Mimesis Law
20 October 2021

Prosecutors Complain: Too Much “Capital” in Capital Punishment

February 28, 2017 (Fault Lines)– Jeffrey S. Knoble, Jr. was recently spared the death penalty after he was convicted of first-degree murder in Easton, Pennsylvania. While Knoble apparently committed a horrific murder, the District Attorney agreed to drop the capital case down to a life sentence after Knoble was acquitted of robbing his victim. The steam had gone out of the prosecution. It didn’t seem worth it to try for a revenge killing.

That doesn’t mean that the prosecution isn’t going to whine about the outcome, and, in a particularly bold move, complain about how much the failed effort to kill Knoble is going to cost the taxpayers. First Deputy District Attorney Terence Houck, who prosecuted the case, has complained that the defense team’s use of a constitutionally required mitigation expert was duplicative and unnecessary. And while it was his decision to put the death penalty on the table, he “said it is disingenuous to blame him for the cost, when he doesn’t control how the defense spends its money.”

It doesn’t take a lot of imagination to understand how ridiculous Houck’s position is, but let me give you some highlights.

Pennsylvania’s death penalty has always been bad. Even before our former Chief Justice was publicly reprimanded by the U.S. Supreme Court for his participation in its badness, it was an embarrassment. Between 1978 and 2015, almost half of all death sentences (46.8%!) were vacated after conviction. That is an insane statistic when you consider how difficult it is to win any criminal appeal, much less one where the defendant has been convicted of committing the worst crime imaginable by a civil society.

To make the death penalty less of a legal embarrassment, trial courts in the Commonwealth have finally recognized that it is necessary to actually pay qualified defense lawyers some money for necessary expenses, such as experts. And not really a lot of money, just some.

This case illustrates just how low the bar is. Knoble’s lead attorney was paid $75/hour to try to keep him alive. That’s far less than you would expect to pay for a competent lawyer to represent you in traffic court. His mitigation expert, meanwhile, earned a whopping $100/hour, which, again, seems like a low number for such a vital service.

And even with such paltry rates, the defense team won an important acquittal in the guilt phase that took the death penalty off the table. It appears, then, that those experts were worth the cost. This likely means that the only thing separating this case from the hundreds of Pennsylvania death sentences vacated on appeal was the presence of qualified defense experts. That is the cost of justice.

What makes this even more misguided is that Pennsylvania’s death penalty is nearly non-existent. Pennsylvania currently has a moratorium on the death penalty, which means that no one may be executed no matter how long they’ve been on death row. Even when the death penalty was active here, only three people were executed since 1978, all three were volunteers, and the most recent one of those occurred in 1999. Fault Lines declared the death penalty in Pennsylvania dead a long time ago.

What this is really about is getting to brag about a death verdict, and keeping the defendant locked up in inhuman conditions. Life without parole apparently isn’t good enough for Houck, probably because the only genuine difference between LWOP and death in Pennsylvania is that the latter comes with indefinite solitary confinement and the former allows an inmate to live like a human being in the general population. As I wrote a few weeks ago, being on death row in Pennsylvania generally involves being locked alone in your windowless cell 23 hours a day, with one hour a day of “exercise” in an area known as the “dog cage.” All human contact is forbidden. As Ninth Circuit Court of Appeals Judge Alex Kozinski once said, “Solitary confinement [whether on death row or not] is just as bad as the death penalty, if not worse.”

If Houck really cared about cost, he would have recognized that real justice doesn’t come cheaply. And he might never have pursued a meaningless and cruel death sentence in the first place.

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