Is the Death Penalty Dying?

Eighteen months later, as he faced an endless solitude on death row, Robert Lee McConnell was to stand unaffected by the change in Nevada law he himself instigated during his historic appeal to the Supreme Court in December of 2004. It was in that case that he, taking wild swings in an effort to save himself from the capital punishment to which he had already been sentenced, hit upon a credible discrepancy between Nevada's justice system and its constitution that would not expiate him from his doom but could, in all possibility, alleviate many other men and women from death row's ironclad grip.

It had all started in 2002, when McConnell, demonic and unwavering in his resolve to recapture the woman who had left him two years earlier, shot her new boyfriend ten times, stabbed him in three places, taunted him in death by calling his mother and telling her that her son had died like a coward, then raped and kidnapped the woman on whom his fatal passion centered. He confessed to his brutal crimes, the murder a capital offense, and then he was sentenced to death by a jury soon thereafter—for they, just like the district attorney's office and the deceased victim's family and most people who followed the case, deemed Robert McConnell to be more than just reproachable: They found him to be evil.

Of the many grounds on which he tried to have his punishment overturned during his subsequent appeal to the Nevada Supreme Court (because the death penalty, he said, was nothing more than "state-sanctioned murder"), McConnell propounded one point that the justices could not dismiss, and its summation went like this:

In Nevada, one of 36 states that sanction capital punishment, there is a wide and general definition of capital offenses, for even though the only crime punishable by death in this state is first-degree murder, there are several aggravating circumstances that may constitute a murder in the first-degree conviction—such as killing with torture, or during the perpetration of other felonies, or in concurrence with an act of terrorism; and yet, to be in accordance with both the Nevada and United States constitutions, which demand that the capital sentencing scheme make a genuine and earnest effort to narrow the class of people eligible for the death penalty, the aggravating circumstances warranting capital punishment (torture, underlying felonies, etc.) must be limited. Therefore, McConnell argued, prosecutors cannot use the same aggravating circumstance to both convict a man of first-degree murder and sentence him to death.

And the Nevada Supreme Court justices agreed, ruling in December of 2004 that it was indeed unlawful to both prosecute a man and pursue the death penalty for him using the same aggravating circumstance, for the intent to commit one underlying transgression should not also be used as the proof of bloodthirstiness that prosecutors need to obtain the death penalty, a punishment that was engendered and sustained for the very worst of society's worst villains.

Terrence McCarthy, who was the Washoe County district attorney trying McConnell's case, says that the justices flat out got it wrong, and that had he been given a chance back then, in December 2004, he would have argued that the law was already clear and sufficient.

"The ruling is incorrect," McCarthy says. "We're the only state in the country that has this rule—other states started to have variations of it, but soon did away with it. It's based on a faulty analysis."

At any rate, the justices' decision on the McConnell case stands.

It didn't make any difference for Robert McConnell, however, for he had confessed to felony murder during his criminal trial, and thus no aggravating circumstances had to be argued to justify the charge.

But to other criminals convicted of first-degree murder punishable by death due to aggravating circumstances, it could. That's for sure, because the justices who arbitrated McConnell's case were unanimous and firm, establishing an unequivocal change in the law. What was yet ambiguous with their decision, however, was its applicability to past cases. The justices did not declare whether or not their ruling was retroactive. Which is a critical issue for the people on death row in Nevada who were sentenced to death on the same aggravators by which they were convicted of first-degree murder. According to Steve Owens, chief of the Clark County district attorney's appellate office, about half of the 83 people condemned to death row in Nevada right now were both tried and sentenced under at least one aggravating factor.

Owens says that some 40 individuals doomed to death by the state have now begun the process of appealing their sentences under the McConnell ruling, and that they will know their fate as soon as the Nevada Supreme Court justices declare the applicability of that crucial ruling in the cases of Mark Rippo and John Bejarano—two men who just asked Nevada's highest court to reverse their death sentences because they were convicted and sentenced under the same respective aggravating factors.

Owens, who last week, in the Rippo and Bejarano cases, presented his arguments against McConnell's retroactive application, says: "The truth is, the court can make it [merely] prospective, but it's also free to make it as retroactive as it wants.

"But if it does make it retroactive, sweepingly, then it's going to upset the entire applecart. We are going to be in a world of hurt."

And that's because the cases of those 40 death-row residents will have to be resurrected, the penalty phases retried, and not just at the expense of taxpayers but also dependent upon implausible expectations for the DA's office. Furthermore, Owens says that McConnell, which overruled 20 years of precedent, throws a wrench into DA's system—one that had been conceived and ingrained under the law as it was.

Christopher Oram, who represents Rippo, says that the timetable for a decision from the justices is indefinite.

"I've been doing this for quite a while, and there is no way to tell," he says. "They have to deliberate, research, then write the ruling. It can take six weeks, or it can take six months."

Regardless, Owens says he wouldn't be surprised if the justices make the McConnell ruling retroactively effective across the board. And he has good reason:

Up until the 20th century, statistics show, there had been at least 15,000 capital executions in America for various offenses, such as piracy and horse stealing and aiding runaway slaves, and even things like sodomy and witchcraft. Yet, with modern times the number of executions contracted, and the types of offenses punishable by death constricted, so that in the past 20 years, since the death penalty was reinstated in America after a brief legal hiatus, there have been 1,026 executions (one-third of which were conducted in Texas), and no one has been sentenced to death for a reason other than murder since 1964. For that's what the constitution requires: narrowing. Narrowing, narrowing, narrowing—until, at last, there remains only the most narrow class of people possible sentenced to a punishment more severe than life locked behind prison bars.

"It's been a national trend for states to interpret their constitutions [in this matter] more narrowly," Owens says. "To the point where, at least here in Nevada, we don't really execute anybody."

Of the 12 people Nevada has put to death since 1976, 11 volunteered themselves by declining to engage in legal battles like the vast majority of America's 3,370 death-row inmates do. Moreover, every ruling without exception in the past 20 years, Owens states, has limited prosecutors' ability to pursue the death penalty. It's as if the public conscience, whose manifestation is supposed to be the written laws of the land, is, decision by decision, affirming itself as wholly against capital punishment—if not the theory of it, then in all certainty the practice of it. It's as if America in general and Nevada in specific are trying to wipe out and exile from their constitutions that vindictive Old Testament rage. That is: It's as if we are headed, with certain but unrushed rulings like McConnell's, toward the abolishment of the death penalty as we know it.

The paradox, however, is that the majority of Nevadans support the death penalty, and three out of four Americans in general condone its employment. Thus Oram, and the men and women who make up the Clark County special defender's office, all of whom would like to see the death penalty abolished, say they do not foresee the end of capital punishment anytime soon.

Nevertheless, Owens concedes the many successes that opponents to capital punishment have had thus far, above all in Nevada, where he claims prosecutors pursuing the death penalty have been rendered impotent. He says, with frustration and near capitulation weighing down his voice like stones:

"It's true: The death penalty's opponents here in Nevada have tied the hands of the justice system."

The tragedy of it all, he adds, is that in the end there will be neither firmness nor finality in our state's justice system. Just like a house built upon sand, not rock.

Although Robert McConnell did indeed evoke the whole matter a year and a half ago, it was nothing new. Nevada itself had already established precedent on the aggravating factors issue. In the 1985 case Petrocelli v. State, the Nevada Supreme Court established for the next two decades approval for the use of the same aggravating factor in both murder and penalty trials. However, in 1988, this multiple use of aggravating factors was challenged before the U.S. Supreme Court in Lowenfield v. Phelps. And so when McConnell raised the issue in December 2004, it was Nevada's first opportunity to reconcile the two precedents. It, of course, took heed of McConnell's appeal and aligned itself with the Lowenfield case.

The Nevada justices wrote in that original brief two years ago that the impact of their ruling would be minimal. And that's because it was not then foreseen that the change in law instigated by that individual, Robert Lee McConnell, as abominable and unrepentant as he was, could turn out to be so monumental—if not in providing a leap toward the abolishment of the death penalty in Nevada, then at least in providing those Nevadans condemned to a solitary doom on death row hope for a second chance on Earth.