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July 18, 2010

Interesting account of "Five myths about the death penalty"

NYU Professor David Garland has this intriguing piece in today's Washington Post under the headline "Five myths about the death penalty." Here is how the Post's editors set up the piece and the five myths set out by Garland:
The death penalty: the punishment we reserve for the worst criminal offenders.  Last week, law enforcement officials said it was on the table for four men charged in the shooting deaths of unarmed civilians in New Orleans in the days after Hurricane Katrina.  It's a signal that the crimes were truly reprehensible.  Much of what we think we know about American capital punishment comes from the longstanding debate that surrounds the institution. But in making their opposing claims, death-penalty proponents and their abolitionist adversaries perpetrate myths and half-truths that distort the facts. The United States' death penalty is not what its supporters -- or its opponents -- would have us believe.

1. The United States is a death-penalty nation.

2. The United States is out of step with Europe and the rest of the Western world.

3. This country has the death penalty because the public supports it.

4. The death penalty works.

5. The death penalty doesn't work.

As the list of myths should highlight, this commentary is not the usual pro- or anti-screed about capital punishment in modern America.  Instead, Garland highlights a whole lot of real-world nuance and, in so doing, gets me extra excited to read his forthcoming book titled "Peculiar Institution: America's Death Penalty in an Age of Abolition."

July 18, 2010 at 05:01 PM | Permalink

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If I torture and murder 50 people for my sexual pleasure and for nothing else redeeming, I have the full protection of the lawyer. The odds of my getting caught if all my victims are strangers to me is almost nil. If I am caught, I will be given immunity for the last 49 torture murders by the ilks of Prof. Garland. I will have lots of opportunities to escape during faked medical emergencies to resume my hobby, as well as during many daytrips for hearings. If I am condemned to death, I will more likely die of the unhealthy, high fat, high salt prison food than from any execution.

The reality is that the lawyer is putting on a very expensive show to preserve the death penalty appellate business, worth $10 billion in a time of very high lawyer unemployment. Here something that is not a myth and is missed by this lying, lawyer hypocrite. The death penalty is a pretextual, sham, bunko scheme to appease the desire of the public for safety, but will really only generate massive lawyer employment. Not a myth, but an expensive bunko operation like a Bernie Madoff scheme.

Posted by: Supremacy Claus | Jul 18, 2010 5:31:06 PM

Why did so many states have a system where LWP and death were options but LWOP was not?

Posted by: . | Jul 18, 2010 6:46:21 PM

The 5 Myths of Prof. David Garland - death penalty
Dudley Sharp

It is difficult to say if Prof . Garland is just sloppy or if, like many in academia, he is happy to peddle bias in service of a goal, here, an end to execution.
("Five myths about the death penalty", By David Garland, July 18, 2010, www.washingtonpost.com/wp-dyn/content/article/2010/07/16/AR2010071602717.html)

Lets' look at Garland's myths:

1) Garland fails to mention that it is the judges that make the imposition of the death penalty all but impossible in some jurisdictions. Dictatorial judges in New Jersey never allowed an execution. There, the death penalty was repealed. Pennsylvania judges never allow executions other than those whereby the inmates waive appeals. If you appeal a death sentence in Pa, you have a life sentence, even if your death sentence is not overturned. Similar abusive judicial behavior is legendary in California.

The death penalty in Virginia? Inmates are executed in 5-7 years after sentencing, 65% of those sentenced to death have been executed and only 15% of death row cases are overturned on appeal. The national averages for those are 11 years, 13% and 37%, respectively.

The difference is in the judges.

Victim survivors in death penalty cases are knowingly and unnecessarily tortured by such irresponsible and callous judges, as in NJ, Pa and Ca and others, nationwide.

Garland gives the false hope that by replacing the death penalty with a life sentence that we can avoid these problems. All states are, now, looking at ways to release lifers, early, for overcrowding and cost issues.

Instead of the abusive performance of judges in so many death penalty jurisdictions, cases, abuse which should be stopped, those murder victim survivors would then be served a recurring theme of releasing those lifer murderers of their loved ones.

The same legal challenges that have been used for years to restrict death penalty applications, are now being repeated in challenging life sentences. Pro death penalty folks have been stating that pending course for years and it is now in full swing. Murderers serving life sentences can appeal for life.

2 and 3. Yes, fortunately, American democracy is stronger. Even in Europe, the collection of countries whose governments are most opposed to the death penalty, the majority of their populations do support the death penalty for some crimes (1). Those governments could care less.

It may be the case that a majority of citizens in every country support executions for some crimes, based upon the proposition that such sanction is a morally just and proportionate sanction for the crime(s) committed, the foundation of support for all criminal sanctions.

The insult here is that Garland believes that governments ban the death penalty because they know better, that they are wiser than those whom they govern, similar in fashion to the dictatorial judges who confound the law, as reviewed. In fact, it is simply a product of Garland's bias, with no evidence to support it and a false sense of parental superiority guiding it.

4. Predictably, Garland says "it stretches credulity to think that the death penalty, as administered in the United States today, can be an effective means for deterring murder".

Note, that Garland's hedge is "effective", which he can define in any manner he wishes.

Of course the death penalty deters. All prospects of any negative outcome deter some. There is no exception.

Let's say that only 0.5% of murderers are deterred every year because of deterrence. It is a very small percentage of murders deterred, but huge in terms of lives saved, about 90 innocents saved per year, on average, since 1977, noting an 18,000 murders/yr. average during that time.

Is that effective, enough, for Garland? Probably not. For many against the death penalty, it wouldn't matter if a thousand lives were spared per execution because of deterrence, they would still seek its end.

Of the recent (since 2000) 25 studies finding for deterrence, there is a range of deterrence detected, between 3 and 28 lives spared per execution (2), with an average of about 30 executions per year, since 1977, which equates to about 90-900 innocents spared per year because of deterrence.

Garland states that "66 percent have their death sentences overturned on appeal or post-conviction review. He needs to fact check. It is 37%. (3)

Garland states that "a smaller number -- 139 -- have been exonerated in the past 30 years". Fact checking is definitely not Garland's thing. The 139 exonerated is well known fraud and easily uncovered by anyone who cared to fact check. (4)

5. Of course the death penalty works. Everyone who has been executed has remained dead.

Garland states: "An Indiana study last month showed that capital sentences cost 10 times more than life in prison without parole."

Not surprisingly, Garland didn't fact check that story either. It is about 12% more expensive not the 1000% (10 times) that Garland found. (5)

Garland closes: "Getting past the myths and looking at how the death penalty actually operates is one place to start. "

How would he know?

1) "Death Penalty Support Remains Very High: USA & The World"
http://prodpinnc.blogspot.com/2009/07/death-penalty-polls-support-remains.html

2) 25 recent studies finding for deterrence, Criminal Justice Legal Foundation
http://www.cjlf.org/deathpenalty/DPDeterrence.htm

3) "A Broken Study: A Review of 'A Broken System' "
http://prodpinnc.blogspot.com/2009/10/broken-study-review-of-broken-system.html

4) "The 130 (now 139) death row 'innocents' scam"
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx

5) Garland was referencing a review that didn't look at all the costs and stated that it didn't include all the costs. With one exception, this one appears to.

See Background Information, page 2, Fiscal Impact Statement, Legislative Services Agency,
http://www.in.gov/legislative/bills/2008/PDF/FISCAL/HB1074.004.pdf

Costs per case
$758, 243 for death penalty
$657, 028 for LWOP

However, this excludes the credit of savings for plea bargain to LWOP, which I suspect saves at least $20, 000 per case, solely attributed to having the death penalty.

That would bring the differential down to about $80,000 - the death penalty and LWOP cost amounts are already present valued. or

$738, ooo for death penalty (inclusive of LWOP plea credit cost savings, solely attributable to having the death penalty)
$657, 000 for LWOP

The death penalty is 12% more than LWOP.

David Garland is a professor of law and sociology at New York University. His book "Peculiar Institution: America's Death Penalty in an Age of Abolition" is forthcoming this fall.

Posted by: Dudley Sharp | Jul 18, 2010 9:44:46 PM

Dudley: You have a nice section on the pro-con arguments. Would like a brief passage on the following two issues, not spotted by lawyers.

1) Deterrence of others violates the fair hearing portion of the procedural due process right of the death penalty defendant. It is unfair to punish you for a crime I may or may not commit in the speculative future. Deterrence of the defendant is a justified reason for the penalty. Of course, it deters the defendant as well because the deceased have a low recidivism rate. Deterrence of others is unlawful and unfair.

2) If irreversible mistakes justify ending the death penalty, they justify ending all transportation, including walking. There are over 10 times as many pedestrian deaths as there are total death penalties a year, and 40 times as many mistaken death penalties. Plus, our pedestrian deaths are by butchery by metal objects smashing the body.

Let me know if you would consider adding those two issues never spotted by the lawyer.

Posted by: Supremacy Claus | Jul 18, 2010 10:40:45 PM

The truth does so hurt!
www.bbc.co.uk/news/world-asia-pacific-10680143
Singapore police have arrested a British author of a book about the city-state's use of the death penalty.
Alan Shadrake, 75, is being detained on criminal defamation charges which carry a two-year prison sentence. However, the government says the book - which includes an interview with a former hangman - has not been banned. But the attorney general's office says the book casts doubt on the impartiality, integrity and independence of Singapore's judiciary.

Posted by: peter | Jul 19, 2010 3:13:32 AM

peter --

"The truth does so hurt!"

If you have not read the book -- and you give no indication that you have -- how do you know it's "the truth?"

For that matter, even if you HAVE read the book, how do you know it's the truth? Are you well versed in the Singapore legal system?

Posted by: Bill Otis | Jul 19, 2010 4:30:24 AM

Bill, I suspect very few have had an opportunity to read this book yet, but maybe we can get a flavor of it from this post:
www.talkleft.com/story/2005/11/03/004/36130 (extract below)
Darshan Singh is Singapore's official executioner. He has hanged more than 850 people in his 43 years on the job. He wants to retire. But he can't find a replacement.
"He tried to train two would-be hangmen to replace him, a Malaysian and a Chinese, both in the prison service," [his] colleague said. "But when it came to pulling the lever for the real thing, they both froze and could not do it.
The pot-bellied grandfather and former Singapore caner has an all-time record of hanging 18 people in one day. He hangs his victims while wearing very casual attire, usually a t-shirt and shorts.
As for familiarity with the death penalty in Singapore, more of us may be acquainted through this Amnesty International Report (pdf of report is linked from this page):
www.amnesty.org/en/library/info/ASA36/001/2004

Posted by: peter | Jul 19, 2010 4:59:18 AM

SC:

How I see it.

1) All criminal sanctions are founded in justice, which requires a proper identification of the criminal, the crimes committed and a just application of the law for those crimes.

In addition, an understood outcome of both statutes and enfocement of the law and sanctio is that some will be deterred from committing crimes, that would not otherrwise be deterred without them. Put simply, would the absence of criminal statutes, enforcement of them and criminal sanctions increase or decrease crime?

We incarcerate for a number of reasons, the primary ones being a just sanction for the crimes, as well as the result of that incarceration which is incapacitation, a component which necessarily protects society. The death penalty is a just sanction which also is an enhanced level of incapacitation, meaning enhanced protection of society.

Safety and deterrence are all products and intended outcomes of this justice, but cannot be the foundation for imposing sanction. Such foundation must always be the proper identification of the criminal and the imposition of just sanction in response to the crimes.

It is a just and moral consideration as to what sanctions offer greater protection of innocents, an additonal benefit of the death penalty.

2) If all human endeavors that cause the deaths of innocents were stopped, nearly all human endeavors would stop, inclusive of medical practice, contruction and peace efforts in war torn countries, to name a very few.

If anti death penalty folks, wrongly, wish to limit this consideration to only criminal justice practices, they run into the same problem.

Virtually all criminal justice practices would have to end, if such end was required by government error and the death of innocents. It appears that the government supervison of parole and probation is so incompetant that hundreds to thousands of innocents are murdered, every year, in the US, by parolees and probationers, who are not properly supervised.

This is why the anti death penalty folks ONLY want us to look at executions. Because, if you compare executions to everything and anything else, where innocents are at risk, execution is the safest of them all.

In fact, innocents are more at risk if we don't use the death penalty, even when compared to LWOP.

"The Death Penalty: More Protection for Innocents"
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx

Posted by: Dudley Sharp | Jul 19, 2010 7:01:23 AM

I want to remember that the big part of the world is happy living without capital punishment

Posted by: claudio giusti, italia | Jul 19, 2010 11:33:47 AM

Dud,

Nice job for a real estate hack. You've certainly got good technique when it comes to plastering over the cracks.

Posted by: Bill Blotus | Jul 19, 2010 2:03:38 PM

peter --

I take it then that you have not read the book you state is the "truth."

OK. Just checking.

Posted by: Bill Otis | Jul 19, 2010 3:06:20 PM

claudio --

A much bigger part is happy living with it.

Posted by: Bill Otis | Jul 19, 2010 3:08:22 PM

Yessss: Communist China !!!!!!!!

Posted by: claudio giusti, italia | Jul 19, 2010 3:26:16 PM

Bill - how little you seem to know, or want to know, about the culture of the east. I think Alan Shadrake's reputation for good solid journalism is quite well established enough at the age of 75 to withstand your feeble attempt at a slight. And it's water off a ducks back so far as I'm concerned. I appreciate the opportunity to write more on the subject. Alan often writes for Australian publications, and of course the death penalty is abolished in Australia.
Another Australian journalist, Brian Morley, one of 12 journalists to witness the execution in Melbourne in 1967 of Ronald Ryan, the last man hanged in Australia, wrote this last year:
The death penalty has no place in modern society. It is the most abhorrent act available to man - the deliberate taking of a human life in the name of justice.
The absolute truth of these statements came to me on February 3, 1967, the day that Ronald Ryan was executed at Pentridge Prison - the last man to be hanged in Australia.
I was a witness to the execution.
Together with 11 other journalists, I watched as Ryan was led to the gallows in the centre of a catwalk spanning the first level of the D Division cell block.
I watched as the hangman looped the noose around his neck. I watched as the hood was pulled down over his face.
As the hangman leapt for the lever and the gallows crashed open, sending Ryan to his death at the end of the rope, I closed my eyes - it was too much to bear.
It was the most deliberate, callous and barbaric act I have ever witnessed.
The memory haunts me to this day - that I saw a man deliberately killed in the name of the law.
I walked into Pentridge that day with no clear views on capital punishment. The execution was the biggest story of the year and I had a job to do in reporting it. I walked out of Pentridge determined to work in whatever way I could to try to have capital punishment abolished, and that work continues today.
Morley and Shadrake are not alone, and they don't need to tell untruths to convince their readers that the death penalty has no place in modern society. Is is that which so alarms and embarrasses the Singapore authorities, and you perhaps.

Posted by: peter | Jul 19, 2010 5:12:14 PM

peter --

It's actually not that hard to answer a direct question. The answer is no, you didn't read it, but proclaim it the truth anyway.

Fine.

Here's another direct question, on the off chance that you might be able to answer this one. It refers to the following news story:

"A Houston man who beat his 6-year-old son for eight hours until the boy went into a seizure and died has been charged in the child's killing, police said Monday. * * *

"Saturday night, Duncan was angry because T.K. wouldn't go to sleep so he made the boy kneel with his arms extended in front of him for eight hours, Sgt. Brian Harris said. Whenever T.K. lowered his arms, Duncan delivered a "flurry of punches" to the boy's chest and body as part of what Duncan called "chest boxing," according to the police report.

"Duncan refused to allow T.K. to go to the bathroom, and beat the boy after he urinated on himself, according to court records.

"Duncan told investigators he beat his son to teach him how to "man up," police said." ###

Here's the question: Does Mr. Duncan deserve a sentence qualitatively identical to the sentence that would be given a bank robber?

Yes or no.

No talking points, no evasions, no regurgitation of how Americans are barbaric, no holier-than-thou sermons trying to impose religion on secular law.

Does Mr. Duncan deserve a sentence qualitatively identical to the sentence that would be given a bank robber? Yes or no.


Posted by: Bill Otis | Jul 19, 2010 11:46:23 PM

claudio --

Did you forget something? Like Japan, India, South Korea, the Arab World, most of Africa, the Carribean countries -- you know, stuff like that?

It doesn't bother me that much any more that you're arrogant. But I have to confess it still seems odd to me that you pride yourself on being an arrogant racist.

Posted by: Bill Otis | Jul 19, 2010 11:51:55 PM

Bill - okay, I'll humor you one more time. The crime you describe is as sickening to me as to you. Without knowing all of the psychiatric reports that would presumably be conducted in this case, I have no doubt that the perpetrator should be placed in a secure psychiatric environment until such time, if ever, he is declared no longer a danger to society. A bank robber will have his sentence judged on the degree of threat or violence used, and a tariff added as a deterrence to others. That too could and should, in some circumstances, amount to a life term. You are correct in indicating that both crimes are regarded in law, and by society at large, as exceptional and deserving of great severity of punishment. However, the crimes are neither comparable nor demand the same process of assessment. Robbery, on the scale we are considering, is first an offense both against property and against the trust of society. As I have indicated, additional tariffs will be appropriate if threat or injury to persons was also caused. The assessment of punishment and the building of a whole tariff is relatively straightforward. In the case of the child murder, given the limited but graphic detail you have provided, the nature of the crime has a psychiatric basis. Society would wish to punish the crime against the person severely of course, but the mental health of the perpetrator would also form a necessary constituent of both the assessment of tariff and the type of secure accommodation required to serve it. As I have indicated earlier, it would be the exception to envisage anything other than a life term.
In neither case is there a need or justification for the state to conduct an equally abhorrent act which takes a human life. In days long gone, men used to be hung or shot for a bank robbery. Those days have rightly passed. The motives and contributory causations of an act of murder are hugely diverse and often primitive, but the response of society, though harsh, should not be at the same primeval level.
In short, your question demonstrates a complete lack of understanding of the term Justice. It is perfectly possible to arrive at the same tariff (punishment if you prefer) but for different reasons. But those punishments are not, or should not be, qualitatively identical since their component parts are quite different. The detainment of the murderer, in this instance, would require a substantial emphasis on the treatment of a mental health issue, followed by constructive containment for both his security and that of the public. The robber would require an emphasis on long-term rehabilitation within a secure but constructive environment. Whilst their paths could ultimately meet, there would inevitably be a long process to negotiate to get there. And neither one could assume re-entry to the general populace of society.
I doubt my answer satisfies you, but it is the only answer that meets the requirements of humane justice in the 21st Century.

Posted by: peter | Jul 20, 2010 2:12:01 AM

All behavior comes from brain functioning. If a diagnosis is an excuse, then people who can get the grades to get into Harvard Law or pitch a baseball at 100 mph should not get what they deserve, namely high salaries. They did not choose to be that way. The talent came from abnormal brain function.

An established psychiatric disorder, such as paranoia, makes it more mandatory that the person be executed. They are less predictable, less controllable than a robber motivated by greed. Paranoid schizophrenics murder 2000 people in the US, often for no apparent reason. Thank the lawyer protecting the paranoid schizophrenic.

The left wing ideologue has made the choice and called it humane justice. However, the murder victims and their loved ones would disagree. The left wing ideologue makes no money from victims, and they may rot. The the left winger is so brainwashed, he cannot see sleazy rent seeking as anything but humane justice.

Posted by: Supremacy Claus | Jul 20, 2010 9:08:50 AM

Death penalty is dying in America as elsewhere

Posted by: claudio giusti, italia | Jul 20, 2010 9:44:32 AM

Supremacy - recent statistics put the number of people living in the US with the aids infection at around 1,200,000 (2005). Most people probably stand a greater risk of contracting that potentially fatal disease than ever meeting a paranoid schizophrenic, and still less one who may cause them harm. I assume you do not suggest that we eliminate all aids sufferers. From your comments, I doubt you even understand what paranoid schizophrenia is, let alone its treatability .. and of course few murderers actually suffer from this condition anyway. You may be interested to read about Stuart Baker-Brown who developed paranoid schizophrenia in 1991 and received a diagnosis in 1996. His story about this can be found here:
http://www.bmj.com/cgi/content/full/333/7569/636
The BBC also have a website relating to him and to schizophrenia in general at:
http://news.bbc.co.uk/1/hi/magazine/7037314.stm
You will read of some very familiar names there.

Posted by: peter | Jul 20, 2010 9:45:29 AM

peter --

You're a thoughtful man, but you keep making the same mistake: You assume the conclusion.

It is simply not the case that "humane justice in the 21st Century" always pretermits the death penalty. The proposition that it does runs afoul of the considered views of too many thoughtful people, in too many disparate parts of the world, across too many cultures and embracing too many religions and other ethical systems that support capital punishment.

Mr. Duncan's exhausting, eight hour long beating/torture murder of a six year old does not call on us to see how much taxpayer money we can cough up for a psychiatrist. The 1960's and 70's overwhelmingly proved that rehabilitation is not the answer for some people (indeed a lot of people). A society incapable of eliminating a person like Duncan is not compassionate; it's crazy, and it has surrendered the moral confidence and authority needed to enforce the most elementary standards of behavior.

Four-fifths of the USA approved the execution of Timmy McVeigh. At least that percentage would approve (indeed demand) Duncan's execution. With all respect, it is not an indictment of their humanity, but is instead an indictment of your conceit, to say that all of them are wrong but you are right.

BTW, it is your same assuming the conclusion that allows you to insist that Shadrake's book is "the truth" without ever having read it. You know Shadrake is an abolitionist campaigner, and therefore what he writes -- no matter how exaggerated, melodramatic or slanted -- must be the truth.

P.S. If, after a year of intensive "therapy," Duncan's prison psychiatrist states under oath that Duncan is totally "cured" and no longer represents a danger to anyone, would you support Duncan's release? If not, why not? What humane use would there be to keeping him locked up?

Posted by: Bill Otis | Jul 20, 2010 10:05:25 AM

Someone forgets that happy living under death penalty there are happy countries like China, Iran, Iraq, Saudi Arabia, Yemen, Syria, Cuba, Sudan, Viet Nam, Pakistan, Afghanistan, Belarus, Burma, Egypt, Singapore, Indonesia, Zimbabwe, Libya, Nigeria, Uganda: ie the usual suspects.

Posted by: claudio giusti, italia | Jul 20, 2010 11:05:20 AM

claudio --

I notice the "usual suspects" are overwhelmingly countries dominated by non-whites. Once again, your racism is showing. Does that make you happy?

Posted by: Bill Otis | Jul 20, 2010 6:28:49 PM

Sorry for you, but it’s usually American death penalty to be labelled as racist.
The countries I listed are quite all tyrannies. Do you like dictators?
Please, do not forget that not only Europe but also Angola, Argentina, Armenia, Azerbaijan, Bhutan, Burundi, Cambodia, Cape Verde, Colombia, Cook Islands, Costa Rica, Cote D’Ivoire, Dominica, Djibouti, Ecuador, Guinea Bissau, Haiti, Honduras, Kyrkyzstan, Kiribati, Marshall Island, Mauritius, Mexico, Micronesia, Mozambique, Namibia, Nepal, Nicaragua. Niue, Palau, Panama, Philippines, Rwanda, Samoa, Sao Tome, Senegal, Seychelles, Solomon Islands, South Africa, Togo, Timor, Turkey, Turkmenistan, Tuvalu, Uruguay, Vanatu, Venezuela, Bolivia, Brazil, Chile, El Salvador, Fiji, Kazakhstan, Peru, are death penalty free countries. (not counting the de facto abolitionist countries)

Posted by: claudio giusti, italia | Jul 21, 2010 3:48:16 AM

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