Seeking the Death Penalty Would Shift Capital Punishment Debate

June 26, 1994|By NORRIS P. WEST

It still sounds strange to hear revered football legend O.J. Simpson being mentioned in the same sentence as the death penalty, the maximum form of punishment that lashes out at society's most hated criminals.

But now that the sense of amazement over Mr. Simpson is starting to temper as reports of wife-battering filter out, some attention has turned to that stunning possibility: Could the football Hall of Famer be executed if convicted of murdering his former wife, Nicole Brown Simpson, 35, and her friend, Ronald L. Goldman, 25?

Under California law, prosecutors can seek the death penalty if there are special circumstances, in this case multiple victims and the use of a deadly weapon in the crimes.

"If this were to happen in Baltimore County, and the offense qualifies for the death penalty, we would charge a person with the death penalty," said Sandra A. O'Connor, the Baltimore County state's attorney, whose prosecutors have gained the sentence for 10 of the 14 prisoners on Maryland's death row.

"From a charging standpoint, I think it would be absolutely wrong for someone not to charge just because a person is of notoriety," she said. "Then you would be just picking and choosing."

But Byron L. Warnken, University of Baltimore law professor, said it would be unlikely for O. J. Simpson to receive the death penalty even if he weren't rich, famous and idolized. And, he says that if the improbable happens, and Mr. Simpson eventually is executed, the capital punishment debate will be turned upside down.

"Studies show that the majority of people support the death penalty," he said. "If we put to death a person we all know, as opposed to someone we think of as a low-life, it will probably result in more people being opposed to the death penalty than are opposed to it today."

Would society benefit from executing O. J. Simpson?

"The only purpose the death penalty serves is retribution," said Michael Millemann, a University of Maryland School law professor. "There are no statistics showing the death penalty has deterred anyone. I think most people who have reviewed the available information no longer believe the deterrence theory. I think the debate now is about punishment and retribution, not deterrence."

There certainly isn't a consensus to invoke the maximum revenge against Mr. Simpson, if the signs of support and other sympathetic statements are an indication. Of course, he remains innocent until found guilty, but even if he is convicted, his public image will contrast sharply with that of such figures as John Thanos and John Wayne Gacy.

Moreover, Mr. Millemann said, if Mr. Simpson did kill Mrs. Simpson and Mr. Goldman in a fit of passion, executing him would make even less sense as a deterrent.

"If the facts are what they appear to be, [Mr. Simpson] committed a crime of passion, of obsession," said Mr. Millemann, who teaches criminal procedure. "The deterrence theory assumes rational conduct, rational people making rational decisions. There is nothing rational about this homicide. It was patently irrational."

Said Peter Holland, an adjunct professor in legal and ethical studies at the University of Baltimore: "You want to deter people who are thinking rationally. You make an example so that people are going to think twice. A guy who is truly distraught this way, arguably is not capable of thinking twice."

It is doubtful that a Southern California jury -- or a panel anywhere in the United States -- would ever sentence O. J. Simpson to death. He is not the typical black murder defendant.

There is plenty of evidence to show that the death penalty, which states have never been able to apply fairly, is biased against blacks -- especially those convicted of killing whites. But O. J. Simpson has transcended race with a nonracial public image and an endearing public persona that has elevated him to hero status among sports fans and movie-goers.

Mr. Millemann contends that Mr. Simpson's money will help him fight his legal battles.

"Others who have killed in crimes of passion, and although the crimes were irrational and part of an obsession, have wound up on death row. The distinguishing feature between those condemned prisoners and O. J. Simpson is that those people had no high-priced attorneys, no money to purchase a higher form of justice," he said.

(However, Mr. Millemann said, high-priced lawyers haven't served Mr. Simpson well thus far by allowing their client to talk to investigators, a move that later could undermine an insanity defense.)

Mr. Warnken, who teaches constitutional law, thinks a death penalty is highly unlikely.

"I would say the odds are very slim because we've only put to death 240-some people since 1976," he said. "That's only a small percentage of those eligible for the death penalty. My gut reaction is they would never sentence O. J. to death. Unlike unnamed guys we've never heard of, here it's O. J. None of us know him but everyone thinks we all know him."

On the other hand, he said, prosecutors will be under pressure not to treat Mr. Simpson more favorably because of his stature. "They can't be accused of cutting him some slack, he said.

Mr. Warnken says he is neutral on the issue of capital punishment. He once believed the penalty served as a deterrent to murder, but he now is convinced that the only person deterred from future killings is the executed person.

Norris West is a reporter for The Baltimore Sun.

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