A death penalty alternative

This past week, retired Circuit Judge David Burnett, now state Senator David Burnett, D-Osceola, let his temper get the best of him. He openly castigated a remark made by one of the three elected Prosecuting Attorneys, who was apparently trying to play that old, shop-worn card about how “they do it down in Texas.”

Burnett, whose red hair is growing grayer these days, wasn’t buying that old Legislative trick of comparison of Arkansas to the Lone Star State.

“I don’t give a damn about the whole state of Texas,” Burnett shot back to the testimony about a lower murder rate in Texas.

The Lone Star state leads the nation and the world in the number of executions since 1976, when the death penalty was reinstated by the U.S. Supreme Court. Texas has executed 521 individuals in the 39 years since the ban was lifted on executions. Arkansas has executed 27 inmates since 1976, but none since 2005.

Not very senatorial in his remarks about Texas, but the message was succinct enough to end that discussion of what Texans “do and don’t do.” Still, Burnett’s bill survived and passed out of committee.

The bill Burnett champions, Senate Bill 298, which would abolish the state’s death penalty, may face a tough challenge in the Republican controlled Senate and House of Representatives. And that may be despite the piety of many Republicans who lean heavily upon their religious beliefs. At a recent Legislative Forum in Fayetteville, the abolishment of the death penalty split right about party lines. Democrats saying they would abolish the death penalty and Republicans saying no.

Arkansas has not conducted a state execution of a death row prisoner since 2005, under former Gov. Mike Huckabee, a Republican. Outgoing Democratic Gov. Mike Beebe on several occasions said he would sign a bill abolishing the death penalty if one reached his desk. No bill ever reached his desk, and no bill has gotten as far as Burnett’s bill in modern times.

Burnett told the senate committee the “…death penalty doesn’t do anything to prevent murder of capital crime(s). I think the time has come for us to reconsider the death penalty as a form of punishment.”

This sponsor of this controversial legislation is no stranger to the death penalty in the circuit courts of Arkansas. Burnett was the sitting judge in the trial of the “West Memphis Three” – that trio of boys charged with the death of three younger boys in West Memphis. But let’s set aside that tragically flawed case that was finally settled with all three defendants admitting guilt, but released by the courts as future trials and evidence caused their guilt to be in question.

Burnett, a former prosecuting attorney, has tried five death cases as a prosecutor. As a retired Circuit Judge, he conducted trials of five more death cases. That’s a record few others can break in modern day Arkansas judicial circles. And when Burnett speaks on the status of the death penalty in Arkansas, maybe we all should listen.

“It’s broken,” Burnett told the committee. “It doesn’t work because you do have not certainty.”

Veteran death row attorney Jeff Rosenzweig, who has defended many of Arkansas death row inmates who were executed and many more awaiting the lethal dose of state prescribed drugs, concurred with Burnett’s remarks about the system being broken.

“The courts are a human system where people make mistakes. It is a broken system and there’s no way to fix it that is fair.”

Others disagree. Three elected Prosecuting Attorneys, Cody Hiland of Conway; Tom Tatum of Danville and Dan Shue of Fort Smith, all spoke against the bill. All three said the death penalty was a deterrent to crime. Also the threat of the death penalty often helps prosecuting attorneys as a bargaining tool to elicit guilty pleas from those charged in these heinous crimes.

In 2014, Texas and Missouri tied for the most executions in the United States with 10 each. Already in 2015, Texas has executed three inmates with seven others set to die from lethal injection between March 11 and May 12, 2015, if court challenges do not set aside the death sentences.

Since 1976, it should be pointed out the United States Government has conducted three executions. Oklahoma has put 112 individuals to death since 1976, Missouri 81; Alabama 56; Louisiana 28; Mississippi 21 and Tennessee just six.

Burnett’s bill should be weighed also by the cost of maintaining and operating a “death row” in our prison system. The bill does not do away with a life sentence without out a chance of parole.

But it does assure everyone of one thing – no innocent person will be put to death by the state, if no one is put to death by the state. Even those undeterred by all the Scripture, morals and laws telling humans not to kill other humans may need to stop and consider Burnett’s bill as a message from a man who has seen killings and killers tried in our judicial system. Some of those outcomes came with mixed results.

People do, sadly, kill other people for a myriad of reasons, none of which we fully understand. But Arkansas does not have to as a mechanism of justice put people to death under this new twist to the death penalty law. Maybe it is time to consider an alternative to the lethal injection to elicit justice.

And yes, I, too, agree with Burnett. I don’t give a damn about the whole state of Texas and what they are doing with respect to making law in Arkansas.