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March 29, 2008

Detailed examination of administering the death penalty in California

Asset_upload_file749_6770 This article from the San Jose Mercury News details the latest doings in the on-going examination of death penalty realities in California.  Here are excerpts:

A key state justice commission Friday completed its investigation into California's death penalty, as it heads toward a mid-summer report that is expected to recommend reforms to the country's most prolific capital punishment system.  In the third and final hearing on the death penalty, the California Commission on the Fair Administration of Justice considered testimony at Santa Clara University from a range of witnesses who raised concerns about arbitrariness and the high cost of imposing death sentences, as well as the reluctance of governors to consider clemency for death row inmates.

The American Civil Liberties Union presented two thick studies to the commission, one examining geographical disparities in death sentences in California and the second the exorbitant cost of capital trials.  Nearly $11 million, the second study said, was spent on the Scott Petersen trial.

But one leading death penalty supporter cautioned the commission against eroding the death penalty laws, observing that the 20-year delays in death row appeals already have paralyzed capital punishment in California. "More likely than not, the failure to enforce California's death penalty has already killed thousands of people," said Kent Scheidegger, legal director for the conservative Criminal Justice Legal Foundation.

Asset_upload_file993_6770 The "two thick studies" presented by the ACLU of Northern California can be accessed at this link.  The one focused on geographic disparities, titled "Death by Geography" (available here), asserts that "while the vast majority of California counties have largely abandoned execution in favor of simply sentencing people to die in prison, a small number of counties continue to send a large number of people to death row."  The one focused on costs, titled "The Hidden Death Tax" (available here), asserts that "California tax payers spend well over $100 million every year on the death penalty."

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It is always fascinating to query how the same news item is reported.

Hidden Costs of Death Penalty Revealed in Two New ACLU Reports

Death sentences vary by county, study finds

CA Death Penalty Juries Under Scrutiny

Posted by: George | Mar 29, 2008 5:23:44 PM

Of course Kent has absolutely no real support for his position other than his own talking points as his claimed deterrence "studies" have been thoroughly debunked.

Posted by: karl | Mar 29, 2008 8:32:05 PM

An article which disagrees with another article does not constitute "debunking." The authors of the original articles have responded to the criticisms, and the debate goes on. Calling the studies "debunked" would be appropriate only if there were a consensus in the profession that the critics were right and the studies wrong, and there is no such consensus.

Overall, a clear preponderance of the peer-reviewed literature supports a deterrent effect. That is "real support" to any fair-minded observer. It is not absolute proof, of course, and I expressly told the commission I did not claim it was. Proof may not be possible in this area. "More likely than not" is a correct statement of the current state of the evidence.

Regarding the ACLU study, the article also says, "Mike Frawley, a commission member and Ventura County prosecutor, challenged the ACLU study, however. 'Your literature isn't accurate,' he said to Minsker."

Posted by: Kent Scheidegger | Mar 29, 2008 11:27:17 PM

Nothing on this Coughlin/Wal-Mart sentence? This guy just lived out the post-Booker dream.

Posted by: DAG | Mar 30, 2008 12:12:29 PM

“Overall, a clear preponderance of the peer-reviewed literature supports a deterrent effect. That is 'real support' to any fair-minded observer.”

No it isn’t. That is a self-serving statement.

First of all, you keep saying this, but your best proof is to direct people to your website.

Secondly, “a clear preponderance of the peer-reviewed literature” might be somewhat of a misleading statement. Does this mean that you counted all peer-review literature and then determined that 51% or more of it supports your “deterrence” hypothesis? If so, then all someone else would need to make this construction of your statement false, would be to flood the market with literature that says that you are wrong. This isn’t too hard. “Peer review” doesn’t mean much these days. Anonymous peer review isn’t really anonymous. (I guess you will have to trust me on this.) But, I seriously doubt that you are just counting all articles on deterrent effect, and saying it is more than 51%

Third, you might be arguing that the “quality” (as opposed to the quantity) of literature supports your hypothesis. While this probably is a better way to write public policy, you don’t really offer any support as to why you are correct. There are many reasons people commit crimes. I tend to blame a lack of education and I feel scared if I hear someone without a graduate degree walking behind me. Educated people know better than to randomly murder. However, it is difficult, if not impossible to tell when someone is really “deterred” by the possibility of a certain sentence.

Finally, the actual articles you reference on your website often reflect a misunderstanding of legal process. Nothing wrong with this. It isn’t as if economists really are used to modeling a legal system that places proper administration of a constitutional requirements and rules of evidence and procedure above “truth.” But, this can and does create some strange results.

Now, to your credit, you understand that “proof” in this are just isn’t possible. But, since you are paid to rally people behind the death penalty, higher sentences, and all that tax-payer funded stuff, it isn’t as if you are ever going to re-examine your position. (And yes, I have reexamined my positions. Because of reading this blog, I have increased my ideal incarceration rate from 25 %to 35%). If you want me to raise it, let me know.

(Oh, my handle is a reference to "Dr. Scrotus.")

Posted by: S.cotus | Mar 31, 2008 6:53:36 AM


What exactly do you hope to accomplish out there is California, the rapid-fire execution of 670 or so inmates?

As much as you might enjoy watching the bodies roll out, that's not very likely to happen, regardless of what you may choose to believe about deterrence.

Perhaps you could come up with something realistic to work toward, instead of continuing to cultivate false hopes amongst your constituency.

Posted by: Scott Taylor | Mar 31, 2008 10:14:59 AM

Here is another evaluation of the literature:

"The literature is easy to summarize: almost all modern studies and all the refereed studies find a significant deterrent effect of capital punishment. Only one study questions these results. To an economist, this is not surprising: we expect criminals and potential criminals to respond to sanctions, and execution is the most severe sanction available."


I won't respond to the snarky, ad hominem comments other than to note that such comments say more about their author than their target, particularly when the author lacks the vertebrae to use his real name.

No, I do not expect (or want) "rapid fire" executions in California, but I do think an actually enforced death penalty is achievable. About five or six years from sentence to execution is realistic, in my view.

Posted by: Kent Scheidegger | Mar 31, 2008 1:56:10 PM

The first problem Kent is that one can dispute that "execution is the most severe sanction available" - many people believe that life without parole is a worse penalty than death and I think that one could make a rational case either way. The second problem is that economics studies generally only look at one variable - they might compare a 100% chance of getting a death sentence versus a 100% chance of getting a prison term, for example - hardly how the real world operates. Of course, the economic models also make little sense dealing with violent crimes because they are not economic, so it is likely impossible to come up with any model that reflects the risk and reward for the commission of the crime because it is likely to quantify the value that the criminal would get from committing a violent crime (Posner's handling of that issue in Economics Analysis of Law is a perfect example for showing that even the proponents of an economic policy of law realize it has problems when dealing with violent crime). The most serious problem with those types of studies is that they presume that the criminal is rational - something that I doubt that anyone who has actually worked in criminal law will agree with - deterrence theory only works in the case of a rational actor. A rational person would be deterred from committing a violent crime based on a long prison term just as much as death, because avoiding prison is just as rational as wanting to avoid death. Thus, even theorectical the notion that the death penalty actually provides any deterrence at all seems to be rather shakey (not even talking about the real world application of criminal law).

Thus, those studies undoubtably say more about the prejudices of those who conduct them (or how the question is asked) than provide any actual guidance on how the real world works. While economics modeling is not inheriently useless, it has limited utility, at best, for dealing with real world situations dealing with violent felonies and prison terms (really, it seems better suited for dealing with White collar and other economic crimes where there can be a quantifiable risk and reward present and in dealing with actions which are punished using a fine).

Posted by: Zack | Mar 31, 2008 3:10:34 PM

Mr. Scheidegger:

I do not see any snark in any of the comments. Instead, I see you conceding that many of the arguments marshaled against the positions that your are paid to take. If you wanted to make a convincing argument, you would probably have needed to address them point by point.

The other problem with your article is that your “authority” itself is a summary (which, itself, it not “peer reviewed”). Now, keep in mind that I favor ideal incarceration rates (35% of the country should be in jail) and high tolerances for erroneous convictions as a policy matter, but I fail to see how not addressing individual papers one at a time and explaining what use they have does any good.

In reading these papers, it generally seems that economists misunderstanding legal issues. But, perhaps you could constructively contribute to the discussion by citing to one actual study, providing one URL, and then explaining how it provides a universal guide to policy.

Have a nice day.

Posted by: S.cotus | Mar 31, 2008 3:17:11 PM

As far as I know, I'm using the name I was born with. There are a lot of Scott Taylors around, though. I lived in L.A. for awhile, and there were a page-and-a-half of us in the phone book. Who knows which one I am.

Posted by: Scott Taylor | Apr 1, 2008 9:20:43 AM

P.S. I'll leave the ad hominem comments to you, Kent.

Posted by: | Apr 1, 2008 9:45:38 AM

My brother is the victim of a kidnapping, robbery and subsequent murder. The perpetrator did this as an initiation into the mexican mafia. If he gets a sentence of life without the possibility of parole, he can, as a member of the mexican mafia, carry on all of his criminal activities from jail. Including ordering murders of witnesses and relatives of the victim, murders of other jail inmates and other crimes without fear of further punishment. Even if he lives out his life on death row, he will have only 1 hour per day out of his solitary jail cell to shower and such. Effectively preventing additional criminal activity. There is also the threat that he may someday be executed as ordered. These are the reasons that the death penalty is a deterrent.

Posted by: anon | Jun 2, 2008 4:21:18 AM

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