Dead Again 

Yet another study of Tennessee’s death penalty falls flat after legislators refuse to extend the review an extra year

A study aimed at ensuring that capital punishment in Tennessee is fair and error-free will abruptly end later this year after a handful of state legislators killed a bill that would have allowed the investigation to continue.

A study aimed at ensuring that capital punishment in Tennessee is fair and error-free will abruptly end later this year after a handful of state legislators killed a bill that would have allowed the investigation to continue.

The lawmakers’ decision likely will hinder any chance of reform, making the latest examination of the state’s death penalty about as meaningless as all the others. Multiple studies have illustrated that the state’s capital justice system is riddled with flaws, and a report issued last year by the American Bar Association declared Tennessee “woefully out of step with the national standards.” Meanwhile, inmate Paul House languishes on death row while the U.S. Supreme Court has concluded he is likely innocent.

Last year, a bipartisan bill launching the yearlong study of the death penalty sailed through the General Assembly and in the fall a committee of lawmakers, defense lawyers, prosecutors and legal experts embarked on a comprehensive review of the administration of capital justice in Tennessee—from trial to execution. Once they grasped the scope of their responsibilities, the 16-member group requested an additional year to complete its work, prolonging the study until October 2009.

Given the overwhelming bipartisan support for the study, an extension might have seemed like a reasonable request. But last week, a subcommittee of the House Judiciary Committee voted 4 to 2 to deny the plea for more time, gutting an examination of the most controversial component of the state’s legal system after fielding complaints from both constituents and prosecutors.

“Our people have been against the death penalty study group since its inception,” says Wally Kirby, director of the Tennessee Attorneys General Conference. “We just feel like Tennessee has a good death penalty statute, and there is no sense in picking at it anymore.”

During last week’s subcommittee meeting, Kirby relayed his concern that the study is a veiled attempt to abolish the death penalty. And although Kirby doesn’t believe that’s the intent of the committee’s chairmen, he believes the study is just another avenue for abolitionists to voice their opinion that the death penalty is wrong.

But David Raybin, a defense attorney who also is a proponent of capital punishment, believes legal reforms are long overdue, and he’s “amazed” that some lawmakers are refusing to allow more time for the study. A former prosecutor, Raybin helped draft Tennessee’s current death penalty law in 1977 and now believes the system is flawed because it’s drastically underfunded. He addressed that problem when he testified before the study committee late last year.

“I think they were starting to get to the root of some of the issues, and I suspect that people didn’t like what they were hearing,” Raybin says. “They just don’t want to hear that it’s going to cost millions of dollars to have a fair death penalty system.”

One of six members of the House Criminal Practice Subcommittee, Rep. Henry Fincher voted against the extension, even though he voted in favor of launching the study last year. The Democrat from Cookeville suggests 12 months is plenty of time, and that extending the study will just postpone any possible recommendations.

Fincher also admits, though, that some of his constituents were alarmed after seeing headlines about the death penalty study committee.

“The media made it sound like the committee was anti-death penalty and that the legislature was somehow attacking the death penalty. I heard from several constituents and reaffirmed my own commitment to fair and swift enforcement of the death penalty,” Fincher says.

Last year lawmakers charged the study committee with examining a wide range of issues, including the quality of legal representation provided to poor defendants, the risk of wrongful convictions, racial disparities and costs associated with the capital punishment.

But thanks to last week’s vote, Rep. Kent Coleman, co-chairman of the study committee, says the group now will be unable to carry out its mission. The Murfreesboro Democrat was one of two dissenting votes on the subcommittee that voted to deny the extension, which he says effectively eliminates any chance of proposing meaningful recommendations to improve a troubled system.

A few lawmakers on the subcommittee believe the death penalty study was to blame for executions currently not proceeding in Tennessee, Coleman says. In truth, there’s a nationwide de facto moratorium as the U.S. Supreme Court reviews the constitutionality of the country’s prevailing method of lethal injection.

“I was quite disappointed that the [subcommittee] appeared to be acting under the misimpression that the study is a factor in why executions are not taking place,” says Coleman. “I don’t know if they were motivated by this misimpression, or if there was an underlying fear that the public felt they were anti-death penalty.”

The death penalty study came about after the Tennessee Justice Project—a nonprofit campaign that promotes fairness in the criminal justice system—lobbied lawmakers to investigate the state’s administration of the death penalty. Once confident that this study would result in reform, Brad MacLean, assistant director of the Tennessee Justice Project, says this latest development demonstrates that at least some legislators, along with prosecutors, simply do not want the death penalty examined. “They want instead for us to put our head in the sand, even though any honest person must admit that the system is broken,” he says, adding, “Their position is unprincipled.”

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