Thursday, July 2, 2015

Death Penalty Bind: The Price of Out-of-State Incarceration in Hawaii?

Recently, we blogged about the discontent in Massachusetts over the death sentence for Dzhokhar Tsarnaev. For people living in an abolitionist state, this outcome from the federal system was quite a shock.

Today's news bring a similar shock to Hawaii, which abolished the death penalty in 1944. As I learned during my sabbatical at University of Hawaiʻi at Mānoa, Hawaii houses more than a third of its inmates out of state, on the mainland. Hawaii's former governor, Neil Abercrombie, was elected partly based on his promise to bring the inmates home, and found that doing so was more difficult than he expected.

One unexpected outcome of the horrendous Supreme Court decision in Glossip v. Gross is that two Hawaiian inmates, housed at a private facility in Arizona, are now realistic candidates for execution--for a crime committed during their incarceration on the mainland. The Civil Beat reports:

Because the Supreme Court on Monday upheld the use of a controversial drug that happens to be used in Arizona executions, the high court may have set the stage for Miti Maugaotea Jr. and Micah Kanahele to die from the effects of a drug whose use wouldn’t even be a consideration in their home state.

Kanehele and Maugaotea both face trial for the 2010 murder of another Hawaii prisoner, Bronson Nunuha. Trial is set for August of next year, and prosecutors will seek the death penalty, an official with the Pinal County (Arizona) Attorney’s Office confirmed Tuesday.

. . . 

The crimes that Kanehele and Maugaotea are accused of are horrific. Media accounts say their alleged victim was found stabbed 140 times, with the initials of Kanehele and Maugaotea’s prison gang carved into his chest.

But both inmates are only incarcerated in Arizona because Hawaii found outsourcing its prison needs to CCA a more cost-effective option than building more prisons of its own. While they and others are there, are we comfortable with them being subject to the penalties of Arizona — even a punishment so singular and controversial that we took the highly uncommon step decades ago of outlawing its use in Hawaii?

Our decision in 1957 would suggest we are not. As Chang said last year, Hawaii is a society that does not put people to death, no matter how heinous their crimes. And as Justice Breyer wrote on Monday, the death penalty may well violate the very basis for our democracy — the U.S. Constitution.

It may be too late for Hawaii to save the unfortunate lives of Kanehele and Maugaotea, whose previous violations and alleged brutal murder of Bronson Nunuha have set in motion wheels of justice that may be beyond this state’s control.

But if we really believe in the values that we claimed in 1957, we should think hard about putting Hawaii inmates in facilities where further crimes might result in a penalty we would never have imposed ourselves. Gov. David Ige, Attorney General Doug Chin and director of the Department of Public Safety Nolan Espinda should use Monday’s controversial Supreme Court decision to examine anew our options under the agreement with CCA and determine whether punishment by death was intended to be part of the incarceration bargain. 

This grim situation is a reminder that, as in the case of same-sex marriage before Obergefell, the state-by-state solution for the death penalty does not insulate some jurisdictions from the punitive decisions of others (and vice versa). While the depressing result in Glossip does not bode well for nationwide abolition, and while I still think that abolition will come, in my lifetime, from an aggregate of local decisions, this slow and low-key process has some unfortunate results.

Props to Edi Kinney for alerting me to this article.

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