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August 3, 2007

Why I obsess over courts and others obsessing about the death penalty

The latest BJS stats on state felony sentencing provide me a statistical reminder about why I obsess over undue obsession about the death penalty.  Consider these basic number from this report:

In 2004 State courts convicted an estimated 1,079,000 adults of a felony....

Among the estimated 8,400 persons convicted of murder or nonnegligent manslaughter in 2004, 20.4% were sentenced to life in prison. In 2004, 29 States received 115 prisoners under sentence of death.

In other words, only roughly 1 in every 10,000 state felony sentences is a death sentence, and only 1 in 75 sentences for intentional homicide is a death sentence.  And yet the US Supreme Court and surely some other courts and academics likely spend far more time on death sentences than on any other type of state sentence.  What a waste, especially since those getting the death penalty are generally the worst of the very worst.

UPDATE:  Ben Barlyn goes deep with this strong follow-up reaction.  Here are highlights:

From my own vantage point here in New Jersey, where our death row is populated by nine — that's it, folks, nine — profoundly repellent specimens of inhumanity and the general prison population is filled to bursting with thousands of non-violent drug offenders (the highest percentage in the USA, mind you), the imbalance referenced by Professor Berman is as acute as it disheartening.

I'm still amazed: a state commission transparently front-loaded with opponents of capital punishment issues a predictable and not-particularly illuminating report calling for the abolition of the death penalty in NJ (legislation to effectuate the report's recommendation was long ago tabled — it is an election year, after all) and the world stops.

Yet not one news outlet in NJ saw fit to cover (or carry the AP story of) the more recent and far more shocking (and, to my knowledge, undisputed) findings of The Sentencing Project regarding the state's well-known racial disparity between white and black inmates.

August 3, 2007 at 11:53 AM | Permalink

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Comments

I'm a criminal defense attorney, practicing in Portland, Oregon.

I "obsess" over the death penalty because I think it is morally wrong. And many who are sentenced to death are "the worst of the worst" but many are not, and some are factually innocent (I've represented 3 capital defendants who I thought were innocent; 2 acquittals, 1 on appeal.) And some on death row are grossly mentally ill.

The question for me is why the voters "obsess" over the death penalty, that is, why do we have it? In Oregon we've had it since 1984, and the only people who have been executed were volunteers. It will be another 10 years before the first guy in line gets through federal habeas. Hard to argue that the death penalty is a deterrent in Oregon. If it is not a deterrent, why have it?

Laura Graser, Portland, Oregon

Posted by: Laura Graser | Aug 3, 2007 12:29:47 PM

I'm a criminal defense attorney, practicing in Portland, Oregon.

I "obsess" over the death penalty because I think it is morally wrong. And many who are sentenced to death are "the worst of the worst" but many are not, and some are factually innocent (I've represented 3 capital defendants who I thought were innocent; 2 acquittals, 1 on appeal.) And some on death row are grossly mentally ill.

The question for me is why the voters "obsess" over the death penalty, that is, why do we have it? In Oregon we've had it since 1984, and the only people who have been executed were volunteers. It will be another 10 years before the first guy in line gets through federal habeas. Hard to argue that the death penalty is a deterrent in Oregon. If it is not a deterrent, why have it?

Laura Graser, Portland, Oregon

Posted by: Laura Graser | Aug 3, 2007 12:30:25 PM

I'm a criminal defense attorney, practicing in Portland, Oregon.

I "obsess" over the death penalty because I think it is morally wrong. And many who are sentenced to death are "the worst of the worst" but many are not, and some are factually innocent (I've represented 3 capital defendants who I thought were innocent; 2 acquittals, 1 on appeal.) And some on death row are grossly mentally ill.

The question for me is why the voters "obsess" over the death penalty, that is, why do we have it? In Oregon we've had it since 1984, and the only people who have been executed were volunteers. It will be another 10 years before the first guy in line gets through federal habeas. Hard to argue that the death penalty is a deterrent in Oregon. If it is not a deterrent, why have it?

Laura Graser, Portland, Oregon

Posted by: Laura Graser | Aug 3, 2007 12:30:43 PM

One more time!

Posted by: S.cotus | Aug 3, 2007 12:34:31 PM

You go girl!

Posted by: | Aug 3, 2007 12:37:31 PM

Laura:

Read Genesis 9:6 (three times).

Posted by: Jake D. | Aug 3, 2007 12:49:22 PM

"Hard to argue that the death penalty is a deterrent in Oregon. If it is not a deterrent, why have it?"

If the obstruction of the death penalty prevents its deterrent effect and thereby causes the death of innocent people, why not just get rid of the obstruction?

I have no quarrel with exercising the most exacting care when there is an realistic doubt of identity of the perpetrator. But most death penalty litigation and the delay that goes with it is about the penalty phase.

The Belmontes case, in which one court after another went over the penalty phase instructions with a nit comb, is a perfect example. Why spend so much in resources on this issue? There no question whatever that Belmontes was a major participant in the senseless, brutal, bludgeoning to death of this young woman just to steal her stereo. There is very little doubt that he did the deed himself. His execution for this crime is clearly not a miscarriage of justice. His claim about the penalty phase instructions needed review, but the single review by the California Supreme Court was sufficient.

I think it is time to extend the rule of Stone v. Powell to the penalty phase of capital cases. If the state court fairly reviewed the penalty phase, and if federal habeas review shows no ground to overturn the guilt verdict or the determination that the case is eligible for the death penalty, that should be the end.

Posted by: Kent Scheidegger | Aug 3, 2007 12:52:57 PM

How can you ever criticize anyone for "obsessing" over the death penalty when the result of the penalty being discussed is actual DEATH? It might seem like an oversimplified reasoning for such an obsession, but death IS different. "Those getting the death penalty," no matter how "bad" they are, will never take a breath again. We know that the death penalty is cruel and unjust (and ineffective), so just one death sentence in a year is worth obsessing over, let alone 115 in a single year.

Posted by: jp | Aug 3, 2007 12:57:58 PM

Jake D.:

Read the rest of the Bible (once).

Posted by: jp | Aug 3, 2007 1:00:43 PM

"We know that the death penalty is cruel and unjust (and ineffective)..."

Perhaps the most far-reaching and presumptuous use of the word "know" that I've witnessed in a long time.

Posted by: Ben D | Aug 3, 2007 1:04:16 PM

jp:

I have.

Posted by: Jake D. | Aug 3, 2007 1:04:58 PM

Reading the Bible not helpful as it prescribes the death penaly for a young child who disobeys his parents; for adultery, and for a person who mixes cotton garmets with wool. By the way, what are you wearing today?

Michael Levine

Posted by: Michael Levine | Aug 3, 2007 1:10:48 PM

Who says I'm wearing anything? As for what's "helpful" or not, I agree that Your Value May Vary. I was simply answering Laura's question(s).

Posted by: Jake D. | Aug 3, 2007 1:21:13 PM

Jake D.,

Read Genesis 4:11-15. There, after Cain killed Abel, rather than calling for the death penalty, the appropriate punishment as handed down by the Divine was banishment and exile ("a fugitive and a vagabond shalt thou be upon the earth"). In fact, God explicitly forbid capital punishment as a remedy ("Therefore, whosoever slayeth Cain, vengeance shall be taken upon him sevenfold. And the Lord set a mark upon Cain, lest any finding him should kill him.").

How do you reconcile that with your eye-for-an-eye stance from Genesis 9:6? Is scripture suggesting that the death penalty is appropriate except in cases where a man kills his brother?

Posted by: Matt McHenry | Aug 3, 2007 1:37:04 PM

Matt,

No, I think scripture is suggesting that God still needed Cain to help populate the earth and that the OT God was practical.

Posted by: Ben D | Aug 3, 2007 1:41:51 PM

God doesn't "need" any help, thank you very much. He knew all along that the Noahic covenant was going to happen. God allowed Cain to live so that we could all see the consequences of allowing the murderer to go free. Lamech could kill a young lad for what may have been a mere insult and boast of it (Genesis 4:23-24). The men who died in the flood were men of violence. God did punish that murderer, but He delayed the execution until the days of the flood so that we could learn the high price of allowing the murderer to go free.

Now that all mankind had perished because of this sin, God could require society to take the life of the murderer. In this act of capital punishment, man would act on behalf of God —- he would reflect the moral image of God, namely, His indignation and sentence upon the murderer.

Man (and by this I understand Moses to be referring to society and its governmental agency) is required to execute the murderer to reflect the moral purity of His Creator. Government acts in God’s behalf in punishing the evildoer and rewarding those who do good:

Let every person be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God. Therefore he who resists authority has opposed the ordinance of God; and they who have opposed will receive condemnation upon themselves. For rulers are not a cause of fear for good behaviors but for evil. Do you want to have no fear of authority? Do what is good, and you will have praise from the same; for it is a minister of God to you for good. But if you do what is evil, be afraid; for it does not bear the sword for nothing; for it is a minister of Gods an avenger who brings wrath upon the one who practices evil (Romans 13:1-4).

The ‘sword’ which Paul mentions in verse 4 is the sword used by the executioner to carry out capital punishment. Jesus gave testimony to the fact that government had been given the task of executing law-breakers:

Pilate therefore said to Him ‘You do not speak to me? Do You not know that I have authority to release You, and I have authority to crucify You?’ Jesus answered, ‘You would have no authority over Me, unless it had been given you from above; for this reason, he who delivered Me up to you has the greater sin’ (John 19:10-11).

The command concerning capital punishment is, I believe, the cornerstone of any society of sinful men. The animal kingdom is to be controlled, to a great extent, by means of their fear of man. Man’s sinful tendencies, similarly, are kept in check by his fear of the consequences. Any society which loses its reverence for life cannot endure long. For this reason, God instituted capital punishment as a gracious restraint upon man’s sinful tendency toward violence. Because of this, mankind can live in relative peace and security until God’s Messiah has dealt the death blow to sin (read the LAST Book of the Bible).

Posted by: Jake D. | Aug 3, 2007 1:58:42 PM

Here is another book to read, The Inate Mind, Volume 2, Culture and Cognition. It is edited by Carruthers, Laurence and Stich. Getting even is a part of our evolutionay makeup.

Posted by: Tom McGee | Aug 3, 2007 2:09:31 PM

"evolutionay makeup"?! But I thought we were talking about God? Oh wait, no, we weren't talking about either.

We were supposed to be talking about how so much ink by courts gets spilled on the death penalty while in comparison, relatively little is used to discuss and analyze the punishment that occurs in 9,999 out of 10,000 felony cases.

Yes, the death penally is, in my opinion, morally wrong and I would be the first to vote against it (even if the "worst of the worst" cases AND even if it proved to be a deterrent...I just don't think the state should be killing people). But that does not mean that the Courts and some academics are justified in devoting so much of their scarce dockets and time to the subject, while non-capital sentencing issues have a much more prevalent impact in courtrooms across the country.

There are three societal benefits (as I see them) to excessive capital litigation: 1) it has the effect of making capital punishment more difficult to obtain and therefore less sought after; 2) it increases that chance that the “correct” person is being executed, if there is such a person; and 3) a capital holding can eventually impact the non-capital sentencing setting. These are all valuable and necessary if we are going to have the death penalty. But I just wish as much time or more was devoted to non-capital sentencing issues, which are much more significant in American courtrooms and would impact many more individuals in the criminal justice system.

Posted by: | Aug 3, 2007 3:10:50 PM

People who respond to the post with "death is bad" and "sometimes we execute the innocent" just don't get the point of the post.

It's a very simple point, and people's failure to understand it makes me think that it's impossible to have a decent debate on anything involving the death penalty. Mr. Scheidegger's comment makes me optimistic, but he agrees with Prof. Berman, I think.

By "get," I don't mean "agree." One can certainly get Prof. Berman's point and disagree with it, but I haven't seen anyone do that here yet.

Posted by: | Aug 3, 2007 3:17:26 PM

Prof. Berman's point misses the point. Only when he and others are prepared to acknowledge that the Death Penalty is the inefficient, wasteful and profoundly corrupt blunt instrument that it is can the issue he raises be properly addressed. He states that death comes mainly to the "worst of the worst", yet the evidence is plain for all to see that in reality many of the "worst of the worst" actually escape the death penalty, reflecting the divisions in American society over this issue. The death penalty, as most civilized societies have acknowledged for some time (and many less developed ones also), is both too final a solution when human error and human prejudice are unavoidably a part of the process, let alone geographical and economic disparity. Revoke the Death Penalty and you have a chance to address the issues that so (rightly) concern Prof. Berman. In todays world there is no sustainable defence of this brutal and unreliable policy of capital punishment.

Posted by: peter | Aug 3, 2007 3:53:40 PM

Peter:

Perhaps you can explain that face-to-face to the friends and family of 19-year-old Steacy McConnell, who was killed by Belmontes in the case cited above by striking her head 15 to 20 times with a steel dumbbell bar? There no question whatever that he was a major participant (and very little doubt that he did the deed himself) in the senseless, brutal, bludgeoning to death of this young woman just to steal her stereo. His execution for this crime is clearly not a miscarriage of justice, is it?

Posted by: Jake D. | Aug 3, 2007 4:04:37 PM

Why are you people talking about G**? The Bible is a story book about a certain people and it certainly has nothing to do with the rest of the population. Get a clue! Remember, it's a STORY BOOK. Their story is not my people story.....

Posted by: | Aug 3, 2007 4:17:10 PM

Let me state it another way. People obsess with the death penalty because getting even is an evolutionary artifact that is hard wired.

Posted by: Tom McGee | Aug 3, 2007 4:18:35 PM

Who are YOUR "people"? Satanists?

Posted by: Jake D. | Aug 3, 2007 4:29:31 PM

you know, while these comments are a good demonstration of why the quest for vengeance (i.e. death penalty) consumes millions of dollars that could be used to help actually comfort survivors and try to help prevent the abuse that produces many of the problems that lead to homicide . . . Ever notice that in Genesis, THE LORD proclaims that "it shall be an eye for an eye and a tooth for a tooth" and in the next breath, THE LORD explains that if a man shall injure a woman with child and cause her to lose the child, the punishment is a payment for the loss of the child's service? So if the unborn child were a person in god's eyes, wouldn't the punishment be death instead of compensation for lost future earnings?

Posted by: OMG | Aug 3, 2007 4:38:02 PM

the quest for vengeance (i.e. death penalty) consumes millions of dollars that could be used to help actually comfort survivors and try to help prevent the abuse that produces many of the problems that lead to homicide . . .

Knowing that the perpetrator will never harm anyone again often comforts survivors. Not always, but often.

Posted by: | Aug 3, 2007 4:41:31 PM

OMG:

God was dealing with a society who still accepted human slavery then too. You aren't seriously suggesting that's O.K. for today's society, are you? INCREASING protection for human life is the logical progression, not the other way around.

Posted by: Jake D. | Aug 3, 2007 4:42:33 PM

Protecting INNOCENT human life, by the way.

Posted by: Jake D. | Aug 3, 2007 5:09:44 PM

Jake D.:

We could trade cases where "certainty" is more or less present for a long long time but the exercise would be pointless except to prove the fundamental flaws of the policy and process.
Other states in this world have faced up to the same questions and emotions - there is nothing unique in this to the US. One persons relief cannot be traded against anothers innocence.

Posted by: peter | Aug 3, 2007 5:20:29 PM

Peter:

I just wanted to know if you really think Belmontes's execution is a miscarriage of justice, that's all.

Posted by: Jake D. | Aug 3, 2007 5:28:59 PM

You know it's sad when people quote from a book that is make believe. That book was written by men in a colorful way to get people fool. Civilization has been around a long time before that book was written. It just happened that who ever were in control dictates that their story is above everybody else. Why should that history be more important than mine. My ancestors were ok until the so-called civilized people destroy my culture, rape and enslaved the people, stole their land under the illusion it was written in their book that they have to be in control to help civilize us. Personally, religion is the root of evil.

Posted by: | Aug 3, 2007 8:05:48 PM

Take a quick look around the world. Look at the other nations that have the death penalty. Do we want to share value with these people?

Posted by: DAG | Aug 3, 2007 8:16:01 PM

I'm not a big fan of moderating/censoring comment.... But this is a good candidate for a nice shearing.

Posted by: Mike | Aug 3, 2007 9:24:30 PM

Sorry about the triple post.

Obviously one's world-view has a big impact on how one views this. And my world view is confirmed by my experience.

I've represented maybe 30 people charged with capital murder, a couple were innocent, a couple were grossly overcharged, a handful seemed like they'd had a normal life, but the majority did what the indictment claimed they did...and they had nightmare childhoods. One client was locked in a closet when he was 5 by his mother who then set the house on fire. He survived to have her sexually abuse him for years. These facts were not disputed by the prosecutor. I could go on, that's just the case I'm working on today. I'm not saying he shouldn't be in jail forever (even he says that now).

All this was in 1987. Lawyers with my world-view have convinced judges to rule such that he's got another 10 years of appeals. I recognize that some think the solution is to remove lawyers with my world view. But there are a lot of us.

OK, now I'll try to post this once. Laura Graser, Portland, Or.

Posted by: Laura Graser | Aug 3, 2007 10:47:09 PM

People who argue against the death penalty have a spectacularly consistent record of failing to mention the negative correlation between the murder rate and the execution rate.

In all candour, if you oppose the death penalty, you have simply got to address these data. The typical reaction of death penalty opponents, however, is to try to change the subject.

http://photos1.blogger.com/x/blogger2/2532/4048/1600/172844/Execution%20Rate.jpg

Posted by: William Jockusch | Aug 3, 2007 11:07:12 PM

W Jockusch:

All your graphic does is demonstrate that there is no correlation. State by state comparisons show clearly that there are far more important factors that influence criminality and murder rates. By your reasoning, those US states without the death penalty should have the highest rates of murder. It simply is not so. Canada, Europe and other countries too have found better means to implement sanctions other than the Death Penalty. Fear and hate are not worthy emotions to dictate a criminal justice policy.

Posted by: peter | Aug 4, 2007 4:06:41 AM

"State by state comparisons show clearly that there are far more important factors that influence criminality and murder rates. By your reasoning, those US states without the death penalty should have the highest rates of murder. It simply is not so."

No, Peter, it is your reasoning that simply is not so. The negative correlation between having the death penalty and murder rates is better explained with the causation running the other way. The jurisdictions that have low murder rates for other reasons (most of them beyond government's capacity to control) tend to be the ones that decide they can do without the death penalty. This is demonstrated by the fact that the same states had lower murder rates during the temporary abolition of capital punishment when no state had the death penalty.

Posted by: Kent Scheidegger | Aug 4, 2007 3:06:50 PM

Kent:

Ok, so it must be the air that is responsible in those states that have a high murder rate? Or maybe Texans possess genes that predispose them to commit murder? I don't think so. Believe it or not (and I guess you don't), society can evolve through education, social (state and voluntary sponsored) structures, more effective policing, better work and leisure opportunities, to name but a few of the contributary factors that some states manage better than others. Violence simply breeds more violence. As Iraq and the Middle East more than adequately shows, a society that is subjected to violence by "authorities" isn't cowed. In a sense it is challenged. The comparison isn't so far fetched as it might seem. If I remember my cowboy stories right, the wild west wasn't tamed by mass killings of gunslingers. Though talking about gun ownership ....

Posted by: peter | Aug 4, 2007 6:38:30 PM

Kent I have some comments on your graph. The data in the graph was taken from the web page of the
Bureau of Justice Statistics where they give the data for executions and execution rates in one graph by year and they give FBI data on all murders and non-negligent manslaughters by year for the US excluding the murders on 9/11 in a separate graph. Someone combined the data and labeled murder and non-negligent manslaughter as murder. There are a lot of non-negligent manslaughters and normally they do not result in a death sentence and furthermore some state do not have death penalties.

Posted by: JSN | Aug 4, 2007 6:57:49 PM

JSN, my graph? I haven't said anything about a graph.

Peter, your response is a textbook example of the straw man fallacy.

Posted by: Kent Scheidegger | Aug 4, 2007 7:53:13 PM

Peter, you can't prove anything by comparing DP states with non-DP states, because you don't know if the high murder rate might make the state more inclined to have the death penalty. If this is the case, then you will see a higher murder rate in DP states than non-DP states. This would be consistent with both the hypothesis that the DP deters murder and the hypothesis that it does not.

But look at what happened in 1966 when the US essentially stopped executions: (1 in 1966, 2 in 1967, then 0 through 1976, and a grand total of 6 for the years 1977-82) (source: http://www.ojp.usdoj.gov/bjs/glance/tables/exetab.htm)

Year Murders per 100,000 population (source: http://www.disastercenter.com/crime/uscrime.htm)
1966 5.6
1967 6.2
1968 6.9
1969 7.3
1970 7.9
1971 8.6
1972 9.0
1973 9.4
1974 9.8
1975 9.6
1976 8.7
1977 8.8
1978 9.0
1979 9.8
1980 10.2
1981 9.8
1982 9.1

Looks like once we stopped executions, the murder rate rapidly moved upwards from its former level of about 5 per 100,000 to a range around 9-10 per 100,000. And then in 1983, resumed executing a few murderers (5 in 1983, then roughly 20-30 a year through 1994, and what happened to the murder rate?

1983 8.3
1984 7.9
1985 8.0
1986 8.6
1987 8.3
1988 8.4
1989 8.7
1990 9.4
1991 9.8
1992 9.3
1993 9.5
1994 9.0

So this low (but nonzero) rate of executions drove the murder rate a little off its peak, but not much -- it was now running in the range 8-10, versus 9-10 when the number of executions was miniscule. But then in 1995, the executions really got going, with typically 50-100 a year from then through the present. And how did the murder rate react to that?

1995 8.2
1996 7.4
1997 6.8
1998 6.3
1999-2005 between 5.5 and 5.7 every year.

So we had a murder rate of roughly 5 per 100,000. We tried the experiment of halting executions, and it rose to 9 or 10 per 100,000. We then resumed a few executions, and drove it down a little. When we started executing significant numbers of murderers, it fell further, to roughly 5.5 per 100,000 -- almost exactly where it was before we tried our ill-fated experiment.

In this type of research, these are spectacular results. It is rare for research into something as complex as murder to show results anywhere near as clear as that.

Look, it doesn't matter if you are liberal, conservative, whatever. Results like that are simply spectacular enough that any serious person has got to take notice of them.

Posted by: William Jockusch | Aug 4, 2007 8:10:56 PM

In 2004 there were 16,137 murders and non-negligent manslaughters and 8,400 convictions for such crimes with 115 of those convicted sentenced to death. What this means is a person is 140 times as likely to be murdered as sentenced to death. It is difficult for me to believe that a death penalty is a deterrent at all for non-negligent manslaughter and much of a deterrent for premeditated murder.

My own view is because the CJ System is not perfect we should save the parts.

Posted by: JSN | Aug 4, 2007 11:02:01 PM

Kent:
I am well aware of your arguments and use of statistics having for example followed them in your statement to the New Jersey DP Commission. But the correlations that you seek to prove are taken out of context of the realities of the social and criminal environments from which they appear to come. The charge is easily made against us all of course that find what we seek from the data. I'm sure you are aware of the following analysis presented on the site http://www.deathpenaltyinfo.org/article.php?scid=12&did=168
"As executions rose, states without the death penalty fared much better than states with the death penalty in reducing their murder rates. The gap between the murder rate in death penalty states and the non-death penalty states grew larger . In 1990, the murder rates in these two groups were 4% apart. By 2000, the murder rate in the death penalty states was 35% higher than the rate in states without the death penalty. In 2001, the gap between non-death penalty states and states with the death penalty again grew, reaching 37%. For 2002, the number stands at 36%." Bringing this up-to-date, for 2005 the figure was a staggering 46%.
As a professional, I'm sure you allow yourself to be open to other approaches to these arguments. A significant influence on my thinking has been the work of Craig Haney, as exemplified in his brilliant book, Death By Design. It's time the CJS opened its eyes to the human effects of sometimes sterile, if not puerile, notions of Justice.

Posted by: peter | Aug 5, 2007 2:57:58 AM

I don't believe in the death penalty, and my religious views are my business and no one else's. The fact is, as Laura Graser states, some people who get the death penalty did what they were charged with. Some didn't. In some cases there were circumstances which could/should have been in some sense mitigating. In some cases the people were innocent, as has been demonstrated by exonerations nationwide. Thank goodness there are attorneys like Ms. Graser who devote themselves to these cases.

But I totally agree with what I perceive Professor Berman is saying. People in death penalty cases represent a tiny fraction of the people who are sentenced. Given that death penalty cases, at least in theory, are given special attention and lots of appeals and still sometimes result in incorrect convictions and sentences, what is the proportion of other cases that are wrongly decided and sentenced?

The problem is that these other possible wrongful convictions and questionable sentences seem to be overshadowed by the emphasis on death penalty cases. Both are important. Sending someone to prison for three years (or three months!) for a crime he did not commit is just as morally wrong as sentencing someone to death for a crime he didn't commit. It's just less final, so we say, oh, that's too bad, but after all, it's only three years. One of the biggest factors, I'm sure, is that cases other than murder and rape often don't involve DNA evidence. So saying absolutely that John Doe was not the burglar or the convenience store robber may be significantly more difficult than saying that Frank Smith didn't rape someone.

Then we have all the issues like problems with eyewitness testimony (I know it was John Doe even though it was dark and he had a hat on and he didn't have the beard he had in the lineup and I was 50 feet away) and forensic issues such as the pros and cons of hair analysis and and new discoveries about the way fires burn and whether they imply arson.

Next we have the issue of length of sentences which at one time seems appropriate and then begins to seem inappropriate (like crack vs. powdered cocaine) and the whole issue of whather draconian sentences prevent crime (do criminals really calculate how many years they might get before committing a crime?) or actually make crime worse by eventually releasing lots of nonfunctional people onto the streets.

And let's not forget plea bargaining. The criminal mentioned above might very well think, well, even if I get caught and the sentence is 20 years, I'll be able to plea bargain it down to five. But the other side of plea bargaining is the person who really is innocent and can't afford a good attorney and is being pressured by both the prosecutor and his public defender to accept a plea. If he does say no and demand a trial, with poor representation he may well be convicted, and the prosecutor will probably demand a long sentence because the defendant caused them all the time and expense of a trial.

And that brings up another thing. How many of our decisions about convicting and sentencing people are essentially the result of the fact that the legal system simply doesn't have the time, personnel, and money to treat every defendant the way many of us here on the outside naively thought we would be treated?

Lastly, I do think it is a major criticism of the legal process that many exonerations are the result, not of the trial and appeal process finding the truth, but of outside entities like innocence projects getting involved and saying, wait a minute, this emperor is not wearing any clothes. Unfortunately, it is seldom the original defense attorney saying, dammit, this isn't right and I'm going to keep fighting even if they can't pay me, or a prosecutor looking more closely and discovering that he was wrong, that brings about changes in the results. And when the Supreme Court says, sorry, you die because you appealed in good faith but the judge told you the wrong date, some of out here in non-legal land say that's just plain nuts!

Posted by: disillusioned layman | Aug 5, 2007 11:19:24 AM

Peter

What the data you referenced shows is the rates for murder and non-negligent manslaughter have declined from 1990 to 1999 and remained more or less constant since 1999 with a somewhat larger rate of decline for non-death penalty states. This means the relative probability of murder in a non-death penalty state with respect to a death-penalty state was about 95% in 1999 and 75% in 2000. This may not be a real difference because many of the non-death penalty states are in the upper Midwest where there are only a few large cities.

Murder rates in some cites are ten times the national average. I suspect that over 75% of the murders are in urban areas so another way to sample would be to use data from cities and divide them into death penalty and non death penalty groups. This would reduce the number of uncontrolled variables in the study.

The idea that the death penalty is a deterrent is based on the premise that people use a rational process to decide if they should commit an irrational act (namely premeditated murder).

Posted by: JSN | Aug 5, 2007 12:35:14 PM

Why don't judges and prosecutors who either made a mistake or look the other way don't get punish. Think about it if a prosecutor hide evidence that could exonerated a defendant and that defendant get the death penalty or any sentence. Should the prosecutor be charge with obstruction of justice or conspiracy to commit murder? Even judges could have knowingly denied testimonies or evidence that may exonerated a defendant. The point I'm making, even though both the judges and prosecutors are immune from prosecution, they do commit these crimes and get away with it. Why? Where is the outrage?

Posted by: | Aug 5, 2007 12:38:55 PM

Good question. Sadly, a lot of people I talk to say, why bother, the system is so corrupt that nothing will make any difference. They really don't believe we can change anything. I guess I haven't gotten quite that cynical yet.

By the way, guys, I seem to remember in my first quantitative methods class in grad school (yes, S.cotus, I went to grad school!) the professor told us correlation does not imply causation. Therefore, if X and Y vary together, there are four possibilities: X caused Y, Y caused X, some other factor or factors caused both X and Y, or by chance, X and Y happened to vary together and are not actually related. To determine which of these is true, you need further information.

This matters, because you use these statistics to support policies which decide whether the rest of us live or die or spend years in prison.

Posted by: disillusioned layman | Aug 5, 2007 1:33:04 PM

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