The Criminal Law Section, through its Board of Directors, has adopted the following position on the death penalty.

"More than 140 years ago, the people of Wisconsin abolished the death penalty because of experience with it. Recalling that lesson still today, the Criminal Law Section of the Wisconsin State Bar firmly opposes reinstating the death penalty. Capital punishment is an alternative that is wrong; it is too costly, continues widely to reflect alarming racial disparity in its application, pretends perfection in a human legal system that always will be imperfect, and sacrifices the important objectives of deterrence and restitution to victims' families that lengthy imprisonment can meet."

This position is grounded in the knowledge that a majority of Americans oppose the death penalty, preferring sentences which guarantee protection of the community and long term punishment. This was borne out in the recent election for Attorney General where candidate Jeff Wagner, who made the death penalty the centerpiece of his campaign, was defeated by Attorney General Doyle, who publicly opposed the reintroduction of the death penalty in his campaign. Indeed two significant former Supreme Court Justices, Harry and Lewis Powell, recently changed their positions to oppose the death penalty, believing it to be unconstitutional.

Innocent people have been executed in the past and will be in the future. I can tell you from first hand experience of almost 20 years in criminal courts that some who are innocent get convicted and some who are guilty go free. Sometimes errors in the criminal justice process take many years to correct. Many people are convinced that Laurencia Bembenek was framed and that she did not get a fair trial. If Wisconsin had a death penalty for execution style slayings, as was proven in the Bembenek case, Laurie Bembenek would have been executed long before her case was ultimately resolved by her release.

Imposition of the death penalty will increase the cost of the criminal justice system dramatically. In California, capital trials cost six times more than other murder cases. In Texas, a capital case costs about $2.3 million, about three times the cost of incarcerating someone in a single cell with the highest security classification for 40 years.

It is clear that the death penalty is imposed in a discriminatory manner. African-Americans are represented on death row at a rate three and one half times their proportion in the population as a whole. Those who kill white people are many times more likely to receive the death penalty than those who kill African-Americans or other minorities. Those who are poor and cannot afford O.J. Simpson style defense teams are more likely to be put to death upon conviction. Prosecutors have the discretion to ask for the ultimate sanction or not in the first instance. Can you imagine the public outcry that would accompany O.J.'s execution, if convicted. Don't you believe that political consideration went into the decision by the State prosecutors not to seek the death penalty in his case? Is that how the system ought to work?

There is no credible evidence to support the notion that the death penalty deters people from committing murder, even of children or police officers. Most homicides are committed by those involved in a highly emotional domestic dispute, suffer from the effects of controlled substances or alcohol or are otherwise impeded in their ability to rationally consider their actions. Human beings in such situations do not stop to think before they act.

We oppose passage of Senate Bill 1 for these reasons and other problems specific to the bill.

1. The jury's vote on the death penalty only requires a simple majority for the imposition of a death sentence. Criminal trials which utilize the beyond a reasonable doubt standard require that jury verdicts be unanimous. This should also be required for death votes.

2. The judge should not be allowed to override a jury's decision not to impose the death penalty. The jury more accurately expresses the will and conscience of the community than a single individual, subject to political pressure from the electorate. Any judge who or jury which imposes the death penalty should be required to witness the subsequent execution.

3. The appellate provisions of the bill do not allow sufficient time for meaningful appellate review, especially if additional investigation of the trial lawyer's performance is required. The Supreme Court will not sit as an error correcting court. Under the court reorganization provisions, the Court of Appeals should first exercise its error correcting function, with subsequent review by the Supreme Court as a matter of right.

4. The aggravating factors are vague and subject to challenge. Several of the listed factors, killings by those already under a sentence of imprisonment and those committed to disrupt or hinder government function or law enforcement, are thinly disguised efforts to expand the application of the death penalty to other crimes than those involving the death of a child.

5. The bill permits the execution of those who are developmentally disabled and/or under the age of 17.

6. The bill permits the live broadcast of executions.

7. The bill requires the executing physician to violate the terms of his oath.

The members of the Criminal Law Section of the State Bar will be those who will implement any legislation imposing the death penalty. We are opposed to its passage in the first instance.