Penalty of death?

Hawaii’s opposition to the death penalty was enacted in law only a few years before it became a state. But it arose from a basic mistrust, originating decades earlier, that government justice can be fair to all the people in its multicultural society.

The case of Naeem Williams, the former Schofield Barracks convicted of murdering his 5-year-old daughter, is only the latest of a series of U.S. District Court trials in which the federal prosecutors sought capital punishment. On Friday, the jury sentenced Williams to life in prison; jurors polled afterward said they could not unanimously agree on the death-penalty option.

Opponents of the death penalty see cases like Williams’ being prosecuted in a state that bans capital punishment as troubling.

"This case really opens the door for that issue to be an issue in Hawaii," said William Harrison, an attorney with the Hawaii Innocence Project. The group is the local branch of a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and other means.

"I think it really cuts against the grain of an individual state to have the federal government impose these kind of cases on the community," he added.

Honolulu Prosecutor Keith Kaneshiro said he has not changed his position on capital punishment. He still supports its reinstatement as a sentence option for the most heinous class of convicted felons: serial killers, contract murderers, killers of law enforcement officers or judges and those who kill multiple people, such as in terrorism cases.

"I believe in the death penalty when I know the person is going to kill again," Kaneshiro said. "They have no respect for the law, and that’s why I know they would kill again.

"People will always talk about, it has no deterrent effect," he added. "My reason for supporting it in those circumstances is not the deterrent effect; it is because we want to stop the person from killing again in the future."

More than 20 years ago, during a previous term as prosecutor, Kaneshiro did seek the reversal of the death penalty ban. That was one of numerous such attempts — more than a dozen, by some estimates — to lift the ban since it became law in 1957.

That action was the culmination of community reactions to numerous cases during the territorial era. The last civilian to be executed in Hawaii was Ardiano Domingo, who in 1943 was hanged five months after stabbing a woman to death in a Kauai pineapple field.

About two-thirds of the 75 documented civilian hangings in the islands were of Filipinos and Hawaiians, according to historian Joseph Theroux’ published chronicle, "A Short History of Hawaiian Executions, 1826-1947."

One case frequently cited as influential on Hawaii policy was that of Thalia Massie, a Navy officer’s wife who in 1932 alleged she had been raped by several Hawaiian men. Ultimately the case ended in a mistrial, but Mrs. Massie’s husband and mother, along with two Navy enlisted men, were involved in a plot to kidnap one of the rape suspects, who ended up shot to death.

In their trial, the jury returned a manslaughter verdict, but a subsequent investigation led to the dismissal of charges altogether.

Williamson Chang, professor at the University of Hawaii’s William. S. Richardson School of Law, said the enormous racial tension emanating from this case as well as others, in which people of color were executed, lies behind the death penalty ban.

Another piece of important death-penalty history was the 1929 execution of Myles Fukunaga, who had killed the young son of a prominent Caucasian family. Chang believes it may have been the most important influence, given the electoral rise of Asian Americans late in the territorial era.

What happened, Chang said, was that Fukunaga’s mental health was given short shrift in the trial: Suicide attempts and other evidence of illness were dismissed. Fukunaga had been tried, convicted and hanged, all within two weeks of his arrest, he added, and that memory stuck.

"It galvanized the nonwhite asian community, that justice wasn’t fair in a racial sense," Chang said.

One of Chang’s professional colleagues, law professor Justin Levinson, is the lead author in a new study published this spring in the New York University Law Review. The paper asserts that racial bias remains a concern where the death penalty is concerned.

In the press announcement upon the release of the study — "Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty Cases" — the suggestion is that "on an unconscious level Americans seem to value white lives as worth more than black lives."

Levinson was on leave but told the Star-Advertiser in an email response that the study found "people who would be unwilling to sentence a person to death, and therefore would be removed from a jury in such a murder case, are less racially biased than those remaining."

To measure the bias levels of 445 participants, the researchers employed a computerized task called the "Implicit Association Test." Developed at Harvard University, the category-sorting task requires participants to group together categories (such as White or Black) with words signifying worth or lack of worth, by pressing a response key as quickly as they can.

The researchers found that participants consistently were faster to associate Black with worthless and White with worth, according to the report, and variations in the participants’ sorting speed was interpreted as the strength of the stereotype.

"This, by itself, is of major concern, even if the number of excludable jurors is relatively low — two or three per jury, for example," Levinson wrote. "But what happens if the number of Americans who are unwilling to sentence to death goes up?

"How constitutional would it be to have a jury that has removed a large number of people who would be unwilling either to convict or to sentence to death?" he added. "I would expect that as more people oppose the death penalty, at some point death qualification becomes unconstitutional.

"To me, the study results regarding the value of life and implicit bias casts doubt on the entire process, and helps explains why killers of white victims are the ones who tend to end up on death row."

State Circuit Court Judge Steven Alm was a federal prosecutor in the case of Richard Lee Tuck "China" Chong and sought the death penalty for it. Chong later pleaded guilty in exchange for a life sentence but hanged himself in prison in 2001.

Alm is best known now for piloting the Project HOPE probation program. While he would not comment specifically on the death penalty, he did underscore that brief periods of incarceration in some cases can scare people straight before they become so hardened to be beyond help.

"Overall, prison to me is a place where you lock people up to separate them from society," he said. "But that’s a minority. The vast majority can do better on probation.

"A few people go to prison and they take it seriously, and they realize, ‘I never want to be back here,’" he said. "Hopefully they can get better in there, but I don’t count on it."

State Sen. Will Espero is one of those who once favored the reinstatement of the death penalty in cases of the most heinous crimes against children. A decade ago when Espero pursued the legislation, the topic was too hot to handle, he said, and the bill never moved out of committee.

Now he’s not so sure.

"From talking to constituents, there are many that support the death penalty, in instances of a serial killer, a murderer of children, or a crime that is so horrific, torture, dismembering," he said.

"That I can understand, but as I’ve been in office longer, I’m sometimes torn, to be honest," Espero added. "I understand at the end of the day, mistakes can be made. If later someone is executed, and then they’re found by DNA or other means that they didn’t do it, people can call that murder itself.

"I don’t think you’ll see any legislation anytime soon."