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April 25, 2011

Should Nevada DA be praised or assailed for a large number of capital prosecutions?

The question in the title of this post is prompted by this very interesting commentary in the Las Vegas Review-Journal, which is headlined "Death penalty numbers add up for district attorney, taxpayers." Here are the excerpts that prompt my query:

Death penalty foes have come up with a killer statistic to promote their cause. Clark County has more pending death penalty cases per capita than any other urban county in the United States, according to Paola Armeni, president of Nevada Attorneys for Criminal Justice. Using her numbers, which District Attorney David Roger is not disputing, Clark County has 80 defendants facing pending trials in which prosecutors are seeking the death penalty....

Understand, this doesn't mean jurors and judges actually hand down that many death penalty verdicts each year. It's a cumulative number. Prosecutors estimate they approve seeking the death penalty for 15 or 16 cases a year, on average, although the number has increased.

There are plenty of theories about why District Attorney Roger, who relies on a death penalty panel, seeks the death penalty more often than prosecutors in other counties. Armeni believes he does it as a negotiating tool. However, Public Defender Phil Kohn credits the large number to Roger's refusal to negotiate with defense attorneys for life without parole in exchange for dropping the death penalty.

Roger countered it's because the crimes warrant the death penalty under Nevada law, which spells out the aggravating circumstances where death is appropriate. Chris Owens, assistant district attorney, estimates that an average of two or three cases a year end up with death penalties. He credited the large number of pending cases to multiple appeals and judges who postpone trials.

What isn't disputed? Death penalty cases are more expensive because there are different standards when a life is at risk. The defendant gets two attorneys, and more research and investigation is required.

Assemblyman Tick Segerblom, D-Las Vegas, is pushing Assembly Bill 501, a study to determine the costs of death penalty cases in Nevada: "At this point it's a financial issue. David Roger is over budget, and yet he has 80 death penalty cases pending. Washoe County only has one. Why is he wasting our money pursuing the death penalty when there is no money and it's virtually impossible to actually put someone to death?"...

When Roger took office in 2003, he said, "The defense bar came to me and said there's a bill before the Legislature which would increase our rates in capital cases. Would you support that bill? I agreed to support that bill, and now eight years later, they are using that as a sword against me."

Meanwhile, Assembly Bill 520 would shift the costs of post-conviction appeals for all indigent defendants, including death penalty cases, from the state back to the county of origin. Clark County opposes that, estimating the unfunded mandate will be more than $500,000 a year and will increase over the years.

If 80 pending death penalty cases equals $80 million in higher trial costs, and millions more for appeals, it makes one question how much is too much when it comes to justice. "The cost of killing killers is killing us," Armeni contends.  Should the cost of justice make a difference when the economy is bad?

This commentary spotlights a narrow factual question as to whether DA Roger does or does not use capital prosecutions to secure pleas from murderers, as well as a broader normative question as to whether a prosecutor should or should not use capital charges to secure pleas.  The commentary also prompts one to wonder whether, due solely to tight budget realities, a prosecutor ought to be much more willing to take a plea simply because he knows it will save the taxpayer the litigation costs of pursuing a capital case (which, it seems here, this DA has himself help raise by being willing to ensure that the capital defense bar get adequate resources).

April 25, 2011 at 06:04 PM | Permalink


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If, as some studies suggest, the DP saves innocent lives, then this DA should be lauded for his political courage.

Posted by: federalist | Apr 25, 2011 9:16:23 PM

The DP rate is not sufficient. It needs to be carried out on the 15,000 members of the lawyer hierarchy for their out of control insurrection against the Constitution.

Posted by: Supremacy Claus | Apr 25, 2011 11:35:00 PM

It seems judges can be assailed and overruled for weighing up mitigating circumstances that may, in their view, indicate an appropriate below guideline sentence, but prosecutors can be acclaimed, and empowered with immunity, for exercising maverick claims for the death penalty. There is no greater illustration of the failings of the US justice system which a) has layer upon layer of judicial review but a total absence of prosecutor accountability, and b) tolerates both a State and National variation of capital punishment practice and policy which renders the notions of fairness, justice and moral decency redundant (and the US Supreme Court something of a laughing stock). Instead of tying itself in knots to avoid the bigger picture of legal direction, that should be its role in overseeing the necessarily evolving interface of Constitution and civilization (for want of a better expression), the Supreme Court needs either to throw off its self-imposed shackles of conservatism, or enter a period of consultation and judicial negotiation with the greater state.

Posted by: peter | Apr 26, 2011 2:17:40 AM

The Colorado D.A. who was the subject of an earlier post would probably give this guy a huge bonus.

Posted by: reader | Apr 26, 2011 11:22:03 AM

loved this part!

"This commentary spotlights a narrow factual question as to whether DA Roger does or does not use capital prosecutions to secure pleas from murderers, as well as a broader normative question as to whether a prosecutor should or should not use capital charges to secure pleas."

Yep overcharging and blackmail is a wonderful thing...When done by the state. A crime if anyone else dares to do it!

Posted by: rodsmith | Apr 26, 2011 7:20:26 PM

In simple terms abolish the Death Penatly altogether in the State of Nevada.........Has anyone ever asked DA Roger's what does it prove? Should he be appraised for it. NO................is my answer.

Posted by: Donna Larson | Jun 5, 2011 2:16:12 AM

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