Death Penalty Session- A Missed Opportunity

By Gabrielle Giffords,
Arizona Daily Star Op-Ed

Whether the majority of Arizonans support or oppose the death penalty, I feel all Arizonans believe in fairness and justice.

In June, the weighty subject of the death penalty fell into the Legislature’s lap when the U.S. Supreme Court ruled in Ring v. Arizona that our state’s system of allowing judges to impose the death penalty was unconstitutional.

Ring said the jury, not the judge, needed to decide whether the state proved the aggravating factors that make a person eligible for the death penalty.

During a three-day special session, the majority of members of the House and Senate did more than just fix that problem, even though the GOP leadership repeatedly stated we were there to address only that narrow issue.

Instead, they pushed through a law that will have juries decide all three parts of a death penalty case - guilt, whether there are aggravating circumstances, and whether to impose the death penalty.

The immediate need to address the problem with the Ring decision was important.

But in the Legislature’s haste to return to campaigning, Arizona ended up with a law that ultimately could cause more problems than it fixes.

Under the new law, if the jury that convicted the defendant hangs with regard to whether there are aggravating circumstances or whether to impose the death penalty, the prosecutors get to retry the case.

Most other states do not give prosecutors this “bounce-back” power.

In my view, if the 12 jurors who heard all the evidence and decided the person committed the murder but cannot agree that the defendant deserves the death penalty, we should trust them with their decision.

And while we are giving the prosecutors that opportunity to retry the case to a new jury, unlike most other states, we will not allow the trial judge to review the jury’s decision.

And the new law reduces the state Supreme Court’s power to review the death sentence from conducting an “independent review” of the jury’s decision to deciding whether the jury abused its discretion.

Moreover, the new law does not allow resentencing of approximately 100 death row inmates who were sentenced under our now-unconstitutional structure.

Our new law likely will cost Arizonans millions of dollars, and it raises constitutional concerns that will put us back into court.

Several legislators, including myself, felt the Ring decision gave us an opportunity to address some of the very real problems acknowledged by both proponents and opponents to the death penalty in our state.

In July 2002, the Arizona attorney general established the Capital Case Commission, a group of representatives from many areas of the criminal justice system, to study the implementation of the death penalty in Arizona.

That commission has examined the facts and figures surrounding 230 Arizona death penalty cases.

Recently, it released some findings that shed light on some of the inconsistencies and inequities in Arizona’s death penalty.

For example, Arizona prosecutors are significantly more likely to seek the death penalty if the victim was white than if the victim was of color.

Several legislators felt it was important to include some of the recommendations made by the commission.

Although our efforts failed, they were reasonable and prudent. If Arizona is to keep the death penalty, at a minimum, Arizona should:

• Not give the death penalty to defendants who were under age 18 at the time of the crime.
• Instruct the jurors that if they do not impose the death penalty, the trial judge may impose a “natural life” sentence, which means the defendant will never be released for any reason.
• Enact a two-year moratorium that would not eliminate the death penalty but would halt executions until a careful and scrupulous legislative review could take place.

The review would examine biases based on race, age, gender, mental capacity, geographic location, income status of defendants, adequacy of representation of capital defendants and the innocence of those currently sentenced to death.

While I do not believe Arizona presently has the political will to join the 12 states that have abolished the death penalty, I do believe all citizens of our state expect and deserve a more careful consideration of the inequities in how the death penalty is handled.

Arizona was handed a perfect opportunity to do just that. Unfortunately, the majority of legislators chose not to take it.