Dead Again?

The drive to bring back capital punishment has friends in high places

Since he was elected to office in 1994, State Rep. Tom Hackbarth has been one of Minnesota's most persistent agitators for the death penalty. Over the years, he has introduced capital punishment bills in the legislature often enough that he's lost count. As Hackbarth sees it, he is "a little David" battling special-interest Goliaths--such as trial lawyers and certain ardent pro-lifers--who oppose the death penalty.

To Hackbarth's dismay, the Goliaths have kept him at bay, even though public opinion polls routinely show a majority of Minnesotans support capital punishment. "We've got all these groups pushing their issues. But there's no group for capital punishment," Hackbarth complains.

Discouraged, the northern Anoka County Republican planned to refrain from the issue entirely during this legislative session. Not that he had a change of heart. Hackbarth says he's been firmly committed to the pro-death camp since the early '90s, when he read about a disturbing case in which a burglar killed a woman and her toddler and stabbed an infant. But with a looming budget battle and numerous hot-button issues (the conceal and carry handgun law, abortion restrictions) facing lawmakers, he figured a death penalty bill wouldn't get much traction. And he worried the introduction of the issue might hurt other aspects of the Republican legislative agenda.

The past is prologue: A Minnesota gallows scene, circa 1900
Courtesy of the Minnesota House of Representatives
The past is prologue: A Minnesota gallows scene, circa 1900

Still, early in the session, Hackbarth decided to tune up a past version of a death penalty bill on the off chance circumstances might present him with an opportunity.

And then the opportunity came--in the form of a grizzly crime spree last month in which five people were killed in home invasions in northeast Minneapolis and the central Minnesota town of Long Prairie. So on May 7, Hackbarth introduced the latest incarnation of his pet project, House File 1602. If enacted, the 25-page bill would make first-degree murder with any of 23 aggravating circumstances punishable by lethal injection.

No one, Hackbarth included, expects the bill to get a hearing this late in the session. "I just want to get people thinking about it again. And if some of the chairs in the Senate or the House want to take it up, the bill is there," Hackbarth explains.

Conventional wisdom has long held that the prospects for the death penalty's return to Minnesota are poor. After all, the state has not executed anyone since the 1906 hanging of William "Billy" Williams, a steamfitter convicted of a double murder. That execution did not go well. According to historical accounts, the sheriff "hung" a heavy gunnysack several times in demonstrating the gallows to his friends. By the time Williams was actually to be hanged, the rope had stretched so much from repeated use that his feet hit the ground, and he died of strangulation rather than a broken neck. After a newspaper published an account of the incident--though it was then a violation of state law to do so--an outcry ensued. Five years later the legislature formally abolished the death penalty.

But capital punishment presently has more friends in high places in Minnesota than at any time in recent memory. While Governor Tim Pawlenty has avoided making public comment on the issue recently, he has historically supported the death penalty "in the most heinous cases," according to Dan Wolter, the governor's communications director. As legislators, two of Pawlenty's top administrators, Lt. Governor Carol Molnau and Public Safety Commissioner Rich Stanek, not only supported capital punishment; they signed on as co-sponsors of Hackbarth's bill during the 2000 session.

The death penalty, understandably, is not a subject that party officials seem keen to discuss at the moment. Asked about the party's position, state executive director Corey Miltemore professed not to know much about the specifics, and added this year's inevitable refrain: "The subject of overriding concern right now is the budget." But with the Republican Party now dominating Minnesota government, it bears noting that the reintroduction of capital punishment is part of the state Republican Party's official platform. This year's non-issue could be next year's legislative offensive.

 

In the eyes of critics, budget issues and the death penalty are inextricably linked. In the 38 states with capital punishment, the ultimate sanction has proved extremely expensive. Different studies have come up with different numbers. But no credible examination has contradicted the bottom-line conclusion that a criminal justice system with the death penalty is far more expensive to run than a system where life imprisonment is the maximum penalty, says Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

To begin with, there are the trial costs. A major study conducted at Duke University estimated it costs $2.1 million more to execute a convict than to house him for life. In New York, which in 1995 became the last state to re-introduce the death penalty, the state has spent more than $685 million on defense-related costs alone. And while it has five people on death row, New York has yet to execute a single person or to set an execution date.

A Columbia University study, meanwhile, determined that 68 percent of all death sentences are overturned at least once on appeal, with 82 percent of those cases resulting in a life sentence following a second hearing.

From a budgetary perspective, says Dieter, the most outrageous case is that of California. The state does not execute many people (fewer than one per year), but it puts a lot of people on death row and tries many more. If you take the state's total expenditure on the death penalty system and then divide it by the number of executions, each "successful" execution costs in excess of $100 million, says Dieter.

Hackbarth allows that he has little idea what the death penalty would cost Minnesota. Because of the bill's poor prospects this session, he says, he has not requested a fiscal analysis. But taking even the lower estimates of additional trial costs, it would be costly. On average, the state sees about 30 first-degree murder cases per year. How many of those would be death-qualified? No one knows, because no one has examined the issue.

Hackbarth's bill lists 23 aggravating circumstances under which the death penalty could be sought. Given the breadth and vagueness of those factors, it is conceivable that most murder-one cases could be tried as capital cases if a prosecutor were so inclined. To address this issue, Hackbarth proposes the creation of a capital punishment commission charged with drafting policy guidelines to ensure the death penalty is sought only against "the worst of the worst."

Even with a small number of capital cases, counters Minnesota State Public Defender John Stuart, a death penalty law would overburden the state's approximately 500 full- and part-time public defenders. Currently, public defenders in Minnesota handle an average of 870 cases a year--twice the American Bar Association's recommended standards. Because death penalty cases tend to consume so many resources, Stuart claims, a death penalty law would affect the quality of the representation all indigent defendants receive, not just murder suspects.

The state's current budget problems could further exacerbate the problem. While the public defenders' budget has not been allocated, layoffs are all but a certainty. Pawlenty has recommended a 15-percent cut. While the House has proposed a lesser cut--and the Senate a slight increase--Stuart is not optimistic. "Usually, when the court system catches a cold, the public defenders get pneumonia," he says.

Public defenders are not alone in their alarm at the prospect of bringing back the death penalty. "I think there are a lot of prosecutors in this state who would rather resign than request the death penalty," Stuart says. "I meet with county attorneys every year, and I have never met one who is in favor of it."

John Kingrey, the executive director of the Association of Minnesota County Attorneys, says his organization has taken no formal stance. But, he points out, the entire court system is already stressed. "The budget problems are going to affect the quality of our system of justice, and it's not just public defenders. It's county attorneys and judges, too," Kingrey says. Death penalty cases, he adds, would only heighten what are already growing stresses on the system.

Budgetary issues aside, Richard Dieter finds it difficult to believe that lawmakers in Minnesota or any of the other 11 non-death penalty states would have the stomach to bring back capital punishment. "In a few states, it's been close. Massachusetts has been through the process repeatedly, and they came close a few years ago," Dieter observes. But with a steady stream of headlines about exonerated death row defendants fueling the conclusion that the death penalty system is broken, he says, that is getting harder and harder.

"Why would anyone want to step into that quagmire?" he asks.

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