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October 18, 2007

More on the moratorium mojo and a guessing game

This front-page article in today's Washington Post provides a very nice review of the de facto execution moratorium the the Supreme Court has helped produce.  The piece is entitled "Supreme Court Halts Va. Inmate's Execution: Ruling Could Lead To National Hiatus In Lethal Injections," are here are a few snippets:

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, agreed [a moritorium has developed]. "I believe this stay in Virginia, combined with previous stays in a number of other states, confirms that a moratorium on all lethal injections is in place in this country until the Supreme Court rules on the issue," he said. Lethal injection is the primary method of execution in 37 of the 38 states that have the death penalty.  Nebraska uses electrocutions, but no executions are scheduled there.

Kent Scheidegger, legal director and general counsel for the Criminal Justice Legal Foundation, which favors capital punishment and opposes expansion of criminal rights, said he had hoped the court would explain its reasoning in its case-by-case review of the stay requests.  Another appeal, from Georgia, is likely to reach the court this week. If the court's action amounts to a moratorium, Scheidegger said, it would dilute "the deterrence effect" of the death penalty and "cause more innocent people to die."

Even without a halt to the use of lethal injections, the pace of executions nationally is the slowest in a decade.

As I have explained in prior posts (some of which are linked below), the Baze case presents the potential to halt executions for as long as a year if the Supreme Court doesn't issue a ruling in this Kentucky case until summer 2008, and then other states need a few months to figure out exactly what the ruling means for their execution protocols.  So, now seems like a fitting time for an SL&P guessing game centered on this question:

On what date and in what state will the next US execution take place?

As the excerpt above notes, it is possible that Georgia could still be trying to forward with executions in the next few weeks.  But, after the Virgina stay, I think Georgia will get thwarted, too.  As a result, I am inclined to guess that we won't see another execution until probably August 2008 in Texas.  But this is pure speculation and others are encouraged to provide a more informed perspective.  (In this context, I must spotlight that my early January prediction of less that 46 executions in 2007 is now looking pretty good.)

Some related posts:

October 18, 2007 at 09:44 AM | Permalink


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Tracked on Oct 26, 2007 8:06:56 AM


FWIW, my actual statement to the reporter on deterrence was not as stark as the truncated quotation in the article.

Posted by: Kent Scheidegger | Oct 18, 2007 11:42:16 AM

Kent, would you mind explaining the reasoning/evidence you have for your statement, either the truncated or fuller version? Or just link us to a previous explanation on your blog?


Posted by: clerk | Oct 18, 2007 11:50:53 AM

Two studies by Cloninger & Marchesini found increases in homicides as a result of temporary halts in executions. Citations and abstracts are given in CJLF's deterrence studies page: http://www.cjlf.org/deathpenalty/DPDeterrence.htm

I do not claim that these studies are definitive proof. Such proof is probably not possible either way in this area.

Posted by: Kent Scheidegger | Oct 18, 2007 12:14:55 PM

Kent, perhaps I'm looking at the wrong link, but could do you have links to those studies that don't require payment? I'd be interested in learning more about Cloninger and Marchesini's methodology.

Posted by: Doug | Oct 18, 2007 12:27:30 PM

Of the many arguments in favor of the death penalty, the argument that it saves lives is the weakest.

The connection between drunk driving and highway fatalities is much more solid, and is disputed by no one. So why don't we permanently revoke the license of anyone caught driving drunk? Clearly, it would save lives—probably more lives. And it would be a far less expensive way of doing so, given the exorbitant cost of a death-penalty prosecution.

For that matter, why don't we ban smoking? The number of smoking-related deaths far exceeds even the most optimistic estimate of the number of lives saved with each execution.

Or, why don't we abolish the D.P., and with the money saved (as non-death prosecutions are cheaper), provide health insurance for people who don't have it. The connection between money spent and lives saved would be much more direct and measurable.

Posted by: Marc Shepherd | Oct 18, 2007 12:52:05 PM

Doug, unfortunately, no, the publishers guard their copyrights rather jealously. I consider the steep prices they charge for individual articles to be outrageous, but there is nothing I can do about it.

If there is a college campus near you, you might be able to get them there either in hard copy or online from the library computer.

Posted by: Kent Scheidegger | Oct 18, 2007 2:10:26 PM

"...as non-death prosecutions are cheaper..."

Once more, with feeling, the death penalty would be cheaper than LWOP if we did them both correctly.

Posted by: Kent Scheidegger | Oct 18, 2007 2:12:29 PM

What's the point of publishing academic work that can't be widely distributed? (This isn't directed at you Kent; I realize you're just the messenger.)

Posted by: Doug | Oct 18, 2007 2:14:14 PM

Once more, with feeling, the death penalty would be cheaper than LWOP if we did them both correctly.

I agree with you on that point, but I don't see any scenario where the Supreme Court would roll back the fouled-up jurisprudence that created this mess in the first place. About 35–40 years' worth of precedents would need to be acknowledged as mistakes.

Posted by: Marc Shepherd | Oct 18, 2007 2:35:52 PM

"Any single empirical study, including the present one, is subject to honest criticism. The perfect empirical study remains elusive to scholars of all disciplines. A morally contested issue like the deterrence effect of capital punishment attracts criticism that other less contested issues eludes. Moreover, studies such as the present one that rely on inductive statistical analysis cannot prove a given hypothesis correct. They can only find evidence that is or is not consistent with a given hypothesis. In this vein, the present study joins a growing list that finds evidence that is consistent with the deterrent hypothesis. However, the present study does not prove that deterrence exists. On the other hand, the failure of some studies to find evidence consistent with the deterrence hypothesis does not prove that deterrence is inoperative."
From concluding remarks of Execution and deterrence:
a quasi-controlled group experiment

If this is the best they and Kent can come up with, it's not worth a pinch of salt. As Zimring & Hawkins said back in the 80's: "The death penalty is about as relevant to controlling violent crime as rain-dancing is to controlling the weather".

Posted by: peter | Oct 18, 2007 4:53:34 PM

Sure, Doug, your projection of less than 46 looks good NOW, but Baze saved your butt on that one - we were on track in Texas to bust your prediction wide open before they began the stays.

Oh, and as it turns out, you're right. Cleveland Rocks. I hadn't watched them much before the playoffs, but wow! And I noticed they're pulling out all the stops for tonight:


In solidarity with your blog, and because Manny Ramirez is a showboater, I say bring back the BoSox curse. Go Tribe!

Posted by: Gritsforbreakfast | Oct 18, 2007 5:36:05 PM

Kent, given what peter quotes, doesn't it appear to be dishonest and inaccurate to claim with any confidence that the death penalty saves lives?

Posted by: Doug | Oct 18, 2007 6:00:16 PM

Nope. What Peter quotes says essentially the same thing I said before. Studies of this type are not definitive proof. There is nothing remotely dishonest in citing a study with acknowledgment of its limitations. It would be dishonest to claim that the case has been proved, and I scrupulously avoid claiming that. (I read all the time comments by people claiming that deterrence has been disproved. That is indeed either dishonest or ignorant.)

The body of literature as a whole, with many studies by different people taking different approaches, provides much more evidence than any one study. There are a few articles critical of some of the main studies, but these have been answered. On the whole, the body of scholarly literature provides substantial support for the belief that the death penalty saves lives when actually enforced. That is all I claim for it. Whether it provides a basis for "confidence" depends on what degree of likelihood you think is required. To provide additional grounds to carry out a penalty independently justified as "just deserts," I think a preponderance is sufficient, and I think we easily have that.

Getting back to basic principles, it is generally true that incentives matter and that raising the cost of any action will cause some reduction in the number of people who choose to do it. The people who claim the death penalty is somehow an exception to this general principle have the burden of proof. They haven't come remotely close to carrying it.

Posted by: Kent Scheidegger | Oct 18, 2007 6:29:19 PM

On the whole, the body of scholarly literature provides substantial support for the belief that the death penalty saves lives when actually enforced.

But how does scholarly literature that -- by its own terms – cannot say X is true support the belief that X is true? I’m a bit baffled by the logic there, but maybe I’m just dense or thinking clearly. Perhaps if you explained the methodology of the study a bit more it would be more convincing.

Regarding your point about incentives. I agree with you that generally speaking, raising the cost of an activity will reduce the demand for that activity. But it’s not clear to me that this principle applies to the death penalty because it assumes (a) people are making rationale choices when they choose to kill and (b) have sufficient information about the death penalty such that it informs their choice. Moreover, even if that principle applied to the death penalty, it would not explain how many people the death penalty deters. If it only deterred 3 attempted murders a year, that’s quite a different story than if it saves 1000 lives a year.

Posted by: Doug | Oct 18, 2007 7:01:30 PM

I'd like to re-phrase my first point into quesiton form that will perhaps make things clearer for me. Do the studies you cite give some sort of confidence interval on how certain they are that the hypothesis (DP deters murder) is correct? In other words, they say they can't prove their hypothesis. Does that mean they can't prove with 100% confidence? Or does that mean they have no clue whether their hypothesis is right they just know it hasn't been ruled out as wrong? Does it mean that there's a 50% chance their hypothesis is right?

Posted by: Doug | Oct 18, 2007 7:06:45 PM

It is a shame that the last execution before the de facto moratorium was one that would not have occurred if not for Sharon Keller telling attorneys for Michael Richard, "We close at 5".

If you are as shocked as we were by Judge Sharon Keller saying "We close at 5" and refusing to accept an appeal 20 minutes after 5 PM by lawyers representing a man about to be executed, then sign on to a judicial complaint. We will submit the complaint to the State Commission on Judicial Conduct on October 30, 2007. The complaint has already been signed by more than 700 people.

Anyone can sign on to the complaint by following this link.

There have already been two complaints filed, one signed by twenty lawyers and one by a Texas State Representative. A third complaint should be filed any time now by the Harris County Criminal Lawyers Association.

The Houston Chronicle Editorial Board published a strongly worded editorial yesterday calling for removal of Chief Justice Sharon Keller from the Texas Court of Criminal Appeals saying "since she will not face the voters until 2012, the miscarriage of justice perpetrated by Chief Justice Keller can only be remedied by a recommendation by the Judicial Conduct Commission to the Texas Supreme Court that she be removed from office".

Posted by: Scott Cobb | Oct 18, 2007 7:12:48 PM

Bottom line: Richard's execution date was set months in advance, and lethal injection claims were extremely well-known beforehand. His attorneys chose to wait until the last minute to make their claims. Next time, file your effing appeals in a more timely manner and stop whining about the judge who followed the rules. A court doesn't have to stay open for a death row inmate. What judges should be doing in these types of cases is to ask attorneys why claims weren't filed earlier:

Judge: Mr. Defense Lawyer, why did you wait until the eve of execution to file your claim.

Lawyer: Well, the Supreme Court just decided to grant cert.

Judge: Does that pass the "so what" test? Does a cause of action arise simply because the Supreme Court grants cert.? You guys knew about all the lethal injection challenges--why didn't you file one earlier?

Lawyer: Well, we didn't think it would succeed then.

Judge: Can any other litigant excuse a late filing because they didn't think that their claim would succeed?

Lawyer: Well, death is different.

Judge: And what about the victim's family? Is a last-minute stay fair to them?

Lawyer: They don't have standing.

Judge: Well, the granting of a stay is an equitable remedy--shouldn't I have to take into consideration their interests? Especially when you could have filed this litigation sooner.

Lawyer: Well, the interests of the victim's family is not at issue here.

Judge: Didn't the Supreme Court say otherwise in McDonough v. Hill?

Lawyer: Well, that's dicta.

Judge: Supreme Court dicta, which I can and will follow. You could have filed this earlier. You didn't. I am denying the state, and I am assessing you the costs of this proceeding.

Posted by: federalist | Oct 18, 2007 8:31:46 PM

federalist, your complete lack of legal knowdledge results in both the under- and over-selling of your point. There is no such thing as "Supreme Court dicta." Thus, your lame back and forth understates your case. On the other hand, you read McDonough v. Hill to say something it did not say -- i.e., these courts shouldn't stay these executions. The courts have discretion to decide either way. Thus, you oversell your point. As a former philosphy student, I give your dialogue a C-.

Posted by: Doug | Oct 18, 2007 9:01:10 PM

"The federal courts can and should protect States from dilatory or speculative suits . . . ."

Given the fact that Richard's suit was filed on the same day he was executed, it is difficult to imagine a more dilatory suit.

And a court really cannot be said to be on bad ground if it follows Supreme Court dicta (unless, of course, there is controlling case law on point).

Any more thoughts, Doug?

Posted by: federalist | Oct 18, 2007 10:06:07 PM

Nope -- I think your conclusory statement that his appeal was dilatory in lieu of legal analysis is pretty much all that needs to be said about the matter.

Posted by: Doug | Oct 19, 2007 2:11:39 AM

The Houston Chronicle is reporting in Friday's paper that another group has filed a complaint against Keller. This complaint was signed by 130 people, mostly lawyers from the Harris County Criminal Lawyers Association, plus a sitting judge and a retired judge, and some ordinary citizens.

Read the article here.

Posted by: Scott Cobb | Oct 19, 2007 2:44:50 AM

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