Dealing with the death penalty

For six months, the Death Penalty and Related DNA Testing Committee, a state legislative panel, met to consider Nevada’s version of the death penalty. Out of all the meetings, presentations and discussions, the two biggest recommendations were to stop the execution of the mentally retarded and eliminate sentencing by three-judge panels in cases where a sentencing jury was deadlocked.

Now, in two big decisions within five days, the U.S. Supreme Court has addressed the same two issues and reached almost the exact same conclusions.

“What this says to me is that our state is right in the mainstream of public opinion in the country,” said Assemblywoman Sheila Leslie, D-Reno, who chairs Nevada’s committee.

The federal ruling means that Nevada’s death penalty is going to undergo all sorts of major changes. Nearly a quarter of the people on Nevada’s death row have new ammunition for their appeals.

On June 24, the U.S. Supreme Court ruled in a 7-2 vote that juries, not judges, must decide whether death penalty aggravators (factors that qualify a murderer for capital punishment) exist in capital cases. The court’s opinion specifically addressed the death penalty laws in five states where judges decide death sentences and threw the laws into question in four different states where juries advise judges, who make the final decision.

This sounds really complicated—and it is—but to sum up the decision in one sentence: The Constitution promises a trial by jury, not a trial by judges.

And that’s how Nevada gets dragged into the fray. Here, juries decide whether murderers get the death penalty, with two exceptions: cases in which a jury deadlocks on sentencing and cases in which a convict pleads guilty to murder and waives his right to a trial by jury. In those cases, three-judge panels decide. Although the U.S. Supreme Court decision doesn’t address Nevada’s system, its ruling seems to throw the process into question.

Nobody knows exactly how this ruling will affect things in Nevada. The Nevada Office of the Attorney General reports that, of the 86 inmates now on death row, 17 were sentenced by three-judge panels. Of the 17, 10 pleaded guilty; one asked for a non-jury trial during the guilt phase and got a three-judge panel during the penalty phase; the other six were sent to death row by three-judge panels after their juries deadlocked in sentencing.

“While we expect some of the 17 inmates sentenced to death by three-judge panels will file appeals in light of this decision, we do not believe the sentencing system in Nevada is in jeopardy, and we will respond appropriately to any appeals on a case-by-case basis as we receive them,” said the attorney general’s spokesman Tom Sargent in a statement.

Public defenders, both at the county and federal levels, have pledged appeals as a result of the ruling.

Another three inmates will probably get off of death row because of a U.S. Supreme Court decision on June 20. In a 6-3 ruling, the highest court said that the execution of mentally retarded inmates was unconstitutional. Of the 38 states with the death penalty, 18 states, including Nevada, allowed this.

One of the inmates most affected by this decision, Thomas Nevius, has an intelligence quotient that’s been rated as low as 64. (The legal definition of mental retardation in most states is an IQ under 70.) A jury in 1982 found Nevius and three other men guilty of breaking into a Las Vegas home, attempting the sexual assault of Rochelle Kinnamon, and then killing her husband, David Kinnamon, after he walked in on the attack. Of the four intruders, only Nevius received the death penalty.

Nevius’ half-brother testified against him, and the brother received probation in return for his testimony. Also, during jury selection, the removal of four black and two Hispanic jurors ensured that Nevius, who’s African American, would be tried in front of an all-white jury. Six of the jurors from the original trial later signed affidavits that they would not have voted for the execution of Nevius if they had known that he was legally mentally retarded or that a neuropsychologist had concluded that Nevius had brain damage. Nevius’ case was referred to during Nevada’s debate over death penalty legislation during the 2001 session and has also been highlighted by Amnesty International.

Leslie—who was delighted by both of the Supreme Court rulings—said she doubts that the rulings will end up having a drastic effect on Nevada’s death penalty. She predicted that “no more than a handful” of people would get off death row as a result. She also said she didn’t expect the rulings to cause a change of opinions in Nevada’s Legislature, which has traditionally been pro-death penalty.

“What they will do is cause us to take a harder look at the issue,” she said.

Leslie also believes the Supreme Court decisions validate the work of the committee. While its recommendations of legislation to ban the execution of the mentally retarded and get rid of three-judge panels—which studies show lead to the death sentence a higher percentage of the time—got all the coverage, they were actually just two of the 17 recommendations the committee handed down. Many of the recommendations involve drafting letters to the Nevada Supreme Court (and other agencies) asking them to review issues such as prejudice, economic bias, attorney qualifications and judge qualifications. Other recommendations from the committee’s final meeting June 14 include bill draft requests on issues including post-conviction DNA evidence and mitigating factors.

All of this means the death penalty will continue to be a contentious issue during the 2003 Legislature. The Gang of 63 will have to modify Nevada’s laws to assure that they are compliant with the recent Supreme Court decisions, and they will have to consider the committee’s recommendations. Without a doubt, they will also have to deal with a number of other death penalty bills.

One interesting bill seeks a ban on the execution of people who were under the age of 18 when their crime was committed. (Under current Nevada law, 16- and 17-year-olds can get the death penalty.) The U.S. Supreme Court could act on this issue as well, and Leslie notes that her committee almost recommended such a ban—but that Sen. Joe Neal, D-North Las Vegas, ended up being the swing vote against the recommendation. Neal is the Legislature’s most fervent death penalty opponent, and he could not vote for the recommendation, Leslie said, because Neal saw the recommendation, as worded, as affirming the death penalty in other cases.

“I think all this shows there are some old ways of thinking about the death penalty that need to be challenged," Leslie said.