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Should we reinstate the death penalty?

On Nov. 7, Wisconsin voters will consider an advisory referendum question about whether to reestablish the death penalty after a 153-year hiatus. The referendum indicates it would be limited to “cases involving a person who is convicted of multiple first-de-gree intentional homicides, if the homicides are vicious and the convictions are supported by DNA evidence.”

Voters will tell legislators whether they feel it is time to resume use of the death penalty, or time to continue other methods of dealing with our state’s worst criminals.

People on each side of the death penalty question believe there is a strong moral basis for their positions.

Supporters emphasize the need to protect society from people who have committed terrible acts and who will likely commit them again. They also talk about seeking justice by ensuring that the punishment matches the crime.

Opponents raise questions about the morality of society sanctioning the taking of a life. They see the death penalty as seeking vengeance rather than justice.

Bar Opposition

Several legal groups have tried to step back from the moral arguments and have taken a look at the effect of the death penalty on the legal system. The Milwaukee Bar Association, Dane County Bar Association, State Bar of Wisconsin and American Bar Association have all come out with statements opposed to the death penalty or seeking moratoriums on the death penalty. Those positions refer to the potential negative impact that it has on the courts, increased costs for capital cases, and the unfairness in the application of the death penalty.

Several people who would like to see the death penalty reinstated remain unpersuaded by the legal groups taking a position. State Sen. Alan Lasee (R-De Pere), who introduced the legislation bringing the death penalty issue to voters, and Wau-kesha County District Attorney Paul Bucher, who has been a state prosecutor for 23 years, challenge some of the assertions made by those groups and others opposed to the death penalty.

Last month, the Milwaukee Bar Asso-ciation came out with a resolution opposing the death penalty. In its Sept. 20 resolution, the MBA board noted that the judicial administrative costs of handling death penalty cases would be significantly greater in Milwaukee than other counties, due to the disproportionate number of homicides there.

MBA President Michael J. Skwierawski told Wisconsin Law Journal, “The resolution is related to the concern that we have had on courts’ budgets and funding, because all the statistics and indicators point to the fact that the adoption of the death penalty scheme in Wisconsin would have a significant, far-reaching impact on the court system in terms of shutting down many other parts of the system to fund and operate what is necessary to process these cases.”

Last week, the Dane County Bar Asso-ciation Board of Directors took a position opposing the death penalty. The board indicated, “This opposition is based on the consensus of those who work in the administration of criminal justice that capital punishment is unnecessary to protect the public and is impossible to administer without mistakes.”

Back in 1995, the State Bar of Wisconsin issued a statement opposing reinstatement of the death penalty. That position remains on the State Bar’s books. The position was based on a variety of factors including the increased cost of litigating capital cases compared with those involving other sentencing options, such as life without parole.

Finally, the American Bar Association has walked a finer line with its request for a moratorium on capital punishment.

An ABA statement on the request for a moratorium states, “The ABA, while taking no position on capital punishment per se, therefore has urged the federal and state governments to halt executions in order to take a hard look at the growing body of evidence showing that race, geography, wealth, and even personal politics can be factors at every stage of a capital case — from arrest through sentencing and execution.”

Personal Choice

Neither Lasee, nor Bucher is swayed by the fact that the legal organizations have come out in opposition to the use of the death penalty.

“It’s a personal issue,” Bucher said during an interview. “The fact that the ABA or the Milwaukee Bar Association has come out against it means absolutely nothing to me. It’s just a position of a group of lawyers. If I wanted to, I could grab a group of lawyers and put a label on them and we would be in favor of the death penalty.”

Lasee agreed that decisions about the death penalty should be based on personal beliefs.

“It’s
an issue that I think people can make up their mind on their own,” he told Wisconsin Law Journal. “I don’t know why we need an effort for and against. It’s not that difficult to comprehend.”

He also expressed surprise at the MBA’s resolution.

“It’s interesting that they would argue that,” Lasee said. “Trial lawyers make their money being in court. I don’t know where they are coming from other than the liberal attitude about not having the death sentence.”

Neither Bucher, nor Lasee, was aware of a legal organization in Wisconsin taking a public stance in support of the death penalty referendum. Bucher, who twice served as president of the Wisconsin District Attorneys Association, indicated that group does not take public positions on issues that are so conflict-ridden.

“It’s divisive and they don’t see a need to take a position on it, compared to the divisiveness that it can cause, it is nothing that the D.A.s found could be in their best interest,” Bucher said.

Lasee has been a long-time proponent of reestablishing the death penalty. Since the early 1980s when 10-year-old Paula McCormick was raped and killed on her way home from school, Lasee has kept track of child murders. Having a young daughter, who was close in age, he identified closely with the pain of McCormick’s parents. Those concerns have fueled his interest in bringing back the death penalty.

“What is the proper punishment for the really gruesome murders? I happen to believe it ought to be the death sentence,” Lasee said.

Bucher agreed that in some instances, life in prison is insufficient.

“I believe some cases are so egregious, are so outrageous, that the person has forfeited their right to live in a civilized society among us and application of the death penalty is the only appropriate sentence,” Bucher said.

Cost Concerns

One of the MBA’s main concerns was the increased cost of handling capital cases and the negative affect it would have on resources for the justice system. The group’s resolution indicated the average capital case would cost the justice system $2.3 million.

That amount, which includes costs for court operations, prosecution and defense, is four to five times the cost of a life-in-prison case, Skwierawski said. It reflects the need for teams of lawyers who specialize in the death penalty along with all the costs, which would be borne by the state and counties. Currently, there is no additional funding for district attorneys or public defenders to handle these cases.

The former Milwaukee County chief judge said that the courts, which already face financial challenges, would have a difficult time absorbing the addition costs and resources needed for capital cases.

“It’s probably impossible to predict where cutbacks would occur in individual divisions, but there is no way courts can take on this new intense and expensive litigation without additional funding,” Skwierawski said. “Anybody who thinks it’s not necessary is simply fooling themselves.”

Marla J. Stevens, Appellate Division Director for the State Public Defender’s office, said the agency, which already faces issues related to adequate funding, is concerned about the fiscal impact of reestablishing the death penalty.

Right now, she said, it is difficult to find money to adequately fund the State Public Defender. Add to that, the $40-per-hour rate paid to private attorneys who take cases, which a survey showed would not be enough to get them to take on capital cases.

“The reason why we are so involved in this issue, where we may not be in other issues, is that it has a very direct, very clear, very frightening impact on our budget and on our clients,” Stevens said.

The State Bar’s position statement also addresses the cost to the justice system: “Judicial administration of the death penalty is significantly more expensive than other criminal litigation and other sentencing alternatives, including life without parole. These added costs would strain Wisconsin’s already limited resources.”

Bucher challenges those cost concerns as “rhetoric.” He does not anticipate a significant increase in the cost of handling capital cases. Although there might be some additional expenses due to appeals, the veteran prosecutor said, he did not see them as significant.

“I certainly wouldn’t say that cost is so outrageous compared to the actual cost of cases where it’s not the death penalty that the cost would be prohibitive,” Bucher said.

As for concerns about tying up additional court reso
urces, he said, “That’s what courts are there for. The courts are there to decide these disputes. If you want to make sure that the citizens of our society have faith in our justice system and truly believe that the penalty being administered is consistent with the crime being committed, that’s what courts are there for.”

Execution of Innocents

Each of the bar associations raised concerns about the potential to execute someone who was wrongfully convicted.

A statement from the ABA on why it is seeking a moratorium reads: “Since 1976, when the U. S. Supreme Court permitted states to reinstate capital punishment, over 100 individuals sentenced to death have been freed from death row because later-considered evidence established their innocence or because other systemic failures prompted officials to conclude that the death sentence was unwarranted.”

Referendum supporters have said that was why the use of DNA evidence was included in the question going to voters.

“There would have to be a culmination of evidence including DNA testing,” Lasee said. “The reason it’s part of the referendum is to ensure people that all the evidence and crime fighting techniques must be used.”

Lasee pointed to the use of DNA to exonerate many people who were wrongfully convicted. If it is an appropriate tool in those cases, he observed, it is an appropriate tool for law enforcement to use in convictions.

Bucher agreed that the use of DNA evidence adds a measure of certainty to convictions.

“With the procedural safeguards in place today and the procedural safeguard of DNA, while I can’t say with any certainty that a wrongful conviction could not occur, I would feel comfortable in indicating that it would be extremely, extremely unlikely,” Bucher said.

Amnesty International maintains that out of 123 people who have been released from death row, DNA evidence played a substantial role in establishing innocence in only 14 cases.

The MBA resolution stated that “the risk of convicting and executing an innocent person cannot be satisfactorily removed even with the use of DNA evidence.”

Skwierawski said, “The presence of DNA does not solve the problem of wrongful executions.”

Even when DNA is present at the scene of a crime, he said, it does not indicate the intent of the individual. The situation becomes more complicated when there are multiple participants and the courts are considering the intent of one actor with another.

Inequities in Application

Finally, each of the bar associations noted that application of the death penalty reflects racial and economic disparities. They also indicated that the death penalty does not serve as a deterrent, noting that in the states where the most criminals are executed, they have the highest homicide rates.

The ABA position stated: “Racial and ethnic bias still are endemic in the criminal justice system. Geographic disparities still are rampant in the application of the death penalty.”

Stevens pointed to the disproportionate incarceration of African Americans in Wisconsin and the disproportionately high number of contacts that minorities here have with law enforcement.

“I feel on pretty solid ground to say we have no reason to believe that won’t carry through to capital punishment,” Stevens said. “So whatever is going on in any other state or in the federal system, I am very concerned about a death penalty being administered in a racially discriminatory manner in this state.”

Bucher and Lasee said that use of the death penalty may or may not have a deterrent effect on the front end. But its application would keep some of the worst offenders from reoffending in the future.

Bucher said he expects the referendum to pass, but he questions whether the state will ultimately end up reinstating the death penalty for state offenses. Lasee said two things would need to happen on Nov. 7 for the state to adopt the death penalty — the referendum would have to pass by a significant margin and Rep. Mark Green would have to win the governor’s race.

If the majority of voters oppose the referendum, Lasee said, “Then I’m done. I will not change my belief about it, but why go through the legislative process again?”

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