Because of the irreversible nature of the death penalty, there are seemingly endless ways for defense lawyers to delay the day of reckoning.
First, there is the initial charge, trial, conviction and sentencing. Then there are appeals based on the conduct and facts of that trial. Following that is a habeas corpus appeal that challenges the conviction or sentence on constitutional grounds. Then federal courts may be asked to review the state’s handling of the constitutional issues. Beyond that, death row inmates can seek clemency from a state parole board.
Legal challenges can occur right up to the point where the state is about to administer a lethal injection. Case in point is Darold Stenson, a Clallam County man who murdered his wife and business partner 17 years ago. He was back in the news recently because his attorneys successfully challenged Washington state’s method for administering lethal injections. Two other inmates have made similar challenges.
Stenson’s lawyers argued that the state’s administration of the three-drug “cocktail” of sodium thiopental, pancuronium bromide and potassium chloride amounts to cruel and unusual punishment. The trio of chemicals knocks out an inmate, then paralyzes him, then stops his heart. Bolstering the appeal is a botched execution in Ohio, which uses the same execution protocol. Executioners tried for hours to find a suitable vein and had to give up. The inmate appealed an attempted retry.
Washington state has decided to sidestep the issue by changing to single-drug injections, and the attorney general’s office is asking that appeals based on the former protocol be tossed.
If all of this sounds hopelessly technical and confusing, welcome to the reality of death penalty appeals. It’s no wonder that the last person the state lethally injected was James Elledge in 2001. But the question society should ask isn’t whether one form of execution is better than another; it’s whether the death penalty is worth pursuing at all.
We think the answer is no. Behind the mind-numbing appeals are some salient facts. According to a 2006 death penalty study by the Washington State Bar Association, “death penalty cases are estimated to generate roughly $470,000 in additional costs to the prosecution and defense over the cost of trying the same case as an aggravated murder without the death penalty and costs of $47,000 to $70,000 for court personnel. On direct appeal, the cost of appellate defense averages $100,000 more in death penalty cases than in non-death penalty murder cases. Personal restraint petitions filed in death penalty cases on average cost an additional $137,000 in public defense costs.”
That kind of spending cannot be justified, especially in an age of tight budgets. The state ought to forget about the death penalty and pursue life imprisonment without the possibility of parole. That’s the best solution to endless appeals.
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