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February 12, 2010

"Death and Texas"

The title of this post is the headline of this piece in the New York Times sunday book review from Dahlia Lithwick.  Here is how it starts:

Toward the beginning of “The Auto­biography of an Execution,” David Dow relaxes after a speech with the celebrated death penalty abolitionist Sister Helen Prejean. (“It was the first time I went drinking with a nun.”)  Prejean tells Dow, who has represented more than 100 death row inmates over 20 years, that “support for the death penalty is a mile wide, but just an inch deep.”  Dow responds: “Well, Sister, I believe you can drown in an inch of water.”  This book is Dow’s effort to drain the puddle.

Statistics from the Death Penalty Information Center show that the death penalty in America is dying. In 2009, the number of death sentences dropped for the seventh consecutive year; it’s now the lowest since the Supreme Court re­instated the death penalty in 1976.  Eleven states considered abolishing the death penalty last year, citing high costs and lack of measurable benefits.  New Mexico just became the 15th state to abolish it.  A recent study from Duke University concluded that North Carolina could save almost $11 million annually by doing away with capital punishment. And the prestigious American Law Institute, which devised the framework for the modern system of capital punishment, recently abandoned the whole project “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

February 12, 2010 at 10:33 AM | Permalink


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Message to Lithwick. She has her supercilious nose so high in the air, she will never reply. She blocked my posting it on her Facebook wall.

"Congratulations on your latest article in the NY Times. However, it is pretty slanted. Here are points abolitionists ignore, and will never, ever consider.

All remedies have a dose response curve. The DP has been hobbled as a remedy by the abolitionist hyper-proceduralist obstruction. These are imposed by the courts, have no basis in law save for judge personal feelings, and always increase lawyer employment. Even the refusal of the SCOTUS to end the DP saved a multi-billion dollar lawyer DP appellate business. The best explanation for the current state of the death penalty is that it generates massive lawyer employment.

1) License to kill. End the death penalty, and all crime after the first murder have absolute legal immunity. This license to kill is used about 10 time more often than is the death penalty each year, in the form of prison murders of inmates, guard, and guests. It is a better license to kill than that of James Bond. He faces second guessing of his extra-judicial homicides by civil service oversight and by politicians. No such inconvenience thanks to the lawyer in the US.

2) Dose-response Curve. Take a miracle drug like penicillin. Before it, 90% of pneumonia patients died. After it, 90% survived. Now give it at one tenth the proper dose. Give it to only to 1 in 400 pneumonia patients (the fraction of murderer getting the DP). When you give it, about 20% of those getting it do not even have pneumonia (the approximate rate of false conviction). Then charge $1 million a dose. Start it 7 years after the onset of pneumonia. It does not look that good anymore, as a remedy for pneumonia. This is the height of brazen gall. The DP abolitionists hobble the DP, render it useless, then argue it does not work.

3) Cruelty. 90% of us will die a prolonged, painful, humiliating death. The abolitionist wants perfection of pain free death. That is a pretext, and everyone knows that. The sole cruelty of the DP is the set date. Not even a terminal patient knows the exact date. In Japan, the date is announced the day of death. That should be the sole remaining tweak allowed to reduce the cruelty of the DP. When my final condition arrives, I would like to be executed rather than to face what I know awaits me."

Posted by: Supremacy Claus | Feb 12, 2010 11:03:58 AM

Couldn't one reason for less death sentences be that there's been a drop in the capital murder rate over the last few years? Might it not also be attributable to the recent prevalence of the LWOP option?

Posted by: Alpino | Feb 12, 2010 3:43:05 PM

Now let's see: The NYT, the DPIC, the ever-reliable Sister Prejean and abolitionist academic David Dow ALL conclude that the DP is "dying."

The NYT might just as well have a headline: "Sun Rises in East."

Or even better for the Times: "World to End Tomorrow; Women and Minorities to Be Most Affected"

Posted by: Bill Otis | Feb 12, 2010 3:45:15 PM

According to Gallup, support for the death penalty has been remarkably steady over the last decade. For that to be true in the face of a propaganda onslaught disproves the "inch deep" hypothesis.


Posted by: Kent Scheidegger | Feb 12, 2010 3:58:39 PM

Death, be not proud, though some have called thee
Mighty and dreadful, for thou art not so;
For those whom thou thinkst thou dost overthrow
Die not, poor Death, nor yet canst thou kill me.
From rest and sleep, which but thy pictures be
Much pleasure; then from thee much more must flow
And soonest our best men with thee do go
Rest of their bones and soul's delivery.
Thou art slave to Fate, Chance, kings, and desperate men,
And dost with poison, war, and sickness dwell,
And poppies or charms can make us sleep as well
And better than thy stroke. Why swellst thou then?
One short sleep past, we wake eternally,
And death shall be no more; Death, thou shalt die!

John Donne, Sonnet X

Posted by: anon 12 | Feb 12, 2010 4:19:41 PM

Death penalty support is, in fact, very deap, indeed.

"Death Penalty Polls: Support Remains Very High - 80%"

I will be interesed in revieweing the newest NC cost study. The previous one, by the same author, had some real problems.

"Duke (North Carolina) Death Penalty Cost Study: Let's be honest"

Posted by: Dudley Sharp | Feb 12, 2010 6:21:10 PM

It may not be "dying," but I think characterizing support for the death penalty as a mile wide and an inch deep is pretty accurate. In Texas, a big majority (70%-ish) say they support the death penalty, but when the question is asked in real-world situations, a majority of capital juries here go for LWOP since it became an option. So people tell the pollsters they're for it, but once folks get in the jury box - and of course these are "death-qualified" jurors - that support turns out to be less deep than Dudley, Kent and Bill would have us believe.

Posted by: Gritsforbreakfast | Feb 13, 2010 8:11:41 AM

Actually, support for the DP goes up, not down, when respondents are asked about specific cases. In a USA Today/Gallup poll taken near the time of McVeigh's execution, 59% were in favor of the DP generally, but 81% favored it for him. Indeed, slightly over half of those generally opposed to the DP favored it for McVeigh.

Abolitioinsts are wrong but they aren't fools. They know that when the specifics of some of these stomach-churning cases get discussed, their support base heads for the hills. This is why they will generally shy away from and detailed discussion of particular murders and prefer to keep things general and abstract.

This sometimes works in debates, but never works for the poor soul who's actually getting murdered. See, e.g., this recent example from yesterday's Pittsburgh Post-Gazette:

"Police have charged six people in the death of a woman whose tortured body was found in a plastic garbage container in a Greensburg school parking lot, and her family today said her attackers took advantage of her trusting nature.

"Police say Jennifer Daugherty, of Mount Pleasant, was stabbed repeatedly in a second-floor Greensburg apartment where some of the suspects live.

"According to police, Ms. Daugherty's hair was shaved and she was bound with Christmas decorations and clothing. Police say she was beaten, her face painted with nail polish and she was fed vegetable oil, spices, detergent, urine and medications.

"They say she was also forced to write a suicide note."

I could go on to quote more of the article but I won't, because it's just too vile. I will bet good money right now that, if this case goes to trial, the jury will recommend the DP. And this is not because jurors are "bloodlusting neanderthals." It's because they are normal human beings who are not about to tolerate in any form whatever the degree of sadism and cruelty these killers so thoroughly enjoyed.

Posted by: Bill Otis | Feb 13, 2010 4:44:13 PM


I'll take the bet. I'll bet you a case of PA's own Yuengling vs. a case of VA's own beer of your choice that none of the six get death. I strongly suspect life sentences even if the cases make trial. Bottom line, Western Pennsylvania doesn't return a lot of death verdicts.

Posted by: karl | Feb 13, 2010 8:51:54 PM


Murders are down in Texas, death sentences, however, appear to have dropped faster. Long story short, LWOP & a much improved capital defense bar appear to be the leading causes.

Posted by: karl | Feb 13, 2010 8:54:03 PM

karl --

You're on, except that I'm a teetoler so I'll go for a milkshake when I win.

You are quite correct that Western Pennsylvania doesn't return a lot of death sentences. On the other hand, it doesn't see a lot of cases like this.

I think you're wrong about the DP, but I know you are a man of conscience, and therefore must have been horrified by this story. It's really difficult to imagine such unalloyed cruelty.

Posted by: Bill Otis | Feb 13, 2010 11:17:04 PM


Of course this type of crime cries out for justice, indeed, no matter how many homicides one has been involved with in the criminal justice system,it shocks the conscious and numbs the soul.

You and I both know, however, in most instances when the prosecution's proofs are as strong as the press reports them to be here a case doesn't go to trial. I can't imagine any defense attorney, unless there are serious proof problems we don't know about, wouldn't strongly advocate their client plead on this one.

The problem the prosecution is going to have, is if a few of the defendants get life it is going to get extraordinarily tough to get a death sentence out of a jury, especially in a jurisdiction like PA where a deadlock equals a life sentence.

Posted by: karl | Feb 15, 2010 10:58:58 AM

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