The Politics of Death in Arizona
Supreme Court Considers Arizona Case That Affects Colorado
-- By Gregory J. Kuykendall
One hundred twenty eight people currently awaiting their fate on Arizona's death row, as well as dozens more whose cases are "in the pipeline," may soon see the United States Supreme Court declare Arizona's death penalty sentencing scheme unconstitutional. The Court decided recently to revisit its 1990 decision affirming Arizona's highly unusual method of determining whether a person convicted of murder should receive death or life in prison.
Unlike nearly all other death penalty states, and unlike the federal system, Arizona does not let juries decide or even have a say in whether a person receives life in prison or death. Instead, Arizona requires a single judge to hold a separate trial after the jury trial and in that second trial, the judge alone hears both sides' sentencing evidence and then he or she decides whether to impose a death or a life sentence.
Prosecutors love Arizona's capital sentencing system because of the proven fact that a single judge will sentence people to death with far greater frequency and ease than will twelve jurors. Judges in Arizona are elected in most counties and even in those two counties where they are not directly elected, they can be voted out of office. Consequently, judges cannot help but acknowledge political pressure to impose the death penalty.
In states where juries decide between life or death, such pressure on judges disappears. Jurors are not beholden to any political pressure and consequently prosecutors have no control over jurors' actions. Instead, prosecutors find themselves in the same boat as the defense attorneys: arguing their case only in the courtroom and only to a jury. Given their advantage in Arizona, it's no wonder that prosecutors, elected officials themselves, insist the state's current death penalty scheme should remain in place.
Judges necessarily spend their professional lives deeply involved in the justice system, and as a result, they often bring a world-weary approach to capital sentencings. Also, lawyers by and large come from socially privileged backgrounds, and once they become judges, they become just that much more privileged. But people facing the death penalty always come from our least privileged classes. Thus, it is extremely rare to find judges able to truly empathize with people coming from such a different world. On the other hand, randomly chosen jurors are in a much better position to fully understand and empathize with the social histories of people from the lowest classes.
When deciding whether and when to impose the drastic and irreversible sentence of death, the decision-makers must be able to fully understand the evidence put on by both sides. Because jurors from multiple walks of life understand and empathize better than judges, they are statistically far less likely to sentence people to death and far more likely to sentence them to life in prison without parole.
In Colorado, a state demographically quite similar to Arizona, there are only six people on death row. That is due largely to the fact that, until four years ago, Colorado, like most other states, had juror sentencing in death penalty cases. Colorado adopted a variation of the Arizona plan, with lobbying help from Arizona prosecutors, and its death row population promptly increased. Colorado’s relatively small death row is also due to a statewide public defender system that receives significantly better funding and training than the county systems in Arizona.
Even Colorado's new judge-based death penalty scheme is far less likely to produce death sentences than that used in Arizona. Colorado now requires three judges to hold a separate sentencing trial after conviction and all three must unanimously vote to impose death; otherwise the convicted person receives life without possibility of parole. One of the three judges must be the judge who presided over the murder trial. Notably, those judges who presided over trial have consistently voted at sentencing to impose the death penalty, whereas those judges who only considered the appropriate sentence have often voted for a life sentence.
Clearly, Arizona's current death penalty scheme under review by the U. S. Supreme Court results in the most death sentences. Considering the many well-publicized instances of wrongful convictions and shockingly substandard legal representation afforded to people accused of capital murder, the ease with which Arizona currently sentences people to death is alarming. Whether you believe in the death penalty or not, reasonable people would agree that any system for determining who gets the death penalty must be finely tuned and closely monitored. Arizona’s current system is unacceptably indiscriminate and badly in need of revamping.
Gregory J. Kuykendall is a specialist in criminal law certified by the State Bar of Arizona.
This article first appeared as an Op-Ed piece in the 01/27/02 Arizona Daily Star. Reprinted with permission of the Arizona Daily Star
