Death penalty: Should it be tossed out?

Michael Pescetta

Friday, July 5, 2002 | 4:25 a.m.

Michael Pescetta, assistant federal public defender for the District of Nevada and Chris Owens, chief deputy of the Major Violators Unit in the Clark County District Attorney's Office debate the pros and cons of the death penalty.

Should it be tossed out? No

By Chris Owens

One morning in June three years ago Zane Floyd chillingly announced that he was going to go out and kill the first 19 people that he met. He then walked to a neighborhood supermarket, withdrew a shotgun and shot the first person he saw in the back. He then fired two shotgun blasts into the body of the frozen-food manager.

His next shot killed the grocery-store supervisor. Floyd then fired upon a janitor and chased another fleeing victim through the store aisles, firing two blasts at close range. He shot him as he pleaded for mercy. Afterward Floyd approached the body and announced, "Yeah, you're dead."

Floyd then went to the rear of the store where he found the salad bar attendant. Ignoring her pleas not to shoot, he removed most of her face and head with a blast from his gun, later telling investigating officers, "I just went to shoot people -- call me crazy, psychotic, whatever, I've just always wanted to know what it's like to shoot someone."

What punishment would fit such a crime? What measure of penalty is needed to balance the scales of justice weighed down by the lives of these victims? A person in Nevada can receive a lifetime sentence without parole for habitual theft crimes. Is this same punishment also appropriate for one who callously steals human life?

Floyd's well-known killing rampage is but one of many local murderous histories that graphically recommend an ultimate punishment such as the death penalty.

A remedy of such gravity should not be lightly undertaken or applied. Current law reserves the death penalty for only the most aggravated of murders.

Consequently, a complex process of checks and balances necessarily precedes its imposition, including prosecutor discretion, extensive legal safeguards, unanimous jury verdicts through two trial hearings, continuous judicial oversight and numerous reviews by appellate tribunals, the painstaking scrutiny of which can span many years.

Of the 86 inmates on Nevada's death row, 79 have had their convictions upheld on direct appeal. They are now proceeding through the multilayered post-conviction process in state and federal courts.

Ironically, it is the very careful and redundant nature of this legal gantlet that invites the recent critical charges of "flaws in the system," an allegation of dubious statistical methodology and political heritage.

On the contrary, it is the self-conscious nature inherent in this process that guarantees the trustworthiness of death penalty outcomes, a system that stands in stark contrast to the scant due process that these offenders granted their victims.

Statistically, only one person in 5,000 commits the crime of murder. Less than 2 percent of these are actually sentenced to death. Since 1967 our country has only executed one person for every 1,600 murderers.

In Nevada, there are more than 10,000 felons within the prison system. More than 900 of these are murder convicts, but only 86 reside on death row. Some have been there for two decades, continuing to oppose their sentence in the courts.

In our county, prosecutors also seek the death penalty in only a minority of homicide cases. Last year Clark County juries sentenced only one murderer to death.

This fair and judicious employment of the death penalty renders it an appropriate remedy for particularly aggravated homicides identified by the populace through their legislative representatives. Murders like the ones committed by Floyd.

It is also the only penalty available for those who commit murder while already serving life sentences without parole eligibility. Otherwise, there would be no consequence for such conduct.

Although general deterrence has been the subject of much debate, there is no question that capital punishment has an immediate deterrent effect upon the offender. As U.S. Supreme Court Justice Antonin Scalia recently noted, capital punishment guarantees the "incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future."

The penalty assessed for murder is a measure of the value that a civilized people place upon the great gift of life. It is a standard of reconciliation for the unbounded grief and destruction wrought upon surviving relations and friends.

For some types of homicide, a deprivation of personal freedom and civil rights attendant to a life term of imprisonment may be sufficient. But only a capital punishment fulfills the extreme moral and societal demands for certain heinous forms of murder. Anything less in these extreme cases would minimize the life of the victim, placing it on a par with the objects of lesser criminal enterprises.

Such a result would make a mockery of the entire concept of justice.

By Michael Pescetta

Within the last two weeks the U.S. Supreme Court issued two decisions limiting the death penalty. In Atkins v. Virginia, the court held that it was unconstitutional to execute a person with mental retardation, and in Ring v. Arizona, that juries -- rather than judges -- must make all the factual findings required to allow a death sentence to be imposed.

In each case, the court overruled its own precedents from the last decade, prompting debate about whether the death penalty in the United States is on its way out.

It's unlikely that the Supreme Court will hold the death penalty unconstitutional any time soon: Some of the justices who voted in the majorities in Ring and Atkins are consistent supporters of the constitutionality of the death penalty. Nor does it seem likely that state legislatures are going to decide, en masse, to end America's love affair with legal killing.

But the court's recent decisions, like the death penalty moratoriums in Illinois and Maryland, reflect some change in public consciousness about the death penalty. For the first time in many years, the public seems to be willing to question whether there are problems with the death penalty; and so the country's political institutions may feel that it is safe to subject death penalty laws to some rational scrutiny, rather than treating them as political sacred cows.

Such scrutiny is long overdue in Nevada. Questions about how fairly our death-penalty system actually works are never answered by prosecutors and other supporters of the death penalty.

In Nevada (as everywhere else in the country) the death penalty is reserved for the poor; and it's disproportionately imposed on minorities: Minorities are the majority of Nevada's death row population; and African-Americans, who make up less than 9 percent of Nevada's population, are 40 percent of the death-row population. It is still common for minorities to be sentenced to death by all-white or almost all-white juries.

The real problem with the death penalty in Nevada is that it can apply to virtually all murders. Federal constitutional law requires states to narrow the class of murders that can expose a defendant to the death penalty and Nevada does that through a statutory list of aggravating factors. But there are so many aggravating factors -- and these factors have been so broadly interpreted by Nevada courts -- that almost every murder could be charged as a death-penalty case.

When the public sees a media report of a death-penalty case, what it usually sees is the prosecutor's description of a "brutal" crime. But all murders are brutal; all murders leave victims whose lives are devastated by the loss of a family member; all murders require imposition of severe punishment. But not all murders result in the death penalty.

The question the public should be asking is whether our current system does in fact select only the worst of the worst cases for imposition of the ultimate punishment, but in fact it simply doesn't work that way. Our system allows prosecutors to charge the death penalty, and juries to impose it, in virtually any case, or to refuse to charge or impose it in any case.

We don't have to look beyond the media reports to find examples of how that discretion produces inconsistent results. Last year Sebastian Bridges was executed for killing his wife's lover with a single gunshot.

The prosecution sought the death penalty in his case based on a single aggravating factor. On the other hand, the notorious Sandy Murphy and Rick Tabish case, which has recently been in the news, involved a murder by poisoning that was ultimately completed through prolonged suffocation, in order to obtain the victim's money and property.

At least two, and maybe four, aggravating factors could have been charged in that case, but the prosecution never sought the death penalty. In an older case, a defendant was sentenced to death although there is no question that he did not shoot the victim, while the defendant who actually did shoot the victim was sentenced to life without possibility of parole.

The decisions to seek or impose the death penalty in these cases were acts of will, made by human, fallible prosecutors and jurors. These few examples -- and there are many, many others -- suggest that there would likely be no consensus that our death-penalty system works to select only the worst conceivable cases for the death penalty if the public were adequately informed about how randomly and inconsistently the system actually operates.

Any debate about the death penalty is good because it raises fundamental questions. Does Nevada want to fund an expensive death penalty system that has produced the highest per capita death row population of any state in the country, that also has a high rate of reversal rate of capital cases?

Do Nevadans -- who have well-established skepticism about the competence of government -- believe that our government can really create a system that can rationally and fairly decide whether one human being should die while another should live?

I think that more public debate about these questions will encourage Nevada's legislators to limit Nevada's death penalty substantially and, I hope, eventually to eliminate it entirely.

The views expressed are those of Michael Pescetta and not necessarily those of his office.

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