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October 12, 2007

A challenge: help me "come off the fence" concerning the death penalty!

In a wonderfully provocative comment, peter here urges me to "come off the fence" concerning the death penalty.  OMG echoes and endorses "peter's very respectful observation."  If forced off the fence, however, I am probably not inclined to land on the abolitionist side (where peter and OMG apparently want me).  In the (silly?) hope of generating a productive debate, let me quickly explain to peter and others why I am so ambivalent about the death penalty.

1.  Uncertainty about deterrence.  Lacking sophisticated social science skills, I cannot reach a firm conclusion on the empirical debate over whether the death penalty saves innocent lives.  But my consequentialist philosophy makes me willing to endorse the execution of a few convicted murderers if doing so could save innocent lives.  Though many justifiably raise doubts about deterrence data, only clear evidence that the death penalty costs innocent lives would turn me into a committed abolitionist.

2.  Concerns about alternatives.  In the spirit of JS Mill's famed speech, I am troubled by the embrace of life imprisonment without parole (LWOP) as a "more just" alternative to the death penalty.  It is telling (and disappointing) that many modern efforts to abolish the death penalty lead to more LWOP sentences (often even for some offenders who would not have been subject to capital punishment).

3.  Sincere assertions of victims' interests.  I believe victims should have a prominent (though not dominant) say in how the criminal law responds to their victimization.  Consequently, I have a hard time disregarding the voices of those victims who sincerely assert and genuinely believe that only the execution of a murderer will bring catharsis or repose for them.

4.  Respect for democratic choices.  Points made above do not make me a supporter of the death penalty, just an agnostic.  But that agnosticism makes me skeptical of abolitionist opposition to the death penalty in light of broad democratic support for the punishment.  Though I do not agree with all policy positions supported by public opinion polls, my respect for democratic choices makes me wary of the implicit political commitments of committed abolitionists.

That all said, I still view the modern flawed American death penalty system as an expensive, convoluted and distorting legal machinery that probably does more harm than good.  But that is why I tend to be drawn more toward arguments to fix the death penalty --- by, as suggested here and here, making it exclusively federal --- rather than toward abolitionist claims. 

But, on a Friday afternoon after a long week, perhaps I just can't see the great arguments for pushing me off the fence regarding the death penalty.  Commentors are encouraged to help me see the light.

October 12, 2007 at 03:47 PM | Permalink

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It's always going to be expensive. I assume you agree that we want to be extra careful in the death penalty context that the defendant is both guilty and receives a fair trial. To ensure both, the Government is going to have to spend a lot of money. The money spent on making sure the death penalty is properly working could surely be used for better purposes. The vast amount of resources death penalty cases use up is simply staggering.

Studies that argue that the death penalty saves lives ignore the huge monetary costs attached with using the death penalty. How many additional lives could be saved if we used that money to hire more police? I suspect that would vastly outnumber the number of people supposedly saved by the death penalty.

Posted by: Doug | Oct 12, 2007 5:09:33 PM

Doug:
I thank you for this initial response. I hope others will indeed rise to your challenge. I will be happy to add my own thoughts in the next day or so. I would comment in advance of that however, that the suggestion that a particular stance on the death penalty can automatically be associated with a political association/leaning is, or should be, way off the mark. It is that very politicization of legal arguments and legal practice that has led to the polarization of opinion that is so damaging to the principle of consensus, without which the law is in danger of being held in contempt. The use of political labels in this argument only hinders real debate. A narrow and unqualified interpretation of democracy as the will of the majority is also inappropriate, especially where that "will" is so heavily manipulated in the political arena. I will return to the argument in due course. Like you, I have had a heavy week.

Posted by: peter | Oct 12, 2007 5:14:08 PM

Treating any complex issue with a single, catch-all justification is usually a bad idea, but with that caveat, the clearest explanation I have (which I make to others and to myself) for my opposition to the death penalty is that in a civilized society, you don't kill people unless it's necessary. That's why we don't engage in "wars of choice," and all wars have to be justified as "self-defense." But it's not self defense after you've won the fight and you've got the guy strapped to the gurney.

Also, there are plenty of reasons for why the death penalty might be a good or a bad idea, but it would be hard to find anyone who believes it's *necessary*. If a country or state abandons the death penalty, it's hard to say they are acting *immorally*. And if taking lives by using the death penalty isn't necessary, we shouldn't be doing it.

Posted by: Will | Oct 12, 2007 5:53:59 PM

I'm glad that you state as one of your reasons a respect for the democratic process. There are so many abolitionists (including one rather obnoxious one who comments here) who basically say the hell with what the majority wants. Yet, if we believe at all in our democratic roots, we should defer to the popular will of the People even if we personally don't agree with our fellow citizens.

Posted by: Steve | Oct 12, 2007 6:26:15 PM

I agree with commentor Doug that the death penalty is very expensive and surely not cost-effective, but its seems that relatively few committed abolitionists effective make cost-based efficacy argument (although likewise very that few capital punishment proponents fully deal with opportunity cost/benefit issues).

Just to clarify, peter, I am not seeking to castigate certain "political associations/leanings." Rather, I just mean to spotlight that, given the historic political support for the death penalty in many states, I wonder exactly whether/when abolitionists would also actively support other counter-majoritarian policy positions.

Posted by: Doug B. | Oct 12, 2007 6:55:30 PM

Cost could be greatly reduced with two steps: (1) overrule Lockett v. Ohio and limit the penalty phase evidence to the facts of the present crime and the defendant's criminal record or lack of one; and (2) extend the rule of Stone v. Powell to the penalty phase, eliminating federal habeas review if the state courts have given the case a fair review.

Spending vast resources on a microscopic examination of the defendant's entire life is not really constitutionally required, and I am not convinced it makes the outcomes any fairer or more even-handed. It may make them less so.

Posted by: Kent Scheidegger | Oct 12, 2007 7:55:14 PM

Like Prof. Berman, I was on the fence about the DP for many years. The thing that finally pulled me off the fence, and made me a firm supporter, was deterrence statistics. Here is the graph. (The poster has mislabelled the non-negligent homicide rate as the "murder rate".)

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

Adding to this is the international evidence:

http://engram-backtalk.blogspot.com/2007/04/chicago-tribune-wants-to-abolish-death.html

Posted by: William Jockusch | Oct 12, 2007 8:42:39 PM

We don't have one death penalty, so being on the fence isn't unreasonable. We have several dozen death penalties, some of which are in line with international norms for those nations which retain a death penalty, and others of which are not.

Some, the one in Texas, for example, or the one in Lousiana for child rapists, are pretty bad.

Others are quite narrow in substantive scope, invoked in a context where due process protections are genuine, and used sparingly only in the most egregious cases.

Posted by: ohwilleke | Oct 12, 2007 8:55:45 PM

Doug, I am a capital appellate defense attorney, with three clients on death row in California. First, regarding deterrence, let me suggest something that I have never seen written anywhere else: that the death penalty is not only not a deterrent, but encourages murder. I wondered why there are so many instances of states having the death penalty also having higher murder rates. I think it is this: that the "message" that the death penalty sends is not so much "do this and you might die," (since we know that the prisons are full of prisoners who knew of the penalties but simply thought they would not get caught); but rather, "if someone does something bad enough to you, it's o.k. to kill them."
Second, concerning "sincere assertions of victims' interests," most of what I have heard (anecdotally) is that the state-imposed death of the murderer does not produce "closure" (a most-overused term), or even satisfaction. So, if all it does is satisfy some vague sense of retribution, can that justify another killing?
Regarding the democratic process, even you note the distortions wrought by the political and media processes regarding the death penalty. I will note that most of the polls that I remember hearing about, at least in California, show a distinct lowering of support for the death penalty (often to below 50%) when it is explained that the alternative is LWOP. If the electorate understood how much more expensive it is to impose the death penalty than to house the perpetrator for life in prison, I think the poll results would show even more opposition to death.
Another little-discussed matter. It is my experience that even the most ethical and "reasonable" prosecutors get a little crazy when prosecuting death penalty cases. Put another way, in the many, many trial transcripts I have read in 24 years of appellate practice, I see far more instances of prosecutorial misconduct, over-reaching, and just plain
nastiness, in the death cases.
I think Scott Turow had it right: Even if you and I could agree that there are a few cases (e.g., Tim McVeigh) in which there is a visceral, perhaps almost universal, desire to see him go to the gallows, we have not found -- and I don't think we ever will find -- a rational and consistent way to draw the lines between those cases and the more usual, everyday sorts of murders.
It is worth remarking that in a study done a few years ago by two New York Times reporters, seeking for the most common trait among convicted murderers, the one they found most was mental illness. The system is rigged against this being taken into account at either the guilt or the penalty phases.
In my experience (with two of my three current death row clients, I believe, probably not guilty), the death decision is not only expensive, convoluted, and distorting, but too often the result of whimsy (the judge, prosecutor, or attorney the defendant draws), discrimination (obviously), and other non-rational factors (including, most obviously, the stark instances of those exonerated by proof of actual innocence only by the luck of having DNA being a factor in their cases) to justify the result being the death of a human being.

Posted by: Rick Targow | Oct 12, 2007 9:01:28 PM

Democracy?

"How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with? Do you think this has happened in the past five years, or not?"

.
................Has
................Happened........Has Not.....Unsure
.....................%...............%..............%
5/8-11/06.........63.............27...........10
5/2-5/05...........59.............33.............8
5/03.................73.............22.............5

.

"Do you feel that the death penalty acts as a deterrent to the commitment of murder -- that it lowers the murder rate -- or not?"

D...........Does Deter........Does Not......Unsure
....................%................%...........%
5/8-11/06.....34...............64..........2
5/04............35...............62..........3
6/91............51...............41..........8

"Which punishment do you prefer for people convicted of murder: the death penalty or life in prison with no chance of parole?" Split sample B

.
.............................Death
.............................Penalty......Life in
............................................Prison.......Unsure
.................................%..............%..............%
.............ALL...............42..........46 ............12
...........Republicans......53..........33.............14
.............Democrats......32..........57.............11
..........Independents......43..........46.............11

More, including a poll that shows the public thinks the crime rate has been on the rise though it has plunged over the last decade.

Posted by: George | Oct 12, 2007 9:46:59 PM

The Iowa death penalty was repealed 45 years ago and there has not been a floor debate on reinstatement for a number of years so my recollections about the last debate are a bit hazy. I recall that input from constituents was evenly split for enough of the legislators so they had to decide the issue an the basis of the debate and their own views. What I thought was interesting was how many of them changed their minds (both ways) and told their party leaders to take a hike.

My recollection was arguments about deterrence were not given much weight (the evidence is not very good). The views of victim relatives who testified were evenly split. Not many victim relatives were willing to testify because they had found closure and/or they did not want to be dragged into a political fight.

The view was LWOP may not be good but it is better than the alternative.

The poll results were very interesting. The control group was asked if they preferred the death penalty and most did. The other group was asked if they preferred the death penalty and most did. Then they were asked if the knew the penalty was LWOP and most did not. They they were asked if that would cause them to change their opinion and most said yes and the final outcome was that most preferred LWOP. Most DP polls only ask the first question and are conducted by newspapers immediately after the commission of heinous crime.

The public is not very interested in criminal justice issues unless there is a current horrific crime and once that is settled interest dies down fairly quickly. The have a rough idea that the penalty is proportional to the severity of the crime but they are not interested in the details. Most of the legislators I know are not interested in debating criminal justice issues because they are so emotional and the party leaders learned on that subject they have no leverage to apply to their members.

A minor quibble the victims are dead it the is rights of their relatives that are at issue.

Posted by: JSN | Oct 12, 2007 9:58:35 PM

On deterrence, Dezhbakhsh and Rubin have their response to Donohue and Wolfers up on SSRN. If what they say is true, it looks like Donohue and Wolfers have bordered on scientific fraud.

I smelled a rat when D&W published their criticism in a law-student-run law review, rather than a peer-reviewed journal run by people capable of evaluating methodology. Based on the Harry Truman principle, if you see someone avoiding the kitchen, there is a good chance he can't take the heat.

More here.

Posted by: Kent Scheidegger | Oct 12, 2007 10:13:52 PM

Several random points:

Kent, if a defendant were mentally ill; borderline mentally retarded; was sexually and physically abused by his parents growing up; and was 20 when he committed his double murder, you don’t think any of that evidence would be relevant in determining whether the defendant was so morally culpable for his crime that he deserved to be executed?

And don’t you think that state courts need to be tightly reviewed in DP cases? How many innocent defendants have been freed from death row over the years?

But lets assume we live in the world you propose. There would still be enormous costs to the death penalty. You have to invest in making sure enough defense attorneys are competent to handle death penalty cases. Voir dire is more expensive. You have a right to a lawyer in federal habeas in DP cases. Etc. All these costs quickly add up. I haven’t seen a number, but I suspect the cost (even in your perfect DP world) would be quite high. If that money were spent on police, how many crimes would we prevent? How many lives would we save?

William, those numbers are meaningless. Causation does not mean correlation. I suspect even death penalty advocates, like Kent, would agree that your chart doesn’t prove anything.

Posted by: Doug | Oct 12, 2007 10:22:25 PM

For many years I remained an agnostic as well. Actually, while living in Michigan that was fairly easy to do; the death penalty was abolished a very long time ago and attempts to revive it usually implode fairly early.

I base my objections on the death penalty largely on my realization that I would never be able to perform the role of executioner, that the death penalty is not necessary for any deterrence or even retribution and that the state should not engage in the administration of lethal force unless it is necessary.

As far as democratic process: Respect for democratic process is not equivalent to judicial abdication or minority acquiescence. We are in any event not a society that operates in a majoritarian fashion; nor do most people agree that we ought to be, unless and until their policy positions are supported by the majority. Recognizing the historical popularity of capital punishment does nothing to insulate it from any abolitionist criticism; there is no meaningful difference between historic support for the death penalty and a variety of practices considered morally repugnant today.

That being said, addressing draconian sentencing in other areas is far more important, in my opinion, and I think some abolitionists would be wise to reconsider their priorities.

Posted by: Alec | Oct 12, 2007 10:27:10 PM

I'd like some cites about the innocent people who were on death row. Not studies based on procedural reversals, but people who were determined to be INNOCENT of the crime.

I'm not saying that these cites don't exist, I just think so much of the literature related to this point is disingenuous.

Alec: "We are in any event not a society that operates in a majoritarian fashion"

How about elections? You know, this is a favorite trick of intellectuals -- to insist that our country is not based upon majoritarian principles. It's also an argument that most common folk think is rediculous because it smacks of B.S.

Posted by: Steve | Oct 12, 2007 10:41:49 PM

Kent, at best the jury is still out on the deterrence study.

Posted by: George | Oct 12, 2007 10:54:19 PM

If the jury is still out, why should be abolish it?

Posted by: Steve | Oct 12, 2007 10:56:27 PM

Steve, do we have enough exonerations yet for a study? The Innocence Project found 15 of their clients on death row. You would have to do some digging to learn which were "factually innocent" rather than some other standard that would have been merely wrongfully convicted and executed.

A good start would be here:

After 21 Years in Prison – including 16 on Death Row – Curtis McCarty is Exonerated Based on DNA Evidence

Oklahoma City case is one of the worst cases of government misconduct in the history of the American criminal justice system, Innocence Project says


Posted by: George | Oct 12, 2007 11:15:32 PM

Dear Professor Berman:

While I respect your desire to treat the popular will with integrity, the state should simply not be in the business of killing people. That doesn't mean that we shouldn't rightly feel like killing those who have offended against us in the most heinous of ways. We should just be protected from our basic instincts in this regard. The principle underlying the rule that victims with a connection to the case cannot sit on its jury, and one of the reasons why Dukakis lost his presidential bid by not first saying "I'd wring his neck with my bare hands," are the same: human beings are capable of enormous compassion, empathy and reason, but when their families are attacked or under threat, they act like protective lions. Our capacities for both emotional and rational responses to an event, whether simultaneously, or, more usually, in succession after a period of reflection, are part of what makes us human. The problem in a criminal law context arises when the emotional response dictates the rational response, and there's no way to get off the roller coaster.

As an Irishwoman, who grew up in a country that did not have the death penalty, I am horrified by the ease with which people in this country accept and discuss the death penalty as a potential outcome in dreadful cases. I firmly believe that the death penalty places an enormous burden on victims' families -- pressuring them to seek the ultimate penalty to avenge their loved ones, simply because it exists. And then the slow process of its implementation grinds them down over the many years, further hardening their hearts, and closing off options that could ease their suffering -- like acceptance, forgiveness, and closure (in the literal sense that the process is over). There is something so saddening about finding peace in the expiration of another's life, but while I respect the right of victims to feel that that is the only way they can get any solace, I do not believe that the state should sponsor that emotion, and by sponsoring it, encourage it.

I am a criminal defense lawyer, who has represented people on death row and in death penalty cases.

JaneAnne Murray

Posted by: JaneAnne Murray | Oct 12, 2007 11:16:53 PM

Steve, I was being polite, aka, non-obnoxious. The jury is not out. What I really meant was, it's been DEBUNKED. But I'm still being polite.

Posted by: George | Oct 12, 2007 11:23:55 PM

if the jury is still out on deterrence, how then do we justify killing?
would you support a punishment that only accomplishes the goal of retribution?
we know the convicted murderer dies, but we don't know if we save any lives? would you support the killing of many simply because it might save a few?
shouldn't the justice system respect the potential for offenders' to change?

i must be oversimplifying this, but this is not a close call for me. i can respect that it is for you and perhaps most, but i am genuinely surprised that we are so willing to end one life because 1) it makes the rest of us feel better and 2) we hope that it saves other lives.

Posted by: jon | Oct 12, 2007 11:33:38 PM

One thing needs to be said. We are not simply ending a life. We are ending the life of someone duly convicted of taking the life of a fellow human being. One hackneyed phrase we hear in DP appeals is "There's a life at stake". Well yes, but also at stake is the timely enforcement of society's judgment.

The death penalty is the just reward of those who have committed an outrage upon society.

I think it plain that most can agree that the death penalty (a mandatory one even) should be enforceable for prisoners who murder. There really ought to be some additional punishment for those who kill or attempt to kill from behind bars.

I think it plain that treason, desertion during wartime, spying for an enemy, mass terrorism etc. has to be punishable by death.

I think if most people saw, up close and personal, the absolute depravity of some murders, they would come to the conclusion that the only possible just outcome is death. Does anyone, honestly, think that Kenneth Macduff had a right to breathe the air we breathe after his crimes? Or what of Medellin's horrendous crime? Does anyone think that he has the right to demand that he be allowed to live?

Ultimately, capital punishment affirms the value of human life, and it sends a message that we as a society will simply not tolerate certain transgressions against us. When we abandon the right to express our outrage in such a manner, I believe we are diminished. I believe that we lack moral courage. Yes, it is hard to put someone to death, and it should be. But that something is hard does not make it wrong.

Posted by: federalist | Oct 12, 2007 11:49:43 PM

I see popular will is mentioned alot here. prior to the civil war, most people condone or supported slaver. Prior to the civil rights movement, most people condoned segregation and the vast majority wante it.

Sometimes the popular will is unjust. Our founding fathers understood this, and designed the constitution to also defend the minority factions of our country. No one has the right to take another life, not even the government.

Posted by: EJ | Oct 13, 2007 12:00:51 AM

"expressing outrage" is not a valid goal of punishment. i do not mean to be snide, as i'm sure many would disagree with me, but "expressing outrage" is not deterrence. it is not rehabilitation. perhaps it is retribution, but the therapeutic effect of capital punishment would seem to be outweighed by the value of life. and yes, even by the value of life of those who have previously shown the capacity to not value life.
when we set out to determine who is unworthy of breathing the same air that we breathe, are we not devaluing life in the same manner that the convicted murderer is (let alone the traitor, the spy or the deserter)?

Posted by: jon | Oct 13, 2007 12:02:55 AM

"No one has the right to take another life, not even the government."

Not even our troops during war? Not even a person in his own home being attacked by an intruder?

And why isn't retribution alone a sufficient justification? Why must there be a deterrent effect? we're talking about the worst crimes possible here, not traffic violations.

Posted by: Steve | Oct 13, 2007 12:30:16 AM

Doug, I am less concerned about abstract, unanswerable, issues such as deterrence than I am about the practical workings of the death penalty system. Two observations.

I believe that who receives a sentence of death is less dependant on what they did than where they did it and who their defense lawyer is. Hardly a satisfactory state of affairs.


Second, the truest thing I have heard about capital punishment in my 25 years as a capital defense lawyer is that the death penalty is as much a part of the political system than the criminal justice system. I have tried a death case in front of a local judge up for reelection and it was not pretty.

Also, I think capital punishment is cruel and unusual punishment for the defense lawyer who is conscientious in fulfilling his role as an advocate. No mere mortal should be put in the position of having another person's life hanging on whether or not they ask a dumb question on cross exam or overlook a valuable piece of evidence. Bruce c

Posted by: bruce cunningham | Oct 13, 2007 12:46:51 AM

Per the Death in Custody Reporting Act:

California led the nation with 310 deaths, followed by Texas with 298 and Florida with 204.

All three states have the death penalty.

What's more, the states with the highest crime rate, most dangerous to live in, have the death penalty.

1. Nevada
2. Louisiana
4. New Mexico
4. Arizona
5. Maryland
6. South Carolina
7. Florida
8. Tennessee
9. Alaska
10.California

All but Alaska have the death penalty.

The safest states to live in:

1. North Dakota (No)
2. Maine (No)
3. Vermont (No)
4. New Hampshire (Yes)
5. Wyoming (Yes)
6. South Dakota (Yes)
7. Wisconsin (No)
8. Iowa (No)
9. Montana (Yes)
10 West Virginia (No)


So 6 of 10 of the safest states in the country do NOT have the death penalty, but 9 in 10 of the most dangerous states do have it.

From a public safety perspective, better to live in a non-death penalty state. It's safer.

Source: http://www.morganquitno.com/dang06.htm


Posted by: George | Oct 13, 2007 3:22:59 AM

As a practical matter, the following should be of prime concern when considering the death penalty: (a) there are some very sloppy criminal defense attorneys; and (b) the determination as to what constitutes Brady material is often made by persons, not necessarily prosecutors, who are seeking a conviction.

Posted by: Tim Holloway | Oct 13, 2007 9:01:03 AM

The responses to Doug's challenge are developing well I think. All are very pertinent and interesting comments to date and bode well for further debate. I promised a direct response myself also. Before I make it, rather than upload a relatively long extract from a source that has had a great influence on my own thinking, I have opened a temporary website from which it can be read and printed if you wish. I do hope readers will try to access this, as it is the most succinct and refreshing critique of the problems surrounding the Death Penalty that I have come across. Access here - http://members.lycos.co.uk/peteronsentencing/
It is written by Professor Craig Haney, in his book Death by Design.
My direct responses to Doug's reserve on abolition will follow shortly.

Posted by: peter | Oct 13, 2007 9:57:08 AM

To the poster who said my numbers are meaningless because correlation does not imply causation:

This is simply a matter of level of certainty. For example, it is always possible that DNA evidence which matches the DNA profile of a defendant does not actually come from the defendant. By random chance, two people could have DNA which appears the same to the test. However, this is extremely unlikely; frequently the examiner will give the odds against as so many billion to one.

Now, in the case of the non-negligent homicide rate and the number of executions, the question is do executions deter non-negligent homicide or not. The data show that the non-negligent homicide rate went way up shortly after we stopped executions and came down after we resumed them. It is possible that this could be a chance correlation (and the probability of this is much greater than it is in the DNA example above), but the available evidence makes it more probable that executions deter non-negligent homicide.

But then there is the international evidence. If one compares countries that halted executions in the sixties with those that did not, one sees that the non-negligent homicide rate in the countries that did halt executions increased shortly afterwards. (The rate also increased in the countries that did not halt executions, but the increase was far less.) This international evidence further increases the probability that executions deter non-negligent homicide.

The question then becomes: how much proof do you need? What level of confidence is required in order to make the policy choice to execute murderers?

The data can't answer this question. But if you are honest with yourself, you have got to agree that based on the data, it is much more likely than not that executions do deter non-negligent homicide. So if we have the death penalty, it is much more likely than not that we will have fewer homicide victims. If you are honest with yourself, you have got to take this into account when you decide whether to support the death penalty or not.

Posted by: William Jockusch | Oct 13, 2007 10:41:45 AM

Steve, obviously in self-defence people need to save their own life, the same applies to the military. However, killing people is not right.

Posted by: EJ | Oct 13, 2007 11:25:30 AM

Excellent post, Doug, and kudos all around for the great discussion.

I'm an agnostic on the death penalty in theory, but an opponent of how it's implemented in practice, particularly in my beloved home here in Texas. What pulled me "off the fence" (and here, naturally, it's a barbed wire fence, so there's a lot of pain involved) is the large number of innocents discovered through DNA evidence and other means, not just in death cases but in all types of criminal cases. I don't think you must wait for a study of capital exonerees - the system makes the same mistakes at all levels, from the lowliest drug sting to capital murder: poor representation, overreliance on eyewitnesses and snitches, false confessions, faulty crime labs, the list goes on.

Given the volume of death cases here and the fact that our highest TX criminal court has literally shown itself willing to let defendants die on a technicality (see http://www.tiny.cc/2F5oZ), I don't feel I can personally justify capital punishment in Texas as presently implemented.

Posted by: Gritsforbreakfast | Oct 13, 2007 12:28:17 PM

Uncertainty about deterrence:
The death penalty is a response to a perceived level of violence. It has been a positive (and hopefully reluctant)choice of the past, put into law, in the expectation that the violent act will be deterred. In line with other laws, it carries a punitive purpose also. In other words, it does not (necessarily) reflect the normal response to violent acts, which can be deterred and punished by lengths of time in prison, but is an extreme response. In civilized societies, prison time is accompanied by attempts to rehabilitate. The violent act of murder arises from all sorts of motivations and circumstances. Premeditation may be a part of some of these, reckless risk associated with the carrying of guns or knives etc may be another. Often the act is committed in a moment of blind panic or stress. Exceptions will always be found since every circumstance is unique. There is no general definition or agreement, consistently applied across the US, that distinguishes particular circumstances, or types of circumstances, where the death penalty is called for. Many murders do not result in a call for the death penalty, yet the result of the act is always the same - the death of a victim.
In circumstances where the empirical evidence for the success of deterrence, or at least, its sustained and consistent success, is in doubt, then the natural course of action is to err on the side of caution and reserve in applying, or continuing to apply, the death penalty. That has been the response of other countries throughout the world, including near neighbors. If deterrence cannot be said to significantly reduce the likely incidence of murder, then a lesser penalty that upholds the other requirements - of public safety and measured penalty - is held to be sufficient. In these terms there is no defense for the extreme response of the death penalty to remain in place.
I will address the second part of your comment under this heading separately, and in a short while.

Posted by: peter | Oct 13, 2007 12:31:03 PM

William, if only it were that simple. See Joanna M. Shepherd's paper at the michiganlawreview.org, DETERRENCE VERSUS BRUTALIZATION. (PDF)

"The results are striking. Consider the twenty-seven states where at least one execution occurred during the sample period. Executions deter murder in only six states. Capital punishment, however, actually increases murder in thirteen states, more than twice as many as experience deterrence. In eight states, capital punishment has no effect on the murder rate. That is, executions have a deterrent effect in only twenty-two percent of states. In contrast, executions induce additional murders in forty-eight percent of states. In seventy-eight percent of states, executions do not deter murder."

This means that Curtis McCarty mentioned above should have been executed for the deterrent effect to overcome the "brutalization" effect. In short, we would have to severely limit appeals and therefore execute innocent people (as Kent apparently wants to do). So the question actually is this: do we want to kill innocent people to make the death penalty effective?

There is also "The Lethal Effect of Three Strikes Laws (2001) [which] actually looked at this phenomenon. The researchers found using a state-level multiple-time-series design found that "three strikes" laws were associated with 10%-12% more homicides in the short run and 23%-29% more in the long run. Moreover, these effects occurred in almost all 24 states they examined with "three strikes" laws. Finally, they stated that these laws have had a minimal impact on reducing the levels of crime and through deterrence or incapacitation."

California just pass a comprehensive crime bill because Gang-related crimes rose 14 percent in Los Angeles last year.

Policy makers should acknowledge the "brutalization" effect.

P.S. federalist, that is your best argued argument yet.

Posted by: George | Oct 13, 2007 1:37:23 PM

There is another negative effect of the death penalty which I have observed in my experience as a capital defender: some murderers see it as a benefit. There is a cachet to having a death sentence among some hard-core inmates. Also, for older inmates, death row can be a more comfortable place to spend their time as they have a single cell (at least in Oregon).

I've had a client tell the police he killed the second victim because that would triggered a capital prosecution and he'd prefer to get the death penalty (a "suicide by cop" analysis or a desire to be seen as macho/fearless.)

To me, LWOP vs. the death penalty isn't a question of "justice." I don't know what is a more "just" sentence for Tim McVeigh -- do we measure his view of justice? My view of justice? The death-penalty-supporting victims'? The death-penalty-opposing victims'?

Also, now he will never tell us if there were other people involved besides those two. Maybe he never would have spoken, and maybe he would have lied, but I'd like to keep him around just in case.

Posted by: Laura Graser | Oct 13, 2007 2:14:50 PM

You state "only clear evidence that the death penalty costs innocent lives would turn me into a committed abolitionist". Well, that is pretty easy. Every execution is a loss of life. Since you believe in statistical probability I'm sure (else how can you attach any credence to social science data in the argument over deterrence?), it is certain that amongst the 1000 + executed, an unquantifiable number were innocent. We can be certain of that, partly through cases where evidence has, after conviction, been brought to light at the last minute proving innocence, sometimes through DNA testing. The probability that such evidence has always been found in time before execution is very remote indeed. There are well-documented cases now where doubt over guilt is virtually overwhelming. There are a number of current cases of conviction that are highly questionable. American law does not require absolute proof of guilt though, even in cases where the death penalty is to be applied. It is enough if, in the opinion of a jury (after manipulation of the facts and circumstantial evidence by a skilled prosecutor in an adversarial context, often at great advantage over the defense attorney), the defendant is guilty. Such life and death decisions, in the face of known deficiencies of certainty and process, are not warranted when not required to safeguard the public. The rational statement would be that "only clear evidence that abolition costs innocent lives would turn me into a death penalty supporter." By your own statements, you have no such certainty. The likelihood is that in both cases (restoration or abolition) there would be a short-lived effect. That is not a justification for holding out again abolition.

Posted by: | Oct 13, 2007 4:05:24 PM

Professor,

I can only comment on the first point. That of the death penalty explicitly costing innocent lives. I am afraid that I am not associated with the practice of law in any way, I am a computer science graduate student in Tennessee.

My point is very straightforward, I have little relevant knowledge, so not much to complicate matters. From an article about a study published this July I see that:

"In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from 1973 to 1989 and found that 86 death row inmates, or 2.3 percent, had been exonerated through 2004. Professor Gross said the total number of innocent prisoners was likely to be far higher. In his view, well-documented wrongful convictions in capital cases provided a window on systemic problems, with even larger numbers of convictions for less serious and less publicized convictions."

There are a large number of death row convictions and cases where DNA testing is not done (from my understanding), and many more where it is not possible. Then if some 2.3% of all convictions are overturned, and there are some large number of cases for which this kind of testing isn't possible, that would seem to fairly clearly indicate that there are a significant (definitely greater than 1-2%) of cases where the conviction is wrong. Executing the innocent clearly costs innocent lives. With these people imprisoned for life, there's the chance of an appeal or evidence coming to light over time and the erroneous conviction being fixed. Once you've killed someone, there is a clear disincentive to continuing to examine the case. Not only do you risk killing the innocent, but you risk leaving the guilty unpunished.

I apologize for my poor writing and inappropriate terminology.

-jeff

Posted by: jeff | Oct 13, 2007 4:22:06 PM

George, it is an unfortunate reality that partisans of each side in a debate such as this one can fined experts who will support their side. One can come up with studies that point to each conclusion all day. Unless one has the energy to become an expert in the field, one will not know which group of experts use more sensible methodology, and which are simply picking methodology that will point to the conclusion they want.

Therefore, as a lay person, the best way to get a grip on an issue like this one is just to look at the data and see what they say. And speaking as someone who came into this debate without any preconceptions, or any desire for the answer to come out one way or the other, in this case the message in the numbers was unmistakeable.

Posted by: William Jockusch | Oct 13, 2007 4:36:39 PM

"Concerns about alternatives":
I totally agree with you that LWOP is, as presently constituted, as abhorrent as the death penalty itself. Even more so where the incarcerated are subjected to the most restrictive and miserable lives possible. In my view, there are few cases where the opportunity for redemption should be totally denied. Also it would be a sorry outcome if LWOP were so entrenched that questions of innocence and support for potentially innocent inmates were to be diminished as a result of abolition of the death penalty.
Nonetheless, these are different arguments and should not be set against each other.
Since no-one is blessed with second sight, and the individual circumstances and life-histories of the convicted are so various and diverse, it is completely irrational to support LWOP in terms other than retribution. As we have seen with trends in sentencing generally, there are those who seem to obtain perverse delight in generating years of misery on fellow human-beings and their families - even for the offense of stealing a doughnut, or for an "offense" that has subsequently been ruled legal! This simply highlights the great damage that has been imposed on the legal system in recent years as a result of political excess and legal acquiescence.
Sorry if my previous post was unnamed.

Posted by: peter | Oct 13, 2007 5:14:15 PM

"Sincere assertions of victims' interests":
As another responder has noted, in cases of murder, the true victims are dead. Their families have a right of expression, but that right should not directly affect the judgments of penalty. Who is to say that the opinions of those affected families who believe that a further death will NOT result in catharsis or repose, but rather exacerbate it, are any less valid. Is life or death to be at the vagary of such feelings/opinions. It is, or should be, the role of the legal process to absolve families from this awful responsibility and trauma.
In case there are any readers who are skeptical that there are victim's families who argue against the imposition of the death penalty, there are a number of organizations set up by such to argue their very point and opinion eg. http://www.mvfr.org/
Similarly, the families of convicted and executed murderers also suffer great trauma from their loss and should not be forgotten see http://www.mvfhr.org/ .

Posted by: peter | Oct 13, 2007 5:38:04 PM

"Respect for democratic choices":
The point about the political manipulation of the "common will" has been made earlier.
Every day we seem to see headlines about the winner in the political fund-raising stakes. Democratic choices, or the road to them, are somewhat sullied by the influence of money these days. "Democratic" debate is tainted by personalties - and the efforts of contenders often to denigrate and trip up their opponents.
Perhaps in the field of politics these are inevitable developments, and perhaps have always been there. But should we really allow JUSTICE and the LAW to be open to such abuse. I think not. Rather than mistrust the motives of abolitionists, your time would be better spent considering the extent to which the democratic process is at risk from the excesses of politicians who rely so heavily on manipulation of fear and emotion in society today.

Posted by: peter | Oct 13, 2007 5:54:09 PM

Doug:
I thank you for the opportunity to put my views in an effort to influence your stance, and perhaps the stance of other also. While I have no expectations of success, it is a welcome opportunity to air and share opinions with those nearest the front line of this debate, and with interested others. I hope the debate continues in a fruitful (and non-political) manner - as it should in other forums also, not least in the Supreme Court.

Posted by: peter | Oct 13, 2007 6:03:01 PM

William, with all due respect, if you read Joanna M. Shepherd's paper, DETERRENCE VERSUS BRUTALIZATION - I skipped all the Greek and still got it overall - you'll find she is not partisan and in fact authored or co-authored some of the studies that found the death penalty saves lives. She is most likely cited at the site you linked to.

What this paper reveals is that it is far more complex than anyone knew.

Posted by: George | Oct 13, 2007 6:24:52 PM

With all due respect, you can't skip the Greek. For example, she has the rate of armed robberies as an independent variable. But what if the DP also deters armed robberies? After all, someone who commits armed robberies runs the risk of killing someone and receiving the DP as a result.

Look, you can argue in circles all you want, but there is no escaping the fact that when the US halted executions, the murder rate went way up, and it came crashing back down shortly after we resumed doing them at a high rate. Add to that the fact that when you compare a group of countries that halted executions in the sixties with one that didn't, the non-negligent homicide rate rose in the former much more than in the latter.

Now, coming to this debate with only the opinion that murder is a bad thing, and looking at those numbers, I have to come to the conclusion that the DP is a good idea.

Posted by: William Jockusch | Oct 13, 2007 8:04:11 PM

3. The Model’s Details

"The first equation measures the response of the behavior of criminals to the deterrent factors while controlling for a series of other factors found in the series Z. To determine whether a change in the murder rate is really due to the deterrent variables, the equation permits us to make sure that the other factors are not really the cause of the change. First, Z includes the aggravated assault and robbery rates because some murders are the by-products of violent activities such as aggravated assault and robbery. Including these variables permits us to see whether a change in the murder rate is due to a change in the deterrent variables, or is instead due to a change in the number of aggravated assaults or robberies." p 225

Maybe I'm misunderstanding it, but she includes Z, which includes robberies. The way she is using it makes sense to me because she is studying murder, not robberies, though as you both say they are often intertwined.

BTW, speaking of other countries, maybe the murder rate rose during the "moratorium" but now we have the 6th highest murder rate in the world despite, or partly because of, the death penalty.

Posted by: George | Oct 13, 2007 9:50:21 PM

I wonder if this corruption of a quotation by Vernon A Walters pretty well sums up the dilemma faced by those of us who wish the abolition of the death penalty.
"Americans have always had an ambivalent attitude toward (the death penalty). When they feel threatened, they want a lot of it, and when they don't, they regard the whole thing as somewhat immoral."
The problem perhaps is that a) politicians have so much vested interest in its maintenance, and b) the layman's sense of moral outrage is easily appeased by the manipulation of fear.
What does that say about American society today? In terms of legal leadership and a vision for the future of a just society at peace with itself (as opposed to a fractured society of high crime and high incarceration etc), the term that springs to mind is "rudderless". Your recent post concerning the Robert's court underlines the growing view that we can no longer look to the Supreme Court to fill the vacuum. Are you really comfortable leaving it to the swing votes of American democracy?
In 1960 the poet Archibald MacLeish, debating ‘national purpose,’ said: "There are those, I know, who will reply that the liberation of humanity, the freedom of man and mind, is nothing but a dream. They are right, It is. It is the American dream."
Is it destined to remain so forever?

Posted by: peter | Oct 14, 2007 5:30:23 AM

I have read all of the comments above. What strikes me is that there is little reference to religion or even ethics. The two debates about life in this country center on abortion and the death penalty. The right to lifers invoke God. The same folks often support the death penalty,but in that case they invoke Tim McVeigh. I invoke neither in these situations.

On speaking plain English. It strikes me as odd that we call the killing of a person murder and the killing of a person by the State, meaning by all of us, the death penalty. When the State takes a dog off the street they kill it and say they "euthenized" the dog or "put it to sleep." I for one do not believe in lying about killing. When the state murders people it does not put them to sleep, euthenize them, execute them or exercise the death penalty. The state murders them. The executioner is a paid killer and he or she is committing homocide. We as citizens are contract murderers when this happens. A doctor who gives an injection at an execution is a killer-- a murderer of a human being. The United States of America, land of the free, home of the brace, murdered Tim McVeigh.

On the baser instincts. There is a Johnny Cash album called Live at Fulsom Prison or some such title. When he sings out that "I shot a man in Reno" or some such phrase, the prisoners in the audience erupt in cheers. This is what the crowds at public executions did in times past. When the United States of America killed Tim McVeigh, folks around the country cheered and bought rounds of drinks in bars, just like it was a football victory.

On deterrence. In Vicorian England they hung petty thieves such as pick pockets. At the public executions of the convicted pick pocket, other pick pockets worked the cheering crowd.

On majority rule. A nationwide referendum on slavery in 1860 would have lost. Abolitionists were in the minority. Some of us hold certain truths to be self evident. That amoung rights we hold dear are life, liberty and pursuit of happiness. No king, tyrant or mob can take these inalienable rights away. I dare anyone to find the word Democracy in our Constitution. Scan and word search it. The Founders feared that word as they feared the mob. A mob that kills is a lynch mob. How many countries in the whole world still kill people? We are right up there with China, Saudi Arabia, Burma. Our respect in the world is nil--in part because of the fact that we kill our people in the name of justice.

On religious terms. What part of thou shalt not kill does thou not get?

I'd get off the fence Doug.

Posted by: M. P. Bastian | Oct 14, 2007 7:55:17 AM

I still haven't seen a reason why we should agree to be killers.

Everyone who kills thinks they have a good reason. There's no significant difference between the argument of the murderer who kills someone for taking his parking space or sleeping with his wife and the argument for the death penalty - in all cases, people think they are meting out justice to those who were asking for it.

We also know that the criminal justice system is imperfect and that innocent people are convicted and executed. If we are prepared to kill innocent people, how do we differ from murderers? What is the point of a system that kills innocent people, ostensibly to prevent the killing of innocent people?

The voices of the survivors of murder victims may do little more than give false weight to community outrage while disadvantaging those who just didn't happen to have a lot of survivors. If someone blows up my home with my entire family in it, there's no one to cry in court for justice - so, does that mean my family and I deserve less "justice"? Meanwhile, the fact that several people are available to cry over my death would mean I get more "justice" than someone who might have been murdered far more viciously. Does this really make sense?

The message of the death penalty is indeed that it's okay to kill people if they anger us enough. Every murderer already knows that. There's not much point in killing them to "teach them a lesson" they already practice.

Posted by: Avedon | Oct 14, 2007 8:42:39 AM

We justify homicide in cases when there is an immediate threat to public safety. For example a sniper who is killing and wounding people in a public square is shot and killed by a police officer. An armed standoff where few or no shots have been fired is different situation and in recent years the police have learned how to avoid killing or wounding the gunman in most such incidents.

It appears to me the difference is the threat is immediate and the goal is to keep the number of deaths and injuries as small as possible. If the person who represents a potential threat to public safety is incarcerated the threat is small but not zero. The threat can be kept near zero by isolation and rigorous supervision which is a cost issue and there is the possibility the prisoner could become insane because of the isolation (it is not clear in some of these cases that they were sane in the first place). There are some fairly ugly aspects of LWOP but most people think it is better than the DP.

The usual practice is for legislators to give the reasons for why they voted for or against the DP and it appears to me that the preponderance of the reasons given involve moral grounds. Politics is nearly irrelevant and they hardly mention public safety and deterrence.

Posted by: JSN | Oct 14, 2007 10:44:52 AM

Thanks for the opportunity to state my opinions in this forum, interesting to read, to say the least! I am a high school teacher from Norway trying my best to get the message out to as many as possible that the death penalty does NOT seem to deter; the murder rates are higher in states that have the death penalty; it does not give closure to victims; they still hate the murderer, it sends the message that violence solves problems; when humans judge they make human mistakes!!! AND when dealing with killing other people, should one not at least be sure about killing the right guy? Far too many studies have shown that prosecutorial misconduct, corruption, police torture, arbitrainess and what not actually send innocent people off to death row, and if they do not have loads of money, like O.J. Simpson had, then you are in trouble! Is that democratic and fair? Is that worthy of a nation that calls other countries practicing the same cruel practice for evil axes? If the majority wants it, they should at least be sure it is fairly administered, can they all say that with an honest heart? Bush tried when campaigning for the 2000 election, George Ryan of Illinois could not after the revelations of innocence in his state..come on...fairness, abritrariness, facts tell other tales...and what about Ghandi's "An eye for an eye makes the whole world blind"...you killed my brother so I will kill you...it is archaic, is it not?

"Why kill killers to prove killing is wrong"? What does it leave you? Yeah, as a killer...what is the diffrence?

I think it is flawed, broken, and does nothing but producing more killers;

I may be naive, but I do not think people, any people, should have the right to kill other people. I do not believe victims' familes should have any say either, it appalls me to see they have a say in court proceedings...they are by far too emotionally invloved to be objective, the practice reminds me of Muslim sense of honor...

That does not mean I do not see their needs; I do, but, justice should be dealt with by judges and jurors, and the courts, people who know law!

I agree with Peter, besides, justice is supposed to be blind, fair, state-sponsored killing has never been fair, never will be, in my opinion.

Since nobody has been able to produce on single argument that it is always fairly administered, then we should NOT be doing it!!

Posted by: Bente | Oct 14, 2007 11:00:33 AM

Just a few thoughts based on my experience as a state attorney who handled approximately 30 capital cases (at all levels of the criminal justice system) over the course of about 12 years:

(1) Victim Family Relief - My experience is that execution does provide solace for the vast majority of family members (though I was involved in one execution where it did not for one family member).

(2) Innocence - For truly innocent defendants, the forum most likely to expose innocence is the capital case, especially in federal court. There was an article after Roper v. Simmons, I think it was in the New York Times, about how some juvenile capital inmates were upset by the decision because it meant that they were no longer entitled to two federally-paid defense attorneys and investigators to work on their cases to support their claims. And based on my experience with both capital and non-capital cases, there is no comparison between the amount of resources put into an investigation (both defense and state) and the level of scrutiny applied in capital cases.

(3) Arbitrariness - To me the most arbitrary aspect of the capital justice system occurred in federal court. And in that forum the number one claim far and away was ineffective assistance of counsel at the penalty phase. And I could predict with near scientific certainty the outcome of that claim (and the case) based on the identity of the judges (both district and circuit). My experience is absolutely consistent with Kent's point #2 above about this particular claim. For certain judges, that claim was almost always a winner, and it didn't even require newly-discovered mitigation; it was sufficient to repackage the same mitigation presented at trial. I could never adequately explain these outcomes to victim family members. I remember trying to explain a circuit court loss on this issue in one case where the panel majority found IAC because counsel had not presented evidence that the defendant fell off a roof and hit his head some time before he committed his crime (he had murdered his step-daughter on the eve of DNA testing in connection with an upcoming trial for raping and impregnating her). There was simply no way to explain to the victim's family why this fact was so important, especially since its admission would have allowed the state to introduce other bad acts like gang murders and his repeated rapes of his step-daughter, all occurring before the bump on the head, to rebut any suggestion that the fall caused him to lose control.

Posted by: FormerStateAtty | Oct 14, 2007 12:37:21 PM

Perhaps the order of your comments are quite incidental, but I find it interesting that you have placed Victim Family Relief above Innocence.
As regards VFR, I would hope that you might be prepared to accept that a) recent changes, in most if not all States, to permit LWOP as an alternative to the death penalty, has proven to be acceptable to many family members in lieu; b) that the grief felt by such families is not quantifiably, or even necessarily qualitatively, different from the grief of families stricken by death resulting from other causes; and c) that given the fact that most murder cases do not result in a death sentence, and even fewer in execution (at least over an immense period of time), this issue of closure is best addressed by other means?

Posted by: peter | Oct 14, 2007 1:30:16 PM

peter,

You may find it interesting, but I didn't purport to elevate the interests of victim family members over innocent defendants. In fact, I probably wouldn't have mentioned the family member issue if posters upthread had not mentioned it, with one poster anecdotally offering that the DP does not in fact offer the closure that you might think it does.

As for your points about victim family members rights: (a) I recognize that family members may find LWOP acceptable in lieu of the DP, but my experience differs. My state has LWOP, and the family members with whom I have worked both at the clemency stage and the actual execution have preferred execution. Now that preference changes sometimes when you factor in the last-minute delays that can accompany DP cases: if you gave the family members a choice between immediate commutation to LWOP and a DP system that drags on and results in multiple last-minute stays, the ones who have been through the last-minute delays would take LWOP over that alternative. In the cases where that has happened the family members often tell me that the last-minute stay feels like they are being victimized all over again. (b) I didn't say that victim family members' grief was different than the grief experienced when a family member died from another cause, but my guess would be that there is a difference if that other cause was not a person. The people with whom I have worked see the continued existence of the family member's murderer as a constant reminder of the act, and some of the family members view the murderer's continued existence as a potential threat to them (in at least two cases I can think of the family members believed the killer would get out and come after them; I did not view that as a realistic fear, but who am I to question their fears, rational or otherwise?). (c) I would not advocate the DP simply as a means to provide closure for family members. I see it more as a collateral benefit.

Posted by: FormerStateAtty | Oct 14, 2007 3:29:37 PM

FormerStateAtty:
Thanks for the clarification, though we will have to agree to differ I think on the role family members should play in any such decisions. In my view, closure would come much earlier and less painfully if it were known practice that the decisions on penalty were always the exclusive province of the court, regardless of the family view. To allow otherwise introduces yet another variable element into the already precarious processes involved in who should receive the penalty of death. The Roman age is thankfully long gone.
Returning to your comments on the question of innocence - while I would not question the practice and level of resources you claim for your own State, it is widely accepted that across the US, there is most certainly no consistency in this provision. I trust you would agree that perhaps the example of your own State should at least be mirrored in all if we are to come close to describing the safeguards for the wrongly accused/convicted as universally fair?
It also bothers me that, where there may have been recent improvements in some constituencies, these do not always filter down in consideration to inmates who did not receive the benefit of them at vital stages in their own defense. The possibility of error in those cases is therefore heightened, yet not acknowledged. A good example of course is DNA testing, which is still vigorously resisted in some constituencies. Similarly, poor legal representation for whatever reason, is again fiercely denied as justification for review - even at Federal Appeal level. Of course, you refer, with examples, to this as a matter of arbitrariness. Many of us could point to similar but opposite trends in many federal courts today.
Finally, in spite of the safeguards you claim for the process in protecting the innocent, you cannot claim that taking 10 to 20 years to arrive at this find of innocence, is fair or satisfactory. Too many would argue that the innocent be sacrificed in the interests of brevity and economy. A reform of review to concentrate on claims of innocence rather than the present review of legal process (a sort of cozy internal investigation that rarely strays into the realms of the search for truth), would at least demonstrate a recognition that prosecution errors can and do happen. The finality of death demands that level of certainty.
Of course, this whole process would be better conducted without the threat of death in the first place.

Posted by: peter | Oct 14, 2007 4:43:24 PM

Fascinating discussion and all the more so because we can hear from both sides of the fence, defense and prosecution and those between, though I doubt anyone will be able to nudge our host to one side or the other.

FormerStateAtty, yours is first argument with personal experience in favor of closure. Dahlia Lithwick asks Does Killing Really Give Closure? Evidently, in your experience it can. I wonder how many in your experience had strong beliefs in favor of the death penalty before the crime and therefore already had faith in its promises. Also, wouldn't the only way to avoid the trauma of last minute change of hearts in favor of the LWOP be to limit appeals and therefore risk executing the innocent? What was most shocking to me when finding the above surveys was that about the same number who favor the death penalty also think an innocent person was executed in the last five years. What does that tells us?

Regarding your point (3) Arbitrariness, some separate questions.

1. Are you implying these judges' opinions were unconstitutional? If they were constitutional, does your inability to explain the reasons for the delay imply the need to sacrifice the Constitution for the sake of the victims? What I mean is, the only way to avoid that would be to streamline the appeals process so efficiently and so tightly that all the Curtis McCartys would be executed.

2. Would you mind posting the citation to the "fell of the roof" rape/murder opinion so we can read it? Google doesn't find it by the keywords.


Posted by: George | Oct 14, 2007 4:45:33 PM

Doug:

Many things are more effective, and less demeaning to us, than the death penalty at saving lives. Economists have long connected violent crime to wealth and income inequities. Sociologists will tell you that the instability inherent in poverty and economic deprivation—i.e., housing, health care (physical and mental), education, etc.—cause criminal behavior. Thus, we could save innocent lives—most lives—by creating a more equitable society and by guaranteeing to all of our fellow citizens stability in the very basic necessities of life: a house to live in, food to eat, physical and mental health care.

To the extent that violent crime is a symptom of a dysfunctional and inequitable society—and it is—the imposition of penalties on one person post-criminal-act must have little to no effect, deterrent or otherwise, on the future conduct of other individuals who find themselves in that same dysfunctional society that caused all the criminal acts before them. And if there is a deterrent effect, it is marginal, at best. Crimes that are committed not out of impulse or of a belief in escape are extremely rare. I have read transcripts of dozens of capital cases, and I can’t think of a single one that could have been deterred with reason or fear of consequence. And, in any event, is it really a victory if the murder rate drops a fraction of a percent? Does that really constitute “saving lives,” in any meaningful sense, such that we could go on about our lives and have a fuzzy feeling in our hearts about all the good we’re doing for our citizens? We’ll save a small fraction of lives and call it a day? The rest we are content to let be murdered? Where is the morality in that?

But you say that the deterrence effect of the death penalty is irrelevant to you, except to the extent that it costs innocent lives. In the highly dysfunctional and inequitable society that we have chosen to maintain—in our apparent democratic discretion to which you would defer—murder is inevitable, because we have, essentially, chosen to maintain the economic and social conditions that cause it. Could there be a murderless society? Probably not. Could there be a less dysfunctional society that makes murder such an anomaly that even calling for “deterrence” becomes utterly unnecessary? Certainly. (True sociopaths are quite rare, and most never kill, at least not directly. Instead, they become presidents of corporations and governments.) We, as a democratic society, must be choosing, then, to set people up to commit murder. Not only this, we must also be choosing to allow people to be murdered. We must be complicit in murder, because we (1) know what can be done to prevent most (not a tiny fraction of) murders; and (2) nonetheless refuse to act to prevent them. Neither you nor I will ever be the actual murderer, of course. And we likely also won’t ever be the actual person murdered. We simply aren’t among the class of people we as a society have relegated to those dreadful fates. But we are just as responsible for the deaths when they occur, because people like us had the economic and social power to prevent it, but failed to do so, and in fact many of us affirmatively support the conditions that make these wholly unnecessary deaths inevitable. The murderer much less.

The death penalty, then, is a mere psychological band-aid to allow the more privileged in our society to absolve themselves of any responsibility for the deprived conditions they impose upon a class of their fellow citizens. I don’t believe we should be taking human life for this ignoble end.

Posted by: DK | Oct 14, 2007 4:51:51 PM

George,

I don't know the answer to your question about family members' beliefs before the crimes. I suspect that at least some of them were definitely believers in the death penalty before their loved one was murdered, others I'm not so sure about.

(1) I'm not saying that the judges' opinions finding IAC in the penalty phase were unconstitutional. In my personal view, all of the cases I handled where that happened were decided incorrectly under the AEDPA. Most I believe were wrong under any standard, even if they were considering the claim on direct review instead of federal habeas review. And when I spoke of delays, it wasn't so much related to IAC claims. My experience involved delays while filing successor state litigation (usually for Atkins claims), federal Rule 60(b) litigation, and federal 1983 litigation over lethal injection. In only one of my cases was the last-minute delay attributed to a claim that purported to relate to innocence, and in that case the delay was IMHO a boondoggle that simply covered well-travelled ground (no new information, no DNA, etc.).

(2) The fell-off-the-roof case is Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003). You won't find the stuff about Frazier's prior bad acts in the opinion; the panel did not address that problem in the opinion.

Posted by: FormerStateAtty | Oct 14, 2007 5:48:51 PM

This is fascinating. I am against the death penalty for reasons well covered by others here, particularly the unequal administration of it. I live in a high death penalty, high murder rate state, where in all my years of following the news I have never seen a middle class, let alone a wealthy murderer get the death sentence. Also, if there is more than one defendant, whoever rats on the other first plea bargains for LWOP, and he may be the trigger person. Who could get closure from that?

As for the victims' families, I have asked myself how I would I feel if someone killed my child, was caught, and their guilt was undisputed. I would probably want to see them dead, but I would feel better if I could take the view of the Catholic church and go with the premise that every life is important, and no one, not even Timothy McVeigh, is irredeemable. Nothing would bring back the precious life that was taken, there are no good options.

When someone murders, I don't think it's unreasonable for society to take away his freedom permanently. If prisons were humane and ethically run (I know, dream on, especially here), I think LWOP would be the best option for everyone in these horrible situations. We can just admit to ourselves that it's punishment for what they have done, we are making them pay with their freedom, and we mean it, but stop short of blood revenge.

If LWOP was truly LWOP, then society wouldn't have to take another life, which might be the wrong guy anyway. If there was a mistake in identification, it can be undone as long as no one is executed. The family of the murderer would not lose their loved one. The family of the victim would not get their understandable desire for revenge met, but they could be satisfied that the sentence for the murderer is just as long as theirs is. What if the murderer rehabilitates in jail? Great. He can spend the rest of his life helping those in the same position.

Posted by: dangerblond | Oct 14, 2007 9:44:03 PM

FormerStateAtty, thanks for the cite and I appreciate your comments.

The facts of this case are ugly and difficult to read, but if any non-lawyers out there want to give it a try, sometimes it is necessary to wade through the mud to understand the court's reasoning.

Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), from FindLaw, free and worth the trouble of registering.

This case to me can be summed up like this (quoting from the opinion):

A sentence of death is appropriate only if the jury is unanimously convinced beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. Id. § 2929.03(D)(2).

The jury had already found Frazier guilty beyond a reasonable doubt of the death-penalty-specification charges. Because no mitigation proof was introduced by Frazier at the guilt phase of the trial, he was therefore virtually guaranteed a sentence of death unless he could produce sufficient mitigation evidence at the penalty phase to generate reasonable doubt in the mind of at least one juror about whether the aggravating factors outweighed the mitigating factors. But the sum total of the evidence presented on Frazier’s behalf during the penalty phase of the trial was the following unsworn statement: “Ladies and gentlemen, I know you found me guilty, and in the past I have done things that were wrong, but I am not guilty of this crime and I am asking you to spare my life.”

The prosecutor himself aptly summarized the strategy of Frazier’s trial counsel during the penalty phase. After quoting Frazier’s unsworn denial of guilt, the prosecutor stated: “That’s it. Fifteen seconds of mitigation. Now, we heard a moment ago about factors of mitigation that you find. Apparently they don’t know.” This summary strikes us as accurate to the extent that it reflects the fact that Frazier’s counsel failed to offer any evidence during the penalty phase that is recognized under Ohio law as mitigation. Based on the above factors, we conclude that Frazier’s trial counsel performed below an objective standard of reasonableness.

As the prosecutor accurately commented at the opening of the penalty phase: “The State’s job is over. The proof of the aggravating circumstances here is monumental, unrebutted, and it is no mere allegation any longer. It is fact, since the conclusion of this case. There has been absolutely zero, zilch, nil evidence of mitigation.” This being the situation, it appears to us that competent trial counsel for Frazier would have realized that their client had everything to gain and nothing to lose by introducing evidence of his brain injury at the penalty phase of the case. Yet they sat on their hands.

We do not believe that any reasonable attorney who saw the medical records indicating Frazier’s brain injury would have declined to investigate the matter. At a bare minimum, a reasonable attorney would have compared the records with the medical literature on brain damage, elicited information from Frazier himself about the injury and its effects on him, or presented the records on Frazier to someone who could competently evaluate them. To do none of these things after seeing Frazier’s medical records was unreasonable.

For all of the reasons set forth above, we REVERSE in part the judgment of the district court, GRANT Frazier a conditional writ of habeas corpus that will result in the vacation of his death sentence unless the state of Ohio commences a new penalty-phase trial against him within 180 days from the date that the judgment in this matter becomes final, and REMAND the case for further proceedings consistent herewith.

That's it in a nutshell. The point is not if Frazier should be put to death or not, but is that a defendant has the right to competent counsel. That is a right reserved for all of us. The state could have, but evidently did not, retry the penalty phase, despite the mention of "gang murders and repeated rapes of his step-daughter." (State v. Frazier, 2006-Ohio-446) (PDF)

My point is that the law is like a game of darts, and the sharper one's darts and the better one can throw them, the greater the advantage, and, in a sense, it is perfectly fine to hide an opponent's darts if he/she is dumb enough to allow it. I think the adversarial system itself, with all the resources on the state's side, is reason enough to abolish the death penalty because there is too much chance in it. The Innocence Project makes that clearer and clearer every day.

I do not argue against the death penalty because I'm against the death penalty. No, it is not sympathy for those on the death row, but is more of a sense that the death penalty corrupts the system -- twists it and turns it into something other than what it could be without it. The stakes are too high. It is too important to win. It costs too much in emotion and integrity. It makes people from both sides of the fence too desperate.

Posted by: George | Oct 14, 2007 10:13:16 PM

George,

I could go on about Richard Frazier. I could mention that we never got to hear from his trial attorneys on why they did not try to develop a strategy based on his bump on the head. I could mention that Frazier avoided a new penalty phase on remand because of a temporary loophole in Ohio law that prevented the prosecutor from seeking the death penalty again. And I could tell you more about Frazier's activities as a member of the Hell's Angels. Instead we can agree to disagree. And I do appreciate your perspective on the DP in general. I really don't try to convert anti-DP people. I think there are principled arguments on both sides. I just think that there are some misconceptions about the quality of representation and the amount of scrutiny that goes into these cases.

Posted by: FormerStateAtty | Oct 14, 2007 11:38:54 PM

FormerStateAtty,

The quality of representation and scrutiny depends heavily on the state and federal circuit jurisdiction in which the case is brought. In Texas, for example, there is no public defender system at all. Instead, the court relies on a system of appointing private (usually solo) practitioners to represent persons facing death sentences. And I would hardly call what the Fifth Circuit does afterwards scrutiny.

Chuck Lindell of the Austin American-Statesman recently wrote a great expose about the Texas state habeas system, which is supervised by that state's highest criminal court. An excerpt:

---------------

The appeal that Greenville attorney Toby Wilkinson filed for death row inmate Daniel Acker in 2003 reads as if it were written by someone with an eighth-grade education.

In fact, most of it was.

Wilkinson lifted 90 percent of the arguments in his writ of habeas corpus from a letter that Acker wrote from death row. In it Acker, a high school dropout convicted of killing his Hopkins County girlfriend, listed three dozen mistakes he believed his trial lawyers made. Riddled with misspellings, bad grammar and first-person rants, the writ features such turns of phrase as “trumped up bogus case,” and “applicant had to just sit quietly and let the D.A. railroad him.”

Wilkinson, a 26-year lawyer, even referred to the judge’s gavel as a hammer, because that’s how Acker’s letter read.

Wilkinson’s writ, which is still awaiting a ruling by the Court of Criminal Appeals, cited little precedent to bolster its arguments. Even the date of Acker’s indictment was wrong.

... Wilkinson said he filed the writ under deadline pressure and that he independently confirmed “a lot of stuff that (Acker) brought up.”

“That was hitting the wall on deadline, and I was trying to make sure that anything (Acker) wanted claimed, I put in there,” Wilkinson said.

Wilkinson has submitted six habeas writs in death penalty cases since 1999, each taking the reader on its own sublime journey. Sentences are abandoned in midthought; claims are misnumbered; sections promising analysis, facts and law are left blank. Arguments promised in the index are never mentioned again.

... Wilkinson recently asked the Court of Criminal Appeals to remove his name from the list of lawyers eligible to handle habeas cases. Acker’s writ, he said in an interview, will be his last.

“I didn’t like doing those things, so I don’t do them anymore,” he said.

Other legal briefs Wilkinson has filed reveal a lack of attention to detail.

The writ for Joseph Ries, convicted in a 1999 robbery and killing in Cumby, contained sections that “were obviously cut and pasted from another case without being revised to fit the facts of Mr. Ries’ case,” Austin lawyers Charles Palmer and Jim Terry Jr. charged in a later petition to federal court.

Wilkinson was paid $19,208 for the Ries writ, but his most egregious cut-and-paste job among the writs examined occurred in a petition for Justin Fuller, convicted in the 1997 robbery and shooting death of a Tyler man. Much of Fuller’s writ was copied from an appeal Wilkinson had submitted two years earlier for another client, Henry Dunn - a connection that becomes apparent when Dunn’s “pimp slapping” co-defendant, Donald Aldrich, suddenly appears in Fuller’s petition. Wilkinson also neglected to change the name of Dunn’s judge, lawyer and trial exhibits when he copied from one writ to another, and numerous grammatical errors were left intact. His only substantial edit to the section was replacing Dunn’s name with Fuller’s.

Wilkinson also blamed time pressure for the Fuller mistakes. “Here’s the thing that happened. Once again, I was running on deadline,” Wilkinson said. “I was going to, at some point, go back and delete those (references to Dunn), and between having cataracts - I was basically going blind and didn’t realize it - and starting up a capital murder trial, I didn’t go back and clean it up.”

... Wilkinson also took exception to a question that characterized the Acker writ as sloppy.

“In 1997 or 1998 an attorney completely missed the filing deadline in a death penalty writ,” Wilkinson wrote. “I guarantee if you asked (a defendant) if he cared if his writ was sloppy, the defendant wouldn’t care if it contained reference to Cinderella and Mickey Mouse.

“The fact is I got my application filed on time,” he wrote.

The Court of Criminal Appeals denied Fuller’s writ in 2001, giving Wilkinson 15 days to notify the U.S. courts that Fuller would file a federal writ. But when it took Wilkinson 5 1/2 months to file notice, the federal court appointed an experienced lawyer to help him, Don Bailey of Sherman.

... Bailey returned Fuller’s case to the Texas courts in search of a proper hearing of several issues, including indications of trial lawyer ineptitude and the improper removal of black members of the jury pool.

The Court of Criminal Appeals, however, quickly declined to review the new petition, saying Texas law barred Fuller from filing a second writ. The federal courts also brushed aside arguments that Fuller was poorly represented by Wilkinson.

With Fuller’s execution date nearing, Bailey brought Wilkinson’s performance to the attention of Gov. Rick Perry and requested a 30-day reprieve.

“I am also asking that you send a message . . . that the state of Texas will not tolerate this kind of shoddy . . . treatment when we are subjecting its citizens to the ultimate punishment,” he wrote in a letter.

Perry refused. The U.S. Supreme Court also declined to step in, though two justices voted to grant a stay of execution. Fuller was executed Aug. 24.

Interviewed on death row one month earlier, Fuller said he was more disgusted than angered by Wilkinson’s effort. “Did I get that one fair shot? I would say no,” said Fuller, who proclaimed his innocence. “You become frustrated. Are you dealing with justice or just a process of elimination here?”

-----------------

What's interesting here is that in Texas the CCA has the responsibility by statute to maintain a list of "competent" lawyers from which trial courts must select for appointment to represent death-sentenced persons in state habeas proceedings. Wilkinson filed 6 writs like this, essentially forfeiting all federal review of any claims the inmates might have. Despite this, the CCA never removed him from the list. He was only removed when he asked to be.

In Fuller's case, nobody--state or federal--would intervene, even knowing all this.

(A couple of actual direct excerpts from Wilkinson's briefs:

--"I’m not guilty and the facts of the case prove I’m not guilty. I’m just about out of carbon paper so before I run out I want to try and list everything that was added to and took from me to convict me on the next page then as soon as I get some more typing supplies I have about thirty more errors I want to tell you about."

--"i &tilde hus, we diseeni no ab &tilde tse of discretion in h i &tilde coult &tilde s denial.")

Posted by: DK | Oct 15, 2007 12:43:01 AM

Doug B.
A worthy and thought-provoking debate for all concerned, whether participant or not I suspect. I hope reference to it will be widely circulated and others stimulated to test their beliefs and opinions on this tremendously important topic, similarly.
I will leave it here with a final thought on your surprise or discomfort that those of us who speak for abolition also appear to support positive reforms of the existing process. Many commentators have experience of this issue through association with those who find themselves on death row, under threat of execution. That may come from professional involvement or it may come from personal involvement. The lives of those people, whether innocent or guilty, have been destroyed. The nature of death row institutions ensures that while they survive, they do so in the most degrading and punitive circumstances. It is beholden, in the name of humanity, for those of us that recognize that concept, and the fallibilities and abuses of the systems that have resulted in that condition, to do all in our power to mitigate it. A crumb of comfort is not to be ignored. Please excuse me posting this final comment on both relevant threads, and again, thanks for the opportunity.

Posted by: peter | Oct 15, 2007 3:41:14 AM

Response to your five points

1. Uncertainty about deterrence.

There are two ways that the death penalty saves lives: enhanced incapacitation and enhanced deterrence.

Living murderers harm and murder, again, in prison, after escape and after improper release. Executed ones don't. Furthermore, we have no proof of an innocent executed in the US, at least since 1900. We can speculate, but there is no proof. No need to speculate about murderers murdering again. 8% of those sent to death row, have murdered at least one person, prior to committing the murder(s) that put them on death row. And death row is a very small percentage of all murders. We can also speculate has to how many more innocents have been harmed and murdered by those who have murdered, before.

Regarding deterrence. All prospects for a negative outcome deter some. There is no exception.

12 recent US studies, inclusive of strong defenses of the studies, find a deterrent effect of the death penalty.

All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some. The studies finding for deterrence state such. Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence. It cannot.

Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some. Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.

For those whose hopes rely on the claim that the death penalty actually increases murders (the brutalization effect), the anecdotal evidence is quite clear that is has no reality based support. Virtually 100% of those found guilty in capital cases seek a life sentence in the punishment phase of their trials. Only about 1.5% of those sentenced to death waive appeals to speed their own executions.

The alleged psychology of the brutalization effect is that the murdered murdered because the state set the example by executing murderers. Hmm. Do kidnappers kidnap because the state incarcerates. Do robbers rob because the state levies taxes and fines? Do rapists rape because the state rapes? It would appear not.

2. Concerns about alternatives.

Your concern is that too many additional life sentences may be given to criminals who wouldn't even be eligible for a death sentence, should we simply abolish the death penalty and rely on only LWOP as the most severe sanction. First, in any death penalty eligible trial, the murderer is much more likely to receive a life sentence. Secondly, LWOP is already available for non death penalty crimes. I am no certain that your concern is based upon a fact based proposition.

Generally, LWOP is an automatic default in a unanimous death sentence is not reached. Without the death penalty, with only LWOP and lesser sentences as options, it is guaranteed that fewer LWOP will be given for those cases that were previously death eligible. Possibly, you should be most concerned that some of our wroste murderers would now, more likely, be eligible for parole.

An additional concern is that with no executions, you are dealing with more living murderers, who are, of course, more likely to harm or murder, again, that the executed variety.

As you are unsure about deterrence.ook at it this way.

If there is death penalty deterrence and you fail to execute murderers, you are condemning more innocents to be murdered. If there is no deterrence and you fail to execute, you have more living murderers to harm and murder, again.

3. Sincere assertions of victims' interests.

There seems to be a big disconnect between fiction and reality. Victim survivors, from my wide experience, favor executions for two reasons - it is a just punishment and the murderer can never harm anyone else, again. However, the oft mentioned "closure" seems to have no basis in reality. It really appears to be a claim by anti death penalty types, so they can later say there is no closure.

First, how can victim survivors find closure by the just execution of the murderer who committed the unjust murder of an innocent loved one? They don't. It is simply a made up proposition.

Execution offers two step by step closure chapters in the long book of life. First, it is an end to seemingly endless appeals process, whereby victim survivors are constantly tested by a system that shows almost unbelievable care and concern for the murderers rights.

Second, it ends the chapter of the murderers life and, therefore, means the murderer can no longer harm anyone ever again.

How can those two things bring closure to the victims survivors grief? Of course, it doesn't. But, seeing both justice served and realizing that the murderer can no longer bring this type of pain to others is a very big deal, indeed.

4. Respect for democratic choices.

I agree, policy decisions can not be based, solely, upon polling. Polling often depends on opinion and not fact. With the death penalty, however, in some polls, the polling questions and answers are based upon what the respondents feel is just - it is a moral decision. So, take this into account.

40-90% of those who say the oppose the death penalty do, in fact, support that sanction under specific circumstances. This provides firm evidence that death penalty support is much wider and deeper than expressed with the answer to the general death penalty polling questions.
57% of those who say they oppose the death penalty, generally, actually do support it for McVeigh's execution (81% supported the execution of McVeigh, 16% opposed (Gallup 5/02/01), while 65% offer general support for executions, with 28% opposed (Gallup, 6/10/01).

41% who say they oppose the death penalty, generally, actually do support it for terrorists. (79% support and 18% oppose the death penalty for terrorists. 67% support and 29% oppose the death penalty for murder.) (SAME POLL - Survey USA News Poll #12074, Sponsor: WABC-TV New York, 4/26/2007 New York State poll)

90% of those who, generally, say they oppose the death penalty, actual did support it for Michael Ross. (SAME POLL - 85% say Connecticut serial rapist/murderer Michael Ross should be allowed to waive appeals and be executed. When asked whether they favor or oppose the death penalty, 59% favor - 31% oppose (Quinnipiac University Poll, January 12, 2005).

Further supporting the higher rates for specific cases, is this, from the French daily Le Monde December 2006 (1):

Percentage of respondents in favor of executing Saddam Hussein: USA: 82%

from the same poll, we have this, even though we are led to believe there isn't death penalty support in England or Europe.

In favor of executing Saddam Great Britain: 69% France: 58% Germany: 53% Spain: 51% Italy: 46% (my note: This falls within the margin of error for 50% support)

Not numbered - Cost Issues
 
All studies finding the death penalty to be more expensive than life without parole exclude important factors, such as (1) geriatric care costs, recently found to be $69,0000/yr/inmate, (2) the death penalty cost benefit of providing for plea bargains to a maximum life sentence, a huge cost savings to the state, (3) the death penalty cost benefit of both enhanced deterrence and enhanced incapacitation, at $5 million per innocent life spared, and, furthermore, (4) many of the alleged cost comparison studies are highly deceptive.

That said, the death penalty system will, likely, always require up front costs to be more, for trial and pre trial. Long term cost can be managed much better.

Sincerely, Dudley Sharp

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-Span, FOX, NBC, NPR, PBS and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
 
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Posted by: Dudley Sharp | Oct 15, 2007 12:06:16 PM

The debate over the legitimacy of state authored murder is intriging. It is a most peculiar institution which holds forth in this Great Republic. I appreciated the input from the woman who hails from a civilized country--Norway. I hope that this blog can be printed and placed in a time capsule to be opened in 100 years. We will appear as wretched as we were in 1857 when slavey was prevalent and our Supreme Court ruled that African-Americans were neither Americans or human. Our moral standing in the world is the lowest in our history since that time. In democratic Iraq, during the execution of a Saddam henchmen last winter, the man's head popped off. One of our democratic clients declared that it was an act of God. Maybe that should be the fallback position.--every state authored murder is an act of God. That position lets us all off the hook.

Posted by: M. P. Bastian | Oct 15, 2007 12:25:26 PM

Who the f cares if Saddam's head popped off?

Posted by: federalist | Oct 15, 2007 2:59:11 PM

Who the f cares if Saddam's head popped off?

Posted by: federalist | Oct 15, 2007 2:59:17 PM

Mr. Sharp,

Others can debate your other points if they wish to, but I'll only address the reference to the brutalization effect.

"The alleged psychology of the brutalization effect is that the murdered murdered because the state set the example by executing murderers. Hmm. Do kidnappers kidnap because the state incarcerates. Do robbers rob because the state levies taxes and fines? Do rapists rape because the state rapes? It would appear not."

The "Do robbers rob because the state levies taxes and fines?" is the most ridiculous. Notice all your examples are violent no matter the cause. A better and a more relevant question would be this: can a government inspire its citizens to violence?

Bush thinks so and that is why he calls some counties the Axis of Evil.

But let's take this fallacious argument apart and reveal it for what it is.

Every example commits a few fallacies:

Post hoc (also called false cause) (though I didn't claim to make these connections, you argue as if I committed this fallacy when you actually do)

This fallacy gets its name from the Latin phrase "post hoc, ergo propter hoc," which translates as "after this, therefore because of this."

Definition: Assuming that because B comes after A, A caused B. Of course, sometimes one event really does cause another one that comes later--for example, if I register for a class, and my name later appears on the roll, it's true that the first event caused the one that came later. But sometimes two events that seem related in time aren't really related as cause and event. That is, correlation isn't the same thing as causation.

Weak analogy

Definition: Many arguments rely on an analogy between two or more objects, ideas, or situations. If the two things that are being compared aren't really alike in the relevant respects, the analogy is a weak one, and the argument that relies on it commits the fallacy of weak analogy.

Appeal to ignorance

Definition: In the appeal to ignorance, the arguer basically says, "Look, there's no conclusive evidence on the issue at hand. Therefore, you should accept my conclusion on this issue."

Source

Need I go on? Need I say I'm not a FoxNews fan? Your argument is so weak it is almost funny. If the brutalization effect is in fact incorrect, you are far from proving it. But riddle me this. Why does Bush think the Axis of Evil governments promote their own form of the brutalization effect if it is not real?

No, if you want to prove the brutalization effect is flawed, you will have to prove the study is flawed, which it well may be for all I know. But it is common sense. For example other studies found that it is common to mimic violence seen on TV or in the home, which is not to say TV and violence in the home are the only causes. No, it is just a factor. And I'm sure you are familiar with copycat crimes.

You'll have to do much better than this.

Posted by: George | Oct 15, 2007 3:37:36 PM

BTW, the methods Joanna M. Shepherd used were peer reviewed and are therefore far more reliable than "anecdotal evidence."

Posted by: George | Oct 15, 2007 3:44:40 PM

I suppose that the 'federalist' just made the case for state authorized murder: "who cares?"

Hey "federalist"-- why not come out of the closet and sign your real name?

It was not Sadam whose head popped off, it was some henchman of Sadam.

Look, federalist, there are all sorts of people out there, or here, who like to kill. Maybe you are one of them. But to incorporate this into the right of the State to murder, is a step further. Who cares? Civilized society cares.

Posted by: M. P. Bastian | Oct 15, 2007 3:59:58 PM

I thank you M.P Bastian, what refreshing points of views; and I in particularly liked your comment on pro-life/pro-death penalty...weird, huh? I get you and agree totally! I am no scholar, no lawyer, merely a high school teacher from Norway, though born and raised in Denmark...taught from childhood that there is good in all people; society is much to blame for when things go wrong; we are marked by birth and environment, it matters how we were treated as children, or whether we were neglected, it matters that teachers see their students (I have read/ far too many reports about school children becoming killers to believe that it is their fault!!! Something is wrong in your society!! In Norway we do NOT place troubled kids in maximum security prisons, we do NOT do that because we believe in rehabilitation, period! Such kids go to my school, and I love them!!! They are seen for the first time in life!!! We give them that chance! Rightly so, what alternative do we have, like the USA..." grow up...is it your respsonsibility???" Nope, never!

There is a reason for why these kids screw up...and here we do not place responsiblity fully in the hands of young people below 18, rightly so...we do NOT allow them to vote, or to drive a car...BUT in the USA you put them away for life...and until 2005 the USA even killed juvenile offenders...

I am appalled and saddened to read and hear how outrageous people are when secondary/high school students kill parents, students, teachers, by-passers...demanding the gunman(men) be brought to justice...what brought these troubled kids to that point?? Caring parents?? Great neighborhood? Great schools?? Teachers who bothered talking to them for a while???(Talk about lynch mob when this poor black boy aged 6 accidentally killed his neighbor--aged 4.(In Detroit)...the sheriff had to hide him from the public!!! AND on top of it all...Charles Heston showed up praising the Second Amendment..yeah, let us not forget that vital right to bear arms....who helped these troubled kids...

In this debate you have, with the exception of Peter and M.P Bastian, totally forgotten to think about why...

In a just society there will be less homicide, in a just and fair society there will be rehabilitaion, there will be mercy, understanding...Desmond Tutu in South Africa...ring a bell??? Truth and Reconciliation Act...ever thought about that??? They had closure that was worth mentioning!!! In Rwanda the same...I could mention plenty of examples from my research that there are people who are willing to forgive!

I did my Master's Degree on the death penalty in Illinois, the case of Anthony Porter..I teach English, and in Norway that involves history, social studies, literature and grammar/language....thus we read and study all the English speaking countries---I suggest the better part of you should open your eyes... Then think of Iran, China, Saudia Arabia...Iraq, North Korea...Yemen, evil axes!!! NOT very democratic, NOT very humane, not very interested in reaching out to those who need help....there is a whole world out there...global thinking!!!


I am surprised nobody seems to get the messsage soon..Mr Bastian will, I have sensed that!

I will conclude by stating what I did in my own thesis; "When asked how social justice could be achieved in Athens, Solon, an Athenian statesman and lawmaker said:" I think there will be justice whenever those who have NOT been injured by injustices are as outraged by it as those who have been"...I think that says it all...

I thank you again for providing this opprtunity, please think about a just society first!!

Bente from Norway:-)

Posted by: Bente | Oct 15, 2007 4:09:23 PM

Re: the Saddam henchmen whose head was cut off. Federalist says: Who cares if his head popped off?

Do you -- as civilized people?

It is an easy position Doug. Get off the fence.
The fence is like the slavery issue in 1865, or 1861; or 1857, or since Adam and Eve.

Posted by: M. P. Bastian | Oct 15, 2007 4:19:49 PM

Thanks Norway. From Bastian, the guy who gives his name.

Posted by: M. P. Bastian | Oct 15, 2007 5:27:00 PM

Who effing cares if one of Saddam's henchmen lost his head? These people were beasts, and got far less than what they deserved. And, by the way, only a complete effing idiot would compare the execution of a few dozen killers per year in a country with 300 million people with the inhumanity that is and was slavery. The existence of one sex slave in the world is, by far, a greater injustice than executing a murderer. Let's get some perspective.

What is it about capital punishment that gets lefties in a lather--is it akin to the thing that gets lefty morons to run around with Che t-shirts? (Speaking of people who enjoyed killing . . . .)

Posted by: federalist | Oct 15, 2007 6:56:30 PM

Perspective? Yo. Why does 'federalist' think that people who oppose murder authored by the state are "lefties"? This person who signs his own name to the blog is a "righty". "Right" means Thou Shalt Not Kill! Lefty? And, you use the word 'effing'. The stooges of the United States executed (murdered) a human being and his head went off during the process. So what? You say. Like it is nothing. Well it is something to the civilized world. Not a civilized world that you live in. Are you from Texas?

Posted by: M. P. Bastian | Oct 15, 2007 8:42:58 PM

I do not understand why some of you folks do not identify yourselves in this blog. Weenies? Work for the govt? Is that the same?

Posted by: M. P. Bastian | Oct 15, 2007 9:11:08 PM

I am by-and-large opposed to the death penalty. The basis for our laws is "It is better to let 100 guilty men go free than for one innocent man to suffer". That said, since we KNOW that there are innocent people on death row, the odds that we have executed an innocent person are very great.

So where does the "by-and-large" come in? In a case where a person has indubitedly murdered, been put in prison and indubitibly murders again, that person should be put to death. That person has shown that no other sentence is acceptable.

Posted by: Jeff | Oct 15, 2007 9:40:02 PM

I didn;t say that all people who oppose capital punishment are lefties. The thrust of what I was saying is that only lefty idiots would equate capital punishment, a pretty rare phenomenon in America, with slavery in America. I think it's the same idiocy that leads to lefty nit-wits wearing those silly Che t-shirts.

And quite frankly, having gotten asylum for a victim of Saddam, I don't care about the fate of his henchmen. They used the machinery of state to butcher hundreds of thousands. Their fate, lawful execution, is far better than the tyranny they inflicted.

The abolition of capital punishment is a relatively recent phenomenon. Implying that a lack of revulsion at a bothced execution is "uncivilized" is pretty weak.

Enjoy your assumed moral superiority.

Posted by: federalist | Oct 15, 2007 11:03:21 PM

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