Nancy Hart could give you many reasons why she is against the death penalty. It costs too much. It’s inhumane. It brings up the question of constitutionality. Its use seems arbitrary. As the president of the Nevada Coalition Against the Death Penalty, she has looked at every reason Nevada should abolish the death penalty.
“You don’t have to believe it’s unconstitutional or violates human rights to be against it,” she said. “It is a poor public policy. The way it is administered is deeply flawed.”
The fact that 82 people sit on Nevada’s death row — some for more than 30 years now and who might never be executed — is yet another reason to believe the system needs, at a minimum, more scrutiny.
“The more people learn about it the less they are supportive of it,” Hart said.
WHO IS ON DEATH ROW
Since the United States Supreme Court reinstated the death penalty in 1976, 151 people have been sentenced to death in Nevada.
Of that number, 11 died of natural causes, two committed suicide, 11 were executed after they waived their appeals and one went through the appeal process before execution.
“[There were 11 people] who said they didn’t want to go through the appeal process,” said Scott Coffee, with the office of the Clark County public defender. “We have only had one person executed against his will.” That was Richard Moran, executed on March 30, 1996, after being convicted of killing two people. The last execution in Nevada was in 2006.
Hart said there have been 44 people removed from death row due to legal action. “The reason varies case by case,” Hart said. “The reversal rate in Nevada is presently 36.4 percent.”
The state has released people such as Ronnie Milligan, who sat on death row for 20 years and was released in 2010 after new evidence surfaced, which included a letter from an eyewitness at Milligan’s trial who insisted that he, not Milligan, had killed the victim. The letter said Milligan wasn’t even at the scene. Milligan had testified at the trial that he had a blackout at the time of the crime due to alcohol use. District Judge Richard Wagner resentenced Milligan to life with the eligibility of parole, for which Milligan was immediately eligible.
Another instance, which Coffee said was embarrassing for Nevada, was the case of Thomas Nevius. He spent 20 years on death row after being convicted of burglary and murder. The catch — he was mentally disabled. In a letter requesting clemency, the American Civil Liberties Union described Nevius as having an IQ between 57 and 68 and functioning at a level between a 5-year-old and a 9-year-old. The Supreme Court ruled it unconstitutional to execute someone who is mentally disabled in 2001, months before the Nevius case was resentenced.
In his case, three other people were convicted alongside Nevius, all of whom testified he pulled the trigger. None were mentally disabled. None received the death penalty. Eventually, the Nevada Pardons Boards reduced Nevius’ term to two life terms without parole.
With 12 executions, Nevada doesn’t have the highest execution rate per capita. It ranks 13th for executions as of 2012, and has the fourth highest sentencing rate based on the state’s 2007 population, according to the Death Penalty Information Center.
In Clark County, with a population of 1.8 million, Hart said, there were, all together, about 80 cases pending in 2012, meaning the Clark County district attorney has filed its intent to seek the death penalty in those cases. Coffee said the number is now down to 70.
Los Angeles County, with 9.8 million people, has 33 pending cases. Similarly low rates can be found in Maricopa County in Arizona (67 pending cases and 3.95 million people), and Riverside County in California (40 cases with 2.1 million people as of 2009).
Clark County seems high, Coffee said.
The Clark County district attorney’s office filed its intent to seek the death penalty in 24 cases in 2010 and 23 in 2009, which is up from 13 in 2007. Filings were down again in 2011. There were 13.
“The DA in place is making efforts to try to resolve this,” Coffee said. (Despite several calls, CityLife was unable to get a comment from the district attorney.)
Even if all those cases receive a death sentence, Coffee added, there is a one-in-three reversal rate.
SENTENCED TO DEATH
In 1972, the Supreme Court said capital punishment was unconstitutional. However, four years later, in Gregg v. Georgia, the court changed its mind. Georgia had implemented policies that included: establishing separate proceedings for the trial and the sentencing; setting up aggravating circumstances that recognized that certain murders were worse than others; and creating a specialized appellate review, according to the Death Penalty Information Center. When the Supreme Court reviewed the case, it approved Georgia’s guidelines and ruled that the death penalty itself was constitutional under the Eighth Amendment.
The states that still have the death penalty — 17 states have abolished it — must abide by those rules.
However, some states have different requirements for aggravating circumstances, or special conditions that increase the severity of the crime.
Nevada has 15, which Coffee said isn’t the highest but is still on the higher end.
Nevada considers factors such as whether the victim was 14 or younger, whether the murder involved torture or mutilation, was classified a hate crime, was random or without apparent motive, or involved a greater risk of death to more than one person.
Coffee said some circumstances make sense, while others are too broad in interpretation. There have been legislative attempts to alter or clarify the language of aggravating circumstances, but none have passed, Coffee said.
Howard Brooks, deputy public defender with the office of the Clark County public defender, thinks this is problematic.
“If you want to have a death penalty that is real and works, you don’t want to have a lot of aggravating circumstances,” Brooks said. “You want to have a few. The tighter it is, the more well-defined it is, and the more easily the government can defend it in our state. The death verdict is not very meaningful.”
Even in cases where situations are similar, the death penalty isn’t always issued.
James Chappell has been on death row close to 20 years. After finding a love note addressed to the mother of his three children, Chappell, who had recently been released from prison, went through a fit of rage and stabbed his girlfriend 13 times.
Brooks, Chappell’s attorney, thought it would be characterized as a crime of passion — murder in the second degree.
Other Brooks clients had committed similar crimes in which a death occurred from multiple stabbings, and those sentenced received anything from life without parole to a reduction to voluntary manslaughter. But Chappell was charged with murder in the first degree and sentenced to death.
“This just shows how arbitrary the system is,” Brooks said.
There are two groups in Clark County that take on death penalty cases: the murder team at the Clark County public defender’s office, and the special public defenders office, which handles cases if there is a conflict of interest.
Brooks said if a person is convicted, he or she can appeal it through a series of steps.
“People always say if we didn’t have the appeals process, it wouldn’t be as expensive,” Coffee said. The process, however, is federally mandated. “As soon as we tried to get rid of it, the feds would step in and throw the death penalty out the window,” he said.
In addition to being federally mandated, Hart said, the appellate process has often proven an inmate’s innocence. She added that a lot of those exonerated weren’t deemed innocent by trial but through the efforts of law clinics or groups such as the Innocence Project.
There have been 1,323 people executed in the U.S. since the death penalty was reinstated. However, there have also been 142 death row inmates who were found innocent and exonerated — for example, Nevadan Roberto Miranda, who spent 14 years in prison before being released in 1996.
Amid problems such as the arbitrary nature of sentencing or the debate on aggravating circumstances, Hart has seen rampant racial bias on death row.
“It is really frightful and [racial bias is] exhibited both in terms of executions and the race of the victims,” she said. “About 30 to 35 percent of death row inmates are African-American.” She added that Nevada’s population is about 8 percent African-American; Clark County has 11 percent, according to the U.S. Census Bureau.
“Race of the victim is a powerful determination on who gets the death penalty,” she said. “Black victims are not valued as much as white victims.”
In the 12 executions Nevada has carried out, all involved criminals whose victims were white, according to the Death Penalty Information Center. Race of the offender has varied.
Nevius was African-American. Another controversy of his case mentioned by the ACLU was that the prosecutor used his peremptory challenges to remove all minorities from the jury.
WHAT’S IN THE WORKS
Opponents of the death penalty, such as Hart, say the cost factor of the death penalty should be taken into consideration.
In 2011, Gov. Brian Sandoval vetoed Assembly Bill 502, which would have studied the cost of the death penalty in Nevada, including pretrial, trial, appeal, post-conviction and incarceration costs. Sandoval said he wasn’t persuaded that “the outcome of the audit performed will be fair.”
Assembly Bill 444 was proposed in the 2013 session. A legislative auditor routinely audits certain things during the interim period between sessions. If this bill passes, it would add studying the costs of the death penalty to the list. Hart said it hasn’t been heard yet.
In a separate study, Terance Miethe from UNLV’s Center for the Analysis of Crime Statistics, compared the cost of trials that sought capital punishment versus those not seeking the death penalty, using 80 pending capital murder cases in 2012.
The study projected it would cost $15 million more with the death penalty than if the cases were prosecuted without seeking it. Miethe attributes this to many factors — for example, cases that resulted in a death sentence took an average of 1,107 days, compared to cases involving life without parole, which took an average of 887 days.
Coffee said that figure is small; Hart added the figure was just a snapshot of some of the expenses. But the cost has not been reviewed by the Legislature.
Alongside the bill that would review the costs is a bill that would allocate money to build a new execution chamber.
Greg Cox, director of the Department of Corrections, said the project would cost $692,000 and be funded through the capital improvement program. “What we’re doing is remodeling the visitation area of the Ely State Prison,” he said referring to where the new chamber would be built. “[Constructing a new chamber] is our No. 1 priority.” If approved, it could be built in two to three years.
Cox said executions can still be carried out at the Nevada State Prison, which closed in 2012. “Part of the building has been decommissioned, but that area hasn’t been,” he said.
Hart said the need for new execution chamber is a poor expenditure of taxpayer dollars.
“There is an existing chamber in Carson City that is now closed,” Hart said. “When they decided to close the prison last session, it was under the assurance executions were able to proceed.”
Of course, the question, perhaps forever unsettled, is, should they?