Is the death penalty dead in Utah?

Published: Sunday, Sept. 29 2013 12:10 a.m. MDT

Weber County prosecutors initially indicated they planned to pursue the death penalty against Matthew David Stewart, who shot and killed officer Jared Francom and also shot five other officers serving a warrant at his Ogden home last year. The case was closed, however, after Stewart committed suicide in his Weber County Jail cell in May.

Whether prosecutors would have filed an official notice to pursue the death penalty isn't known. Weber County Attorney Dee Smith declined to respond to calls for comment about the case.

The murder of a police officer doesn't always mean prosecutors will seek a death penalty, as evidenced by the Allgier case. The shooting death of Draper Police Sgt. Derek Johnson earlier this month led to a charge of aggravated murder against Timothy Troy Walker.

Gill said the death penalty is "definitely on the table" in the case, but he would not say whether he was leaning one way or another. It will likely be months before his office officially declares its intentions about whether to pursue capital punishment against Walker.

Difficult sentence

Utah is a state that is supportive of handing down the ultimate punishment. Results from a Deseret News-KSL poll conducted by Dan Jones & Associates in 2010 showed that 79 percent of Utahns either strongly or somewhat favor the death penalty. The number is higher than that of the nation; a Gallup poll released in January showed 63 percent of Americans supported the death penalty.

Utah has executed seven people in the 37 years since the U.S. Supreme Court upheld a new series of death penalty statues in 1976. But executions are also something of a rarity nationwide, as a U.S. Department of Justice report issued in July showed that 43 inmates were executed nationwide in both 2011 and 2012, with 3,082 individuals who had been sentenced to death by the end of 2011.

But public support for the death penalty doesn't mean simplicity in death penalty sentences.

"Utah imposes a very high burden to get a death sentence, and it's much higher than what the federal Constitution requires," assistant attorney general Tom Brunker, who heads the capital appeals division, said. "The state actually has a number of requirements for securing a death sentence that go beyond those laid out in the federal Constitution."

For one thing, intent to kill has to be proved in every case except those involving severe child abuse. Once an individual has been found guilty, there is a separate sentencing stage in which it must be shown that the aggravating factors outweigh the mitigating factors — and that they do so beyond a reasonable doubt.

"Even after the sentencer finds that the aggravators outweigh the mitigators, then the sentencer has to make a second finding that death is appropriate under the circumstance … and that finding also has to be made beyond a reasonable doubt," Brunker said. "And if it's a jury, the jury has to be unanimous on both of those. … So Utah has set an extremely high threshold for a death sentence."

For Brunker, who is responsible for handling the myriad appeals of those on death row, that elaborate process provides a sense of confidence.

"I think it's all right for society to say certain crimes provided by certain people warrant the ultimate sanction," Brunker said. "And I think one of the advantages to Utah having such a high bar is I don't really question whether any of the death sentences that we have is inappropriate."

But L. Kay Gillespie, an expert on the death penalty and a longtime criminal justice professor at Weber State University before recently retiring, believes the death penalty has lost much of its effectiveness. The financial costs associated with it and the extremely long appeals process has weakened its original intent as a deterrent to crime, he said.

"It just seems to me we're at the point where we're not going to be able to afford the death penalty much longer anyway with the expense involved. So whether it works or not is pretty mute," Gillespie said. "For it to be effective, some would argue it has to be certain and timely, and we're not doing that, either. We don't seem to be applying it in a very good way."

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