Many of the arguments to end the death penalty are dumb; it’s time to end it anyway
On January 6, 2015, a Lyon County jury determined that Jeremiah Bean should receive the death penalty.
It is hard to think of a more worthy candidate for that ultimate punishment. Bean murdered five completely random, innocent people in cold blood. He did it because he wanted money for drugs, at one stage squatting in the home of two of his victims and periodically pawning their stuff. When caught, he immediately – almost gleefully – gave a full and thorough confession. The evidence was so overwhelming and beyond any doubt that he was guilty, that Bean’s own attorney condemned his client in court in a strategic attempt to avoid the death penalty. There was no risk of executing an innocent man. If there was ever a case when death was the appropriate punishment, this was it.
I was in the DA’s office in Lyon County at the time, and was peripherally involved in the case. The decision to seek the death penalty was not mine, and I would have made a different one, mostly based on a cost-benefit analysis. The decision to seek it was in some ways a question of fairness. If not Bean, then who? It was a good question, but I think the answer was wrong.
The two arguments that anti-death penalty advocates most often make, including in the latest effort in Nevada to ban capital punishment, are the weakest ones. First, they argue about the cost, which is relevant but often misleading, particularly in larger jurisdictions. Second (and inevitably the cost argument is a fig leaf masking this ultimate objection), they make a moral argument that the lives of society’s most brutal and evil killers are worth saving, or that the penalty is “unfair,” even in the context of their heinous crimes.
In Clark and Washoe Counties, most death penalty cases are handled by qualified public defenders and their staff investigators, who are salaried and get paid the same whether they’re working on a capital case or not. Other than expert witnesses retained by the government on behalf of the defense (who would likely be hired even in a non-capital murder case), the argued expenses are often to a large degree already built in to the existing system.
This is not true in rural counties, where “death-qualified” private defense attorneys and investigators must be separately retained at an hourly rate, and even district attorneys must sometimes hire part-time or contract staff. The Bean case cost Lyon County hundreds of thousands of dollars more due to the penalty sought than those taxpayers would have spent otherwise, or that couldn’t be spent on other public safety priorities.
But harsher penalties are always more costly. Taxpayers spend millions of dollars housing prison inmates, but that doesn’t mean decades behind bars aren’t appropriate for those who commit terrible crimes. Putting our most heinous offenders on probation or giving them a short jail sentence would save money, but it wouldn’t keep our communities safe or represent justice for the victims. It’s not about just “cost,” it’s about “cost-benefit” – a balancing calculation we hear too little about in any policy debate these days.
Some activists claim there is no deterrent value for other criminals. But this is impossible to prove. Others make a racial disparity argument, which may or may not actually be evidence of deliberate discrimination, but the lack of the argument’s effectiveness speaks to the danger of over-playing the race card in every political argument we have these days.
I think part of the problem is that the people making “cost” or other arguments a) have a cartoonish and incorrect understanding of what motivates or compels non-liberal voters and lawmakers, and b) are just terrible at hiding their true objection, which is that execution is unfair, cruel, or is ethically indistinguishable from the murderer’s own actions. This “moral” argument is a difficult sell logically or politically, and too often comes after soft-pedaling the facts which led to imposition of the death penalty in the first place. Philosophically, most Americans still support the practice, and while it’s one thing to be in favor of criminal justice reform, being seen as “pro-brutal murderer” is generally not a political winner.
As a defense attorney, I often advocate for no (or less) prison time, but making those arguments doesn’t obligate me to be opposed to the practice of incarceration in all cases (and no lawyer who took that position would be taken seriously). Personally, on a purely philosophical level, I have no problem with executing those who, like Mr. Bean, commit murders in the aggravated ways Nevada law requires before that penalty can be imposed.
The problem is that guys like Bean often want to be executed. And not everyone sentenced to death is a guy like Bean.
The better argument – especially if one wants to persuade right-leaning folks like myself – is that there is reason to distrust and therefore limit such awesome and permanent exercises of government power. A shockingly large number of people on death row have been exonerated, and the average time between conviction and exoneration is over a decade.
I bristle when people slag district attorneys or law enforcement as a whole (another mistake too many so-called criminal justice reform advocates too often make). I’ve worked with hundreds – maybe thousands – of prosecutors and police over the years, including six years as a prosecutor myself. The vast majority of them are hard-working, ethical, and conscientious, and when capital punishment is a potential option, they take the enormity of that decision to heart.
But “vast majority” isn’t “all,” and there are unfortunately a few prosecutors and police out there who, either through indifference or malice, fail to disclose evidence or engage in other misconduct. (I frequently tangled with one particularly vicious specimen of this type when I was a young public defender.) Others stubbornly refuse to change course, even in light of new, exculpatory evidence. And we have seen enough high profile cases in the media lately where accusers are simply lying. While rare, our entire centuries-old system of criminal justice is predicated on the understanding that false allegations do exist, and that sometimes prosecutors and police will act negligently, inappropriately, or malevolently.
I fear those malicious folks far less, though, than the well-meaning but careless. For example, Lyon County attempted to seek the death penalty in another case a few years before Bean, which resulted first in a mistrial due to a prosecutor’s error and then an acquittal on the murder charge when the case was re-tried. The next perfect prosecutor (or judge or detective or defense attorney) I meet will be the first. The emotional nature of dealing with the facts of these cases, grieving victims, or an angry public can understandably cloud the judgment of any government agent.
Anti-death penalty advocates do make this argument, of course, but then pivot too quickly to an abolition argument on moral grounds, essentially arguing that everyone on death row is just one more DNA test away from exoneration. The wind gets taken out of their sails when the public or lawmakers are reminded of people like Jeremiah Bean. After all, the perfect ought not be the enemy of the good, and so how is “mere” life in prison adequate for the extraordinarily evil acts he (and most other people convicted of capital murder) really did commit?
The answer I have come to believe is that death – and the attention the death penalty provides them – is too good for them.
Early in his case, Jeremiah Bean’s lawyer worked out a deal where he would plead guilty to the murders, but the state would not seek the death penalty. To the surprise of everyone, including his own attorney, he rejected the deal in open court and opted to go to trial instead. At trial, his new attorney’s only strategy was to stipulate to his client’s guilt (which can only be done with the consent of the defendant) in the hope a jury might be mollified during the sentencing phase. But the death penalty can only be imposed by a jury – could it be that Bean preferred death all along?
Certainly Scott Dozier preferred it, and after his attorneys ignored his wish that his death sentence be carried out (an odd ethical dilemma for an attorney nobody ever addressed in my law school), he took matters into his own hands. Indeed, almost everyone actually executed these days is what’s known as a volunteer – someone who waives further appeals and just wants to get on with his or her own execution. Only 12 of 186 people sentenced to death in Nevada since 1977 have actually seen the sentence carried out.
Frankly, it kills me (no pun intended) that people like Dozier or Bean get the kind of attention that they get, and then if they are executed, they get exactly what they wanted at state expense. In attempting to convince the Lyon County jury not to execute his client, Bean’s attorney repeatedly reminded them of the old adage that a coward dies a thousand deaths, while a hero dies but once. In essence, he argued that his client didn’t deserve the death penalty. I think he had a point. Why should a guy like that still be getting attention from naïve Innocence Project legal interns 20 years from now, or activists who have long forgotten or never known the names or faces of his victims? Whether the added cost is huge or negligible, what are we getting for our added money when none but the willing are ever actually put to death? What does it do to victims’ families when the jury says “death” and the verdict is never, ever carried out?
Jeremiah Bean certainly earned the death penalty, if anyone ever has. But when everything else is factored in, it wasn’t worth it, particularly given the long odds that he’ll ever actually even be executed. And if it’s not worth it to Bean, then who is it worth it for?
For those who are truly innocent, and they exist, the death penalty is a terrifyingly permanent sentence that a later exoneration cannot cure when fallible government agents are shown to have erred. For the truly evil who warrant the worst punishment imaginable, it’s better to simply leave them in a cell for the rest of their miserable lives, forgotten and alone. Either way, neither justice nor a cost-benefit analysis supports keeping capital punishment as a part of our laws.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected].
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