Legislative panel eyes death penalty reform

Erin Neff

Friday, Jan. 25, 2002 | 9:46 a.m.

A legislative committee studying the death penalty heard so much testimony Thursday alleging the deck is stacked against defendants that it is considering sweeping reform.

Even two conservatives on the committee, who in the past have supported the death penalty, asked questions suggesting they will support some level of change.

"I'm not sensing a big consensus move toward a moratorium," said Assemblywoman Sheila Leslie, D-Reno, after chairing the daylong hearing at the Sawyer State Office Building. "But I am hearing concerns about serious bias issues and how to reform them."

The Legislative Commission's Subcommittee to Study the Death Penalty was created at the end of last year's legislative session after lawmakers failed to enact measures ranging from a moratorium on the sentence to abolishing it for the mentally ill and those younger than 16.

Some proposals cleared committees and even one house of the Legislature before dying for lack of statistical proof about alleged biases and other problems.

On Thursday several national experts and public defenders discussed intrinsic biases in the system while prosecutors and victims' families defended use of the death penalty.

Brian Stevenson, a law professor at New York University and a racial bias expert, supplied dozens of statistics supporting his theory that the criminal justice system is unfair.

For example, he said, one in three black men nationwide is imprisoned or on parole or probation. The death penalty is 22 times more likely for a black person who commits a crime against a white person, Stevenson said.

Although he favored an outright moratorium, Stevenson suggested the committee also look at Kentucky's Racial Justice Act. That law allows anyone accused of a capital crime to raise a discrimination or bias challenge before their trial.

The burden of proof shifts to prosecutors to prove no discrimination exists. Several committee members seemed very interested in pursuing that type of law.

Joan Howarth, a law professor at UNLV who testified about gender biases, said the committee should also consider a proportionality review -- or one in which the Nevada Supreme Court would review not just an individual case but would consider how it relates to previous capital cases.

Assistant federal public defender Michael Pescetta, whose clients include the allegedly mentally ill death row inmate Thomas Nevius, suggested that if Nevada is to keep its death penalty, a "rigorous study" is needed.

As evidence of certain biases within the system, Pescetta cited an example about Nevada's three-judge panels, which impose punishment if a jury hangs during the penalty phase. When the panel is all white, the death penalty is imposed 75 percent of the time. But, when one black judge is on the panel -- as has occurred in Clark County five times -- the death penalty is imposed 20 percent of the time.

"That, to me, is a very startling statistic," Pescetta said.

Nevada is the only state with three-judge panels for capital case penalty phases in the event of a hung jury.

Victor Schulze, deputy attorney general, said he disagreed with the previous witnesses' "doomsday" allegations.

"I have not seen evidence that the system players -- the judges, the attorneys, the juries -- are not up to the test," Schulze said.

But state Sen. Mark James, R-Las Vegas, appeared frustrated by Schulze's testimony and asked how prosecutors can ignore some of the statistics.

"What do we do about the apparent disparity in the way this penalty is applied?" asked James, a civil lawyer who chairs the Senate Judiciary Committee.

Pescetta suggested the committee -- at the bare minimum -- require collection by prosecutors of demographic data in each capital case. An independent commission recommended similar data collection several years ago. The Nevada Supreme Court adopted those requirements, but prosecutors later lobbied to have them removed.

James suggested there may also be room to narrow the list of aggravating factors jurors consider when debating a death sentence.

Nearly each witness suggested the biases in the capital punishment system are not conscious ones. Two witnesses testified that prosecutors try to exclude blacks from juries in capital cases for strategic reasons.

"Blacks, statistically, do not support the death penalty," said Ron Dillehay, director of the Grant Sawyer Center for Justice Studies at the University of Reno.

Phillip Kohn, Clark County's special public defender, said blacks are stricken from the jury pool for "racially-neutral" reasons.

In one case, Kohn said a prosecutor had said he was removing a young black man from the jury pool because he was chewing gum. In another, a 24-year-old black man was removed "because he was still living at home and the prosecutor said, 'That sounds like a person who couldn't make a decision'."

Sandy Bieu, whose son was murdered in 1998, tearfully warned the committee not to be swayed by some of the previous testimony.

"You can basically find statistics to support whatever side you want," she said.

The committee will meet each month until May, when it decides what to recommend to the full Legislature, in both its report and suggested bills. The next meeting is Feb. 21 in Carson City.