Editorial: Death penalty decisions must be based on evidence

The death penalty is divisive.

Support for and opposition to it is not as easy as political party or position. It is all over the map. There are people with firmly held convictions about crime and law enforcement who draw a line when it comes to capital punishment. There are very mild-­mannered, gentle people who believe vehemently in the biblical justice of an eye for an eye.

Regardless of support or opposition, most people would probably agree that it is a complicated question. It is not as easy as checking a box. Capital punishment may be the most nuanced issue in criminal law. It is the most poignant example of judging something on a case-by-case basis.

That is illustrated in the legal obstacle course built to stand between an arrest warrant and an execution warrant. In Pennsylvania, it is a multi-step process including a two-pronged trial process. One decides guilt. If that is established, the jury moves on to the second phase, deciding on a penalty.

It all starts with the district attorney filing to try a crime as a capital case. Washington County District Attorney Jason Walsh has faced criticism — and legal challenges — from those who say he has too flagrantly used the death penalty. Walsh has countered with his contention that the 11 death penalty cases he has pursued since taking office in August 2021 have met the letter of the law.

Last week, Joshua George, 35, walked away after his trial for the 2021 death of his 2-month-old son, Sawyer. The jury never considered the death penalty. They found George not guilty in less than 90 minutes.

A verdict can come quickly for multiple reasons. The jury might be unconvinced by one side or moved by the argument on the other.

“Beyond a reasonable doubt is a high burden,” Walsh said. “I guess the jury didn’t find we proved it beyond a reasonable doubt.”

That’s true. Juries can be hard to predict. Many a good lawyer has been surprised by their decisions.

But what is unsettling is Walsh’s position after the fact about his choice to pursue the death penalty.

“The capital (punishment) was sought based simply on the age of the child,” he said. “It has nothing to do with the evidence.”

It should have everything to do with the evidence.

Yes, Pennsylvania has a list of circumstances that allow a case to rise to a question of the ultimate penalty. Those include murder for hire or a death caused in the commission of another crime. It comes into play in a hostage situation or with torture. And there are considerations when the victim is a public official, a witness, a pregnant woman — or a child.

But all of those are options, not requirements. All of those circumstances, as well as the mitigating aspects outlined in state statutes, are offered up for prosecutors to weigh when it comes to moving forward. They are not stamped in bold red letters demanding action.

For Walsh to say his decision had nothing to do with the evidence is troubling. Every decision a district attorney makes with regard to pressing a criminal case — but especially a capital case — should be done with careful consideration of the evidence.

It should happen with a speeding ticket. It absolutely must happen when death row is involved.