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How can you choose who dies?

The application of the ultimate punishment is inexact at best. Some say that is reason to abolish it.

By CHRIS TISCH
Published May 7, 2006


Zacarias Moussaoui pleaded guilty in the Sept. 11 terrorist attacks that killed 3,000 people, a crime that Moussaoui said gave him great delight.He was sentenced to life in prison.John Spenkelink was convicted of fatally shooting a fellow drifter and career criminal in a Tallahassee hotel room.

He was executed.

As the public digests the Moussaoui sentence, they may ask: How can a man connected to the murder of thousands receive a life sentence while a man who kills a single person in a moment of greed, rage or fear receives a death sentence? Is there disparity in how the death penalty is handed out in America?

“If you found Moussaoui guilty of the conspiracy that killed 3,000 people and he doesn’t get death, it does make it hard to explain to a client why he’s getting death over an accidental shooting during a robbery in which there was a struggle over $50,” said Pinellas-Pasco Public Defender Bob Dillinger.

Death penalty opponents say the Moussaoui case shows that death sentences are unfairly arbitrary, one reason the death penalty is irreparably broken and should be scrapped as a form of punishment.

Death penalty supporters point out that Moussaoui wasn’t charged with murder but with conspiracy. The case was not a slam-dunk for the ultimate punishment and therefore should not be used to indict the entire death penalty system as unfairly haphazard.

“You’re talking about a conspiracy and he wasn’t one of the parties that did that,” said Bruce Bartlett, the chief assistant in Pinellas-Pasco State Attorney Bernie McCabe’s office. “There may be some significant differences that led to that result.”

***

Many capital defense attorneys say a death sentence can hinge on a confluence of outside variables, such as the race of the victim, the wealth of the defendant, the competence of the defense lawyer, the aggressiveness of the prosecutor’s office or a lucky draw on a jury pool.

“Who gets the death penalty and who doesn’t turns on a whole host of factors that has little to do with culp­ability,” said veteran death penalty attorney Martin McClain, known for his involvement in several exonerations. “It sure seems pretty arbitrary to me right now.”

The notion that the death penalty is doled out somewhat randomly has always been a powerful argument against the punishment. It is one of the reasons the U.S. Supreme Court abolished the death penalty in 1972.

Florida led the nation in reinstalling the punishment in 1973, but instituted a series of “aggravating circumstances” designed to help juries and judges pick only the worst of the worst for death row, eliminating the punishment’s haphazardness.

Six years later, Florida executed Spenkelink, the first involuntary state killing in the nation in 12 years (Gary Gilmore was the first modern execution, though he volunteered to be executed by firing squad in Utah in 1977).

To many, Spenkelink did not fit the “worst of the worst” profile. His victim, a drifter and career criminal named Joseph Szymankiewicz, had allegedly threatened Spenkelink. In addition Spenkelink could have taken a second-degree murder plea and prison time, but decided instead to head to trial.

Death penalty opponents said Spenkelink’s execution showed the system was still arbitrarily picking people for death row. It’s a problem that persists today, capital defense attorneys say.

“All murders are horrendous, of course, but I’ve seen some that are not so bad receive the death penalty and some that are very gruesome are spared,” said Joseph McDermott, a Pinellas attorney who has defended more than 50 death penalty defendants. “It’s very arbitrary. It’s very unevenly applied.”

Another reason the U.S. Supreme Court abolished the death penalty in 1972 was that it seemed most often applied to two kinds of defendants: black people and poor people.

Defense attorneys say that also hasn’t changed much in the three decades since the death penalty was reinstated.

“The studies show that when the victim is white as opposed to black, it’s more likely to result in a death sentence,” said McClain. “It’s not so much the race of the defendant as it is the race of the victim and the socioeconomic background of the victim.”

Said Dillinger: “There is no wealthy person on death row in this country. And what does that tell you? Do wealthy people kill? Yes. The arbitrariness of it is who the victim is, their social standing.”

***

But death penalty supporters say it’s comparing apples to oranges to juxtapose Moussaoui and killers on death row who committed intentional murder.

Moussaoui was loosely connected to a grave tragedy, but he did not participate in the hijackings and even prosecutors doubted some of his claims of involvement in al-Qaida’s plotting.

“The argument that he actually caused the deaths of those people is very thin,” said Kent S. Scheidegger, legal director of the prodeath penalty Criminal Justice Legal Foundation in California.

“It was a close one in my view,” Scheidegger said of whether Moussaoui should have been sent to death row. “He’s a very peripheral player in a very horrendous crime and those factors are very difficult to balance. I’m not upset by the decision.”

One variable that did affect the outcome in the Moussaoui case was the federal justice system requirement that only a unanimous jury can send someone to death row. If even a single juror won’t vote for execution, the defendant will receive a life sentence.

“For all we know it could have been one juror who blocked the death penalty,” Scheidegger said. “And that’s a problem Congress needs to address.”

Scheidegger said he prefers a system such as that in California, where a jury must be unanimous whether it decides for life or death. If jurors cannot unanimously agree, the jury is dismissed and a new panel is picked to hear the penalty phase again.

In Florida, only a majority of jurors are needed for a death sentence, which a judge actually imposes after a recommendation from the panel. Unlike in many states, the jury doesn’t have to agree on what “aggravators” exist to condemn a defendant.

It’s for this reason that many believe it’s easier to send someone to death row in Florida than in any other state. There are 371 people on death row in Florida, which averages about two executions per year.

The Florida Supreme Court last year challenged the Legislature to consider making it more difficult for juries and judges to sentence people to death in Florida.

Justice Raoul Cantero wrote that Florida is the only state that allows a jury to decide by mere majority both whether certain aggravating factors exist and whether to recommend the death penalty. Other states require a unanimous vote to make at least one of those findings.

Cantero challenged lawmakers to consider whether they want Florida to remain out of the mainstream when it comes to the death penalty.
A proposal to review the death penalty died in session this year.

While there are outside variables that affect the likelihood of a life or death sentence in each case, those factors also infect every other segment of the system, said Doug Berman, a law professor at Ohio State University.

“They pervade everything we do in the criminal justice system. If you think they are a reason not to have the death penalty, maybe it’s a reason not to have life sentences … or not to do this or that,” Berman said.

Berman said the efforts to remove haphazardness from the death penalty have worked to a degree, though it will always exist in a system with people at the controls.

“That’s the challenge of humans running a system,” Berman said. “It’s less than perfect when figuring out who is the worst of the worst.”

Chris Tisch can be reached at tisch@sptimes.com or (727) 892-2359.

[Last modified May 7, 2006, 20:10:52]


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