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August 16, 2011

Is a "revolution" on-going with the death penalty?

NPR has this new story on the administration of the death penalty, which carries the peculiar headline "The Quiet Revolution In The Death Penalty Debate."  Here are snippets:

Over the last few years, a quiet revolution has overtaken the death penalty debate.  Like many trends, this one started in the states and moved to the federal level, says death penalty expert David Bruck.

"I think it's fair to say that the federal government seeks the death penalty less often now than it did five or 10 years ago, but that's simply part of a national trend," says Bruck, a law professor at Washington and Lee University.

Just consider, Bruck says, a state quite close to the seat of national government.     "Virginia — which is the state that's executed the second largest number of people since the death penalty came back in the 1970s — has only added one new defendant to death row in the last three and a half years," he says.

And among those already sentenced to death, a lot fewer are actually being executed.  One reason for that is a shortage of sodium thiopental, a main drug that states and the federal system use in executions.

I find the headline peculiar because I think the death sentencing trends, at both the federal and state levels, have been more the subject of an extended evolution rathen than any revolution.  Moreover, the assertion that "a lot fewer" persons on death row are now being execution is not really accurate:   as this DPIC chart reveals, there were roughly 20% more executions in 2009 and 2010 than in 2007 and 2008.  In my eyes, the data reveal not a "quiet revolution," but a a slow and steady death penalty retrenchment since the modern death penalty "peak" in the second half of the Clinton administration.

August 16, 2011 at 11:33 PM | Permalink

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Doug - the 2007/8 lull resulted from lethal injection challenges and a temporary de facto moratorium as I remember it. The latest trend resumes the downward path of executions back towards levels last seen in the early 1990's. The trend may be slower than we would like, but with more states periodically abolishing the death penalty, any retrenchment is likely to come under increasing pressure. The aberration of the decade 1995-2005 is over and sanity will prevail to see the continuing decline in the use, if not the total abolition of the death penalty. The great imponderable, and the great challenge for abolitionists, is the fate of those sentenced to death during that period of extreme retribution, especially in states like Texas and Ohio. It is to hoped that restraint can be maintained against those dp supporters and political opportunists intent on maintaining gratuitous state killing.

Posted by: peter | Aug 17, 2011 4:29:53 AM

A number of points:

1. David Bruck is indeed a death penalty "expert," but so is Kent Scheidegger. It would be more honest for the piece to refer to Bruck as a DP expert and capital defense lawyer who opposes the death penalty.

2. As Doug notes, "the assertion that 'a lot fewer' persons on death row are now being execution is not really accurate: as this DPIC chart reveals, there were roughly 20% more executions in 2009 and 2010 than in 2007 and 2008." I might add that, at the current rate for this year, there will be a total of 50 executions, right in line with 2009 and 2010, and above the numbers for 2007 and 2008. That cannot honestly be called a "decline."

3. peter notes that there have been "more states periodically abolishing the death penalty." This is true as a legal matter, but it has made virtually no difference in the number of executions. The three states to have abolished the DP (New Mexico, Illinois and New Jersey) had executed a total of zero people in recent years anyway. The states' action merely formalized the de facto status quo.

4. peter also refers to the DP as "gratuitous state killing." That is not so. "Gratuitous" means "without reason." There was plenty of reason for juries and judges to impose the DP, to wit, the defendant's having committed some grisly or sadistic murder or murders. peter might disagree that committing crimes like that is a sufficient reason to impose the DP, but that subjective (and minority) assessment does not mean that there was NO reason.

Posted by: Bill Otis | Aug 17, 2011 8:24:50 AM

Otis! cribbio!
in 2007 and 2008 there was a de facto moratorium due to Baze and in 1999 there were 98.

Posted by: Dott. claudio giusti, italia | Aug 17, 2011 9:56:43 AM

claudio --

I had not previously been aware that conducting 79 executions counts as a "moratorium on executions." If it does, however, I'm going to reconsider my opposition to such moratoria.

Posted by: Bill Otis | Aug 17, 2011 2:41:54 PM

@claudio
There were numerous challenges to executions in 2009, 2010 and 2011 preventing scores of executions. Starting in 2010, states began running out of lethal drugs. Should these issues ever be resolved I expect execution to increase dramatically.

Posted by: MikeinCT | Aug 17, 2011 2:52:51 PM

Mike - not while stories like this keep appearing ..... and they will!
New DNA Evidence Points to a Third-Party Intruder in Case of Texas Man Who Has Served 25 Years in Prison for Murdering his Wife
The Innocence Project press release (click on my name for link)

Posted by: peter | Aug 17, 2011 4:23:20 PM

Otis! cavolo!
American executions stopped from 25 september 2007 to 6 May 2008. Don't you know Sharon "We close at five" Keller? and why do you write about death penalty?

Posted by: Dott. claudio giusti, italia | Aug 17, 2011 5:36:18 PM

claudio --

Maybe they do numbers differently in Italy. Over here, 2007 and 2008 consists of 24 months, not 7 1/2.

P.S. I visited your country, in the area around Spoleto, this June. It's a beautiful setting, but it's got hills all over the place.

Posted by: Bill Otis | Aug 17, 2011 5:52:12 PM

Otis.
USA was for 6 months without executions ad the sky did no fall, Had not Scotus thought Baze you have had some executions. But the trend did NOT change: from 1999 the executions halved.
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf

PS
The problem of Italy is that we have too many beautiful places

Posted by: Dott. claudio giusti, italia | Aug 17, 2011 6:42:57 PM

claudio --

"USA was for 6 months without executions and the sky did no fall."

True. It's also true that the USA has had 1265 executions since the DP was reinstated by Gregg v. Georgia, and the sky hasn't fallen then either.

What this shows is the the "falling sky standard" won't get us very far. What works better is asking whether the DP is just punishment. For the vast majority of crimes it isn't, but for some it is, which is the single most important reason we keep it.

Posted by: Bill Otis | Aug 17, 2011 8:35:19 PM

@peter
There have been DNA exonerations since the early 90's. I don't see how a few more stories will make a real difference. While we're at it, there have only been 17 death row inmates exonerated by DNA versus almost 8,000 sentenced to die since 1973. That seems like an extremely low error rate. In fact, there were around 300 who were exonerated using DNA who were serving prison terms. It seems like it's more of a problem for the justice system as a whole, not just the death penalty.

Posted by: MikeinCT | Aug 18, 2011 12:38:22 AM

Mike - "there have only been 17 death row inmates exonerated by DNA versus almost 8,000 sentenced to die since 1973."
1) It is only recently, and often STILL only with the greatest reluctance, and with the pressure and limited resources of organizations like The Innocence Project, that DNA testing is happening at all, ESPECIALLY in death penalty cases.
2) In many cases, DNA evidence has not been preserved, is not made available for testing, or has never been available or relevant to the case.

"In fact, there were around 300 who were exonerated using DNA who were serving prison terms. It seems like it's more of a problem for the justice system as a whole, not just the death penalty. "
1) We can certainly agree that the whole justice system is shown to be error-prone as a result of these large and growing numbers of DNA exonerations, including death penalty cases.
2) When we add in the numbers of cases, such as misidentification and prosecutor prejudice (in withholding from the defense vital evidence etc), then the rate of error is both significant and unacceptable.

Posted by: peter | Aug 18, 2011 3:00:29 AM

peter --

Adults know that error must be accepted in every aspect of life, including criminal justice.

Still, we can no doubt do away with errors in incarcerating people. Just abolish prisons.

Of course no serious person wants to do this because it will produce a different and worse error of social policy, to wit, a vast increase in crime and a consequent increase in the suffering of crime victims.

It's simply a study in willful blindness to say that, for the sake of not imprisoning the innocent, we should undertake so-called "reforms" (such as restrictions on evidence) that will ALSO result in, increasingly, not imprisoning the guilty. This latter effect is what you refuse to take seriously. That refusal, however, does not make it disappear.

Your analysis fails because it presents no realistic assessment of -- indeed it barely recognizes -- this trade-off. And the failure to recognize it results in its rejection by the public.

You go on and on and on about the innocent, effectively pretending (1) that there is no such thing as the guilty, and (2) ignoring the fact that the guilty are, by massive proportions, the prison population.

Nobody wants to see innocent people hurt. The problem is that many more innocent people will get hurt by strangling the system's ability to punish the guilty than are hurt now by preserving it even with its occasional errors.

Posted by: Bill Otis | Aug 18, 2011 8:51:11 AM

Bill - "You go on and on and on about the innocent, effectively pretending (1) that there is no such thing as the guilty, and (2) ignoring the fact that the guilty are, by massive proportions, the prison population."

This is, as usual, a willful distortion of my commentaries. In simplistic terms, as we do not have the space for a book-length commentary on a blog such as this, all of my comments are written in the context of two fundamental beliefs:

1. That the death penalty is wrong, both because it is a practice that is indefensible as a moral act in the modern world, and because it is unnecessary to protect the public. The elements of retribution and deterrence are more than adequately represented in sentences that do not take life. The death penalty uniquely excludes the possibility of redemption and rehabilitation. As you say, errors cannot ever be excluded from life, but if such errors are to be accepted, then they should be part of the risk that each one of us face as a member of society - not made the penalty of sacrifice of an innocent man or woman. The fact is that most murderers are sentenced on the basis of all the elements of a good (constitutional) sentence, even LWOP since most will live within the general prison population (though I have stated my objections to LWOP before). Since those who receive the death penalty are not in most cases qualitatively difference from those who do not, there is no moral or practical reason for there different fate. Before you say it, the phrase "the worst of the worst" is so meaningless in practice as to be a joke.

2. The prison population as a whole are "guilty" only by the bar that is set. In the US, in the past couple of decades, that bar has been set so extraordinarily high as to be off the scale in any international comparison. You could halve the prison population and still not meet international standards of practice. I read somewhere today that kids as young as FIVE are being charged with criminal offenses! If that doesn't shock you into admitting that reform of the criminal justice system is long overdue, then nothing ever will.

The denial and lethargy that you exhibit against the need for reform, in the interest of Human Rights and progressive systems of civility in US society, are astonishing, depressing and unexpected in an intellectual of our generation.

Posted by: peter | Aug 18, 2011 11:27:29 AM

peter --

You write one sentence with which I agree 100%: "[T]he phrase 'the worst of the worst' is so meaningless in practice as to be a joke."

Which is one reason I have never used that phrase. The other is that one hardly need be the worst ever, or among the worst ever, to have earned execution.

The problem with your response is that it never really comes to grips with what, in one place, you acknowledge: Error is inescapbale.

We simply don't have the choice of a system in which no innocent people are killed or imprisoned as a result of errors in the criminal justice system. We are only left with being able to choose the system that reduces as much as possible the risk of unjust punishment WHILE ALSO REDUCING AS MUCH AS POSSIBLE THE RISK TO NORMAL CITIZENS of being visciously victimized by hooligans we should have put in jail but for the fact that we lost our nerve.

We have seen in the recent riots in your country, and in the flash mobs in this one, the price innocent people have paid because society has bred a culture of grievance and entitlement. Instead of telling our youth to go to work and behave, we tell them it's all society's fault if they don't have the iPods an plasma TV's they want.

They gave us their answer.

The welfare state culture of grievance and entitlement is ugly and dangerous. It's hardly time to get soft -- the mobs have shown us where that leads. It's time to get serious and to unapologetically enforce the standards of civilized life.

Posted by: Bill Otis | Aug 18, 2011 2:37:09 PM

Sorry, but DNA saved 13 persons over 479 rape capital murders
Risinger, D. Michael,
Innocents Convicted: An Empirically Justified Wrongful Conviction Rate. Journal of Criminal Law and Criminology, Vol. 97, No. 3, 2007
Available at SSRN: http://ssrn.com/abstract=931454

Posted by: Dott. claudio giusti, italia | Aug 18, 2011 3:47:37 PM

Bill - your reference to the riots in my country, and your solution - jail them all - illustrates everything that is wrong and irrational in your thinking. How it ever got to this point I cannot imagine. There was an interesting article on the BBC site today that has some relevance. You should take a look if you can:
www.bbc.co.uk/news/world-us-canada-14564182
"Stanford prison experiment continues to shock"
It's what is happening to you. Think about it.

As for the riots in English cities - I think The New York Times has a better grip on it than you:
www.nytimes.com/2011/08/18/opinion/wrong-answers-in-britain.html?_r=1
though they are wrong about the assumption that police cuts, if they occur as a result of funding cuts (and that doesn't necessarily follow), would make a difference in future. The truth is that the police got tactics wrong on this occasion and should have responded faster and in greater numbers to the initial incident. Complacency isn't the correct word, but such outbreaks of spontaneous group lawlessness are so rare in the UK that the police were unprepared. And now Cameron has got his response a little awry. It's a typical over-the-top political posturing which will do him little good in the long run, but looks tough on the day.

The society you and he criticize is our society. We are part of it. It's a concept you appear not to understand. Why do you think there has been unrest in the Middle East? Society is not about control, it's about legitimate order in which everyone has a stake. Society breaks down when those stakeholders feel excluded and disenfranchised. We do not criticize those young people in the Middle East for venting their feelings. In the UK, we acknowledge there was no more than a shadow of similarity of justified grievance, and more than a little foolish criminality. But even so, the truly criminal element was very small. In this instance at least, we should distinguish between opportunistic criminality (which was perpetrated by normally ordinary and honest citizens) and those career criminals who instigated and exploited the situations that got out of control. The responses in terms of sentencing should reflect those differences.

In the US, you have chosen to criminalize the young in a big way. Having done so, the only enforcement of order that you can think of has become more and more severe, so much so that you readily accepted, until recently, LWOP and executions for juveniles. You possibly would have preferred to see that remain in place. But that order is not legitimate. Just as the Law in the Middle East was wrong, so the Law in the US flirts with illegitimacy. Democracy is not about control, it is about the rights and aspirations of society .... and if you want it to succeed, then you must ensure each stakeholder has a fair place within it. Stakeholders themselves may be weak or strong, advantaged or disadvantaged. A cohesive society works to find a fair and positive role for each. In a democratic society, criminality may be greater if society fails the task. In a non-democratic society, revolution will replace criminality as the result.

US law has, in many respects, lost a sense of proportion. Those responsible for implementing and administering it have assumed a draconian power which in other circumstances they would never have expected to assume. The system has become self-feeding to the point that no-one wants to accept responsibility for the consequences, or has the nerve to roll it all back, save for the gift that the craziness now costs too much money. What a mess.

Posted by: peter | Aug 18, 2011 4:14:53 PM

Gratuitous actually means, at least in some usages, "unwarranted," "unjustified," or "unnecessary." It is not necessary that there be *no* reason for a gratuitous action. What the word implies is that, in the opinion of the author, the act is either done for no reason *or* is egregiously unjustified by the purported reasons.

Amazing to see folks acknowledge that the system cannot eliminate mistakes, but make a cost-benefit argument for maintaining criminal law, prisons, etc. (with which I agree), but then fail to make the (small) leap to the conclusion that, given this inescapable reality of mistakes, there can be no marginal net benefit to *killing* people for their crimes rather than incarcerating them indefinitely.

What would I call a rule that authorizes executing people who would otherwise be incarcerated until death, on the highly disputed basis that this will create a marginal social benefit, when we *know* that such a rule creates the long-term, serious social cost of killing innocent people? Gratuitous.

Posted by: Anon | Aug 19, 2011 2:07:05 PM

@anon
"Amazing to see folks acknowledge that the system cannot eliminate mistakes, but make a cost-benefit argument for maintaining criminal law, prisons, etc. (with which I agree), but then fail to make the (small) leap to the conclusion that, given this inescapable reality of mistakes, there can be no marginal net benefit to *killing* people for their crimes rather than incarcerating them indefinitely.

What would I call a rule that authorizes executing people who would otherwise be incarcerated until death, on the highly disputed basis that this will create a marginal social benefit, when we *know* that such a rule creates the long-term, serious social cost of killing innocent people? Gratuitous."

It becomes more necessary when you realize that anyone incarcerated until death can no longer be punished. They can deal drugs, rape or even kill. And they have.

Posted by: MikeinCT | Aug 20, 2011 11:38:24 AM

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