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October 3, 2007

Is the developing moratorium on executions risking innocent lives?

As noted here, another stay of a scheduled Texas execution further suggests that the Baze lethal injection SCOTUS case is going to lead to a de facto national moratorium on lethal injection executions.  Kent Scheidegger at Crime & Consequences has this notable reaction: "There is substantial reason to believe that moratoriums kill innocent people.  See Dale O. Cloninger & Roberto Marchesini, Execution Moratoriums, Commutations and Deterrence: the case of Illinois, Applied Economics, vol. 38, no. 9, pp. 967-973 (2006)."

Relatedly, Kent has this new post spotlighting this new paper on the continuing debates over the new death penalty deterrence literature.  Kent makes this spot-on observation about the deterrence debate:

Nothing induces hysteria in the anti-death-penalty crowd as much as the new generation of studies confirming that the death penalty does, indeed, have a deterrent effect and save innocent lives when it is actually enforced.  There is good reason for the reaction.  Deterrence is the strongest argument for the death penalty in terms of persuading people who are otherwise on the fence.

The controversy and reactions surrounding the provocative paper by Cass Sunstein & Adrian Vermeule, entitled "Is Capital Punishment Morally Required?  Acts, Omissions, and Life-Life Tradeoffs," certainly support Kent's observation here.  That paper also has me wondering whether Sunstein and Vermeule would contend that the Supreme Court (or even Congress) has a moral obligation to prevent the risk to innocent lives that might possibly result from a de facto national moratorium on lethal injection executions.  At the very least, I feel comfortable arguing that the Supreme Court has a moral obligation to adjudicate the Baze case ASAP.

Some related posts on the death penalty deterrence debate and the lethal injection moratorium:

October 3, 2007 at 07:51 AM | Permalink


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So, let me get this straight.

There is a moral obligation to kill people in whatever way possible, because future “innocent” people might be killed by “guilty” people hoping to get off easy with life in prison?

Perhaps someone could come forward with the transcript of some mafia trial where a godfather says:

Witness: We were going to just beat him up, but then the Supreme Court issued a stay of execution to decide whether the defendant had received ineffective assistance during the penalty phase, and took a decision to ice the stoolie knowing that during a potential death penalty trial my guy would have more effective assistance of counsel and if convicted might have to wait before being executed.

Attorney: What did the government promise you for your testimony.

Witness: Life in prison. Ha ha. I got off!

Posted by: S.cotus | Oct 3, 2007 8:54:29 AM

The deterrence argument is so looney that it's remarkable anyone takes it seriously. Let's see...somewhere around 2% of homicides result in an execution carried out. The execution, if it happens at all, is usually a decade or more after the murder. And most of the death-eligible homicides are committed by poorly-educated people with below-average intellegence, many of whom have serious behavior or psyciatric disorders.

So we're asked to believe that these murderers are capable of a nuanced probability calculus: "Let's see, if I commit this crime, there's a 2% chance that I might be executed 10 years from now. Life without parole...that's fine, but death? No way!"

Even if it were true that every execution saves lives (in deterred murders), the inquiry doesn't stop there. The death penalty isn't free. Death cases are enormously more expensive to prosecute. Suppose we abolished the D.P. and invested the money in smoking cessation. How many lives would that save? Once the death penalty becomes an economic argument, rather than a moral one, you've got to ask, not merely whether the D.P. saves lives, but whether there are more productive life-saving ways of using the money.

Posted by: Marc Shepherd | Oct 3, 2007 9:09:10 AM

S.cotus: while it's fine to be glib about it, life without the possibility is not an option in many DP states. That means they will get out. Additionally, the law often changes and it isn't outside the realm of possibility for a murderer to put on death row in a state like Texas, have SCOTUS invalidate CP like they did in the '70's thus letting a condemned man walk the streets to kill again.

Think that's unlikely? Impossible? Could never happen in Texas especially? Right?

Google "Kenneth Allen McDuff".

Fact is, no matter what anti-DP folks have to say, the DP does deter the future crimes of at least ONE person.

As someone who lived in Waco during McDuff's second murder spree where he raped and mutilated at least three young women you'll get little laughter from me on the subject.

Posted by: dweedle | Oct 3, 2007 9:38:24 AM


LWOP is an option in all DP states save ONE.

Additionally you seem to confuse deterrence with incapacitation. McDuff was let out of prison after a ridiculously short period of time. Of course, for years prosecutors in Texas OPPOSED tightening up paroe for murderers as it would reduce new death sentence (and the result of the recent addition of LWOP in Texas has been indeed fewer death sentences there).

My favorite part of the C&C posting was its repeated slams of Stanford Law Review & its absolute failure to discuss that the studies at issue have been repeatedly debunked by statisticians as results first methodology second "anaylsis."

Posted by: anon | Oct 3, 2007 9:57:06 AM

Macduff killed more than three people in Waco--five women and an unborn baby.

According to an eyewitness, Macduff tortured a woman so badly that her screams made his ears ring. It is an awful story, and one that should remind us just how this is not just an academic question and how it's not just about "killin" death row inmates.

Fortunately, the "Rosebud Killer" left TDCJ in a pine box after being executed. It's too bad that he didn't die for his original death sentence, killing three teens. The authors of the majority opinion in Furman have blood on their hands.

Posted by: federalist | Oct 3, 2007 10:10:10 AM

I was reading the comments, and even the ones that told me I was wrong made some sense.

Then I come to Federalist’s comment, who says that judges have “blood on their hands.” How can anyone take that seriously? For better or worse, don’t hold judges legally or morally liable for their actions, because we assume that they are interpreting whatever “the law” is.

But, if you want to play Federalist’s game, I would start by blaming judges that put parents in jail for any amount of time. If their kids turn out to be losers, the judge has that kid’s life on their hands. Going a littler further along, if a judge authorizes a search warrant which is not supported by probable cause (objectively speaking) the judge is morally responsible just as if he had invaded someone’s property himself. And, of course, every judge that presides over a trial that results in someone either getting the DP, or spending the rest of their lives in jail where that person was innocent is just as bad as a murderer.

Posted by: S.cotus | Oct 3, 2007 10:20:39 AM

The point of McDuff is that there are unforseen consequences to changing DP law that make S.cotus' opinion that true life sentences are, excuse the pun, a dead cert., not as absolute. A lot can happen in 15 or 20 years. I personally don't believe there is much if any deterrence value to the DP, but that doesn't make it an invalid punishment.

Posted by: dweedle | Oct 3, 2007 10:47:57 AM

S.cotus: not only are you mostly wrong, you are probably a pinko commie too. :)

Posted by: dweedle | Oct 3, 2007 10:54:43 AM

What do you mean that we don't hold judges "morally" accountable? We sure do. The assumption for many judges is really a fiction. The are not always honest brokers trying to figure out what the law is, and when they are not (e.g., Furman), they are morally responsible for their decisions.

Posted by: federalist | Oct 3, 2007 11:05:42 AM

I sure don’t hold any judge morally responsible for their decisions, even when they are nothing more than a projection of their class status onto “the law.”

But, okay, if you want to hold judges morally responsible, you can start by holding the judges that take parents away from their kids morally responsible for their kid’s failures. I, on the other hand, will only care about “the law.”

Posted by: S.cotus | Oct 3, 2007 11:25:22 AM

The moral accountability comes from the fact that they don't always follow "the law"--the law being, for me anyway, something more than what strikes the fancy of 5 lawyers who happened to have been appointed to the Supreme Court.

Posted by: federalist | Oct 3, 2007 11:47:46 AM

Federalist: The problems arise when people start trying to define "the law" that judges aren't supposed to stray from. Law isn't a science... and the way it's bandied about by some it's more like creationism for mouth breathers that managed to get through grad school.

Oh, I'm sorry, I mean "intelligently designed law."

Posted by: dweedle | Oct 3, 2007 12:05:49 PM

Federalist’s definition of “the law being, for me anyway, something more than what strikes the fancy of 5 lawyers who happened to have been appointed to the Supreme Court” while probably devoutly held is completely informative. Instead, the definition of the law is very simple. It is a set of rules and guidelines that conform to my clients’ positions. Anyone who claims that the law is something else is obviously a judicial activist and wants the law to stray from its true meaning. This is obvious and cannot be refuted.

Posted by: S.cotus | Oct 3, 2007 1:13:06 PM

Anybody who has worked with juvenile delinquents (in their homes and schools, not just the court house) can tell you that some kids are better off with their parents in jail. There are a lot of lousy parents out there.

Posted by: Jeff | Oct 3, 2007 8:14:52 PM

On the death penalty and deterrence, why is Texas' murder rate higher than states without the death penalty if it's really a deterrent?

And since nationally 40% of murders go unsolved, wouldn't it be a bigger deterrent if the murder clearance rate increased than punishing a handful of those caught more harshly?

Posted by: Gritsforbreakfast | Oct 4, 2007 5:47:00 AM

Grits, the issue is not Texas' rate vis a vis other states, but what Texas' rate would be without death as opposed to with death.

Posted by: federalist | Oct 4, 2007 9:47:43 AM

Grits and Federalist, I think that you both agree: Texans are a criminal race and more of them should be executed.

Texan culture glorifies crime.

The only way to save the country is 1) increased used of the Federal death penalty in Texas; and 2) building a wall to prevent Texans (who can safely be presumed to be criminals) out.

Posted by: S.cotus | Oct 4, 2007 11:44:35 AM

Grits: Texans are better shots, that's why.

Posted by: dweedle | Oct 4, 2007 12:21:30 PM

I agree with both Dweedle and S.cotus: The reason for Texas' higher murder rate is most likely our superior marksmanship, and if a wall must be built, I would only ever support it along the NORTHERN border instead of the southern one. At a minimum I'd like to see a wall on the state's western edge to keep out the Californians. ;)

Posted by: Gritsforbreakfast | Oct 4, 2007 2:28:19 PM

Grits: the bigger problem is Oklahoma. The wall needs to be tall enough to keep the smell out.

Posted by: dweedle | Oct 4, 2007 4:55:57 PM

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