The most important decision a government can make is to take a human life. Yet the decision, in most jurisdictions, is left to a single person — an elected or appointed prosecutor. Thirty-three states and the federal government provide for the death penalty.
No other legislative mandate delegates so much power, unguided by standards or policy, than the authority vested in county prosecutors. As James E. Lobsenz wrote in the Puget Sound Law Review, “The legislature has given prosecutors unfettered power to request execution, or not request executions, as they alone see fit.” Prosecutors have been imbued with the moral conscience of their communities.
That may not necessarily be a bad thing if, for instance, as in Ohio and Pennsylvania, prosecutors are elected and the electorate is fully informed of the prosecutors position on the issue of capital punishment.
About 15 years ago, then New York Gov. George Pataki intervened in a murder case in the Bronx, because the district attorney refused to seek the death penalty in the high profile case. Pursuant to state law the case was removed from the DA. He complained that the Bronx voters had been disenfranchised because his opposition to the death penalty was well known when he won election and re-election.
The removal of a DA from a specific case could not occur in Ohio or Pennsylvania. Although in Pennsylvania the court could intervene to force a prosecutor to provide evidence in support of imposing the death penalty. If the court finds that there is not sufficient evidence the notice to pursue the death penalty can be stricken.
This year Connecticut abolished the imposition of the death penalty in all future cases. Some of the 11 men who remain on the state’s death row sued. In September, Chief State’s Attorney Kevin T. Kane testified at the inmates’ trial. According to The Hartford Courant, Kane testified that he was aware of informal discussions through the years among prosecutors about whether there should be formal guidelines for seeking the death penalty, ultimately “there were no specific policies directed to capital felony cases.”
Ohio’s law provides prosecuting attorneys with the option of seeking the death penalty for murders that involve any of 10 specific aggravating factors.
Prosecutors also consider mitigating factors when making death penalty decisions. According to the Ohio Prosecuting Attorneys Association website those factors include the youth of the accused, duress, criminal record or “[I]f the defendant has a mental disease or didn’t understand that what he was doing was a crime.”
In Pennsylvania, no county prosecutor’s office employs public guidelines defining standards and procedures for seeking the death penalty.
The death penalty is to be reserved for the “worst of the worst.” A prosecutor must assess the deservedness of the death penalty in light of all of the evidence, including the background of the defendant.
A study in Missouri found that about 76 percent of all homicides reviewed were death-eligible, yet prosecutors pursued capital trials in only about five percent of the cases. This appears to be a national trend. Prosecutors are less and less likely to seek the ultimate punishment.
Death sentences plunged last year. Only 78 people were sentenced to death nationwide in 2011, the first time that number dropped below 100 since the death penalty was reinstated, according to the Death Penalty Information Center.
In Texas, where about one-third of all executions nationwide are carried out, death sentences are dramatically down. Thirty-six killers were sentenced to death in Texas in 2002. Nine years later, that number was eight. So far in 2012 there have been six murderers sentenced to death, according to the Waco Tribune.
In Ohio, prosecutors sought the death penalty 94 times in 2004. Last year, that number fell to 56. According to the Cleveland Plain-Dealer, there were seven death sentences in Ohio in 2010, two in 2011 and three so far this year.
The reluctance of prosecutors to seek the death penalty is not necessarily a philosophical shift on punishment, but rather a pragmatic look at a costly and time consuming process that is being trumped by life in prison without the possibility of parole.
Matthew T. Mangino is an attorney and the former district attorney for Lawrence County. You can read his blog, The Cautionary Instruction, every Friday at www.post-gazette.com. You can reach him at www.mattmangino.com and follow him on twitter @MatthewTMangino.