Alaska's last execution was nearly 59 years ago. Are we willing to kill again?

When Nikiski Republican Mike Chenault, the new speaker of the Alaska State House, introduced a bill last month to bring the death penalty to Alaska, pundits began predicting a noisy, emotional debate that might never result in a bill seeing the governor’s desk.

Chenault says he introduced the bill to protect Alaskans, “to keep innocent people from being preyed upon by people who are just bad,” he says. “We think (the death penalty is) an option that should be there in case someone commits such a heinous crime that life imprisonment is too good of a sentence for them.”

Chenault has introduced at least one previous law-and-order type bill. In 2005 he sponsored a bill that would require electronic-monitoring bracelets for every convicted sex offender or child kidnapper if they were released from prison. The offenders would wear the bracelets for life. The bill died in the state House committee process.

The capital punishment bill is more detailed (it’s 24 pages long), but it is similar in that it takes pains to target people convicted of deplorable crimes. Prosecutors would have to bring the sentence to a special sentencing jury, one separate from the jury that convicted the killer. The state would have to prove aggravating factors to that second jury. 

Murder for hire could qualify an offender for a death sentence. So could killing a child, if the killer was more than two years older than the victim and the killing happened during a kidnapping or sexual assault. Killing a police officer, firefighter or prison guard in the line of duty could bring a death sentence. Killing more than one person in the same crime spree, or using murder to cover up another crime could also qualify.

Chenault’s bill will be a test for a group called Alaskans Against the Death Penalty. The nonprofit is about 15 years old, board member Rich Curtner says. They spend their efforts on death penalty education and pushing to keepcapital punishment—abolished here 51 years ago—from becoming instituted again. Curtner is the Federal Public Defender for the Alaska District.

The AADP members have heard this debate before. It peaked most recently in 1996 with a bill from then-state Senator Robin Taylor for a statewide advisory vote on the question.

“When that bill was finally put to rest, we decided to continue (AADP) as a group,” Curtner says. “We wanted to educate the public and continue to bring up speakers.”

To that end they’ve brought lecturers such as Sister Helen Prejean, the death penalty abolitionist and author of Dead Man Walking, to Alaska. Last year the group screened the documentary At the Death House Door in Anchorage. 

Some AADP members note that debate often coincides with political ambitions on the part of the death penalty advocates. It’s certainly true of Taylor, who ran for governor the year he hoped to put an advisory vote on the ballot. But it’s also a charge Curtner won’t level at Chenault. “I’m not a Juneau insider,” Curtner says.

For his part, Chenault says he has no political ambitions. He says he doesn’t even know if he’ll run for reelection in 2010. He also says he doesn’t think the bill will hurt him within the ranks of the State House, and he sounds hesitant to use the speaker’s chair as a bully pulpit, at least on this issue. “I don’t think that I can force it to move out of a committee faster. I probably won’t push it as hard as I can, being the speaker,” Chenault says.

Curtner says one thing that might be missing from the legislation is a clause providing for defense attorneys qualified for capital cases. Federal courts reverse state death penalty convictions due to inadequate defense counsel more often than for any other reason, Curtner says. “It’s a very common occurrence,” he says.

Curtner’s preference is to abolish the federal death penalty, but he says the U.S. has tried to create a model system. Provisions for qualified attorneys on the defense side are an important part of that. “I don’t see that in this bill, and I think it’s an important safeguard. In a capital punishment case, I think that who the attorney is really matters,” he says.

The federal system requires two attorneys at the defense table. One must have previous experience trying capital cases, or assisting in capital cases. That system was devised over years of court rulings and legislation, over years of jockeying among lawmakers and judges trying to come to grips with a fair way to dole out the ultimate punishment—a punishment most modern nations have abandoned, but that Americans cling to in 36 states, in the federal court system, and in U.S. military courts.

A study from California, released in June 2008, says that state’s current death penalty system cost $137 million each year. That oft-reported number showed up on Chenault’s home district in the pages of the Peninsula Clarion just last week. Clarion sportswriter Jeff Helminiak penned the column and sided with the abolitionists.

“Putting all statistics and studies aside, the death penalty also raises moral issues—mainly that this state would start killing people. The citizens of the state of Alaska, who don’t trust the governor and Legislature with their dividend, would trust the state to kill someone,” Helminiak writes.

It’s inevitable that both the cost questions and moral questions will enter the debate in Juneau. Chenault says he knows citizens will be divided on the moral questions, and letting the legislature decide is one way to have that debate. When asked if the state could afford to invest money in a death penalty system, Chenault says cost isn’t something he chose to consider. “The cost is not a factor in a lot of the things I have seen. I just think that these people shouldn’t be walking around—in prison, or out of prison.”

Much of the court costs take place before appeals attorneys have even looked at the case. Anchorage attorney Averil Lerman describes the costs of death penalty as “front-end loaded” with expense. “It’s expensive even before the trial begins,” she says.

Lerman is one of Curtner’s colleagues at the public defender agency. Previously she was a state public defender and an appeals specialist. Her clients are people convicted by the state and seeking post-conviction relief in federal court. She doesn’t see any way around the expense of the death penalty. But it’s not the money that bothers her most.

“You can build this complicated web and string this web out and say, ‘I’m only going to catch the wasps’,” Lerman says. “But you always end up catching some flies and mosquitoes and June bugs.”

The death penalty was available to federal prosecutors in the Alaska Territory up until 1957, when the Territorial Legislature abolished the practice. There were only eight legal executions in Alaska between 1902 and 1950. Two of the men hanged were white, three were Alaska Natives, two were black and one was an immigrant from Montenegro.

Lerman has studied Alaska’s history of executions extensively, and points to statistics pulled together by historian K.S. Kynell. His book A Different Frontier, Alaska Criminal Justice, 1935-1965 is an attempt to interpret a massive amount of data about felony crimes in Alaska and their outcomes in court. He studied more than 1,100 felonies prosecuted in territorial courts, and another 976 from the first seven years of statehood.

Kynell found 178 homicides over the 21 years from 1935 to 1958. (All except those occurring in that last year happened before the death penalty was outlawed.) Prosecutors charged 183 people for those killings. A few involved multiple offenders implicated in the same crime. Most of the accused killers—138, about 75 percent—were white. But only three men were put to death during that time period. One was Native, and two were black.

“It was not that hard to conclude that murder was predominately a white man’s activity, but there weren’t any who were being hanged by the marshal in Juneau” Lerman says.

The last two hangings in Juneau are what trouble Lerman most.

On December 22, 1946, a Juneau storekeeper, Jim Ellen, was killed during a robbery. His throat was cut, bloody footprints were on the floor and the cash register was empty. Police and the FBI (involved because murder was a capital crime) arrested and investigated Austin Nelson, a 24-year-old black man in a town with only a handful of African-American residents. They also charged an accomplice, Eugene LaMoore, who was also black. LaMoore had lived in Juneau longer and was a family man, a father of three married to a Tlingit woman.

In separate trials LaMoore and Nelson were both convicted, but both men had the same attorneys. LaMoore may have complicated things by confessing falsely in order to keep the younger man from being hanged. Lerman also says the FBI had cut floor tiles out of the store to preserve shoe prints. Investigators found a razor knife and the cash stashed in the rooming house where Nelson stayed. Evidence that might have been used to exonerate LaMoore, was never shown to the defense or jury. On April 14, 1950, LaMoore was executed by hanging.

Lerman, who has compiled transcripts of court proceedings and FBI documents related to the two trials, says the case has “so many red flags” that it’s heartbreaking. She also suspects the hanging of Eugene LaMoore sent such a chill through Juneau that the death penalty stopped spontaneously seven years before the Legislature abolished it.

“He may have been innocent, and he certainly was not guilty beyond a reasonable doubt,” Lerman says.

Chenault says he’s seen reports that the death penalty tends to be used disproportionately on minorities and on the poor. But that doesn’t lead him to believe that individual instances of capital punishment are unfair.

“I’m not sure they’re unfairly treated. If you’re doing the crime then you should do the time. I don’t care what the person’s race is or what their personal background is,” he says. Alaska’s past experience has been a major talking point for AADP, when the death penalty question came up in political battles during the 1980s and 1990s. But Chenault says it’s not relevant. “It’s always easier to point towards older things that wouldn’t happen today,” he says.

Lerman, though, says history is important. It shows that web she described catching more than just the wasps. No matter how narrow the law is written, she says, no matter what safeguards we impose, the law always relies on people.

“We’re not perfect; we are human. These stories, they show that these things can happen here, too,” she says. “Because we are human, too.”

scott@anchoragepress.com