Mimesis Law
16 July 2019

New Idaho Policy: Kill Locally, Tax Globally

September 14, 2016 (Fault Lines) — Idaho wants to kill Jonathan Renfro. Well, that’s not quite accurate. It would be more accurate to say that Kootenai County wants to kill him. Or to be even more granular, that it’s Barry McHugh, the County Prosecutor, who wants to spend the time and public resources to get a capital conviction.

That’s not to say that McHugh is solely devoted to appearing tough on crime. In fact, when he was elected to a second term in 2012, he credited it to “[t]he efficient operation of the office from a fiscal basis.” But that seems like a bit of a contradiction.

I mean, killing people is expensive. Way more expensive than letting them die in a cage. It can cost millions of dollars to grind a man through all the layers of appellate process. How is McHugh, who prides himself on being a wise steward of taxpayer funds, also managing to pursue a financially ruinous capital case?

Kootenai County Public Defender John Adams has a theory. He thinks that McHugh isn’t drawing the money he’s using to execute people from his county budget. Why? Well, for one thing, McHugh has spent $92 grand on expert witnesses, and his county budget is only $8.5. Adams thinks that the money is coming from the Idaho Capital Defense Fund, which was established in 1998. That’s a bit weird, because the enacting language is pretty clear:

The establishment of a capital crimes defense fund by the counties of the state for purposes of funding the costs of criminal defense in cases where the penalty of death is a legal possibility is hereby authorized.

But if the money is allocated for the defense, how is it being used for prosecutors? John Adams explains:

Money from the Capital Crimes Defense Fund is intended to offset defense expenses in capital cases. Adams is concerned that money is being dumped into a general “justice” fund and is then allocated to the prosecutor’s office. If Kootenai County Prosecutor Barry McHugh was seeking a life sentence, Adams argues, he would not get money from capital crimes fund. Brannon could not say where, exactly, the money from that state fund went.

If this is true, as Adams claims, it opens up a disturbing possibility. McHugh might not just be trying to kill Renfro because he’s a bad dude who killed a police officer. He might be trying to kill him because it allows him to use outside funds to prosecute the case, thus freeing up regular funding for the normal duties of the County Attorney’s Office.

Which is not to say that proving it will be easy:

Commissioner Dan Green was the final public official called to testify. Green, who also serves on the board of directors for the CCDF, was asked by Adams if he recalls a discussion during a CCDF board meeting where Green allegedly said the prosecutor’s office considers funding when deciding whether to pursue the death penalty.

Green replied he did not recall making the statement, but did not deny making it. After allowing Green to look at the minutes from the meeting, Adams asked the commissioner the same question.

“I don’t remember,” Green replied.                    

This is a classic response, typically used by card-carrying gang members reluctant to risk snitching and local politicians to be sure they won’t get in trouble. Is Green seriously disputing that he said the things listed in the board meeting minutes? Maybe not, but he thinks claiming he doesn’t remember isn’t perjury.

If McHugh is doing as Adams says, it’s a problem. As has been well documented, the death penalty is dying. Part of it is the newfound availability of competent capital defenders, who don’t necessarily drink a quart of vodka a day or fall asleep at their desk, and so put up a brisker challenge than the drafted real estate attorneys of yore. In Virginia, a successful capital case is now a rarity. Georgia’s capital defenders, meanwhile, can go years without letting a death sentence slip by. It doesn’t help that most criminologists now seem to agree that the death penalty is less effective at deterring crime than, say, keeping an angry chihuahua in the house.

So ordinarily, a prosecutor who chooses to pursue the death penalty has to face a harsh political reality. While a successful execution might look good in the papers, an unsuccessful prosecution will not showcase his status as a good steward of the public till. Bryan Nichols is the quintessential example. Prosecutors wanted to kill him badly for rampaging through the Fulton County Superior Court, murdering a judge, a court reporter, a federal agent and a police officer. They turned down his offer to plead guilty to life without parole. And they lost, miserably. What could have been a cheap, but modest, plea became a multi-million dollar debacle.

But by using a state defense fund to avoid the harsh financial realities of the death penalty, McHugh is turning an expensive luxury into a personal political benefit, paid for by those who can’t vote him out of office for how he uses state funding. And if he’s unsuccessful getting his executions, well, at least he tried, and at less county expense than if he’d quietly settled for a lengthy sentence.

It looks like John Adams won’t get the accounting he’s hoping for, showing where McHugh is getting his hidden fortune. The judge summarily denied it. And that’s a shame. If McHugh gets caught using a fund devoted to defending the capital accused to ensure their prosecution, maybe he won’t come off so fiscally responsible in the next election.

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