New Death Penalty Rules Could Make It Fair

Since the cost of housing and appeals to execute a prisoner can exceed the cost of housing a prisoner for life, retribution is really the only viable reason for keeping the death penalty.  I am definitely in favor of retribution and believe that family members should be entitled to exact their measure of revenge.  However, I do struggle with the thought of executing an innocent person.  Fortunately, there is a way to ensure revenge is enacted upon the guilty.  I just have no idea why this has never been discussed.

I believe the death penalty is an appropriate punishment where the crime is particularly heinous such as the murder of Jennifer Hawke-Petit and her two daughters or for the murder of a police or law enforcement officer (I should disclose that I am a part-time volunteer law enforcement officer).  I might even be in favor of the death penalty for less heinous murders, but I am only in favor of the death penalty if it could be certain that an innocent person is not put to death as it was absolutely certain in the Jennifer Hawke-Petit case.  I think many of the people against the death penalty would be in favor of the death penalty if it could be certain that only the guilty would be sentenced to death.

There should be a new burden of proof, just for the sentencing phase to consider the death penalty, which would require that there is “no possibility of innocence”.  A more stringent burden of proof only for the sentencing phase would allow a defendant to be convicted of murder if there is no reasonable doubt but would not allow an innocent person to be sentenced to death.

There are many cases where there is “no possibility of innocence”.  In the Jennifer Hawke-Petit case, Steven J. Hayes and and Joshua Komisarjevsky were found by the police running from the house which was set on fire.  There was no possibility of his innocence and the jury found him guilty in less than one day.  Not surprisingly, and I believe appropriately, the jury imposed the death penalty on Mr. Hayes.

Casey Anthony who was indicted on charges of Felony Murder in the death of her daughter Caylee Anthony is facing the death penalty but this should not a death penalty case.  While some people might consider the crime heinous enough, and certainly the prosecution did, it is not absolutely certain that Casey Anthony committed the crime.  In fact, the defense attorney did a decent job raising reasonable doubt. This is a circumstantial case and absolute certainty cannot be accomplished in a circumstantial case.

As well as a new standard of proof, there should be new requirements to seek the death penalty.  A separate panel of approved criminal defense lawyers for death penalty cases should be created, at least for court appointed lawyers.  Just as criminal defense lawyers have to show competency to be on a court-appointed panel for criminal defendants, where the death penalty is sought, criminal defendants should be entitled to be represented by criminal defense lawyers with a higher level of competency for death penalty cases.

All prisoners currently on death row should be entitled to a review by attorneys on a criminal defense death penalty panel to determine if the defendant was afforded effective criminal defense counsel.  If it is determined that representation by the criminal defense attorney was ineffective, the defendant would be provided a new trial.

Any evidence previously known to the prosecution but not disclosed to defense counsel prior to the trial should create an absolute right to a stay of execution even if the evidence would not be considered by the judge to have influenced the outcome of the trial.

With proper safeguards, the death penalty can coexist with the knowledge that an innocent person will never be executed.

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