This archive already holds a piece about the twenty-one people in it who were sentenced to death and are alive because the penalty was abolished under them. Eleven others never had a death sentence to lose. When they were convicted the option did not exist, and in four of the eleven the people running the case knew it and moved the case, or the confession, to somewhere it did.
Nothing was reconsidered in any of these eleven either. The difference is that there was no sentence to commute, because the state could not impose one in the first place.
Donald Nemechek was sentenced in Sedgwick County on March 7, 1977 to five consecutive life terms for five counts of first-degree murder. Four of the dead were women and girls who were abducted and stabbed or shot. The fifth was three-year-old Guy William Young, abandoned at the scene of his mother's killing in December 1974, who froze to death overnight in sub-zero temperatures. The jury rejected his insanity defence. Kansas had abolished capital punishment in 1972 and did not restore it until 1994, so his sentences carry the possibility of parole.
Dennis Rader pleaded guilty on June 27, 2005 to ten counts of first-degree murder and described each killing in court in detail. He was sentenced to ten consecutive life terms. Most readers assume a bargain was struck for the guilty plea and the courtroom account. There was nothing to bargain with. Every one of the ten killings falls inside the same gap in the same statute book that covered Nemechek, and ten consecutive terms was the maximum the law allowed.
One legislative interval, two Kansas cases, fifteen dead between them, and neither outcome had anything to do with either man.
Mark Alan Smith joined the search for missing Jean Ann Lingenfelter in McHenry County, Illinois, and found her body himself with an accuracy that drew suspicion. He pleaded guilty in 1971 to the rape and murder of Lingenfelter and Jean Irene Bianchi and was sentenced to a total of five hundred years. He escaped a capital sentence only because a moratorium was in force at the time.
Lemuel Smith is the sharpest version of the whole class, because his case did not merely benefit from the state of the law, it changed it. Released in 1976 after eighteen years for a robbery in which a woman was beaten, he killed four people within a year and received three consecutive terms of twenty-five years to life. In 1981, while serving them at Green Haven Correctional Facility, he killed Donna Payant, a correction officer, and was sentenced to death in 1983. The New York Court of Appeals struck the sentence down in 1984, holding that a mandatory death sentence is impermissible because it allows no consideration of mitigating circumstances. He was the only person ever sentenced under the provision his own case invalidated, and the ruling ended the last operative death penalty provision in New York.
Edmund Kemper was tried in October 1973, pleaded not guilty by reason of insanity, and was found sane and guilty on eight counts of first-degree murder. The death penalty was suspended nationwide at the time. He was sentenced to life, has waived or been denied parole repeatedly, and has said he should never be released.
John Joubert makes the point without needing any argument around it. He pleaded guilty in Nebraska to two counts of first-degree murder and was sentenced to death by a three-judge panel. A jury in Maine, which has no death penalty, convicted him of the Stetson murder in 1990 and gave him life. He was executed in the electric chair at the Nebraska State Penitentiary on July 17, 1996. The same man, the same class of crime, two states, two penalties.
Robert Wayne Danielson was arrested without incident and returned to Oregon for trial, where the most he could receive was life imprisonment because the state had abolished the death penalty. California then tried him in the Mendocino County Superior Court and sentenced him to death on November 13, 1986.
Jeffrey Dahmer needs one line. Wisconsin had no death penalty. He was beaten to death by a fellow prisoner in 1994.
Martha Beck and Raymond Fernandez were convicted of killing Janet Fay in Queens, and of killing Delphine Downing and her two-year-old daughter Rainelle in Michigan the following month. Michigan had no death penalty, so they were extradited to New York, which did. They were electrocuted at Sing Sing on March 8, 1951.
Edward Wayne Edwards did the same thing in reverse and for himself. Wisconsin convicted him in April 2010 of the 1980 murders of Timothy Hack and Kelly Drew and, having no death penalty, sentenced him to two life terms. He was seventy-seven and diabetic and did not want to die slowly in a prison ward. So he wrote to the prosecutor's office in Ohio and confessed to the murder of his foster son, a killing nobody had charged him with. Ohio convicted him of three counts of aggravated murder and sentenced him to death in March 2011. He died of natural causes at the Corrections Medical Center in Columbus on April 7, 2011, three weeks after the sentence he had asked for.
Salvatore Perrone was convicted of shooting three shopkeepers in Brooklyn. Justice Alan D Marrus told him he was lucky New York had no death penalty, and that he would have been a prime candidate for it.
That is the whole pattern in one sentence, spoken by the only person in the room with the authority to impose it and no power to. A judge can find that a man deserves execution, say so on the record, and hand down life, because desert is a judgement about the defendant and availability is a fact about the jurisdiction and the year. The two are decided by different people at different times and they meet by accident.
Eleven cases, and in none of them did the most serious question about the sentence turn on the crime. Two turned on a legislative gap in one state, two on a moratorium and a badly drafted statute, one on a nationwide suspension, three on which side of a state line the bodies were found, two on parties who understood all of the above and acted on it, and one on nothing but a judge's opinion of his own powerlessness.
Read against the twenty-one whose sentences lapsed after they were imposed, the shape is the same and the timing is inverted. There, the law caught up with the man after the verdict. Here it had already moved before he ever reached the courtroom.