NEW VOICES: Conservative Judge Who Imposed Death Sentences Changes His Mind

As a Superior Court judge in Delaware, Norman Barron was referred to as “the hanging judge” because of his willingness to impose death sentences. In a recent op-ed for Delaware Online, the now-retired judge expressed how his views on the death penalty have changed: “I believe the application of the death penalty is quirky and capricious… it is impossible to justify why some murderers receive the death penalty while others, whose crimes are arguably worse in degree or savagery, do not.” He also discussed the costs of imposing the death penalty, the risks of executing an innocent defendant, and its failure to provide timely closure to victims’ families as reasons for his current opposition to the death penalty. “In Delaware," he concluded, "if a convicted murderer in a capital case does not receive a death sentence, he receives an automatic sentence of life imprisonment without the possibility of parole or any type of early release. Such a sentence ensures that the defendant is locked away in a state prison until he dies. There is nothing incompatible with this type of life sentence and being a law-and-order conservative on matters of crime and punishment, which I still consider myself to be. In this age of shrinking budgets and increased costs, the time has come, in my view, to adopt a more enlightened approach to criminal justice.” Read full op-ed below.

Costs of imposing death penalty outweigh benefits
by Judge Norman Barron

At one time in my career, I was referred to as “the hanging judge” due to my willingness to impose death sentences in capital murder cases. I sentenced five defendants to death in Delaware, and two thus far have been executed. (A third had his death sentence reduced on the eve of execution to life in prison without possibility of release based upon a curious recommendation of the Board of Pardons.) I have no doubt these murderers committed the crimes for which they were convicted and that they deserved the sentences which I imposed based upon the law, the evidence and the sentencing recommendation of the jury. Nevertheless, having personally observed the exercise of the death penalty statute over the past two decades, I now conclude that the process under that law is flawed.

I believe the application of the death penalty is quirky and capricious. In other words, it is impossible to justify why some murderers receive the death penalty while others, whose crimes are arguably worse in degree or savagery, do not. Beyond the hit-or-miss reality of the death penalty, an even stronger reason exists, in my mind, for my opposition to its application.

Strictly on a cost-benefit analysis, the costs of imposition of the death penalty far outweigh the benefits of its application. Recent studies in California, Kansas and Maryland have all confirmed that the death penalty costs much more than life imprisonment. These studies are not talking about how much it costs for the actual execution. It’s the legal process that, by its very nature, must be long and involved.

When the state seeks death, the additional resources expended are copious. Hundreds of thousands of taxpayer dollars are spent seeking and opposing its imposition. From personal experience, I can say that the time given by judges and attorneys to these cases is staggering, and I am not merely talking about the trial phase and the penalty phase. They just begin the process. Appeal follows appeal and years of briefing, arguing and opinion-writing follow in its wake. No leaf goes unturned in analyzing the trial court’s decisions and the tactics of trial counsel. Yet this careful appellate review results in at least two undesirable effects.

First, there is no timely closure. Eighteen to 20 years will have elapsed before the case approaches its resolution. During the ensuing years since the sentence was imposed, the lives of the victim’s family have no doubt changed. Some might have died, or some might have moved far away. Others might have even lost interest in the case over the frustrations of waiting for a definitive result. What value can executions be for victims’ families when they must wait so long in limbo for “justice” to prevail, and for some, to begin their process of healing and closure?

Second, with such a huge gap, measured in years, between the time of sentence and its imposition, it is difficult to imagine that the death penalty provides even one iota of deterrence.

It is rather pathetic that in our state the death penalty works only for those defendants who opt to forgo all appeals and “volunteer” to be executed. In such cases, the state aids and abets the defendant’s desires by assisting in his suicide. This hardly justifies maintaining the current system.

There are other reasons which one might suggest for abolishing the death penalty, not the least of which is the possibility of executing an innocent person. Parenthetically, the more time one scrutinizes a death penalty case for errors, the chances of executing an innocent person lessens, at least theoretically. Conversely, the less time one scrutinizes a death penalty case for errors, the chances of executing an innocent person increases. Thus, and so as to avoid a miscarriage of justice, the lengthier multiyear appellate process will always take precedence. As a result, one of my major objections to its application can never be rectified.

In Delaware, if a convicted murderer in a capital case does not receive a death sentence, he receives an automatic sentence of life imprisonment without the possibility of parole or any type of early release. Such a sentence ensures that the defendant is locked away in a state prison until he dies. There is nothing incompatible with this type of life sentence and being a law-and-order conservative on matters of crime and punishment, which I still consider myself to be.

In this age of shrinking budgets and increased costs, the time has come, in my view, to adopt a more enlightened approach to criminal justice. Therefore, I urge the general assembly to consider favorably the death penalty repeal bill now before it and for the governor to sign it into law this year.

Retired Superior Court Judge Norman Barron left the bench in 2001, after serving for 13 years.

(N. Barron, "Costs of imposing death penalty outweigh benefits," Delaware Online, April 23, 2013).  See more New Voices on the death penalty. The Delaware Legislature recently consided a bill to repeal the death penalty. It passed in the Senate, but was not voted out of the House Judiciary Committee.