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June 27, 2007

Did anyone at the Senate hearing today discuss the de facto federal capital moratorium?

I am getting really frustrated by the lack of attention being given to the Bush Administration's acceptance of a de facto moratorium on federal executions based on lethal injection litigation.  As first discussed here, today there was a hearing on "Oversight of the Federal Death Penalty" before a Senate Subcommittee, and all the submitted testimony is now linked here.  I have searched in vain for any mention of the six federal executions that are being indefinitely stayed, with the Justice Department's apparent approval, because of lethal injection litigation.  This NPR report on the Senate hearing does not discuss the issue at all.

I keep harping on this issue because all the deterrence literature supporting the death penalty assert that executions (not merely having the death penalty on the books) is what saves innocent lives.  Indeed, the written Senate testimony from William Otis and Dr. David B. Muhlhausen stress recent evidence of capital deterrence to support the federal death penalty.  Dr. Muhlhausen's testimony, for example, stressed a study that "found that each execution, on average, results in 18 fewer murders" and that "implementation of state moratoria is associated with the increased incidence of murders."

But, if this capital deterrence evidence is credited by these witnesses and others, the Bush Administration's acceptance of a de facto moratorium on federal executions is essentially responsible for an "increased incidence of murders" and the indefinitely delay of six federal executions may be responsible for 108 more murders!  Why aren't death penalty supporters aggrieved by the how this issue is being handled at the federal level?

Of course, I respect efforts by the Justice Department to ensure that the federal lethal injection protocol is sound.  But a number of states have carefully reviewed and improved their protocols and gone forward with executions during the unexplained delay in the operation of the federal death penalty.  Indeed, as noted here at Crime & Consequences, three different states yesterday carried out lethal injections without any obvious problems.

Can anyone help me understand why this issue has received no attention from anyone but me? 

Some related posts:

UPDATE:  To clarify my points and concerns, let me note that I remain agnostic regarding the long-debated issue of whether executions "save lives" through deterrence.  This post is not meant to assert a firm view on the merits of the deterrence argument, but rather to question why those who genuinely believe — and publically claim to believe — that executions "save lives" through deterrence are not publically complaining about the Bush Administration's acceptance of a de facto moratorium on federal executions.

June 27, 2007 at 09:32 PM | Permalink


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your eagerness to see federak executions carried out is somewhat macabre; even the most conservative of the readers are troubled. Two studies hardly make your case.

Posted by: anonymous | Jun 27, 2007 10:36:52 PM

What exactly is macabre about wanting federal law enforced?

Posted by: Doug B. | Jun 28, 2007 12:31:11 AM

The entire situation with death penalty appeals is ludicrous. A sense of this can be obtained from the DOJ statistics. As of the end of 2005, of the people whose most recent death sentence was from the years 1984-6, only 17% had been executed, and 21% still had their death sentences under some kind of appeal -- 20 years later!

This situation makes a mockery of the death penalty. What is the point of sentencing people to death if after 20 years, those whose sentences are still under appeal outnumber those who have been executed?

Recognizing that executions do deter murder, but mistakes need to be avoided, the entire system needs reforms. The goals would be:

1) Greater certainty that people sentenced to death are in fact guilty of murder (if you aren't absolutely certain, give them LWOP)
2) Greater overall number of death sentences
3) If an individual is in fact guilty of murder, less concern over whether death is the appropriate punishment (Short answer: it is.)
4) Greatly reduced time from sentence to execution, making the death penalty a real deterrent, resulting in
5) A lower murder rate

Posted by: William Jockusch | Jun 28, 2007 5:13:38 AM

Aside from the protocol issue, I am disturbed that the assertion that the death penalty is a deterence to future murders has gone unchallenegd. This tends to confirm the notion that any lie told often enough gets believed. The plain fact is that overwhelming research from the criminology community has failed to find any deterrent effect, as in fact punishment severity alone has not been a deterrent.
The deterrence research cited all comes from the same source, an economist named Isaac Ehrlich and his research in the 1970's. Since then, other economists, mostly from Emerory University, confirm the original finding. What's wrong with all of it is the same thing, it posits a rationality by criminals, and builds models of behavior from that premise. But criminals are not rational, and don't make crime choices the way consumers buy products.
For any punishment--death or long sentences--to be a deterrent, it has to be swift, likely to happen, and associated with social disgrace, and the death penalty meets none of those criteria. I am disturbed that a Senate hearing with seven "experts" did not include a social scientist with a reading knowledge of criminological research on deterrence. The death penalty is retributive alone, and has no empirical defense.
Need I say it, I am a criminologist.

Posted by: Michael Israel | Jun 28, 2007 9:55:27 AM

You're off the deep end, Doug. And the fact that you believe Cass Sunstein's study is worth the paper it's written on really makes me wonder if you're any kind of authority on sentencing at all.

Posted by: | Jun 28, 2007 2:04:43 PM

Unfortunately, the outcomes of these academic studies tend to depend on the politics of the author. This is extremely disappointing. People ought to just focus on the data, regardless of their preconceptions.

That being the case, as an individual without the time to gather the relevant data and do my own regression analyses, I have to fall back on simpler methods. And in so doing, I came across the following, which convinced me beyond a reasonable doubt that the death penalty does in fact deter murder. The evidence is much stronger than even the author says it is -- which only makes it all the more convincing. If you want to try to refute it, I'm all ears. (And please don't bother with name calling. It won't get you anywhere with me. Focus on the data.)

First, the short (and most spectacular) version is this graph:


For the long version, looking at different countries and so forth, go here:


Posted by: William Jockusch | Jun 28, 2007 4:33:02 PM

Jun 28, 2007 2:04:43 PM, Your comment makes no sense. First you accuse the editor of being “off the deep end.” Alas, you provide no specifics as to why his views are outside the mainstream or bizarre. Even if they were outside the mainstream, you would then have to demonstrate that they are irrational. But, you did not. This calls into question your logic.

Secondly, while many people might disagree with Sunstein’s way of looking at things, his views are taken seriously by most legal scholars. So, to simply discount his views, and those that take them seriously also calls into question your credibility.

Third, Professor Berman, while not a particularly active practitioner has written many things on sentencing, and is frequently quoted by courts of various levels. Therefore, even if you disagree with him you would need to concede that he is an authority.

Posted by: S.cotus | Jun 28, 2007 6:28:11 PM

But S.cotus, not as much as an authority as you are.

Posted by: federalist | Jun 29, 2007 2:03:41 AM

On one of the MSNBC Investigates programs about prisons, a warden, I think it was, said assaults on guards and staff spike just before an execution.

If that is true, one way to settle this deterrence thing would be to study the level of violence in prisons (the week?) before an execution in comparison to other "normal" times.

If executions are a deterrent, the violent crime rate in prison overall should go down as the execution date approaches, and there shouldn't be a spike in violence. However, common sense suggests that in any "us vs. them" scenario, be it in war or any other conflict that results in one of "us" getting killed, the natural reaction is not submission to "them."

So my bet would be that executions increase the rate of violence in prisons. More violence increases the chance of murder, and therefore executions increase the chance of murder.

Posted by: George | Jun 29, 2007 2:53:49 AM

Let's see. The evidence that we currently have that the death penalty increases violence is that some warden on some TV program said that in his prison there is more violence before executions.

The evidence that executions decrease the murder rate is that when looking at data averaged across several countries, comparing those which stopped executions during a given time period with those that did not, the murder rate generally rose in the ones that did stop executions. And particularly in the US, the murder rate skyrocketed during the years when we weren't executing anyone, and has since come part way back down to where it was prior to that.

Which data are more on point to the relevant question?

Posted by: William Jockusch | Jun 29, 2007 8:51:12 AM

In response to your question in the update --

I'm not happy that there seems to be a de facto moratorium on Federal executions. However, I also think that the heart of the problem is not that the Bush administration seems unwilling to expend the enormous resources required to actually execute murderers. Rather, it is the fact that our system requires such enormous resources in the first place. The whole system should be reformed such that this is no longer the case. So how do we do that without executing the innocent? This will involve some thinking outside the box. We have got to start with the realization that the way our courts have chosen to implement and interpret our Constitution on this issue has made the whole system into a mess that serves no one well -- and fundamental change, either in the form of Constitutional amendments, or of how the courts interpret our Constitution, is required. That said:

1) Only give a death sentence if you have overwhelming evidence of the defendant's guilt of premeditated murder. Like the evidence against Joseph Smith, John Couey, or BTK. Not like the evidence against Scott Peterson or David Westerfield, both of whom are very likely guilty, but both of whose cases also leave room for some degree of doubt. Prosecutors should be trained that by pushing for the DP in cases where there is any degree of doubt, they are not serving the overall cause of justice, because such cases lead to the clogged system we have today.

2) Videotape all police and lab work in murder cases. What with today's inexpensive webcams and CD ROMs, this should be affordable. Make these videotapes available to at least the defense -- or perhaps even the web. The purpose of this is to deter and root out Government fraud.

3) Subject expert witnesses to random, blind audits (so the next Pamela Fish will be caught quickly)

4) Harshly punish any Government fraud (the next Pamela Fish needs to spend decades in prison).

5) Offer enormous ($1 million?) cash rewards for anyone who exposes serious Government fraud in a murder case. That way, anyone who contemplates such conduct will have to assume that someone will rat them out, then retire on the reward.

5) Drastically shorten the appeals process. The issue in appeals should simply be the guilt or innocence of the defendant. Let the defendants introduce new evidence of innocence if they have it -- even if they "shouldn't" have overlooked it earlier. But no nonsense about how it will be too painful for them to die. They should have thought of that before murdering someone. Also appeals that the defendant has gone insane, or has rehabilitated, or is guilty but not so guilty he deserves to be executed should not be allowed. And let the defendant appeal to ONE court that will give him a full hearing, then directly to the Supreme Court if that should fail. Because all the intermediate hoops we have today make the whole thing take forever, which makes a mockery of the point of the DP.

Posted by: William Jockusch | Jun 29, 2007 11:44:51 AM

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