Guest Opinion: Don’t get rid of the death penalty

We respectfully disagree with a growing position of eliminating the death penalty. We hear repeated, decades-old arguments that the death penalty costs too much, traumatizes victims, is not a deterrent, and is irreversible. While we appreciate that people have taken time to study these issues the last few months, we have worked in the justice system for several decades and know that these arguments, while persuasive to some, fail closer scrutiny.

The polls. While an October poll found fewer Utahns support the death penalty than in years past there could be many reasons, including recent significant news reports on the issue in the fall. We have an in-migration of liberal voters. People have concerns of possible innocence which are fed by opponents of the death penalty. Let us examine the facts.

The fact is most Americans and Utahns support the death penalty. According to the PEW Institute, in 2021, 60% of Americans favor the death penalty and 39% oppose it. Interestingly, over three-quarters of Republicans and independents who lean toward the Republican Party (77%) say they favor the death penalty for persons convicted of murder, while 46% of Democrats and Democratic leaners favor the death penalty.

The victims. Murder always involves two sets of victims, the one(s) killed and the grieving loved ones. A defense attorney’s number trial strategy in any criminal case is delay. They know the further removed the trial is from the crime, the less people care. Delay and ongoing appeals wear down victims’ resolve to “see justice done.” Studies are available on all sides. Words like closure, retribution, and even justice, do not make the remaining victims whole, because nothing can. Proponents of abolishing the death penalty reference the case of Ron Lafferty to support their position. In the law there is the saying that “bad facts make bad law.” Ron Lafferty was one of the longest-serving condemned inmates in the country and sat on death row for 34 years. An anomaly should not be the basis for policy change. Instead, change policy to streamline the process.

Other victims feel differently. The families of Brelynne “Breezy” Otteson and Riley Powell were “shocked, angered, and disappointed” and believed the “Utah County Justice system is broken” when they learned Utah County Attorney David Leavitt refuses to seek the death penalty for Jared Baum, an extremely violent career criminal tragically prematurely released from Federal Prison and charged with their murder.

Irreversible Sentence. The claim that the death penalty “is applied to people who are actually innocent,” is inapplicable in Utah. The Innocence Project’s statistics show they have identified 18 persons, nationwide, who were on death row, and later exonerated through DNA testing. None of these 18 cases were in Utah. In fact, the Death Penalty Information Center currently reports that of all the persons who have ever been on death row in Utah, not one of them has been exonerated.

In 1993, University of Utah law professor Paul G. Cassell testified before the U.S. House of Representatives’ Subcommittee on Civil and Constitutional Rights Concerning Claims of Innocence in Capital Cases. He referenced Justice Powell commenting on the numerous capital cases that come before the Supreme Court, the ‘unprecedented safeguards’ already inherent in capital sentencing statutes ‘ensure a degree of care in the imposition of the sentence of death that can only be described as unique.’ 

Professor Cassell stated that, “Once all of those decision makers have agreed that a death sentence is appropriate, innocent lives would be lost from failure to impose the sentence. Capital sentences, when carried out, save innocent lives by permanently incapacitating murderers. Some persons who commit capital homicide will slay other innocent persons if given the opportunity to do so. The death penalty is the most effective means of preventing such killers from repeating their crimes. 

The costs. The cost of litigating multiple appeals can be formidable, especially when a county is paying for both sides of a case, i.e., prosecutor and public defender. Compare this with the cost of a victim’s life. How much is your child, wife, husband’s life worth? Syracuse University Professor Thomas J. Kniesner and colleagues estimate that the lifetime cost of a capital-eligible case that results in a death sentence would need to exceed $56 million for it to outweigh the public’s willingness to avoid being murdered.

Of course, studies show death penalty cases cost “more than cases where life without parole is sought.” Death penalty cases require specially trained counsel. Many of those 54 murder defendants will eventually plead to life without parole or to several decades in prison to take the death penalty “off the table.” If there is a plea, there are usually no further appeals, and expenses stop.

However, costs may increase in other cases. Undeniably, the threat of the death penalty is a tool that can motivate a defendant to plead to a lesser offense for its removal, thus saving significant trial expenses. If 45 years or “life” in prison is the worst punishment available, many defendants will proceed to trial as they have nothing to lose; trial increases costs.

Costs of additional victims and crimes.  Most people believe the problem is resolved when they “lock up these offenders and throw away the key.” This ignores the fact that murderers do not stop their cruel behavior because they are locked up. Some continue to threaten, harm and kill members of the public, criminal justice staff, and other inmates and do so in their maximum-security prison cell blocks, visiting rooms, recreation yards, courtrooms, or during transport. Utahn’s Ronnie Lee Gardner, Pierre Dale Selby, and Troy Michael Kell exemplify this phenomenon. 

One particularly good study, based on data from all 50 states from 1978 to 1997 by Federal Communications Commission economist Paul Zimmerman, demonstrated that each state execution deters an average of 14 murders annually.

Deterrence. The Commissioner’s reference that the death penalty “doesn’t work,” suggests the argument that it is not a deterrence. Again, statistics vary depending on study sponsors and criteria.

US Supreme Court Justice Stewart wrote: “Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. . . .  there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.” Gregg v. Georgia, 428 US 153, 185-186 (1976).

Increased violence. We are living in an era of increased lawlessness. State leaders cannot afford to be soft on crime, allow violent crime to spike, or handle criminals with kid gloves. The public must feel safe in their homes. Families of victims should have peace of mind. Utah residents ought to have justice. The death penalty is a positive measure towards those ends.

Constitutionally Sound: The death penalty has been upheld constitutionally and is an appropriate and legally sound sentence for the most serious aggravated violent crimes. “Some crimes are so inherently evil they demand strict penalties – up to and including death.”

See the violence. Some heinous crime scene photos are parsed out to the jury to not “unduly prejudice” them against the defendant, but the violence of murder is ugly. Look at the handy work of killers who qualify, the gruesome crime scene photos, and evidence collected (killing tools). Read the witness statements and study the police reports of Utah’s extreme killers. John Douglas, founder, and head of the FBI’s Investigative Support Unit wrote, “to understand the artist, you must first look at their paintings.” 

Douglas recorded one such experience where he allowed a Hollywood actor who vigorously opposed the death penalty to experience recordings produced by two serial killers as they raped and tortured to death two teenage girls. The actor’s response was to weep and state, “I had no idea there were people out there who could do anything like this.” An intelligent, compassionate father with two girls of this own, after seeing and hearing what he did in Douglas’ office, said he could no longer oppose the death penalty: “The experience in Quantico changed my mind about that for all time.” Douglas, John and Mark Olshaker. “Chapter 9” in Mind Hunter Inside the FBI’s Elite Serial Crime Unit. Pocket Star Books, 1995.

Decent and reasonable people, including our government leaders, expect decency. The key to this issue is understanding the predator mentality, the “bully,” who represents the antithesis of decency. Moving these people to another location does not change them; it just presents a new hunting ground. Bullies only respect and respond to superior strength. True evil does exist and sometimes we must be strong enough to stamp it out in order to protect the rest of us.

William Fowlke, former director Utah Adult Probation & Parole

Lorie Fowlke, attorney, former state legislator and Judiciary Committee Chair