AzDPF Committees

AzDPF Commentary

From time to time, we will post commentary from both Arizona and around the world. If you have a comment for consideration, please send to webguy@azdeathpenalty.org

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JULY 9, 2005

PLEASE REVIEW NEWS ITEM FOR JULY 9, 2005; INCREDIBLY, MARICOPA COUNTY HAS DECIDED TO TO SEEK THE DEATH PENALTY FOR A VEHICULAR ACCIDENT. DURING A TIME WHEN MODERN SOCIETY IS SEEKING TO LIMIT THE APPLICATION OF THE DEATH PENALTY IF NOT ABOLISHING IT, THE LARGEST METROPOLITAN AREA IN ARIZONA SEEKS TO EXPAND THE DEATH PENALTY BEYOND THE PALE.

In the Fall of 2006, Maricopa County Attorney Andrew Thomas announced that he would no longer seek the death penalty in this case. His announcement came shortly after the AzDPF Op-Ed (here) published in the Arizona Republic on August 18, 2006, and a short defense of the decision (here) to seek the death penalty published a few days later by Mr. Thomas's staff in the Republic.

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Response to Op-Ed of 8.19.2006 by County Attorney's Office - August 26, 2006

State Should Abolish Death Penalty - August 19, 2006 (Op-Ed by AzDPF)

Snitch testimony undermines justice - convictions - Sept. 25, 2004

A nation of compassion doesn't execute juveniles - August 1, 2004

Moratorium is Needed - March 13, 2004

Op Ed Capital Case Commission - March 14, 2003

Op Ed Juvenile Death Penalty - January 17, 2003

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8.26.2006: Response to Op-Ed by County Attorney

Death penalty no casual choice

The recent guest column advocating the abolition of the death penalty was
short on facts and long on hyperbole ("State should abolish death
penalty," Viewpoints, Sunday.)

In their zeal to convince your readers that the death penalty is
arbitrarily and inconsistently applied, Michael J. Coyle and Martin
Lieberman failed to cite the careful and considered process by which the
Maricopa County Attorney's Office decides on the appropriateness of the
death penalty.

In death-penalty cases, senior prosecutors on the county attorney's
Capital Review Team examine all mitigating and aggravating factors before
making a recommendation to Maricopa County Attorney Andrew Thomas. This
review is neither arbitrary nor capricious, and is utilized in every
potential death-penalty case.

The authors cited the case of defendant David Szymanski to illustrate what
they believe is an inappropriate recommendation for the death penalty.
They claimed that Szymanski was being exposed to the death penalty because
he caused a death after operating a vehicle while drunk. They
disingenuously contend that being a drunk driver was the sole reason the
county attorney may recommend the death penalty.

What they fail to relate is that David Szymanski was not merely a drunk
driver who caused a death. He was a fugitive operating an automobile on a
suspended license when he led police on a high-speed chase through
Scottsdale, at speeds of more than 100 miles per hour, and causing
numerous near-collisions before colliding head-on with the victim's
vehicle.

Prior to the deadly collision he tried to run down a police officer by
turning his vehicle toward the officer's patrol car in an attempt to
injure or kill the officer. In addition, on 2 separate occasions prior to
his conduct that resulted in a death, Szymanski had threatened women with
a knife.

The accident that resulted in the victim's death was the culmination of a
crime spree that included acts of aggravated assault and criminal damage,
in addition to the commission of 1st-degree murder.

While Andrew Thomas has informed the court of his intention to seek the
death penalty upon conviction, it should be noted that these matters are
under continuous review and, as the trial approaches, the county attorney
will determine his ultimate recommendation.

In any event it should be clear that the county attorney seeks the death
penalty only in cases where, after careful consideration and
recommendation, such a result is justified by the facts and circumstances
in each case.

Barnett S. Lotstein, Phoenix

(source: Letter to the Editor, Arizona Republic - The writer is a special
assistant, Maricopa County Attorney's Office))

8.19.2006: State should abolish death penalty

This summer marks the 30th anniversary of the reinstitution of the death
penalty in the United States. While we continue to debate its ethical
implications, costs and usefulness, what has happened in the last 30 years
is appalling.

Since the 1976 Gregg vs. Georgia ruling that reintroduced the death
penalty, more than 1,000 people have been executed. Yet, the key arguments
against capital punishment remain convincing. It does not and cannot deter
murder. It costs taxpayers more than imprisoning persons for life. And
research demonstrates that innocent people are continuously sentenced to
death by a racially biased criminal-justice system.

Research indicates the death penalty does not work as a deterrent. For
example, states without a death penalty experience a murder rate of 3.6
per 100,000 persons while states with the death penalty have a murder rate
of 5.5 per 100,000 people. advertisement

Polls of criminologists and police chiefs indicate that most of them do
not believe the death penalty reduces the number of homicides. For the
last 20 years, research also shows the costs of the death penalty far
outweigh the costs of lifetime imprisonment.

As of February, 123 people on death row in the United States have been
exonerated. In what can only be described as a frightening average, for
every 8 persons actually executed, the death conviction of 1 person is
overturned. In Pima County, more than 70 % of death sentences have been
overturned.

As most Americans already know, the quality of legal representation and
not the details of a crime will often determine if someone will be
convicted and sentenced to death.

As Supreme Court Justice Ruth Bader Ginsburg has tellingly said, "I have
yet to see a death case among the dozens coming to the Supreme Court on
eve of execution applications in which the defendant was well represented
at the trial."

Inadequate legal representation, false confessions, prosecutorial and
police misconduct and false-witness testimony rewarded with leniency has
created a system that is far from just.

The death penalty demonstrates a racial bias that is nothing less than
shocking. Nationally, though only half of murder victims are White, 80
percent of capital cases involve White victims.

In Arizona, a minority defendant is nine times more likely to receive the
death penalty if the victim is White. The recognition of this extreme
bias, observable on a national level, has in recent years led state
governors and state Supreme Court committees to call for moratoriums on
executions.

Rather than reacting to these realities and channeling discretion in
capital cases, the Arizona Legislature has done everything in its power to
broaden the death penalty even though at least one innocent person, Ray
Krone, has been released from death row in Arizona and other probable
innocents (eight by the count of the Death Penalty Information Center)
remain. The expansion of the death penalty proceeds despite reports of
executions of innocent persons in other states.

When Arizona re-crafted its death penalty in 1973, it permitted execution
if the murder was "especially cruel, heinous, or depraved." It is hard to
consider a murder that is not such. Nevertheless, not satisfied with this
rather easy standard, prosecutors recently convinced the Legislature to
add another factor to ensure a death penalty in every case in which the
prosecutor decides to seek death. This, unfortunately, can be a
coldblooded and calculated tool for a prosecutor.

A jury in Arizona may sentence someone to die if "the offense was
committed in a cold, calculated manner without pretense of moral or legal
justification." Yet, all premeditated murder is cold and calculated by
definition. And all murder is without moral or legal justification. With
this "aggravating factor," Arizona has, in essence, made all murder
subject to capital punishment.

The agenda appears to be in line with Maricopa County Attorney Andrew
Thomas'vision as he seeks the death penalty for David Szymanski in
connection with a drunk-driving accident. While such actions
understandably draw calls for severe punishment, is a drunk driver truly
the "worst of the worst" that the death penalty, according to the Supreme
Court, is reserved for?

Arizona should heed the recommendations of the American Bar Association,
which has found that the selection of those targeted for execution is, in
large part, arbitrary. One of the key recommendations would provide for a
statewide committee to review the decision to seek the death penalty to
remove arbitrariness in the selection process.

As the scholar Judith Kay argues, Americans share a false and
counterproductive idea of justice: that punishment corrects bad behavior,
that suffering pays for wrong deeds and that victims' desire for revenge
is natural and inevitable. This myth has given us what most now recognize
as a national criminal-justice system that is as dysfunctional as it is
unable to provide safety or justice.

Arizonans are ready for a change. When the option of life without the
possibility of parole is offered, less than half of Arizonans still prefer
the use of the death penalty.

It is time we add Arizona to the more than dozen states that have no death
penalty. It is time we remove our nation from the handful of countries
still practicing state-sanctioned murder.

(source: Michael J. Coyle teaches criminal justice at Arizona State
University; Martin Lieberman is a Phoenix attorney and founder of the
Arizona Death Penalty Forum--The Arizona Republic)

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Snitches' testimony undermines justice -- Convictions

When Scott Fawell testifies for the prosecution at former Illinois Gov. George Ryan's upcoming federal trial, he will do so under what a government informant in another case memorably called "the influence of freedom."

In exchange for Fawell's testimony, prosecutors have agreed to slash his own prospective prison time by almost half --from 11 years to 6 years -- and let off his girlfriend and co-conspirator, Alexandra "Andrea" Coutretsis, with no prison time.

Welcome to the snitch system.

It might seem that the quid pro quo violates the federal bribery statute, which provides that "whoever directly or indirectly, corruptly gives, offers or promises anything of value" to influence the testimony of a witness in any legal proceeding is guilty of a felony punishable by up to 15 years in prison.

How can prosecutors make such a deal without running afoul of a criminal statute that they would vigorously enforce against anyone else?

The answer, alas, is that the word "whoever" in the statute refers not to everyone, as lexicographers have always assumed, but rather to everyone except prosecutors -- this according to the leading case on the issue, U.S. vs. Singleton, which was decided in 1999 by the 10th U.S. Court of Appeals in Denver.

Prosecutors, the court held, are "the alter ego of the United States
exercising its sovereign power of prosecution'' -- they are the nation.
The nation being "an inanimate object," it follows that, if Congress had intended the statute to cover prosecutors, it would have used "whatever" instead of "whoever." This isn't theater of the absurd. There being no federal appellate opinions to the contrary, the Singleton sophistry is the law of the land, which is hardly surprising. Snitches have been firmly embedded in the justice system from the common law forward, and appellate courts are reluctant to disturb the status quo.

In modern times, the system has spawned insider slogans glibly reflecting the reality of the system: "Don't go to the pen -- send a friend" and "If you can't do the time, just drop a dime."

To infer from such dark humor that snitches, as a class, are rotten human beings, would be unfair. Often they have merely succumbed to a veritable form of torture that few among us could withstand.

Fawell's situation makes the point. After his sentencing last year, he
insisted that he had "no bomb" to drop on Ryan. When asked point-blank if the former governor had done anything wrong, he shot back, "No, absolutely not," adding, "I'm not going to go in there and make up stories about him just to save myself."

What changed? In the words of his lawyer, Jeffrey Steinback, Fawell felt "morally responsible" for dragging Coutretsis into the scandal. She faced 18 months in prison for fraud and perjury, but, as part of Fawell's deal, she'll stay home with her 2 children.

Although jurors in the Ryan trial surely will be made aware of Fawell's prior statements contradicting his latter version of the truth, experience shows that jurors tend to believe even the most odious government snitches. Prosecutors are prohibited from explicitly vouching for witnesses' credibility, but they do so implicitly.

And, because juries are the arbiters of witness credibility, convictions based on snitch testimony are seldom set aside by trial judges or overturned on appeal absent DNA or other physical evidence establishing innocence.

In political corruption cases, of course, there is no DNA. Hence,
documented wrongful convictions of politicians are extremely rare. But it's a different story when it comes to violent crimes, which frequently involve physical evidence. Hundreds of wrongful convictions have been documented in the state court systems, where most violent crime is prosecuted.

The government keeps no statistics on snitches, but I recently reviewed the cases of 98 defendants exonerated after having been sentenced to death during the last quarter of the 20th century. Thirty-nine of those convictions rested to some degree on snitch testimony, showing pretty much what we would expect: that witnesses with incentives to lie are inclined to do just that.

How might the rights of the accused be better balanced against society's interest in bringing criminals to justice?

One idea would be to allow prosecutors to continue to give or promise anything under the sun to snitches for information, provided the information is solely for investigative purposes -- that is, to point to other, more reliable evidence that could then be used in court.

Keeping snitches off the witness stand would avoid the bribery issue
because whatever the prosecution provided in exchange for information would not influence testimony. More important, banning snitches from the courtroom would serve the interests of justice.

(source: Rob Warden is director of Northwestern University's Center on Wrongful Convictions; Chicago Sun-Times)

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A nation of compassion doesn't execute juveniles

Mark Wellek M.D., and Carol Kamin
Aug. 1, 2004 12:00 AM

There are four young people on death row in Arizona who committed violent murders when they were 17 years old.

Arizona has not put a teenage murderer to death since 1976, when the death penalty was reinstated in the United States.

American society has many gray areas. Our many cultures, systems and ideologies overlap in small ways and larger ones. However, there is one area that is completely distinct, and that is the law as it applies to children.

Laws prohibit those under 18 from serving in military combat and on juries, voting, entering into contracts, and buying alcohol or cigarettes, precisely because kids are different - they are physically, emotionally and mentally immature.

Groundbreaking new science reveals specific evidence of how these differences determine adolescent behavior. Their development is delayed, their minds operate differently, their emotions are more volatile and their brains are anatomically immature.

There is a confluence of evidence showing that the regions of the brain that adults use to control and influence behavior are still underdeveloped in adolescents.

For example, the pre-frontal cortex, which is one of the last areas to develop and mature in adolescents, is involved in the control of aggression and other impulses, the process of planning for long-range goals, organization of sequential behavior, consideration of alternatives and consequences, the process of abstraction and mental flexibility, and aspects of memory including "working memory."

Three states, Texas, Virginia and Oklahoma, have executed the majority of juvenile offenders, which account for 80 percent of all juvenile executions. In fact, Texas alone was responsible for 60 percent of juvenile executions. Obviously, the juvenile death penalty is not widely practiced or even popular. Nationwide polls consistently show that 70 percent of Americans are opposed to juvenile executions.

In 2000, then-Attorney General Janet Napolitano appointed the Arizona Capital Case Commission, comprised primarily of prosecutors, to examine death penalty legislation. The commission recommended that Arizona end the juvenile death penalty. It is notable that the commission had not planned to consider the juvenile death penalty until it became aware of the research regarding adolescent brain development.

In a criminal justice system dependent upon determinations of culpability, scientific findings suggesting juveniles as a class are indeed less culpable call for serious consideration. The U.S. Supreme Court recognized the consequence of adolescent development in its 1988 decision to prohibit capital punishment for minors under age 16.

Thirty-one states, the federal government, the U.S. military and the District of Columbia prohibit the execution of juvenile offenders. Just this year South Dakota and Wyoming signed bills into law banning the practice, and similar legislation has passed in the New Hampshire Senate and House, and the Florida Senate.

This month, we joined the nation's leading American medical, religious and legal institutions, child- and victim-advocate groups and nearly 50 countries, along with prominent individuals including Nobel laureates and former U.S. diplomats, in submitting briefs to the U.S. Supreme Court, which is scheduled to hear arguments this fall in the case to end the juvenile death penalty.

The American Medical Association, American Psychiatric Association, American Society for Adolescent Psychiatry and several additional medical associations filed amicus curiae briefs in support of ending capital punishment for minors, and a cross section of more than 420 prominent pediatricians, child and adolescent psychiatrists and neurologists, including such notable physicians as former Surgeon Generals C. Everett Koop and Julius Richmond, and Doctors T. Berry Brazelton and Alvin Poussaint, along with nine physicians from Arizona, submitted the Health Professionals' Call to Abolish the Juvenile Death Penalty to the Court.

Many prominent child welfare groups, including the Children's Defense Fund, Child Welfare League of America, Voices for America's Children and the Children's Action Alliance of Arizona, submitted a brief as well.

In their briefs the groups say that the juvenile death penalty violates evolving standards of decency, that it serves no legitimate purpose and is excessive in light of emerging evidence showing the limited capabilities of juveniles, and that the practice is almost universally rejected by the international community.

The rest of the world, along with most of the country, has recognized the senselessness of the juvenile death penalty. It is our hope that the rest of our country will join these voices.

Mark Wellek is past president of the American Society for Adolescent Psychiatry. Carol Kamin is president of the Children's Action Alliance, Arizona Chapter.

source: Arizona Republic, August 1, 2004

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[AzDPF note: The commentary below describes, among other things, a rush to judgment in capital cases. This problem is very real in Arizona. A recent change in the law requires juries, instead of judges, to determine who should live and who should die. This fundamental change to the death penalty scheme has created an unfamiliar landscape for even the most experienced capital lawyer. Yet, the courts have resisted attempts to permit lawyers to properly carry out their responsibilities. We have heard complaints that the judges rush the jury selection process, do not allow for sufficient time and resources to obtain life histories, and are pushing cases to trial when the lawyers have not had sufficient time to "get up to speed." Ms. Hottman's article describes some of the consequences.]

Capital punishment moratorium needed

by Madeleine Hottman
March 12, 2004
The Spectator, WA
http://www.spectator-online.com/vnews/display.v/ART/2004/03/12/405241a2ba2ae

Recently, a Florida man convicted of murder who was sentenced to death received an appeal from the U.S. Supreme Court. The reason: his lawyer used the strategy of having the man admit to committing a
horrible crime with the hope that the jury would not give him the death penalty. This strategy did not work, as murder is a capital crime in Florida. Repealing the decision to kill this man for his crimes could be seen as a weakness in the system, but it is only fair to allow him to appeal this ruling.

According to the American Bar Association, more than 100 death row inmates have been found innocent of their crimes and been released since 1976. They were set free by technology such as DNA testing or the discovery of dishonest witnesses, prosecutors, or police officers whose lies were found years after the final bang of the gavel. Those inmates were sent to die—unfairly. The question now is how many more people will die unjustly? Cases such as these are why state government leaders should establish a moratorium on the death penalty in their states to protect convicts who received unfair trials or an inadequate defense. The death penalty has existed in the U.S. since the creation of laws in this country. It will likely never be outlawed as a punishment, so a moratorium on the death penalty, which is an authorized delay of action would greatly reduce the number of innocent people killed at the hands of the government.

A moratorium is set up, as in the case of the death penalty, to allow for careful process and to ensure the fairness of the system. Meticulous review of the cases on the dockets on all levels of the justice department usually follows a moratorium. Illinois Gov. George Ryan put a moratorium on the death penalty in 2000 until a committee appointed by Ryan could decide what was wrong with the system. Declaring a moratorium on death row cases would slow down the process and allow a fair conviction to be made based on decent representation, a fair trial and a chance to have the death sentence repealed.

In a trial, the defense is the sum of the defense attorney’s attempts to show his client’s innocence in the crime the defendant has been charged with. A defense is inadequate when the defendant is not spoken for fully or not all the evidence that might show the defendant’s innocence is presented. Situations in which proof of innocence is not brought forth, the defendant’s counsel is at fault. In a Human Rights Magazine article by Alex J. Hurder, an attorney with the American Bar Association and columnist for the magazine, Hurder claimed that in order for a person to have a proper defense, his attorney as selected by the courts should be experienced in capital cases and should be handpicked to the client’s needs.

This does not happen. Instead, lawyers are chosen at random to save time and money, and many states do not even have public defender programs because of the cost to the state. Those states hire the lawyer who is willing to take the least amount of money for his services. Court-appointed lawyers are usually inexperienced or ineffective in the courtroom, and they fail to present all of the evidence in their clients’ favors or to present legal issues that cannot be brought up later. This is a problem in the justice system that is only worsened by the frequency of its occurrence. In another study conducted by the American Bar Association in 2002, as many as 3,700 of the people on death row nationally are there because of an inadequate defense. A quality lawyer literally means the difference between death or life in prison for those people who do not have an effective lawyer.

When a lawyer fails to present necessary information or defend a client properly, it causes that person’s conviction and sentence to be unfair. According to Amnesty International, Tyrone Gilliam’s lawyer—who had not handled a capital case before—apparently believed that because the judge was Catholic he would not sentence Gilliam to death. He therefore persuaded his client to forego a jury trial. Inexperience also caused Gilliam’s attorney to fail to present some necessary evidence that could have changed the verdict. The prosecution presented testimonies from an accomplice who was given a lighter sentence for his cooperation. Gilliam also confessed after a car wreck that left him with head injuries and a 13-hour interrogation. Gilliam was unfairly convicted and sentenced by the State of Maryland based on Gilliam’s confession that was given under wrongful circumstances and the use of a bribed witness. His attorney did not attempt to appeal the sentence, and Gilliam was executed in 1998 despite his lawyer’s mistakes. The quality of the lawyer defending a client is one of the main parts of a fair conviction. As in Gilliam’s case, a fight for life should start with the selection of the lawyer. Amnesty International issued a statement on Oct. 13, 1999 saying, “More than 80 death row inmates have been released in the United States since 1973 after evidence of their innocence emerged. Many had been sentenced to death after being represented at trial by lawyers inexperienced in the immense complexities of United States capital proceedings.” Capital cases are treated much differently than any other legal proceeding, so lawyers have to be fluent in this type of case in order to provide their clients with the best possible defense. Selecting the right lawyer takes time, so a moratorium should be established on death penalty cases to prevent hasty selection of attorneys. It would allow an opportunity for lawyers to be handpicked and ensure that they are appropriate to each case. Without this necessary element, it is possible for innocent people to be unjustly killed.

People opposing a moratorium might argue that, in the words of Alabama Senator Jeremiah Denton:

“Saying. . . we should not have the death penalty because we may accidentally execute an innocent man is like saying that we should not have automobiles because some innocent people might be accidentally killed in them. . . There are going to be some mistakes committed. The question is on balance; which way do we better promote the general welfare?”

Senator Denton argued a valid point, but in America, every person accused of a crime is entitled to his day in court. Not everyone, however, receives a fair, unbiased trial with prime defense attorneys.

An example of this is the 1996 Georgia Supreme Court case Gibson v. Turner. Exzavious Lee Gibson, a man with an IQ between 76 and 82, had to give an appeal to his death sentence without a lawyer. Gibson was too poor to afford a lawyer, so he attempted to defend himself. Gibson called no witnesses, presented no evidence, and made no objections throughout the entire trial. The Georgia court allowed the hearing to proceed and dismissed his appeal. Gibson’s appeal, whether he committed the crime or not, should have been facilitated by a lawyer in Gibson’s defense. Because it was not, Gibson is still sentenced to die without a fair trial and a proper chance at fighting for life. This could be prevented by an established
moratorium at the state level. It slows the process so it is not rushed and capital cases would receive the amount of attention they need.

In its rush to move cases through the system, many times the court fails the people it was meant to protect—the accused—and provides an inexperienced or unqualified lawyer, who many times is just a body to take up space and fulfill the necessary quorum for a trial to commence. This is not the way a trial should be conducted, so a moratorium could help eliminate this sort of haste.

A common theory held by many taxpayers is that if the trial is conducted quickly, there is less cost, so a moratorium would just increase that cost. “Haste makes waste” is a principle used in cooking, and it holds true for death penalty trials. If a baker were to run short on time and forget to knead the bread, the bread would be full of air pockets. The baker would likely have to start over again, and he would be unable to sell the loaf he just ruined. When a lawyer is just picked at random and an unfair trial is allowed to commence, it creates wasteful spending on the appeals that follow. A trial conducted the right way the first time is much less expensive than the appeals process. Therefore, a moratorium would slow down the process without appeals that could be prevented by a fair trial.

Perhaps worse than a poor defense or an unfair trial is the difficulty surrounding the repeal of a death sentence. According to Amnesty International, currently, someone who is sentenced to die cannot postpone his sentence for “post-conviction litigation” and the federal courts will not provide counsel for such litigation because of a 1995 cut-to-post conviction defender program. According to Hurder, the convicted also cannot present claims that were not already presented in court, even if it were the ignorance of the attorney that caused them to not be presented. By not allowing such assets as an experienced attorney or postponement of death, the state does not allow for any mistakes or flukes in the court system. That means that innocent men or women could be executed without having their rights as citizens to fight for a lighter sentence or exoneration.

If a person does not receive a fair trial, like Exzavious Gibson or Tyrone Gilliam, he should not be sentenced to repay his debt to society. However, the appeal of these sentences is long and difficult.
Federal law, as of 1996, limits the abilities of inmates to challenge unconstitutional convictions or death penalties using federal procedures protected in the U.S. Constitution. Professor James S. Liebman, Ph.D., has reported to the American Bar Association that a mere 40 percent of all inmates under the death sentence are able to contest and win more time in post-sentencing hearings. According to Hurder, this number could be increased if a moratorium were established. It would slow down the process and allow more inmates who cannot afford their own counsel to have an adequate defense at all stages of the process.

Courts at all levels are plagued by this injustice. In Illinois, Governor George Ryan told Newsweek, as found in the January 20, 2003 issue, ‘“The Illinois death-penalty system is arbitrary and capricious—and therefore immoral.’” Illinois is not the only state that needs to improve its system. By not allowing for a fair trial or a decent lawyer, the system that is supposed to give fair, unbiased judgement cannot do that effectively. In the words of former ABA President John J. Curtin, Jr. “Whatever you think about the death penalty, a system that will take life must first give justice.” A moratorium on the death sentences of the men and women on death row today would allow for fair trials that are not accelerated by the need to move through court dockets.

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Op-ed, March 14th, 2003 - Arizona Capitol Times

Dear Editor:

I am responding to the article relating to the release of the Capital Case Commission report. In addition to recommending the banning of executions for anyone under the age of 18, the report made a number of recommendations intended to ensure the integrity of capital case processing. Some of the recommendations and (in)action include the following:

1. Create a state wide capital defender office to ensure adequate representation for those accused of capital crimes. Bills introduced in the 2001 and 2002 sessions were defeated. No bill was introduced in 2003. Indeed, since this issue was studied, the death penalty process was changed as a result of Arizona vs.. Ring and a funding crisis is currently brewing.

2. Urge law enforcement to tape record interrogations and confessions to eliminate disputes relating to what was said. This proposal has been sent to the Arizona Criminal Justice Commission; no protocol has been developed.

3. Enact legislation to ban the death penalty for offenders under the age of 18. Currently we stand alone with Iran, Saudi Arabia, and Nigeria as the only countries currently executing juveniles (Pakistan abolished it in 2000; Yemen in 1994). Bills introduced in 2002 and 2003 have been defeated in committee.

4. Urge prosecutors to develop written uniform policies regarding the identification of those cases selected for the death penalty. This would prevent what appears to be the somewhat whimsical decision making process in selecting persons to die. This recommendation is supposed to be sent to the Arizona Prosecuting Attorneys' Advisory Council for consideration. To date, no such policies exist.

5. Commute death sentence to life without possibility of parole if the accused is incompetent to be executed. Bills introduced in previous years have been defeated; the bill introduced this year has not been afforded a committee hearing.

These are just some of the recommendations of the Capital Case Commission, and the failure to enact these recommendations are just part of the reason why the continuation of the death penalty in this state is unconscionable. Other reasons are found in the Commission report and include the following:

1. Of those persons sentenced to death, at least eight persons have been later exonerated or acquitted in a subsequent trial. The latest was Ray Krone.

2. The error rate in capital cases is 50%.

3. The imposition of the death penalty is significantly related to the race of the victim. Data compiled by the Commission reveals that from 1995 - 2000, there were 316 first degree murder cases where the victim was Hispanic. One person was sentenced to death. During that same period, there were 277 cases where the victim was Caucasian; twenty-four were sentenced to death.

The report, unfortunately, does not even attempt to systematically analyze this data or provide solutions to these problems. Anyone with a familiarity with the process and the results of the process should be appalled at how death penalty cases are processed in Arizona. Most of us are so far removed from the actual process, it is impossible to fathom just how unfair the entire system is.

The Capital Case Commission report reveals, quite clearly, that the system is broken. The measures suggested to fix it have not been enacted. More importantly, however, it is a system that cannot be fixed. It is time to abolish the death penalty.

Sincerely,

Marty Lieberman

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Op-ed, Arizona Daily Star - January 17th, 2003:

When juveniles kill
Arizona should join 28 other states and ban execution for murderers who are juveniles when they kill
By Henry Ruth*
SPECIAL TO THE ARIZONA DAILY STAR

A murder brutally and sometimes savagely ends a human life and haunts the victim's loved ones. Nevertheless, most nations in the world affirm that a civilized society should not willfully kill a person who, as a juvenile, commits murder.

Even in America, only seven of the 50 states have executed juvenile murderers in the past quarter-century. Why? Why do murders by juveniles almost universally escape the reality of complete vengeance?

Recent MRI research on brain development has overturned prior findings that our brains are fully developed by age 14.

Now we realize that different parts of the brain develop at different times and that the brain lobes governing impulse control, directed goals, judgment and the ability to resist coercion are not fully operational until early adulthood.

Research confirms what we all learned from experience: Adolescents do stupid, irresponsible things even when they know their acts are stupid and irresponsible.

As a result, states have laws regulating or prohibiting conduct by juveniles in areas ranging, for example, from marriage to gun purchases to jury service to voting to driving a car to staying out late at night to liquor consumption to signing a binding contract.

Reflecting this long-standing government philosophy that juveniles need more regulation because they are less responsible than adults, Congress and 28 states have joined with all but six nations of the world to prohibit official killing of those who murder while younger than age 18.

And using a constitutional path, the U.S. Supreme Court has already banned the death penalty for any murder committed by a child under 16 years old.

Four of that court's nine justices recently expressed their judicial opinion that execution of any juvenile under 18 falls within the U.S. Constitution's Eighth Amendment prohibition against inflicting "cruel and unusual punishments."

When the Supreme Court held the execution of mentally retarded murderers to be unconstitutional, the court's opinion stated that the prior action of 30 states in banning such executions reflected a national consensus that "evolving standards of decency" have found these official killings to be "cruel and unusual."

The mentally retarded killer may well understand the difference between right and wrong, said the court, but such persons cannot be held to the level of personal responsibility and culpability necessary for state infliction of a death penalty.

A life sentence without parole was deemed the proper maximum sentence. The reasoning behind this precedent applies just as strongly to murders by juveniles.

In a recent Gallup poll, 69 percent of Americans rejected a death penalty for those under 18, and a separate statewide poll showed that only 37 percent of Arizonans favored such executions.

The nonpartisan Capital Case Commission recommended to our state's attorney general last year that juvenile acts of murder not be punished by death.

The state of Arizona has executed two juvenile murderers in the past few years, and five more await this fate.

In its upcoming session, Arizona's governor and Legislature should join the world consensus, and the American consensus already expressed by 28 states, and find that a life sentence without parole is not a soft penalty for murder committed by juveniles and does not demonstrate any disrespect for the victim or the survivors.

On the contrary, a sentence of life without parole represents a hugely severe and proper response that reflects a civilized society's deeply felt respect for the victim and those who loved the victim, unanimous condemnation of the juvenile murderer's horrific conduct and legislative recognition that ultimate penalties must be reserved only for those who merit ultimate responsibility.

* Tucsonan Henry Ruth is a former federal prosecutor. He and Kevin Reitz are co-authors of "The Challenge of Crime: Rethinking Our Response" to be published by Harvard University Press in March 2003.

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