AMERICA’S DEATH PENALTY PROBLEM — A Proposed Solution

In the sensational Idaho Student Murders case, Bryan Kohberger was facing death by firing squad if convicted - as he surely would have been - but his recent plea agreement has caused outrage.

This is understandable, but so is the State agreeing to it. Later this month, having waived all appeals, Kohberger will be sentenced officially to life without the possibility of parole, which will bring finality to the case, and hopefully after that he can be left to rot in darkness along with other monsters of his ilk. Had his case gone to trial, on his conviction what would have happened?

Typically, capital trials in the United States have two phases: the evidential phase and the punishment/sentencing phase. In the event of her client’s conviction, Kohberger’s defense counsel Anne Taylor wanted to put on over fifty witnesses for the second phase. To do what, tell the world what a wonderful person her client really is, how his autism spectrum diagnosis means he should not be executed?

We hear this garbage all the time, and the courts go along with it. For example, in Atkins v Virginia (2002), the Supreme Court ruled that executing the intellectually disabled was unconstitutional, over-ruling the 1989 case of Penry v Lynaugh. In other words, it is okay to execute people of average or above average intelligence but retards should be given special treatment. One would have thought the latter would be a greater burden on the prison system the same way they are on society.

Assuming that Kohberger was convicted and that this special pleading was rejected, when would he have been executed? Idaho has not carried out an execution since 2012, and that for a murder committed in 1984. This time lag is exceptional but not that exceptional. Last year, only 25 people were executed in the entire United States - all men! The previous year, 24 people were executed, again, all men, although one was a dude who called himself Amber McLaughlin.

Last year, mass shooter Derrick Ryman was executed for a 2016 killing spree while Keith Gavin was executed for a 1998 murder.

Why does it take so long to execute murderers, even those who are obviously guilty and convicted on absolutely overwhelming evidence? All death sentences are subjected to review, no reasonable person could take umbrage at that, but how long should such a review take?

Let us examine just one case from last year. In December 2006, Brian Dorsey murdered a young married couple, the female victim being his cousin. This was a terrible crime - they had actually been helping him. After the double murder, he sexually violated the woman’s body. Their young daughter was in the home at the time; thankfully, Dorsey didn’t touch her, although clearly her safety was jeopardised.

Although he pleaded guilty to the double murder, Dorsey claimed he couldn’t remember doing any of this, blaming drug abuse for his amnesia. He was convicted in August 2008 and sentenced to death the following November.

He appealed. It took until July 2010 for the Supreme Court of Missouri to reject this appeal, but in December 2013, he appealed again. This appeal was rejected in November 2014, but in May 2017, he filed yet another appeal. In April 2022, the Eighth Circuit rejected this appeal. Even this was not the end of the road, but it took until April 9, 2024 until he was strapped to a gurney.

Now let us compare this with an even more terrible case from an earlier era. On November 1, 1955, Jack Graham planted a bomb in his mother’s suitcase and put her on a commercial aircraft. When the bomb exploded it killed her and 43 other people. There was of course a massive investigation, but Graham soon became the prime suspect; he was charged November 15 and tried the following year. On May 5, 1956, he was convicted and sentenced to death. On May 15, a motion for a new trial was rejected and his execution date set for late August. After further legal manoeuvres, Graham was sent to the gas chamber at the Colorado State Infirmary on January 11, 1957.

If a complex case like that could be disposed of in 15 months, there is absolutely no reason for the vast majority of death row residents to languish there for two years, three years at most.

What the US judicial system needs to do is streamline the process. It can do this in the first instance by restricting the use of the death penalty to the absolute worst of the worst - the Jack Grahams and Bryan Kohbergers of this world. Secondly, it can and should withdraw funding for the vast majority of these (clearly frivolous) subsequent appeals.