On the Thinker

[The following is an article I wrote that was published in Boston University's Pre-Law Review Magazine,

Spring 2008 edition. The views herein expressed are my own.]

The death penalty is among the most controversial sentencing practices in the American criminal justice system. The United States remains one of few industrialized countries that employ the death penalty as a form of legal atonement. Testing the religious and moral values of the American public, the practice has been notoriously lengthy and costly. While debate over the issue will undoubtedly persist, recent developments in a flagrant, violent crime have had grave implications for supporters of death penalty jurisprudence.

On March 11, 2005, Brian Nichols, a 33 year old African American, appeared in court to face charges of rape and false imprisonment. Nichols’ previous trial for these offenses had resulted in a hung jury. While in the custody of the Fulton County Courthouse in Atlanta, Georgia, Nichols began a violent rampage that would result in the largest manhunt in Georgia’s history. While changing into street clothes to wear in court, he overpowered sheriff’s deputy Cynthia Hall and took her firearm. After attacking the deputy, he entered the private chambers of Judge Rowland W. Barnes, where he encountered another deputy and stole his gun. Nichols then entered a courtroom, shot Barnes in the back of the head, killed court stenographer Julie Ann Brandau, and shot Sergeant Hoyt Teasley, a pursuing officer.

After his escape, Nichols carjacked three vehicles at gunpoint and pistol-whipped a reporter. In search of a hiding place, he murdered federal agent David Wilhelm and kidnapped a woman, who later convinced him to surrender. Georgia authorities arrested him 24 hours later. He was indicted in May 2005 in the same courthouse in which many of the killings occurred months earlier, facing the additional charges of murder, kidnapping, robbery, aggravated assault on a police officer, battery, theft, carjacking, and escaping from authorities. District Attorney Paul L. Howard, Jr. sought the death penalty and the case was expected to cost nearly $5 million and to last up to seven months.

Nichols, a former UPS employee and regular churchgoer, devised an elaborate scheme to break out of an Atlanta jailhouse that involved his pen-pal girlfriend, a paralegal, and at least two sheriff’s deputies. The plot was discovered and foiled in October 2006 when Nichols was moved to another facility. The Nichols case gained further national media attention after it stalled almost three years later. During the pre-trial conference in September 2007, Nichols’ defense team, which had been paid $1.2 million for its services, announced that it was not receiving enough funding from Georgia’s public defender’s office. Superior Court Judge Hilton Fuller was forced to suspend the state trial during the jury selection process. Fuller warned that the case might be suspended indefinitely if the defense was not provided adequate funding. The state public defender’s office defied the judge’s order to continue funding the defense attorneys, arguing that it did not possess the necessary funds.

In November 2007, the district attorney appealed to Georgia’s Supreme Court to force Judge Fuller to commence the jury selection process. His request was denied, and the trial was delayed for the fifth time on November 16, 2007. On January 30, 2008, Fuller stepped down from the case after being quoted in The New Yorker magazine as saying, “Everyone in the world knows he did it.” He submitted his recusal to the chief justice of the superior court, noting his breach of impartiality.

In light of these recent, troubling events, the Nichols case raises serious questions about the effectiveness of the death penalty process, a system clearly overburdened. The Supreme Court ruled in Gideon v. Wainwright (1963) that impoverished defendants must be provided free legal counsel in order for proceedings to commence. However, the question of how much these public defenders should be paid and how to assign them remains up to the legal purview of individual states. The system in Georgia had been revised in 2005 and now includes the Georgia Capital Defenders Office, which provides indigent defendants with attorneys specifically trained in capital cases. The funds for these attorneys come from legal fees collected from plaintiffs, since taxpayers were disinclined to pay for expensive capital cases. This system is representative of other systems in states that still practice capital punishment.

In the case of Brian Nichols, the prosecution enjoyed the prospect of eye-witness testimony and a written confession to all four killings. This reality, uncommon in capital cases, has not guaranteed that his victims will be vindicated. The capital punishment system appears broken, with evidence-filled cases taking longer and costing the public more. This reality represents the failures of the capital punishment system and has repercussions that are hard to deny.

According to Amnesty International, 135 countries have abolished the death penalty. The United States remains one of few industrialized countries to permit it. The Nichols case serves as an example of a whimsical practice that is hard to vindicate. Supporters of capital punishment argue that it is the ultimate form of deterrence, incapacitation, and moral correctness. Yet, research by William Bowers of Northeastern University shows that the death penalty does not curtail violence. States that do not allow the death penalty tend to have lower murder rates than those that employ it. Former Texas Attorney General Jim Mattox has remarked, "It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you'll find that the murder was committed under severe drug and alcohol abuse." According to a survey by former presidents of America’s top criminological societies, 84 percent of them admitted that research has not proven the death penalty is a deterrent to crime.

Aside from the debatable statistics and research, death penalty cases are extremely expensive. Defendants are afforded an array of additional rights and protections when preparing their defense, including character analysis by experts, psychiatrists, and psychologists. Juries in these cases are asked to consider much more than guilt beyond a reasonable doubt. They must account for factors such as mental illness or any aspect of the defendant’s character or record that may mitigate a lesser sentence. However, if the system is unable to function due to economic constraints, as evidence suggests, it should be abolished. If states are unable to derive the necessary funds, a miscarriage of justice becomes likely, such as in the case of Brian Nichols. If the district attorney had not sought the death penalty, Nichols may well be currently serving a life sentence in prison.

Based on the Brian Nichols case, as well as analysis of the cost-benefit factor, the death penalty is inefficient and ineffective. Legislators should move beyond the moral and religious debate and simply realize the economic constraints of the system. If states cannot provide public defenders with adequate pay, criminals win. In the case of Brian Nichols, he has won, as his case remains suspended until the situation is resolved. The reality of the death penalty in Georgia has shaken Americans’ trust and faith in the criminal justice system.

[The following material was not published.]

UPDATE: On December 13, 2008, Brian Nichols received multiple life sentences from a judge in Atlanta's Municipal Court. The Nichols case, originally docketed as a capital trial, cost the state of Georgia $3 million dollars. According to the Federal Bureau of Prisons, which compiles data for all 50 states and the District of Columbia, the average annual cost of housing an inmate per year is $25,000. Confining Brian Nichols for 40 years would still not equal the $3 million spent by Georgia to achieve a sentence. Moreover, the prosectors failed to persuade the jury to sentence him to death. If the jury had obliged, the Nichols saga would have continued through the complicated death row appellate process, which would have cost taxpayers even more money.

I do not intend this post to begin a debate over whether or not the death penalty is morally justifiable. Frankly, I believe in some instances it is preferable. Rather, we need to examine the issue from an economic and deterrence standpoint. We need to establish a more concrete connection between capital punishment and deterrence. If such a connection cannot be found, we cannot rely on that argument for justifying the death penalty. Moreover, if the system we employ to convict criminals in capital cases ends up costing us more than housing an inmate for 40 years or more (nearly life), clearly it needs to be revised. Since capital punishment remains a state power, the states are burdened with paying for the cost of the proceedings. If we as a nation insist on retaining this most-antiquated practice, we should at least update the legal process it relies upon.

Assuming that states will never cede this power to the federal government, there are two methods for improving the system that stand out to me:
1.) State and local legislators might need to remove some of the safeguards in the system, particularly at the appellate level, to keep costs down and expedite the process.
2.) Taxpayers will have to foot more of the bill in order to prevent 4 year trials that cost millions of dollars.