Compelling Vermont To Revisit The Death Penalty

BURLINGTON, VT – Without a vote, a hearing, or even a dog and pony show, Vermont has been pulled back into deciding between life and death for a criminal defendant. Jury selection is underway in the murder trial of Donald Fell, who is accused of kidnapping, beating and killing 53-three year old Tressa King on the morning of Nov. 27, 2000.

The facts are grim: Three people died in a spree that started in Rutland, Vermont, but ended when Fell and another man were caught driving King’s stolen car in Arkansas. And that’s where it gets complicated.

Since the case involved the crossing of state lines, federal authorities claimed jurisdiction. Next, when the U.S. attorney’s office made a plea agreement to spare Fell’s life — instead offering a lifetime jail sentence with no chance for parole — U.S. Attorney General John Ashcroft said no way. An eye-for-an-eye conservative, Ashcroft insisted on putting death on the table. The point was the State’s right – actually make that the federal government’s right to order a state’s residents — to kill someone.

Vermont actually abolished the death penalty in 1987. The last time anyone even stood trial facing death here was 1962, back when Vermont was still one of the most reliably Republican states. The last time anyone was sentenced to death was 1957 – and that sentence was commuted. No one has been executed in the state since two killers went to the electric chair in 1954.

Ruling on a motion in 2002, Federal District Court Judge William K. Sessions III, who hears cases in Burlington, declared the Federal Death Penalty Act of 1994 unconstitutional. He argued that this Clinton-era law deprived defendants of their rights under the Fifth and Sixth Amendments of the Constitution. But the 2nd U.S. Circuit Court of Appeals overruled him and sent the case back. If you wonder why some people get worked up over who gets appointed to the federal bench, such cases help clarify the issue.

In about two weeks a jury of Vermonters will begin hearing the evidence. Eventually, they could end up issuing a death penalty. Although Vermont is seen as a liberal bastion these days, jury selection in capital cases tends to favor the prosecution by weeding out death penalty foes.

There are no reliable recent surveys about current opinion on the death penalty in Vermont, and most national surveys – much like Ashcroft – don’t offer life in jail as an option. However, support for life without parole as an alternative to capital punishment has steadily increased over the years, and the country is now evenly split on the issue. In 1994, only 32 percent favored life sentences, with 50 percent favoring death. By 2004, support for life without parole had grown to 46 percent.

Still, the case will provide a golden opportunity for those who want to see death become a Vermont option again. It looks a lot like GOP payback for the state’s stands on issues ranging from the war in Iraq to civil unions for gay couples. Whatever the trial’s outcome, this federally-mandated trial is certain to re-open debate over whether Vermont should take another look at justice Texas style. More than a third of all U.S. executions take place in the Lone Star State.

More than half the U.S. population, according to surveys, still support capital punishment. But attitudes have shifted back and forth over the years. During the Civil War, opposition waned, and by the end of the 19th century several states made it discretionary. Before World War I, nine states had backed away and half a dozen had outlawed it. However, wartime, class conflict and stoked up fear about dangerous radicals turned the tide again. Executions reached at all time high by the mid-1930s.

The popularity of death sentences took another nosedive in the 1960s, dropping from 70 percent to less than half. In 1972, the U.S. Supreme Court declared it unconstitutional as “cruel and unusual” punishment under the Eighth Amendment to the Constitution and for failing the “due process of law” test under the Fourteenth Amendment. Nevertheless, within a few more years, subsequent cases spelled out specific guidelines under which death sentences could be imposed.

The rationales for capital punishment aren’t as convincing as its proponents claim. For example, most people assume the death penalty acts as a deterrent to murder, yet there is considerable evidence that executions actually increase the murder rate. After Oklahoma started executing people again after a 25-year moratorium, the murder of strangers increased in that state, according to a 1998 study by criminologist William Bailey. A survey published by The New York Times in 2000 found that states without the death penalty have a lower rate of homicides. In fact, over the past 20 years states that put people to death have had 50 to 100 percent higher murder rates than those that don’t.

It may not even be less expensive. Capital trials tend to be costly, and appeals – not to mention mistakes – drive up the price ever more. When Florida’s Palm Beach Post examined 44 executions in the state between 1976 and 2000, the cost of completed executions came out at $24 million apiece. Overall, the state spent about $1 billion more to kill these people than it would have cost to lock them up forever.

Such arguments receive little attention in the heat of a murder trial, and it remains to be seen how a Vermont jury will respond to its compulsory invitation to take part in the Bush-Ashcroft enthusiasm for the ultimate punishment. However, beginning just in time for Independence Day, the Vermont trial’s start will convey at least one message: just how limited is the “tough love” Bush administration’s view of an independent judiciary, state sovereignty, and the culture of life.

Greg Guma edits the Vermont Guardian, a statewide weekly, and is the author of several books. He can be reached at Greg@vermontguardian.com.

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