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December 10, 2009

New study suggesting Texas executions might lower homicide rates

Thanks to this post at C&C, I saw this piece from USA Today reporting on this notable new study appearing in Criminology.  Here is how the USA Today piece captures the research:

Executions in Texas slightly lower homicide rates there, about five to 10 killings in the year afterwards, suggest criminologists.  The executions also may displace homicides to nearby states, however....

In the study, the team looked at Texas, where about one-third of all executions have occurred nationwide since 1973, and where past researchers have disagreed on deterrent effects.  Because legal decision led to greatly-increased executions in 1994, the researchers looked at cases starting with that year.

"We conclude that evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions," the study concludes.  Based on statistics, about 2.5 fewer murders than would have otherwise took place in Texas in the one to four months after an execution, where the state had 8,511 murders in 2005, according to the FBI.  But the analysis statistics suggest the executions also displaced murders to later months and to other states, lowering the deterrent effect of each execution to 0.5 fewer murders in the next year.

This new piece looks like a must-read for any and everyone seriously interested in arguments about whether the death penalty may save lives.

December 10, 2009 at 05:09 PM | Permalink

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Comments

That the death penalty deters murder is nothing new. At least ten (actually more, I believe) independent studies demonstrate a deterrent effect.

A comprehensive list of these studies, and their abstracts, was compiled here (kudos to Kent Scheidegger; this is his work for which I can claim no credit):

http://www.cjlf.org/deathpenalty/DPDeterrence.htm

The theory that the DP does not deter murder rests on the notion that persons thinking about killing do not, unlike the rest of the human race, respond to incentives and disincentives. That theory is odd on its face, and is in any event debunked by the numerous studies listed in the site given above.

Posted by: Bill Otis | Dec 10, 2009 6:08:07 PM

Deterrence is weak if it exists. Given the dose-response curve is stymied on the low end by pretextual bs by irresponsible abolitionists, little effect is expected.

The sole value of the criminal law is incapacitation. Kill 10,000 people a year, and lower crime by 90% because the criminals are just missing. The lawyer will never allow that because the same fraction would be taken out in lawyer jobs.

Posted by: Supremacy Claus | Dec 10, 2009 6:19:49 PM

Bill:

Of course punishment has a deterrent effect. The issue is whether the death penalty has a greater deterrent effect than a term of years or life. The studies strongly suggest that death has no greater deterrent value than a term greater of 25+ years.

A specific problem with this study, as well as most of the econometric models currently being used, is the cherry picked data set. Specifically most use data from the 90s when you have a falling national homicide rate, in both abolitionist and retentionist states, beginning slightly before Texas and a few others greatly increased their execution rates. So, for example, if you literally move the Texas starting point to 2000 rather than 1994 you reach a different result and if you move the Texas starting point to 1981 you get another and all executions since the 30s you get yet another.

As you are no doubt aware, the results noted above are in direct conflict with a study released last month by the American Society of Criminology's Journal Criminology and Public Policy which suggests by cherry picking data sets you can get brutalization or deterrence depending on which years you use. We can go round for round on this, and our predecessors have for decades.

Bottom line,

Posted by: karl | Dec 10, 2009 9:52:55 PM

If the public decides to get real deterrence, it is quite simple. Kill the lawyer hierarchy. Kill a lawyer hierarchy member, save a murder victim every year the lawyer stays dead, into perpetuity. The lawyer is the deadliest threat to the murder victim there is. Hunt down, arrest, try, and execute a Justice of the Supreme Court, and you can save millions of lives over the decades. Most of these are viable babies who have harmed or offended no one.

Both sides of the criminal law are irresponsible incompetents. The lawyer must be removed from all benches, all legislative seats, and all policy positions in the executive. Because of the repetitiveness, year after year, decade after decade, century after century, the lawyer knows and intends for there to be 17,000 murders a year. These are mostly committed by his customers, established as clients from childhood, whom he protects from real incapacitation, and whom he immunizes for 99% of their crimes.

The lawyer hierarchy betrays the country, and collaborates with terrorists for the sake of a few lousy jobs. Any significant incident should be used as an opportunity to sweep away the hierarchy of this cult enterprise.

Posted by: Supremacy Claus | Dec 11, 2009 2:16:44 AM

Half the murderers and half the murder victims are legally intoxicated. There is not much clear headed policy weighing going on at the time of most murders.

Posted by: Supremacy Claus | Dec 11, 2009 7:36:08 AM

Oh that Ralph Nader.

Posted by: Matt | Dec 11, 2009 8:42:59 AM

Here's what I don't get about this deterrence stuff. It strikes me that even the few would-be murderers that engage in rational thought prior to the act, weigh the probability of getting caught much, much more highly than the likelihood of getting any particular punishment. Many murderers act out of passion or mental illness or profoundly irrational impulses; few if any do any rational weighing. And the few that do weigh matters, ask themselves "can I get away with it"? as opposed to "when I don't get away with it, will I get life in prison or a death sentence." The thing that worries them is the probability of apprehension – the punishment, whether life or death sucks either way and no one wants either.

Surely compared to no punishment at all, the death penalty deters murder. But compared to life in prison? Really? The idea that murderers engage the following equation seems far fetched: Deterrence of Death Penalty = [(Probability of apprehension) x (Death Penalty)] - [(Probability of apprehension) x (Life in Prison)]. The idea that many people who are willing to risk the latter are deterred from the former seems fanciful.

This study is even more ridiculous. The idea that would-be murderers are even aware of which months Texas executes and change their behavior in those months, but not in more distant-future months strikes me bizarre. That's simply not how decisions about whether to murder occur. Are we really saying that would-be murderers are avid readers of the short AP dispatches about executions in their local papers and conform their behavior based on that?

I do think murder can be deterred. And those who are worried about this should seek to raise the probability of getting caught – solve cold cases, etc. As it is now, many states barely clear 50-60% of murders. If would-be murderers thought serious punishment (LWOP or death) were almost certain to follow from their actions, the deterrence would skyrocket.

Posted by: dm | Dec 11, 2009 9:03:58 AM

Let's have a real experiment--with an effective death penalty. How about this--limit habeas review to the guilt/innocence. Abolish 1983 for method of execution claims. Then we'll have a lot of executions, and we can get a clearer picture. We would save a lot of money.

Posted by: federalist | Dec 11, 2009 9:59:32 AM

A better balanced report on this Study is to be found at standdown typepad com (click on my name)

Posted by: peter | Dec 11, 2009 10:07:40 AM

The theory that the DP does not deter murder rests on the notion that persons thinking about killing do not, unlike the rest of the human race, respond to incentives and disincentives. That theory is odd on its face, and is in any event debunked by the numerous studies listed in the site given above.

Actually, the deterrence hypothesis is odd on its face. Only about 1 percent of homicides result in an execution, and the time taken from the crime to the penalty averages over 10 years. On top of that, most of the death-eligible defendants are poorly educated, not the brightest bulbs on the tree, not exactly keen students of public affairs, and not in the best control of their impulses.

So we are to believe that these would-be murderers say to themselves, “Hmmm...if I do this, there’s a 1 percent chance that, more than ten years from now, I might be put to death. Life without parole would be just fine with me, but that 1 percent chance of death in ten years is really spooky. I guess I had better not kill.”

Uh-huh.

Posted by: Marc Shepherd | Dec 11, 2009 10:18:40 AM

I think the issue, Marc, is not that finely ground. An effective death penalty sends a message of toughness that, apparently, is heard by some.

Also, if the DP is no biggie to criminals, then why do so a significant number plead to get LWOP?

Posted by: federalist | Dec 11, 2009 10:51:03 AM

Marc --

First, I notice that you do not take on, or purport to take on, any of the numerous, independent studies in the link I provided, at least ten of which show a deterrent effect. You are a bright man, and if you care to show where those studies are wrong, I'm all ears. Until then, it's hard to believe that ALL TEN are wrong. They were, after all, undertaken by different researchers at different universities, and by people both for and against the DP (or who expressed no opinion).

"Actually, the deterrence hypothesis is odd on its face. Only about 1 percent of homicides result in an execution, and the time taken from the crime to the penalty averages over 10 years. On top of that, most of the death-eligible defendants are poorly educated, not the brightest bulbs on the tree, not exactly keen students of public affairs, and not in the best control of their impulses."

People know when executions are taking place and when they aren't. That level of awareness may well be as far as it goes, but it's far enough for deterrent purposes. You don't have to be well educated, bright or a student of public affairs to know -- in Virginia for example -- that the Beltway sniper just got waxed, and if you want to kill people like he did, you could get your place in line too.

As to killers not being in control of their impulses, that is true in some contexts but not in the DP context. If a killing is truly impulsive, as opposed to premeditated, it's not first degree murder, much less capital murder.

The Beltway sniper is an outlier example in terms of the number of victims and complete callousness, but actually pretty average in terms of impulsiveness -- which is to say that his killings weren't impulsive at all. His selection of victims was random, but the murders themselves were well thought through. He kept a hunting rifle with a telescopic sight in his car, and had drilled a hole in the trunk to be able to hide while he was doing the shooting. He also planned his escape route.

That might be many things (like mind-bogglingly inhuman), but impulsive it is not.

"So we are to believe that these would-be murderers say to themselves, 'Hmmm...if I do this, there’s a 1 percent chance that, more than ten years from now, I might be put to death. Life without parole would be just fine with me, but that 1 percent chance of death in ten years is really spooky. I guess I had better not kill.'"

The thinking of the would-be killer is not as nuanced as you describe it (with dramatic flourshes for effect), but, to answer your question directly: Yes, you are to believe it.

When I was in the US Attorney's Office in Alexandria, Virginia, we were investigating a drug gang what operated both in northern Virginia and DC. At one point (probably many points, actually) one of the enforcers took another gang's dealer across the Potomac River into DC for purposes of eliminating the competition (i.e., killing him).

He did not succeed, thank goodness, and eventually we got him to be a cooperating witness so we could go up the chain to get who was actually running the show, importing the drugs and ordering these "enforcement actions" (i.e., murders). In the course of talking to him, one of the agents asked why he had bothered to drive the competing dealer into DC to kill him.

His answer sticks in his mind to this day: "Because DC don't have the death penalty."

Yes, they think about what they're doing. Believe it.

Posted by: Bill Otis | Dec 11, 2009 11:04:21 AM

Also, if the DP is no biggie to criminals, then why do so a significant number plead to get LWOP?

This is asking a very different question. If I give a guy right now a straight-up way to save his life, he's going to give it a serious look. These guys are often adept at avoiding a danger that is staring them squarely in the face. That is a far cry from a penalty that is given out only 1 percent of the time, and then, not for 10 years.

I notice that you do not take on, or purport to take on, any of the numerous, independent studies in the link I provided, at least ten of which show a deterrent effect.

The methodological errors in these studies have been well documented. Generally, they are the work of ideologues who “find what they wish to find.”

By the way, I think the DP could have a deterrent effect, but it would need to be carried out much more quickly, and far more often than 1 percent of the time. I mean, drunk driving penalties have a deterrent effect, but it works because they are imposed a pretty high percentage of the time, and the driver doesn’t wait a decade to face the consequences. The DP could work that way too; it just doesn’t.

Yes, I do believe that there are some murderers who are sophisticated enough to plan ahead to commit their crime in a jurisdiction where there is no DP. I suspect that is exceedingly rare.

Posted by: Marc Shepherd | Dec 11, 2009 12:33:17 PM

Marc --

From a CBS news article, June 11, 2007:

"So far, the studies have had little impact on public policy. New Jersey's commission on the death penalty this year dismissed the body of knowledge on deterrence as "inconclusive."

But the ferocious argument in academic circles could eventually spread to a wider audience, as it has in the past.

"Science does really draw a conclusion. It did. There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect."

A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?" ###

So much for the idea that these studies are no more than the work of ideologues who find what they wish to find. Professor Mocan found what he wished NOT to find, but was honest enough to report it anyway. And, as the CBS article notes, he re-examined the study in light of the very alleged methodological errors to which you refer. But the death penalty STILL had a deterrent effect.

The DP is popular with the electorate generally, but NOT popular in the academy. When so many researchers from so many different universities, using varying methodologies, ALL find a deterrent effect -- not a finding that will endear them to their colleagues or the tenure committee -- it's implausible to just brush it off with the observation that the methodology (which one?) has been questioned.

Your argument that the DP would have to be carried out more frequently and quickly to have a deterrent effect conflates specific deterrence with general deterrence. In any individual instance, sure, the prospective killer COULD, if very sophisticated, say, "Well, I have only X chance of getting caught, and Y chance of getting sentenced to the DP, and Z chance that it will ever actually be carried out, and if it is it won't be for 10 years."

But that's not how they think. They think a good deal more generally than that, as most people would. They do not link a particular execution to a particular murder years before, and they're not counting the number of executions. They think as my fellow in the drug case thought: Either the authorities execute people here or they don't. If they do, better to do your killing where there's no DP.

Posted by: Bill Otis | Dec 11, 2009 4:15:14 PM

Bill - this issue has been argued time and time again. One study or another comes up at least every couple of months it seems .... some suggesting a slight deterrence effect and just as many suggesting none, and yet others indeterminate. We can all claim our references are the academically strongest etc. but in reality all studies are highly selective in the data used - and are bound to be since the numbers involved are so relatively small, and inevitably do not or cannot take full account of all possible external variables. The fact remains that in spite of the death penalty, the rates of murder remain largely highest in those states with the death penalty, and substantially higher than in other countries which have dropped the death penalty long ago. Put into that wider context, the argument for deterrence is both of marginal relevance and certainly unproven. Society and Justice can exist happily without the death penalty, and the increasing small number who suffer it - for largely political, geographical, racial and economic reasons - do so unnecessarily, unfairly, and as a cruel and unusual punishment.

Posted by: peter | Dec 12, 2009 8:00:06 AM

peter --

As usual, I prefer to talk about specifics, rather than use generalities.

Recently, my state, Virginia, executed the Beltway sniper, a man who killed at least ten of his fellow creatures, from ambush, for no reason (except that he liked using human beings for target practice), employing, appropriately enough, a hunting rifle with a telescopic sight. He was not insane. He expressed no remorse. And he involved in this adventure a juvenile, Lee Boyd Malvo, who is now serving a life sentence.

You say that he is among the few who suffer the DP "for largely political, geographical, racial and economic reasons - [and] do so unnecessarily, unfairly, and as a cruel and unusual punishment."

I respectfully request that you furnish specific and objective reasons to believe IN THIS CASE that the sniper was executed BECAUSE of political, geographic, or economic factors (as opposed to the spectacular cruelty and hideousness of the crime); and furnish in addition something beyond mere subjective beliefs for concluding that the execution was unfair or cruel and unusual.


Posted by: Bill Otis | Dec 12, 2009 11:45:37 AM

Bill - the best response to your challenge has already come from another commentator, Prof. William A. Schabas, at:
humanrightsdoctorate.blogspot.com/2009/11/beltway-sniper-is-executed.html (click on my name)
"One the aspects of the case that has always fascinated me is the fact that the majority of the killings took place in Virginia and Maryland, where the death penalty was in force. All that these two men, who killed at random, needed to do to avoid the death penalty was to drive a kilometre or two and place themselves on the other side of the beltway. Because there is no death penalty in the District of Columbia.
When I describe this in lectures, someone always says: ‘But how would they know that? Killers don’t think of such things. They think they won’t ever be caught.’
And that is exactly my point. If the death penalty had a real deterrent effect, when compared with lengthy imprisonment (which would be the fate in the District of Columbia), the ‘Beltway snipers’ would be expected to make sure they were inside the beltway and not outside.
Demonstrating that the death penalty has no additional deterrent effect over lengthy imprisonment (or, for that matter, the contrary) is a difficult proposition. But it seems that in the Muhammed case, we have a good example, in at least one case, to prove the fallacy of the deterrence hypothesis."

Posted by: peter | Dec 13, 2009 5:10:18 AM

peter --

Point One: I never said and don't believe, and I don't know of anyone who says or believes, that the death penalty will deter ALL murder. It doesn't and won't. Neither will LWOP.

Point Two: You're switching the issue.

You said, "...the increasing[ly] small number who suffer [the death penalty] - for largely political, geographical, racial and economic reasons - do so unnecessarily, unfairly, and as a cruel and unusual punishment."

I responded by pointing to the Beltway sniper, and by asking you to furnish specific and objective reasons to believe in that case that the sniper was executed BECAUSE OF political, geographic, or economic factors (as opposed to the spectacular cruelty and hideousness of the crime); and to furnish something beyond mere subjective beliefs for concluding that the execution was unfair or cruel and unusual.

I am still interested in the answers to those questions.

Posted by: Bill Otis | Dec 13, 2009 9:35:34 AM

If the murder victim is white, there is more DP meted out. Black carry a 6 fold burden of murder victimization. Therefore greater use of the DP in black murder cases, could reduce this disparity.

Posted by: Supremacy Claus | Dec 13, 2009 2:59:17 PM

Bill - you are capable of answering your own question. I didn't use the word "because" - you did. In the sense that a well-funded private attorney would have likely persuaded a court that the mitigating features of Mahummad's mental state was at least a partial consequence of his war service, and more, and therefore a death sentence was inappropriate, the economics of defense played a part in the sentence, as it always does. The fact that he was black, and had adopted the name "Mahummad", in the wake of 9/11 and the perceived threat of terrorism, was also likely to factor against sympathetic consideration of mitigation. The geographical and political factors are self-evident in a pro-death penalty state.

Posted by: peter | Dec 14, 2009 3:05:20 AM

Peter --

"I didn't use the word 'because' - you did."

When the claim is that X factor causes the DP to be imposed, I would be nuts to examine anything OTHER THAN causation.

"In the sense that a well-funded private attorney would have likely persuaded a court that the mitigating features of Mahummad's mental state was at least a partial consequence of his war service, and more, and therefore a death sentence was inappropriate, the economics of defense played a part in the sentence, as it always does."

Actually, he had a well-funded attorney. I don't know if counsel was private -- probably not -- but in this state, the public defenders are every bit as good, if not better, than the private criminal defense bar. I dealt with both for many years.

What "mental state" are you referring to? The fact that he liked to kill people at random for no reason other than to amuse himself? You don't cite any evidence even suggesting that Muhammed didn't know what he was doing. I mean, c'mon peter, he kept it up FOR SIX WEEKS, and had the police baffled the whole time. This guy planned more shrewdly than three state governments and the feds.

As to the military: Thousands and thousands of people have had military service and have managed to return to civilian life without becoming mass killers. The idea that prior military service had anything whatever to do with this atrocity is nothing but speculation, and grossly implausible speculation at that.

"The fact that he was black, and had adopted the name 'Mahummad', in the wake of 9/11 and the perceived threat of terrorism, was also likely to factor against sympathetic consideration of mitigation."

Again, pure speculation, and in tension with the on-the-ground realities. A jury in nearby Alexandria, Virginia spared Zackarius Moussaoui the death penalty even though he was, not merely tried post-9/11 and had an Islamic name; HE WAS IN FACT THE 20TH HIJACKER. And he too had publicly funded counsel.

The difference in the Moussaoui case was the one thing you studiously avoid talking about -- the evidence. Moussaoui did not personally pull the trigger. Muhammed did. Do you think that might have had a role in sentencing deliberations?

"The geographical and political factors are self-evident in a pro-death penalty state."

Self-evident to prove what? That they CAUSED the imposition of the death penalty? If you mean that one can't get the DP in a non-DP state, you're quite right -- in the sense that any tautology is "right." But it's still just a tautology.

And what is the reference to political factors supposed to show? That it's politically popular to execute stone-cold multiple killers? Well, yes, I guess the majority does support that. But that doesn't make it "political" in the pejorative sense you're implying. Nor were the jurors, who (unanimously) recommended the DP, running for any office. They were a bunch of ordinary people.

If by "political" you mean that the majority agrees with my view of the DP and not with yours, that is correct, but not exactly an argument in your favor, and certainly not an argument that demostrates that politics in the crass sense had anything to do with the jury's decision.

It's just astounding that you talk all about these speculative sideshow factors, but do not one time mention the factor that was neither a sideshow nor speculative, that being WHAT MUHAMMED ACTUALLY DID.

When you intentionally blind yourself to the evidence, preferring instead word-processor talking points from the NACDL, it's not all that surprising that your view is so wildly out of the mainstream.

Posted by: Bill Otis | Dec 14, 2009 10:25:56 AM

"When you intentionally blind yourself to the evidence, preferring instead word-processor talking points from the NACDL, it's not all that surprising that your view is so wildly out of the mainstream."

You do love your little joke! I had to google NCADL I'm afraid. If that body has expressed similar thoughts to my own, then it suggests I am not so far from the mainstream as you would like to believe.
Towards the end of your excitable tirade, you come the crux of the matter .. WHAT MUHAMMED ACTUALLY DID (your caps). What he did was horrendous. He needed to be caught, and he was. He needed to be regarded as a danger to society, and he was. He needed to be restrained from release until, if ever, he was judged no longer a threat, and he was. Did he need to be executed ... no. Were there mitigating circumstances to support this view ... yes there were. What were they? Amnesty has a sample:
A psychiatric evaluation obtained by his lawyers determined that despite an “ability to sometimes show a superficial brightness,” Muhammad did not have “a reasonable degree of rational understanding.” The psychiatrist concluded that he “was not competent to stand trial,” that his “ability to make decisions and understand the proceedings was impaired,” and that his “judgment and ability to think logically were severely compromised.” Magnetic Resonance Imaging revealed that John Muhammad’s brain had serious abnormalities, including a shrunken cortex, indicating a loss of brain tissue likely to have been caused by a severe injury to the head. Another abnormality found in his brain is sometimes associated with schizophrenia, and two experts retained concluded that Muhammad probably suffered from this serious mental illness. This opinion was consistent with indications that John Muhammad suffered from delusional and bizarre thinking.
Other testing indicated that he had severe cognitive impairments.
Because John Muhammad refused to be interviewed by the prosecution’s psychiatrist, however, the trial judge ruled that no expert testimony could be introduced, greatly reducing the defence lawyers” ability to protect Muhammad from the death penalty. They had built a mitigation case based around the testimony of a mental health expert. Among other things, according to Muhammad’s appeal lawyers, his relatives and others had provided the expert with “heart-wrenching stories of the abuse and neglect Muhammad suffered as a child - beatings with hoses and electrical cords, denial of food, clothing and basic necessities, and suffering on a scale difficult to imagine.” Mental health experts have linked this abuse with John Muhammad’s brain dysfunction.

Should such a man ever be put to death, even in a pro-death penalty state? NO.
That it did, and that you support the decision, is so far from the moral code that I support and respect, I doubt we could ever agree on a definition of Justice. let alone the moral probity of the death penalty.

Posted by: peter | Dec 14, 2009 1:39:30 PM

Of course the death penalty deters. All prospects of a negative outcome deter.

The only remaining question is how much does the death penalty deter? There will never be agreement on that.

Even with the 20 or so recent studies finding for deterrence, there is a wide variable in how many lives are saved.

Posted by: Dudley Sharp | Dec 14, 2009 3:25:17 PM

Dudley --

Was it 20 showing deterrence? Wow. I've been saying 10, to be conservative. Looks like I'm behind the times. Thanks for the correction.

Posted by: Bill Otis | Dec 14, 2009 3:55:48 PM

peter --

Thanks for noting that my piece was "excitable." At my age, anything that keeps the blood moving is welcome.

Just a couple of things on the merits.

You condemn Muhammed's acts, as any civilized person would have to, but again don't actually describe them. It's their description, though, that shows why this guy deserved what he got.

What you DO describe is the report of the bought-and-paid-for defense psychiatric team. This is somewhat ironic, since in your last post you were saying that Muhammed was underfunded and couldn't afford anything that sophisticated.

Anyway, moving right along, we see -- guess what!! -- that Muhammed had brain lesions.

I love it. "Brain lesions" is the (somewhat) new fad in capital defense, just as "costs too much" is the new fad in anti-incarceration circles, and the "isomer defense" was all the rage 20 years ago in cocaine cases. Do you find it odd that, while all manner of people have brain lesions (and other brain defects) only Muhammed found it necessary to turn the Washington DC area into a human shooting gallery? How is it that everyone else's brain lesions don't have this effect?

It was perhpas to avoid uncomfortable questions like this that Muhammed (and his counsel?) shooed away the government's psychiatrist, thus to ensure that his totally one-sided and conveniently excuse-laden account was not tested. Fortunately, the court prevented such a lopsided presentation.

And then there's the other, much older stand-by, the tortured childhood, inevitably brought about by people no longer around to defend themselves from the rancid accusations now hurled at them.

If the prosecution tried a stunt like that, the defense would yelp long and loud, and properly so. These aging, second-hand, hearsay allegations of child abuse would turn the Confrontation Clause inside-out. Now you might note, and correctly so, that the Confrontation Clause binds only the government. But the WISDOM BEHIND the Clause is that no party in litigation should be able to just gin something up that the other party has no fair opportunity to be able to examine.

Finally, you say that the DP, for Muhammed or anyone, is unnecessary. In a sense, I agree. The world won't come to an end if we have no DP. It did not come to an end in the 15 year period (1965-1980) in which we had a virtual DP moratorium.

What did come to an end, however, was a relatively modest murder rate. By 1980, the rate had doubled from what it was 15 years earlier. (It went back down again, substantially, when executions resumed in significant numbers in the 1990's).

Another thing that came to an end (temporarily, thank goodness) was society's assertion of its right to say NO and actually mean it -- to say no to the most appalling, grisly, cruel and cold-hearted murders you can imagine, including not a few even worse than Muhammed's.

The 1960' and 70's holiday from sobriety is now long over. And the murder rate is back down. People actually do behave better when they know that society has rules, and the resolve to enforce them, at least in the worst cases. Which is why we do it, and will keep doing it.

Posted by: Bill Otis | Dec 14, 2009 4:35:32 PM

Someone, at some point, should note, since abolition NJ murders are markedly down. Texas (the nation's leader in executions) is still, and most the rest of the South (the region with the most executions) as well, above the national average for murder. While detractors will clearly argue this is post hoc ergo propter hoc, the results speak for themselves.

Posted by: karl | Dec 14, 2009 9:07:45 PM

karl --

Yup, it's been two years since NJ abolished the DP. And I'll take your word for it that the murder rate there is down.

What you neglect to mention is that there had been no executions in NJ since 1963 -- a full FORTY-FOUR years before the DP was formally abolished.

It's quite true that the DP has zero deterrent value when it's never used. But implying that the experience of two years (2007-2009) without an effective death penalty tells us anything about deterrence -- while remaining mum about the murder rate in the 44 years before then in which there were exactly the same number of executions -- is very, very misleading.

Posted by: Bill Otis | Dec 14, 2009 9:28:14 PM

Bill:

Outside of Texas (in cases prior to juries being LWOP) and Virginia the reality is that more people die on death row in recent years than are executed. The dp as currently practiced is a boondoggle. Too many people ending up on dr for too many crimes. Strip it back to just a few aggs -- such as rape of a child& murder, cop killing, and murder after having been previously convicted of a homicide -- like the Illinois Commission suggests and it would work a lot quicker and efficiently. Keep adding things like murder committed while jaywalking and you'll continue to see states getting picked off one by one from the retentionist to the (de facto or de jure) abolitionist camp.

Posted by: karl | Dec 14, 2009 9:46:26 PM

typo alert. That first sentence should have read:

Outside of Texas (in cases prior to juries being OFFERED LWOP) and Virginia the reality is that more people die on death row in recent years than are executed.

Posted by: karl | Dec 14, 2009 9:58:00 PM

To correct a few misconceptions by Peter and Karl:

"Deterrence and the Death Penalty: A Reply to Radelet and Lacock"
http://homicidesurvivors.com/2009/07/02/deterrence-and-the-death-penalty-a-reply-to-radelet-and-lacock.aspx

"Death Penalty, Deterrence & Murder Rates: Let's be clear"
http://prodpinnc.blogspot.com/2009/03/death-penalty-deterrence-murder-rates.html

Karl, the boondoggle aspect of the death penalty is not based upon how many crimes are death penalty eligible, but upon how the process is misused.

The best manner in which to get rid of the boondoggle appears to be to implement a Virginia protocol.

Virginia executes in 5-7 years, 65% of those sentenced to death have been executed and only 15% of death penalty cases are overturned on appeal.

Of course, this would entail only using the state and fereral judges which don't subvert a Virginia protocol. Oh well.

As is evidenced in California, Pennsylvania, as elsewhere, and was evidenced in New Jersey, the judges happily apply the boondoggle elixer.


Posted by: Dudley Sharp | Dec 18, 2009 5:11:08 AM

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