-chair attorneys, receive a rate of $50 per hour for
out-of-court time and $60 per hour for in-court time.
The order goes on to say the lead counsel shall not receive more than $40,000
in attorney fees for a capital murder death penalty case. Co-counsel shall
receive no more than $22,500 in the same situation, according to the order.
That said, the order allows for the district court judges to increase or
decrease the fees as they deem necessary.
"Total compensation ... shall be determined by the judge upon the circumstances
and complexity of each case," the order reads.
When the local attorneys on the approved list are taken, the district court
judges have to look for and hire out-of-county counsel, which often means
paying more because of hotel stays, mileage and meals.
Though these rates may make many professionals envious, the amount of time,
energy and stress involved in these cases is difficult to match.
"When you're the defendant's lawyer in a capital case, you stand between the
defendant and death," said criminal defense attorney Buck Files of Tyler who
has represented 9 defendants in 11 capital cases. "It is the most stressful
challenge I believe any lawyer can ever have."
Because of the gravity of these cases, the time investment is huge. An attorney
puts aside everything else to try to take care of the client, Files said.
Working on one of these cases essentially means an attorney focuses exclusively
on this case. In addition, a capital murder case is not over when a guilty
verdict is announced and a sentence read.
There are mandatory appeals, and although different attorneys are appointed to
represent a defendant on appeal, the original attorneys often find themselves
having to defend their work on the trial for years if their former client
claims "ineffective assistance of counsel," which they typically do, in
So, in committing to represent a defendant in a capital murder death penalty
case, the attorney is committing for the long haul.
Files said it is not uncommon for expert witnesses to receive much more than
defense lawyers get in a case. He said in a case in which a partner in his firm
served as defense attorney, the investigator and mitigation specialist got paid
more than he did.
"(The) problem from my perspective in a capital murder case (is) the only
people who are asked to sacrifice, other than jurors ... are criminal defense
lawyers," Files said. "Everyone else gets to draw their standard rate."
The fee schedules for court-appointed attorneys in these types of cases vary
statewide, Files said, adding that, to be fair, he has seen Smith County judges
pay more in some cases.
For Haas, though, it comes down to a personal conviction as to why he is
willing to represent indigent defendants charged with capital murder.
"I have a responsibility to the judicial system to do these cases," he said.
After discussing the issues of compensation rates, the judges ultimately
decided to table it. Though they had some proposed rates for 1st- and 2nd-chair
attorneys, they had not decided on maximum compensation amounts, or if they
Kennedy said she does expect the judges to take up the issue again at their
next meeting, which has yet to be scheduled. Like Kennedy, Skeen would like to
see changes made.
"I think we have to try to do the best we can for them to be compensated,"
Skeen said. "I just think the old order is out of date."
Frein trial will focus on forensic evidence
The case against accused cop killer Eric Matthew Frein isn't so much a question
of guilt or innocence as it is of life or death, several area attorneys said.
Facing a mountain of incriminating circumstantial evidence, Frein's attorneys
will be hard-pressed to credibly argue for an acquittal at his capital murder
trial, which starts Tuesday in Pike County Court, the attorneys said. The real
question is whether Frein will be sentenced to death or life in prison, they
"He basically gave a confession," said Bob Buehner, former longtime district
attorney in Montour County. "You have flight. You have all the forensic
evidence that's been meticulously documented. This is a prosecutor's best wish
Pike County District Attorney Ray Tonkin wants to put Frein, 33, of Canadensis,
on death row for the Sept. 12, 2014, sniper attack outside the Blooming Grove
state police barracks that killed Cpl. Bryon K. Dickson II, 38, of Dunmore, and
wounded Trooper Alex T. Douglass, 34, of Olyphant. Following a 48-day manhunt
that spanned Pike and Monroe counties, he was captured on Oct. 30, near an
abandoned airport hangar in Monroe County.
Frein is charged with 1st-degree murder, 1st-degree murder of a law enforcement
officer, attempted 1st-degree murder, attempted 1st-degree murder of a law
enforcement officer, assault of a law enforcement officer, 2 counts each of
terrorism and possession of weapons of mass destruction, and 1 count each of
recklessly endangering another person, discharge of a firearm into an occupied
structure and possession of an instrument of crime.
He pleaded not guilty to all counts. 12 jurors and 6 alternates chosen from
Chester County will hear the trial. It is expected to last several weeks.
Years of preparation
The start of the trial culminates 2 1/2 years of preparation by prosecutors and
Frein's attorneys, William Ruzzo and Michael Weinstein.
Frein was first identified as a suspect three days after the ambush, when James
Novak was walking his dog and stumbled upon a Jeep Cherokee partially submerged
in a retaining pond in the woods near the barracks. The Jeep was registered to
Frein's parents. Police obtained a search warrant and found Frein???s driver's
license, Social Security card, camouflage face paint, flashlights, a black
hooded sweatshirt, 2 empty rifle cases, military gear and other items inside
As the manhunt dragged on, many residents of Pike and Monroe counties lived in
fear as hundreds of heavily armed law enforcement officers swarmed the region.
Schools shut down. Residents, particularly those living near the Seneca Lane
home Frein shared with his parents, were ordered to remain inside when
authorities responded to sightings. It came to an end when U.S. Marshals
scouring the woods came upon Frein outside ahangar and took him into custody
Frein is not charged with any offenses for fleeing, but the manhunt is expected
to play a role in the case because it is evidence of consciousness of guilt,
said attorney Peter Paul Olszewski Jr., a former district attorney and judge in
"You want to establish it's obvious he knew law enforcement was chasing him,"
Olszewski said. "He was fleeing. Why was he fleeing? Because he (allegedly)
shot 2 troopers."
'Hardness of heart'
The case is expected to rely heavily on the massive amount of forensic and
physical evidence uncovered while Frein was on the lam and after his capture.
To prove 1st-degree murder, prosecutors must show Frein was the shooter and
that the crime was an intentional, premeditated act committed with malice or
"hardness of heart."
Tonkin appears to have overwhelming evidence of both, Buehner and other
"What is the defense?" Olszewski asked. "Is it that someone else did it? If not
him, then who?"
Ruzzo and Weinstein declined to comment on their defense strategy.
Al Flora Jr., former chief public defender for Luzerne County who previously
defended several death penalty cases with Ruzzo, said the defense will
cross-examine prosecution witnesses and experts to ensure forensic tests were
conducted properly, and that proper procedures were followed. The magnitude of
the evidence against Frein will be difficult to overcome, he said.
"They will test the prosecution's case just to make sure the defendant's rights
are fully protected," Flora said. "In the end, this is going to be a tough one
for any defense lawyer."
Evidence against Frein began to mount as the manhunt to find him continued.
Authorities uncovered additional evidence through multiple search warrants,
including Frein's home.
There, investigators found a checklist they believe Frein wrote of items he
needed to survive in the wilderness, including "undies, sleep clothes and
poncho liner." They also found information on computers that indicated Frein
researched the attack for more than a year.
Another big break in the case came on Sept. 29, 2014, when searchers found a
makeshift campsite they believe Frein abandoned as searchers neared. The site
produced perhaps the most damning evidence against him - pages from a journal
in which authorities say he chillingly described the shooting:
"Friday, Sept. 12, got a shot around 11 p.m. ... He dropped. I was surprised at
how quick. ... I took a follow-up shot on his head and neck area. He was still
and quiet after that. ... Another cop approached the one I just shot. ... As he
went to kneel, I took a shot at him, one jumped in the door. His legs were
visible and still. I ran back to the Jeep. ... I made it maybe half a mile from
the GL (gamelands) road and hit a (police) road block. I didn't expect one so
soon. It was only 15 to 20 minutes. ... I did a K-turn a quarter mile from them
and pulled into a development I knew had unfinished access road. Hearing helos
(helicopters), I just used my marker lights, missed the trail around a runoff
pool and drove straight into it. ! Disaster! Made half attempt to stash AK(-47)
Prosecutors will need to prove Frein penned the writings. The pages were turned
over to handwriting experts, who are expected to testify at the trial.
Authorities also have DNA evidence that ties him to a water bottle and other
items found at the campsite.
Investigators found other incriminating evidence, including the .308-caliber
rifle used in the attack, at the airport hangar where Frein was captured.
Ballistics reports showed the casings found at the crime scene matched the
Prosecutors say Frein also made incriminating statements to investigators
following his arrest, telling them he committed the crime to "wake people up."
It is not known yet if the statements will be introduced at trial because his
attorneys filed a motion to suppress them. Pike County Judge Gregory Chelak
will rule on that motion before opening statements begin.
Other charges against Frein stem from his actions during his time on the run.
He is charged with 2 counts of possession of weapons of mass destruction for 2
unexploded pipe bombs searchers found at the campsite where investigators say
he stayed as he eluded capture.
He also faces 2 counts of terrorism based on the statements he allegedly made
to troopers following his arrest and a letter he allegedly wrote to his parents
about a year before the attack. To prove the terrorism charges, prosecutors
must show Frein committed the crimes in an attempt to "affect the conduct of
The letter was found on a thumb drive discovered at the airport hangar. The
letter complains that our nation "is far from what it was and what it should
be. ... There is so much wrong and on so many levels only passing through the
crucible of another revolution can get us back the liberties we once had." It
goes on to say: "Tension is high at the moment and the time seems right for a
spark to ignite a fire in the hearts of men. What I have done has not been done
before and it felt like it was worth a try. ... I tried my best to do this
thing without getting identified, but if you are reading this then I was not
While the case will focus on circumstantial evidence, Buehner said he also
expects powerful testimony from Douglass, who has undergone multiple surgeries,
and Nicole Palmer, a civilian dispatcher who witnessed the shootings.
"You always try to humanize the case so people can relate to it," Buehner said
of Douglass. "This is a person who walked into the state police barracks one
night and the next thing you know, his life is shattered. You want to put a
human face on that."
In cases where evidence of guilt is strong, a defendant might seek to introduce
circumstances that could reduce the charges to a lesser degree of homicide,
such as 3rd-degree murder. That is not a viable defense here given the facts of
the case, said Olszewski.
"You can't argue it's something other than 1st-degree," he said. "It's
1st-degree or nothing."
Life or death
Given the strength of the prosecution's case, Olszewski, Flora and Buehner said
they believe the defense will focus their attention on developing mitigating
evidence that can be used in the death penalty phase if Frein is convicted of
In the death penalty phase, jurors would consider aggravating factors - those
that make a crime more heinous - against mitigating factors - those that lessen
a defendant's culpability. If the aggravating factors outweigh the mitigating
factors, Frein will be sentenced to death; if not, life in prison without
Tonkin lists 2 aggravating factors: Dickson was a police officer murdered in
the line of duty and the shooter created a risk of injury to others by firing
into the barracks.
The defense hired a mitigation expert, Louise Luck, early on in the case to
uncover evidence, such as a troubled childhood, that might help explain why
Frein allegedly committed the crimes.
It is not known yet what evidence Luck has because it remains under seal. It is
expected that Luck did a complete background check on Frein, obtaining medical
records, school records, speaking to neighbors, friends and anyone else who had
extensive contact with him over his life.
"They'll use the mitigation specialists to show he was the product of his
environment somehow," Olszewski said. "They'll talk about his younger years, if
he had problems growing up, if he was deprived of guidance."
The courts have been very lenient on the type of information they will allow as
mitigating evidence. Still, Buehner and other attorneys say they believe the
defense faces an uphill battle sparing Frein's life.
"Let's face it. The assassination of a state trooper and the attempt on another
state trooper strikes at the heart of our civilized society," Buehner said.
"This is one of those circumstances the prosecution should ask for the death
Eric Matthew Frein is charged with 1st-degree murder; 1st-degree murder of a
law enforcement officer; attempted 1st-degree murder; attempted 1st-degree
murder of a law enforcement officer; assault of a law enforcement officer; 2
counts each of terrorism and possession of weapons of mass destruction; and 1
count each of recklessly endangering another person, discharge of a firearm
into an occupied structure and possession of an instrument of crime.
(source: Standard Speaker)
Justice is served when we execute someone
Over the last few decades, one of the most widely debated topics among
politicians and social justice groups, with regard to human rights, has been
the death penalty. Those who denounce the practice argue it is inhumane and
defiant of the Eighth Amendment to the United States Constitution, which
prohibits the federal government from inflicting punishments on criminals that
may be considered "cruel and unusual."
Those who support the practice, however, argue support for victims' rights, and
assert that studies conducted by economists, sociologists and physicians
discredit that the practice is expensive, painful, or an unsuccessful crime
The statistical data backing the death penalty as a practice in our criminal
legal system is supportive of the practice, yet highly controversial. I would
also assert it is impossible for one to argue in favor of or against the death
penalty, without partially basing their argument on emotional accounts.
For one to arrive at a clear opinion regarding support or abhorrence of the
death penalty, the emotional argument should be the 1st element examined.
Personally, my beliefs concerning the death penalty were shaped after Courtney
Wilkes, a young lady from my hometown, was murdered during the summer of 2011.
Courtney and I had several mutual friends, although, we were not ourselves
close. Wilkes excelled in academics and was named to the top of her class. She
was also an avid soccer player, dividing much of her time between school,
church and the soccer field. Those who knew Courtney said she was "friendly"
and "someone we should all aspire to be in life." Tragically, on June 16, 2011,
in Sea Grove Beach, Fla., while on vacation with her parents and siblings,
Courtney was murdered by a man named Stephen Cozzie.
Growing up the granddaughter of a Southern Baptist preacher, Courtney was
reared by conservative, God-fearing parents. Her parents set strict moral
standards for dating and social activities, even barring Courtney from dating
until the age of 16. Typical high school parties were out of the question for
young Wilkes. While on vacation that summer, Courtney met Stephen while
spending time at the beach with her family. Her parents, not naturally trusting
of boys, took a liking to Stephen, even inviting him to dinner with them that
The following day, Courtney and her family returned to the beach and made the
tough decision to let Courtney walk off alone with Cozzie; something they had
not previously done. You can imagine young Courtney's excitement as Stephen,
who was described as "charming," invited her to spend some time alone. As
Stephen and Courtney walked down the beach, eventually disappearing into the
sun, her parents did not realize this would be the last time they would see
their daughter. Within an hour, Stephen had led Courtney into a wooded area
behind a convenience store and raped her several times. He used a large wooden
board to beat her and eventually used that same board to genitally mutilate
her. When Courtney's body was discovered, authorities claimed she was utterly
On Oct. 17, 2013, a jury found Stephen Cozzie guilty of 1st degree murder in
the brutal slaying of Courtney Ann Wilkes. The judge sentenced him to death.
The death penalty has been a controversial topic in the American criminal law
system since the practice was adopted, although the practice itself has been
practiced throughout ancient societies since the 18th century B.C. In regards
to the beliefs of those on the political spectrum, the left believes the
institution itself is "cruel and unusual," something our Constitution rejects,
and the far right tends to support capital punishment as a proper form of
punishment. For someone like me, who supports the practice, we must turn an eye
to how the results of economic and sociological studies support the death
penalty, and indicate why capital punishment is actually an effective, logical
The death penalty has a significant effect on the nation's economic structure.
According to available data gathered by the U.S. Bureau of Justice Statistics,
in 2011, there were 2,266,800 inmates in American prisons. Of the 2,266,800
inmates , 3,125 people were on death row, usually for being convicted of
committing a violent crime. According to the Federal Register, the fee to cover
the average cost of incarceration for an inmate in the 2011 fiscal year (the
latest data available) was $28,893.40. By multiplying the average amount of
money it takes to incarcerate an individual on death row and the current number
of people facing execution, the average cost of housing these heinous criminals
is roughly $90,291,875.00, annually. An inmate slated to die on death row is
incarcerated for around 20 years, per information released by the Death Penalty
Information Center. The cost of incarceration for that inmate is $577,868.00.
Why are these individuals, who have been found guilty by a jury of their peers
of inflicting significant emotional and physical harm on others, get rewarded
by being allowed to spend a prolonged amount of time living on American tax
dollars? As a utilitarian, my question would be whether or not speeding up the
death penalty would let us use the money we are spending to incarcerate these
criminals to instead fund special counseling programs for non-violent
offenders. Could we also somehow use this money to provide services for the
families of the victims?
Those who argue in favor of the death penalty also assert there is sociological
data that supports the practice works as a deterrent for future crimes to be
committed. Does certain, looming death decrease the likelihood someone will
commit a violent crime like murder or rape? American economist Isaac Ehrlich
would argue yes, that the death penalty does impede violent crimes. In his 1976
manifesto, "The Deterrent Effect of Capital Punishment: A Question of Life and
Death," Ehrlich concluded that for every criminal execution carried out and
publicized, there are eight murders deterred in the United States. The practice
of capital punishment generates fear among criminals. Professor Stephen K.
Layson from the University of North Carolina updated Ehrlich's study in 1986,
ultimately determining there were 18 murders deterred for every execution
carried out and publicized. Can you imagine how high the deterrent rate is in
2017, as television and the wave of social media has soared since the
Those who oppose capital punishment commonly argue that rather than "murdering"
another individual and feeding into the "eye for an eye" conflict resolution
method, we should be working to counsel and rehabilitate these individuals to
become productive, functioning members of society.
Unfortunately, the data focused on recidivism rates, or likelihood that
prisoners will be incarcerated for a 2nd time after release, speaks against
that argument. In 2005, a study was conducted by the National Institute of
Justice. In the 15 states that were studied, over 2/3 of the convicted
criminals initially released from penitentiaries and maximum-security prisons
returned within 3 years for committing similar crimes. To be more specific, 49
% of those released were originally convicted of committing violent crimes, and
60 % of them return to prison within three years of their release for
committing crimes similar to their 1st offense. Does rehabilitation work? The
data speaks against this notion.
I must also reject the assertion of human rights groups that the practice of
capital punishment does not align with the Eighth Amendments' conern about
"cruel and unusual punishment." There is absolutely no scientific evidence that
has been released that proves the lethal injection, which is now the most
widely used form of capital punishment, inflicts any pain on the subject.
In a recent statement made by Mike Viesca, who currently serves as spokesman
for the Texas Department of Criminal Justice, said medical staff have affirmed
the complex combination of drugs administered in lethal injections render a
person incapable of feeling any pain. Speaking to this argument in opposition
to capital punishment, I feel I should ask, "Who stands up for the rights of
the victim and their loved ones?" Did the inmate take care not to treat their
victim in a manner which would be described as cruel and unusual? Did Stephen
Cozzie take care not to administer cruel and unusual treatment when he was
brutally murdering an innocent, bright 15-year-old girl on vacation with her
family in Florida?
In all of the debate, I feel the interests of the victim and their loved ones
have been lost. Who stands up for their rights, even when they are no longer
By way of legislative action, a number of states have now implemented programs
which would allow the families of victims to get the closure they need and to
feel justice has been served.
States like Texas, Georgia, Alabama, Delaware, Illinois, North Carolina,
Oregon, Pennsylvania, South Carolina and Washington have adopted programs which
now allow for the families of victims to witness the execution of their loved
The question I would pose to the reader, is: Would you witness such an act if
you lost your loved one at the hands of a heinously cruel, unremorseful
monster? I would.
By interpreting the data now available, one can discern that capital punishment
is upheld in every sense of the law, and has proven to be a scientifically,
economically and psychologically plausible punishment.
When we choose to humanely remove someone from this Earth who has caused great
harm to others, we do the world a great justice.
We do not decrease, but eliminate the chance that someone who is absolutely
evil to their core will hurt again. Capital punishment is the only remedy for
murder that provides great solace for those who can no longer speak for
themselves - people like Courtney Wilkes.
(source: Opinion; Andrew Logan Lawrence is a student at Armstrong State
University in Savannah----savannahnow.com)
Death-row inmate tells judge about killer Williams' intellectual challenges
Another hearing was Friday in an effort to determine whether killer Andre
Williams, 49, should be spared the death penalty on the basis of intellectual
No other hearings are scheduled.
Judge W. Wyatt McKay of Trumbull County Common Plea Court heard from death row
inmate Tyrone Ballew, who tutored Williams at 2 state prisons 20 years ago.
Williams was convicted in 1989 of killing George Melnick, 65, and participating
in the assault of Katherine Melnick, 64, at the Melnicks' Wick Street Southeast
home. Williams was 21.
Ballew said he's known Williams for 25 years, since they were in their early
20s and serving on death row in the Southern Ohio Correctional Institute in
Ballew and Williams would talk to each other during their recreational times,
which would consist of a couple hours at a time, a couple times per week.
They also would write notes to each other that were delivered by "porters,"
which are inmates assigned that job by the prison. Ballew would frequently give
Williams sports-related news articles to read, and Ballew gave Williams lessons
on his reading and writing, he said. Ballew attended college for about 3 years
on a basketball scholarship before going to prison.
Ballew said Williams' problems with writing were mostly with use of capital
letters, spelling, run-on sentences and punctuation.
Under questioning from Alan Rossman, an assistant federal public defender,
Ballew agreed that inmates and corrections officers made fun of Williams.
"Yes, they did because of his intellectual challenges," Ballew said.
With 2 death-row inmates in the same courtroom at the same time, security in
the courtroom was tight, with 6 officers from the Ohio Department of
Rehabilitation and Corrections standing close guard.
Other hearings took place in late December and January that focused on testing
done by medical professionals to determine whether Williams is intellectually
The Ohio Supreme Court in 2002 ruled that executing the mentally disabled
violates the Constitution's ban on cruel and unusual punishment.
The hearing was ordered in July 2015 by the 6th U.S. Circuit Court of appeals,
which said McKay must reassess his earlier conclusions that Williams isn't
intellectually disabled enough to escape death for his crimes.
The 6th Circuit said Judge McKay and the 11th District Court of Appeals should
have considered evidence relating Williams having an IQ score of 67 at age 15.
Williams also had IQ scores in the 70s at other times.
Arkansas can't find enough volunteers to witness back-to-back executions
Over the course of 10 days in April, Arkansas plans to put to death 8 inmates.
The state code requires that no fewer than 6 "respectable citizens" be present
at each execution.
There's one problem: It's having a hard time finding enough volunteers to
The volunteer pool is apparently thin enough that state Department of
Corrections Director Wendy Kelley invited members of a local Rotary Club to
"Temporarily, there was a little laugh from the audience because they thought
she might be kidding," Bill Booker, acting president of the Little Rock Rotary
Club, told CNN affiliate FOX16. "It quickly became obvious that she was not
Kelley's "informal efforts" continue, the department told CNN on Friday.
"We remain confident in our ability to carry out these sentences," spokesman
Solomon Graves said.
Who watches executions?
The people who are allowed to witness an execution vary by state, said Robert
Dunham, director of the Death Penalty Information Center in Washington, D.C.
Typically, family members of the inmate and relatives of the victims are
present, he said. Sometimes, a state requires that lay people who have no stake
in the case are present, too.
That could be a member of the media or a citizen witness, such as in Arkansas.
The Arkansas Code doesn't require that witnesses vary from execution to
So, it's conceivable that some of the volunteers could witness more than one,
"It's not natural watching the intentional taking of a human life," he said.
"It has an emotional impact on people."
And witnessing multiple execution more than just doubles the impact, he said.
"It increases exponentially."
One obstacle at a time
The 8 death row inmates will be put to death between April 17 and April 27, a
move that death penalty opponents have called "unprecedented."
The series of execution has been attributed to the state's soon-to-be-expire
supply of midazolam, a contentious drug that's been blamed for a spate of
botched executions in recent years.
The executions would mark the 1st time since 2005 that Arkansas has put an
inmate to death.
State should rethink aspect of life-without-parole sentencing
We don't have much sympathy for people serving life without parole in
Oklahoma's prisons. There might be a few outliers who deserve some mercy, but
we're convinced for the most part that they are guilty and they are where they
are for a reason.
We do have sympathy for Oklahoma taxpayers, however, and it's becoming apparent
that our state's habit of sending prisoners away forever without recourse is
extraordinarily expensive and might not always be worth the price.
An analysis in last Sunday's and Monday's Tulsa Worlds by reporters Ginnie
Graham and Curtis Killman shows that the state is spending at least $17 million
a year on its 885 life-without-parole prisoners.
That doesn't include medical costs, and as the forever-and-ever prisoners get
older - the current median age is 45 - those medical costs will skyrocket. The
state has to pay 100 % of those costs, while the same prisoners would be
eligible for federally underwritten entitlements outside the walls.
Beyond the medical issues, we see three points that seem self-evident:
-- Life-without-parole prisoners are, by definition, a greater challenge and
more expensive to manage. They have no incentive not to continue acting
criminally in prison and are presumptive escape risks.
-- When jurors opt for life without parole, they base their choice on the
person in front of them at the moment of deliberation. They cannot possibly
know what will become of the same person in the future. Good stewardship of
state resources demands that there be some means of subsequent review for those
who are no longer dangerous because of age, infirmity or, in a very few cases,
genuine reformation. We absolutely must keep the ones who are still a menace to
society, but we need to rethink what to do with those who have outlived their
-- In a small portion of cases, people are serving life-without-parole
sentences because of revised sentencing laws designed to target drug dealers.
Pending legislation would allow prisoners serving life-without-parole sentences
on nonviolent crimes to seek sentence modification from a district judge after
10 years. That seems reasonable to us.
The state's fiscal house is in shambles. If reducing costs is part of the
solution to that situation, the best possible place to save money is in the
state corrections department, where costs are being driven ever higher by the
state's addiction to incarceration. The big savings should come from reducing
the number of petty and reformable criminals serving prison time, but a part of
the solution should also include a modest rethinking of life without parole
(source: Editorial, Tulsa World)
Trying to speed up executions could swamp California Supreme Court in appeals
If a November ballot measure to speed up executions goes into effect, the
California Supreme Court will have to decide hundreds of death penalty appeals
in rapid succession.
That mandate would turn the state's highest court into what analysts say would
be "a death penalty court," forced for years to devote about 90% of its time to
Proposition 66, sponsored by prosecutors and passed by 51% of voters, gave
judicial leaders 1 1/2 years to make new legal rules and then 5 years to decide
a crushing backlog of appeals.
"Prop. 66 would require the California Supreme Court to decide virtually
nothing but death penalty appeals for at least the next 5 years - almost no
civil cases at all and no criminal cases other than capital murder," said Jon
Eisenberg, president of the California Academy of Appellate Lawyers.
Legal analysts and four bar associations say the measure would inundate all the
courts with extra work but hit the top court's 7 justices hardest.
In a friend-of-the-court brief, 11 law professors and a nonprofit legal center
contended Proposition 66 would "grind the wheels of justice to a halt" in
Death penalty advocates acknowledge the measure would mean extra work for the
courts, but say that it is necessary to fix a system that has produced the
largest death row in the country and no executions in more than a decade.
They contend the workload will be tolerable, and that the courts will have some
flexibility in meeting the deadlines.
The California Supreme Court is considering whether the measure can go into
2 opponents of the measure sued in November, contending it illegally usurped
the powers of the judicial branch and violated a constitutional rule that says
ballot measures must deal with one subject only.
The California Supreme Court put the measure on hold until the justices resolve
the case, probably within the next few months.
The appellate lawyers' academy takes no position on the death penalty but
opposed the initiative on the grounds that it would disrupt the courts and
prevent litigants in civil matters from having their cases decided in a timely
It joined the bar associations of Los Angeles, Beverly Hills and San Francisco
in a January letter written to the state Supreme Court saying that Proposition
66 "threatens to deal a mortal blow" to California's courts.
California law guarantees each death row inmate both an automatic appeal to the
California Supreme Court and a separate habeas corpus challenge.
The direct appeal is based on what happened at trial. The habeas raises issues
that were not reflected in the trial transcript, such as newly discovered
misconduct by jurors or prosecutors.
The California Supreme Court has been unable to keep pace with these cases.
Given a backlog of more than 300 death penalty appeals already at the court,
the justices would have to decide at least 66 of them each year for the next
several years just to catch up, Eisenberg said.
Calculations based on the court's typical annual production indicate the
justices would be spending 90% of their time on capital cases, Eisenberg said.
Civil case rulings would decline from about 50 a year to just a handful, he
said. "That leaves virtually no time for anything other than death penalty
cases," Eisenberg said.
Lower courts, as well as the California Supreme Court, would be disrupted, the
bar associations said.
The measure would require Superior Court judges to appoint lawyers to handle
habeas corpus challenges and to decide those cases quickly.
The letter noted that 110 condemned inmates from Los Angeles County would have
to be given lawyers within a year. The clock would start once the Judicial
Council, the policymaking body for the court, establishes rules to implement
"We are not aware of there being 110 qualified capital habeas corpus
practitioners within the Los Angeles County area," the letter said.
Kirk C. Jenkins, an appellate lawyer who studies and writes about the
California Supreme Court for the law firm Sedgwick LLP, said the bar
associations were right.
"The time limit that is built into Prop. 66 is completely unworkable, and that
is not a matter of one's position on the death penalty," Jenkins said. "It is
The only way to meet the deadlines of Proposition 66 would be for the court "to
get out of the business of deciding civil cases" at least for several years,
UC Berkeley's David A. Carrillo, director of a center that studies the
California Constitution, described the initiative as a new unfunded mandate.
"There is no way the courts can get through the existing backlog in 5 years
with their current resources," Carrillo said.
Law enforcement groups have filed several friend-of-the-court briefs in favor
of the initiative, arguing that voters have made their will clear.
"California voters have elected to retain the death penalty every time the
issue has been placed before them," the leaders of several county prosecutor
groups reminded the court in 1 brief.
The lawsuit against the measure named the Judicial Council as a defendant,
forcing Chief Justice Tani Cantil-Sakauye and Justice Ming W. Chin to recuse
themselves from the case. The chief justice heads the council, and Chin serves
2 of the5 other justices will appear for confirmation on next year's statewide
ballot: Justice Carol A. Corrigan, 1 of the more conservative members, and
Justice Leondra Kruger, appointed by Gov. Jerry Brown 2 years ago.
California voters have voted down justices on the ballot only once. The issue
was the death penalty.
"Despite the abiding and long-standing will of the voters, death penalty
opponents have used the legal process as a mechanism to frustrate imposition of
the death penalty," the prosecutors argued in their brief.
Lawyers on both sides of the debate expect the court to hold a hearing on the
case. 2 justices from intermediate courts of appeal likely would be asked to
fill in for the recused justices.
Kent Scheidegger, who helped write Proposition 66, said the portrait of court
chaos predicted by the bar associations and some analysts was overblown.
Although the measure would require the California Supreme Court to move quickly
to dispatch the backlog of capital appeals, the initiative would also shift
initial responsibility for habeas challenges from the high court to trial
judges, he noted.
That provision, Scheidegger argued, would save the court time.
Rulings by Superior Court judges on those cases would likely be appealed to
intermediate appellate courts and up to the state Supreme Court, but
Scheidegger said the trial judges would do the heavy lifting.
"I know that all judges hate time limits, but I do think that moving the habeas
cases is a reform that most of the justices probably would agree with," said
Scheidegger, legal director of the Criminal Justice Legal Foundation, which
advocates for the death penalty.
Even if the Supreme Court were to strike down the measure's deadlines, other
requirements of the initiative would still speed up executions, he said.
He cited a provision that would limit public review of the state's lethal
injection method. Legal challenges involving the method have kept the execution
chamber empty since 2006.
18 inmates who have exhausted their appeals could be executed immediately once
that part of the initiative took effect, he said.
Former El Dorado County Supervisor Ron Briggs and the late former Atty. Gen.
John Van de Kamp, who filed the lawsuit, argued that the entire measure should
be tossed because it violated the rule limiting initiatives to a single
In addition to setting new deadlines and easing approval of an execution
protocol, Proposition 66 would require death-row inmates to work to pay
compensation to victims' families and bar medical associations from
disciplining doctors who participate in executions.
It also would place a state agency assigned to represent death row inmates
under California Supreme Court control and permit the corrections department to
distribute condemned inmates among the general prison population.
The law says a measure's provisions must be "reasonably germane" to the purpose
of the initiative.
Polls show support for the death penalty in California has declined since 1986,
when voters ousted the late Chief Justice Rose Bird and two colleagues after a
campaign that charged they were not enforcing capital punishment.
Still, voters narrowly rejected a 2012 ballot measure to abolish capital
punishment and turned down a similar initiative in November, with 53% of voters
(source: Los Angeles Times)
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