Utah execution reopens death-penalty debate

SALT LAKE CITY —

Gary Gilmore earned Utah a special place in history when his 1977 execution by firing squad reopened the door to capital punishment in the United States.

The practice has remained problematic ever since.

Otherwise, Ronnie Lee Gardner — sentenced to die for the 1985 courthouse slaying of attorney Michael Burdell — wouldn't have spent 25 years on Utah's death row.

Most countries and 15 states, as well as the District of Columbia, have found the death penalty untenable and abandoned it.

Now, as the nation again turns an eye toward Utah and its preparations for Gardner's scheduled execution by firing squad early Friday, capital-punishment proponents insist death is the only just penalty for the worst crimes.

For opponents, however, questions persist: Is the death penalty administered arbitrarily? Is justice served when inmates languish for decades? Can states afford to spend the millions of dollars capital cases require? And does the death penalty deter crime and lead to a better society?

Is it fair?

The Supreme Court halted capital punishment in 1972, convinced the penalty had been applied arbitrarily in the case of Henry Furman, who shot a Georgia homeowner during a burglary. The same concern will end the practice again, opponents maintain.

They say one well-known Utah case — that of Dan and Ron Lafferty — highlights the uneven way the death sentence is applied.

The brothers were convicted of the July 24, 1984, homicides of Brenda Lafferty, their sister-in-law, and her 15-month-old daughter, Erica, in American Fork, 30 miles south of Salt Lake City. Ron Lafferty awaits execution; his brother is serving two life terms.

They were tried separately. Unlike Ron, Dan represented himself at trial. Two jurors refused to give Dan the death penalty, although he claimed he slit the victims' throats.

"The law is not very good at specifying who should live and who should die," said Franklin Zimring, a law professor at the University of California, Berkeley.

Zimring was among those who recently persuaded the American Law Institute — an association of about 4,000 lawyers, professors and judges — to abandon its support of the death penalty based on arbitrary application.

The institute was the force that led the Supreme Court in 1976 to reinstate the death penalty in Gregg v. Georgia. The group established a legal framework of aggravating and mitigating factors to standardize the death penalty.

Without the backing of the institute, the death penalty has lost its "intellectual underpinnings," said Roger Clark, a law professor at Rutgers University. "We have to compare crimes and criminals, and we just can't do it very well. The jury makes the call, but the criteria (upon which they make their decision) doesn't make sense."

Should it take so long?

In some cases, such as that of the mother and stepfather charged in the May torture killing of 4-year-old Ethan Stacy in Utah, society demands execution, said Kent Scheidegger, director of Sacramento-based Criminal Justice Legal Fund.

"There are some crimes for which any lesser penalty is not justice," he said.

Although Scheidegger contends there is no way to make capital punishment "completely consistent," he said the system does "by and large only sentence the worst killers to death."

For capital punishment to be effective as a deterrent, he said, states must streamline the appeals process. As an example, Virginia has limited the number of appeals in capital cases to an automatic appeal followed by a second review. An execution date is set immediately if they both are denied, forcing inmates to turn to federal courts, according to the Office of the Virginia Attorney General.

Behind Texas, Virginia has executed more people since capital punishment was reinstated than any other state. Virginia's five-year average from sentencing to execution compares with a national average of 11 years, according to Northern Illinois University.

But streamlining capital cases could be even more expensive because more attorneys and judges would be needed, Salt Lake City civil-rights attorney Brian Barnard said. The time it takes to execute someone can't be blamed on defense attorneys, he said.

Death-penalty appeals are dealt with painstakingly, he said, and that takes time.

"When society is imposing something that is irreversible, the judicial system says we must be careful because (death penalty) mistakes are irreversible," Barnard said.

And mistakes have been made. The Death Penalty Information Center points to the exoneration of 138 death-row inmates since 1973.

Like most death-penalty proponents, University of Utah law professor Paul Cassell would like the time between conviction and execution to be reduced. Otherwise, he said, the death penalty works well in this country and is structured to be lenient, not barbaric.

"We could make the death penalty apply evenly, but if it's applied evenly, everyone who commits murder gets the death penalty," he said. "The sorting is done by the jury."

Does it improve society?

The last person executed in Utah was Joseph Mitchell Parsons, put to death in October 1999 for the 1987 murder of California resident Richard Ernest.

Then-Iron County Attorney Scott Burns sought the death penalty because, he said, the crime was especially heinous: Parsons robbed Ernest and stabbed him more than a dozen times with a screwdriver.

Ernest had picked up the hitchhiking Parsons in California. The pair were near Parowan in southern Utah when Parsons attacked Ernest and took his car and credit cards.

"My thought was to let a jury decide whether he deserved the death penalty," said Burns, now director of the National District Attorneys Association. "It's a difficult thing. I carry it with me every single day."

Ernest's sister, Jana Salais, witnessed the execution by lethal injection.

"It's justice, but it's not fair," Salais said. Parsons deserved a brutal death, she said. "(But) he just laid there and went to sleep."

Like the rest of the country, the families of Gardner's victims have mixed views on the death penalty.

Kirk's widow and daughters say they can't rest until Gardner has been executed. Donna Nu, Burdell's fiancée, says she would do anything to stop Gardner's execution. Otterstrom's widow, Kathy Potter, and son, Jason Otterstrom, have not weighed in.

"I don't know which path should be followed, but our family needs peace," Otterstrom said last week. "I ask that whatever decision is reached, that it be permanent."