A push to abolish the death penalty is gaining steam in Utah, with support along the political spectrum.
Two state legislators, Rep. Lowry Snow, R-Santa Clara, and Sen. Dan McCay, R-Riverton, plan to introduce legislation in the upcoming session that would repeal capital punishment and replace it with the option of 45 years to life in prison. The other existing alternatives, life in prison or a 25-years-to-life term, would remain.
Utah County Attorney David Leavitt has announced that he will no longer seek a death sentence in any case, citing the “enormous” expenditure of taxpayer dollars and saying that “pretending that the death penalty will somehow curb crime is simply a lie.”
And the top prosecutors in four counties – Leavitt, Salt Lake County District Attorney Sim Gill, Summit County Attorney Margaret Olson and Grand County Attorney Christina Sloan – have released an open letter to Gov. Spencer Cox and the Utah Legislature urging them to support the legislation.
“As prosecutors from different parties, with different perspectives, and serving different people, we approach this issue for different reasons,” the letter says. “We don’t all necessarily agree on each of the reasons provided below, but we are united in our call to repeal the death penalty and replace it with a 45 to life sentencing option.”
Gill said the proposed repeal has nothing to do with political affiliation.
“It’s about doing the right thing for the right reason for the right outcome,” he said.
The half-dozen reasons listed in the letter to repeal the death penalty are the possibility of executing an innocent person; the failure of capital punishment to deter crime; the racial inequity in its application; the trauma it causes to the victims’ loved ones as appeals drag on for years; the financial impact on taxpayers for cases that cost $1.12 million more than the cases of inmates who spend the rest of their lives in prison; and the coercion involved in guilty pleas caused by the defendants’ need to bargain for their very lives.
The letter says the most recent FBI report shows average crime rates for the states with the death penalty were higher than the average crime rates for the states that had abolished or halted the death penalty.
“The murder rate in Texas, the leader in executions with 572 in the last 45 years, is double what it is in Utah, which has executed just seven people in the same time frame,” the letter says.
Under current law, aggravated murder is the only crime that has death as a possible sentence in Utah. There are seven inmates on the state’s death row, all men. One is Hispanic, one is Black and one is Native American.
The legislation is prospective and would not affect these existing cases.
The last execution carried out in the state was in 2010, when Ronnie Lee Gardner was put to death by firing squad.
“That 45 years to life is a game-changer.”
Salt Lake County District Attorney Sim Gill
Gardner was condemned to die for fatally shooting attorney Michael Burdell during a 1985 escape attempt from a Salt Lake City courthouse. At the time, he was serving a 5-year-to-life term for killing Melvyn John Otterstrom during a 1984 robbery at a Salt Lake City bar.
Since 1854, Utah has executed 50 people, five of them by hanging, four by lethal injection and 41 by firing squad.
Two recent attempts to pass legislation that would end the death penalty failed. A 2016 bill sponsored by then-Sen. Steve Urquhart, R-St. George, passed the Senate but didn’t make it to the House floor for a vote. A bill sponsored by then-Rep. Gage Froerer, R-Huntsville, in 2018 was waiting for a vote but he pulled it because there weren’t enough votes for it to pass.
Gill, whose office has been working on the death penalty issue for years and helped draft the proposal, said “this is probably the best chance we’ve ever had for repeal.”
“That 45 years to life is a game-changer,” Gill said. “It addresses the issue of the seriousness of the crime, it recognizes the harm that victims have undergone in the loss of that life, and it is a strong community response.”
Opposition to abolishing capital punishment
The proposal has opponents and polls show that a majority of Americans support the death penalty. Some are on the fence about it.
Gov. Spencer Cox is rethinking his support of capital punishment. He said at a PBS Utah news conference on Sept. 30 that he has not taken a stance on the proposal yet.
“I’ve been supportive of the death penalty in the past,” the governor said. “But certainly, I’ve had occasion to reevaluate my feelings about the death penalty. And I think that certainly any time we take a life, especially government taking a life, it’s a very conservative thing to do to pause and make sure we always get that one right.”
In a tweet, the American Civil Liberties Union of Utah said it has opposed the failed practice of capital punishment for decades “as the ultimate denial of civil liberties that violates the Eighth Amendment protection against cruel and unusual punishment” and that the goal of phasing out the death penalty is achievable.
But Rep. Paul Ray, R-Clearfield, who supports having capital punishment in Utah, predicts any legislation to abolish the death penalty will die in the House.
“I’m getting lots of calls from my House members that says that we can’t let this thing go through,” Ray said. “We’ve been fighting this fight for 10 years now and I have not seen any growth in support of getting rid of the death penalty.”
Brent Jex, president of the Utah Fraternal Order of Police, also thinks the state should retain capital punishment. He said in a Facebook post that Leavitt had promised to pursue the death penalty in the slaying of Provo police officer Joseph Shinners and criticized the prosecutor for dropping that option.
“I have not seen any growth in support of getting rid of the death penalty.”
State Rep. Paul Ray
Matt Frank Hoover is charged with aggravated murder for allegedly shooting and killing Shinners in January 2019 while the officer was trying to arrest him on felony warrants.
In plea deals, the most severe potential punishment is taken off the table, which currently is execution in an aggravated murder case, Jex wrote in the post. If the death penalty is abolished, a life term without the possibility of parole would become the maximum sentence, which could be bargained down to a prison term with the possibility of parole.
“Every cop knows that once that deal is made, a homicide suspect will serve between 7-12 years max….unless they mess up inside,” Jex’s post says.
Family members of victims in another Utah County case are angry that an execution won’t be sought against the defendant. Jerrod Baum is accused of killing 18-year-old Riley Powell and 17-year-old Brelynne “Breezy” Otteson and dropping their bodies down a mine shaft in December 2017.
Fox 13 News reported that Otteson’s aunt, Amanda Davis, said the decision to not seek a death sentence hands a victory to the accused. (https://www.fox13now.com/news/local-news/families-of-murder-victims-react-to-utah-county-death-penalty-announcement)
“Our justice system is broken,” Davis said. “At what point do the kids get a voice in this? They didn’t get to choose to live. They don’t get to laugh. They don’t get to write family members. They don’t get to make phone calls. Baum gets all of that.”
Pain, sorrow and heartache
Leavitt cites limits on his office’s ability to assist and care for victims of noncapital crimes because of the resources needed for capital cases and the exonerations nationwide of people who were wrongfully convicted as reasons for no longer pursing death sentences.
The government needs to make every effort to correct its mistakes, but there’s no undoing an execution, he said.
Leavitt also said that in a “vast number” of murder cases that are resolved with a plea bargain, the defendants are threatened with a death sentence and whether guilty or not, admit to the crime to spare themselves the possibility of being executed.
“What that means is that the government says, ‘We won’t kill you if you don’t make us prove the evidence that we have against you and just agree to spend the rest of your life in prison.’ Is that the kind of government that we want to have?” Leavitt said.
The pain, sorrow and heartache of victims’ families as years go by with no execution also is a reason for his decision to no longer try to get death sentences, Leavitt said.
He compared two Utah County cases as an example. In July 1976, Gary Gilmore killed Max Jensen and Bennie Bushnell in separate robberies in Orem and Provo. Gilmore was convicted at the conclusion of a two-day trial in October 1976, sentenced to death and executed by firing squad on Jan. 17, 1977.
“If you can’t get it done, then the next best thing for me is to just remove and replace the death penalty.”
Sharon Wright Weeks
The execution was the first in the nation after the U.S. Supreme Court, which had ruled in 1972 that capital punishment was unconstitutional as administered, approved new death penalty statutes in 1976. The last execution before Gilmore’s had been carried out in 1967.
The case of Ron and Dan Lafferty, brothers who killed their sister-in-law, Brenda Wright Lafferty, and her baby daughter, Erica, on July 24, 1984, at their American Fork home, dragged on for decades. The two men were convicted at separate trials in 1985 of the grisly murders and a jury gave Ron Lafferty a death sentence, while Dan Lafferty got two life sentences.
Ron Lafferty’s appeals were still pending on Nov. 11, 2019, when he died at age 78 of natural causes at the Utah State Prison. Despite Lafferty being on death row for 34 years, an execution date had not been set at the time, although the Utah Attorney General’s Office said he could have been within months of dying by firing squad after losing an appeal a few months prior.
Leavitt thinks victims who have gone through the justice process for decades will agree with taking the death penalty off the table.
But he said, “I think victims whose wounds are still fresh won’t because they haven’t had the scab ripped off 15 times and had to heal again.”
Sharon Wright Weeks, Brenda Lafferty’s sister, supports repealing the death penalty and replacing it with a 45-years-to-life prison term. After years of waiting for an execution that never happened, she decided the death penalty doesn’t work and is not a deterrent.
That realization came to her around 2013, when she went to a federal court hearing where Ron Lafferty’s mental competency was being reevaluated for the third time, Weeks said.
“I realized it just was not going to happen,” Weeks said of an execution. “I knew in my mind, in my heart, in my body, in my soul that it was not going to happen, that we were never going to get there. If my case wasn’t going to actually come to fruition for my sister and my niece, I knew it would never happen for anybody else.”
She said her family had accepted that two life terms for Dan Lafferty and the death penalty for Ron Lafferty were just. After that federal competency hearing, Weeks prepared herself “for not having justice” in Ron Lafferty’s case and reached out to Snow in 2017 about her concerns.
“If you can’t get it done, then the next best thing for me is to just remove and replace the death penalty so that there is that feeling of justice like we got in Dan’s case,” Weeks said. “I never give him a second thought. Nobody gives him a second thought. He’s never in the newspaper. He’s never talked about. People don’t even know if he’s alive or dead. That’s what I want for the next family. I don’t want them to have to hear their names continually come through the media because of an ongoing post-conviction process.”
Snow said learning about the trauma to victims’ families, the risk of executing an innocent person and the costs connected to death penalty cases made him move forward on the legislation.
Lengthy appeals can essentially do away with the state’s ability to impose a death sentence and putting the killers away for the rest of their natural lives is a better approach, he said.
“They never get out, they never see the light of day, they never leave prison except in a coffin,” Snow said, adding that instead of using taxpayer money to pursue a death sentence, resources can go toward getting criminals off the streets.
‘Fundamental flaws across the board’
Currently, 27 states plus the federal government have the death penalty on the books. Of those, Wyoming has no one on its death row and three states – California, Oregon and Pennsylvania – have a moratorium on executions, according to the nonprofit Death Penalty Information Center (DPIC).
In addition to the 23 other states, Washington, D.C., does not have the death penalty.
DPIC Executive Director Robert Dunham said there’s a nationwide trend toward abolishing or reducing the use of capital punishment. He cited a series of facts to back up his claim: No state has added the death penalty since the 1980s; 11 states have either judicially or legislatively abolished capital punishment in the past 16 years; and no executions have been carried out west of Texas in the past six years.
In addition, Dunham said that in the mid-1990s, more than 300 death sentences were being handed down each year but 2021 will be the seventh consecutive year of fewer than 50 death sentences. He acknowledged the pandemic has played a role in the decrease in the past few years but said the numbers still are near record lows.
Dunham also noted the previous repeal attempts by Utah and the several occasions when Montana came within a vote of abolishing the death penalty.
“What we’re seeing is significant movement involving both Democrats and Republicans away from capital punishment in the Western United States,” Dunham said.
He attributes the shift to the same reasons given by the Utah prosecutors, including the universal fear of executing a wrongfully convicted individual. Since 1973, 186 inmates have been exonerated of all charges related to their death sentences, which is one exoneration for every 8.3 people executed, according to the DPIC.
The most recent exoneration was in August, when a Mississippi judge granted a prosecution motion to dismiss charges against Sherwood Brown, who had spent 26 years on death row after being convicted of killing a 13-year-old girl. The DPIC says the conviction was based in substantial part on false testimony by expert forensic witnesses and a jailhouse informant.
“There are fundamental flaws across the board in capital punishment that are recognized by people of all different philosophical persuasions,” Dunham said.
He said public opinion polls by Gallup have shown a decline in support of capital punishment from 80 percent in 1994 to 55 percent now. But when asked what is the appropriate punishment and given the options of the death penalty or life without parole, 60 percent said they support the alternative to capital punishment, Dunham said.
He added that people who are pushing to abolish the death penalty tend to support capital punishment.
“They just don’t support the death penalty that we have and they have reached a conclusion that we are not capable of creating a death penalty that is sustainable and defensible,” Dunham said.
In other words, murderers like Troy Kell (who was serving LWOP for a prior murder, then murdered again while in prison), will not be punished additionally.
Why give any murderer a shortened sentence? They owe all of us a long and unpleasant coda on their worthless lives. Gilmore laughed at you, at me, and on the entire state, and justice was cheated.