ISSUES AND ANSWERS: Capital punishment is ‘state-sponsored murder’

Do you think Delaware should reinstate the death penalty?
No. Delaware should not reinstate the death penalty.

In a landmark decision in 2016, Delaware’s Supreme Court declared the death penalty unconstitutional. Attorneys from the Office of Defense Services had successfully argued that giving judges final authority to impose death sentences violated the Sixth Amendment’s guarantee of trial by jury. Delaware should not now re-instate a law authorizing the government to kill its own citizens.

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Brendan O’Neill

Following our Supreme Court’s holding the death penalty unconstitutional, some members of the General Assembly have undertaken an effort to revive it by proposing a version they hope will comply with our constitution. The current effort to reinstate the death penalty is not Delaware’s first. In 1961, 1974 and 1977 Delaware’s General Assembly passed various versions of death penalty statutes. As it turned out, every version was later found to violate the constitution. Simply put, every time Delaware’s legislators have enacted a death penalty statute, they have gotten it wrong.

The current national trend in criminal justice is to move away from the death penalty. Delaware should not once again put itself on the wrong side of history. There are no do-overs when it comes to the death penalty. The risks and costs are too great and the benefits, too few.

Let’s be clear: the problem with the death penalty is not only whether it is constitutionally-compliant. There is another and equally troubling problem. That is the fact that death penalty’s application occurs in a broken and inherently flawed system that is biased against the poor and people of color.

The death penalty is state-sponsored murder. It is heinous and intolerable and there are no justifiable reasons to bring it back. Killing is wrong. That’s why it is illegal. Yet when Delaware executes one of its citizens, the state contradicts its own morals and values. The state is doing exactly what its laws forbid any of its citizens from doing.

Our state should be better than the worst of the worst. Delaware should not be in the state-sponsored murder business.

If it’s reinstated, how should the reduced availability of the chemical compound used for execution be addressed?
Various states across the country — South Carolina being the most recent example — have been unable to carry out executions. The reason? No one will sell states the drugs needed to create the lethal cocktail used for killing human beings.

It has been reported that Delaware’s stock of the drugs needed for the lethal cocktail is depleted. If the General Assembly reinstates the death penalty, the state does not have the drugs needed for administering a lethal injection.

So if Delaware does not have, and cannot get, the drugs necessary for administering a lethal injection, what can the state do?

Delaware’s only other authorized method of execution is hanging. However, the authority for hanging is limited to circumstances in which lethal injection has been deemed unconstitutional. If a court rules that Delaware’s lethal injection is unconstitutional does Delaware want to resort to hanging? Does Delaware want to be known as the only state in the union that hangs people?

How likely is it that an innocent person may be executed by mistake?
Delaware’s application of the death penalty has been error prone, resulting in years of costly litigation often leading to reversals of death sentences.

In 2012, a team of academics at Cornell University published a study of Delaware’s death penalty. The study found that of the 55 death sentences imposed between 1977 and 2012, the courts had to reverse 22 of the cases for various legal errors.

Delaware’s history of wrongfully convicting people and/or erroneously imposing death sentences continues to this day. For example, Isiah McCoy was convicted of murder and sentenced to death. In 2017, a Superior Court Judge invalidated his conviction and sentence and released him from prison.

The mere fact that we’re asking the questions “How likely is it that an innocent person may be executed by mistake?” should raise multiple red flags. The death penalty business is also a very costly undertaking. Investigative, prosecution, defense and court costs in death penalty cases are extremely high. The total for one case can exceed a million dollars.

The idea that this is even a possibility is totally and completely unacceptable. There are no do-overs with the death penalty.

Would a reinstated death penalty help protect the state’s law enforcement personnel?
No, it would not. A report by the National Research Council concluded that studies claiming that the death penalty has a deterrent effect on murder rates are fundamentally flawed and should not be used in making policy decisions.

Research done by the Death Penalty Information Center indicates that states which have the death penalty have higher rates of violent crime than states that do not.

According to a survey of the current and former presidents of the country’s top academic criminological societies, 88 percent of these experts rejected the notion that the death penalty acts as a deterrent to murder.

In my experience as a defense attorney, people who commit first-degree murder are not thinking about the consequences. They do not stop and consider the pros and cons of their actions. In every case, the perpetrator has been compromised by mental illness, or substance abuse or himself has been victimized by others.

If the inmates charged with killing Lt. Steven Floyd in the Feb. 1 Vaughn prison uprising were found guilty and the death penalty was reinstated, do you approve of prosecutors pursuing execution retroactively?
Absolutely not. In 2016 the Department of Justice decided not to appeal the Supreme Court’s decision in Rauf v. State. A decision now to seek a death sentence for crimes alleged to have been committed early back in 2017 when there was no valid death penalty on the books is political opportunism unsupported by law. It is an ill-conceived, legally unfounded proposal that will cause unnecessary legal, practical, logistical and financial problems. It’s a waste of money and time for everybody involved.

Attorneys from the Office of Defense Services are representing the inmates charged with crimes stemming from the events at James T. Vaughn Correctional Center on Feb. 1-2, 2017. The Office of Defense Services is totally and completely opposed to prosecutors seeking death sentences for these inmates.

Brendan O’Neill is the chief defender with Delaware’s Office of Defense Services.

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