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September 6, 2011

Should we praise or assail those states leading the pack on "Executions Per Death Sentence"?

The question in the title of this post is inspired by this new item at the Death Penalty Information Center:

DPIC has updated its Executions Per Death Sentence page to reflect data through 2010. This page lists states in order of the percentage of death sentences resulting in an execution since the death penalty was reinstated in 1976.  If every death sentence resulted in an execution, the state would be at 100%, or a rate of 1.00.  Using this ratio of executions per death sentence, the first five states are Virginia (.725), Texas (.498), Utah (.368), Missouri (.347), and Delaware (.311). 

Of those states that have carried out at least one execution, the five states with the lowest rate of execution are Pennsylvania (.008), California (.015), Idaho (.025), Oregon (.028), and Tennessee (.035).   Four states with the death penalty during this time period had no executions: Kansas, New Hampshire, New Jersey, and New York.  The latter two have abandoned the death penalty.  Nationally, about 15% of death sentences have resulted in an execution (a rate of .150).   Another measure of state execution rates is executions per capita (population).  Under this standard, Oklahoma and Texas are the leading states.

I am grateful to the DPIC for this notable new statistic although I am a bit unsure just how they "count" here those defendants who get sentenced to death two or three or four times without or before getting executed.  (I guess given Ohio's botched execution efforts in the Broom case a few years ago, I should also wonder about how to "count" a defendant who is sentenced to death once, but executed twice.)

To provide my answer to the question in the title of this post, I am strongly inclined to praise those states leading the pack on executions per death sentence on honesty, efficiency and consistency grounds.  Arguably, only in Virginia can one say that a death sentence is an honest sentence, as that is the only state in which more than half of all death sentences actually have resulted in an execution.  Moreover, as all informed readers know, all death sentences are very costly in economic and human terms, but it is difficult to find many benefits in death sentences imposed but not carried out.  Finally, there is greater risks of post-sentencing disparity and discrimination if only some small (and not randomly selected) percentage of those sentenced to death are actually execution.

In short, I am inclined to state that responsible criminal justice officials and informed citizens in Virginia, Texas, Utah, Missouri, and Delaware should be generally pleased with where they appear on this list, while the same folks in Pennsylvania, California, Idaho, Oregon, and Tennessee should find this new DPIC data quite troubling.  Yet I have a feeling that some readers will have a different perspective on this provocative issue.  

September 6, 2011 at 07:40 PM | Permalink


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Doug - I am less concerned with an "honest sentence" in the context you have used it than with the issue of an honest conviction. Willingham, Wright, many others probably wrongfully executed, and now many exonerated, testify to the deficiencies of legal process and its inherent injustice. To applaud Virginia, Texas and others for having ridden roughshod over these deficiencies and concerns to a greater degree than others seems to me perverse and unworthy of acclaim. The DPIC statistics both shame those states and rightly so, and also demonstrate again the scale of a broken system.

Posted by: peter | Sep 7, 2011 4:06:55 AM

Peter, do you have any evidence that Virginia or Utah or Missouri or Delaware have executed a truly innocent person? Texas has a more worrisome record on this front, but that seems the result of too many death sentences. Virginia has had many fewer many death sentences than states like California and Illinois and Ohio and Pennsylvania, and I assume you are happy with that fact, no?

Are you saying that if a state is going to have the death penalty (which I know you oppose, but voters in many states endorse), you would prefer the state have lots of death sentences and very few executions like California and Pennsylvania? I think having only a couple of death sentences and a couple of executions per year ought to help minimize the risk of a "dishonest" conviction if that is your true concern.

Again, I understand you are against the death penalty for even clearly guilty murderers. But if others share your concern about wrongful convictions BUT also want honest sentencing of those who are indisputably guilty murderers, isn't the death penalty work of Virginia and Utah worthy of more praise than the DP work of California and Pennsylvania?

Posted by: Doug B. | Sep 7, 2011 8:42:03 AM

Doug - without researching all four of the states your name, in Missouri at least, I can think of 2 cases that were highly questionable - those of Walter Blair & Larry Griffin. In the latter case, Griffin was convicted for killing Quintin Moss in a drive-by shooting in St. Louis, Missouri on June 26, 1980. Griffin's lawyer was a recent law school graduate who had never tried a murder case. Griffin's untested lawyer did not call three eyewitnesses who would have been able to substantiate Griffin's claim of innocence. The state's primary witness later recanted his testimony and discredited his identification of Larry Griffin, claiming the had been "helped" in the identification process was highly prejudicial. The state's primary witness was promised a reduced sentence in exchange for his testimony. Larry Griffin's fingerprints were not found on either the car or the weapons. All other evidence against Griffin was circumstantial. The "actual innocence" standard imposed by the U.S. Supreme Court in reviewing state court decisions resulted in Griffin's actual innocence claims not being heard by the courts despite substantial evidence of innocence.

In Virginia, there was the case of Derek Barnabei where vital evidence mysteriously went missing for a period of time, something never adequately explained.

I am sure there would be more if I had the time to dig.

Re "I think having only a couple of death sentences and a couple of executions per year ought to help minimize the risk of a "dishonest" conviction if that is your true concern." ....... That might sound good in principle, but it certainly wouldn't satisfy the pro-dp lobby as you well know. And what would be the point? What could possibly justify such exclusivity of cruel and unusual punishment?

The concept of "honest sentencing" in the field of the death penalty serves only to distract from the key concerns of honest conviction, and the many other arguments for the abolition of the death penalty. I do not share your view that "the indisputably guilty" assessment is one that can be trusted. That surely is what the trial process of ALL capital murders and others is all about, but yet is found wanting time and time again.

Posted by: peter | Sep 7, 2011 10:50:12 AM

Cruel and unusual Peter? Not a chance.
Not at the time of the passage of the 8th amendment in 1791. [Unless perhaps a 3 minute death-by-injection is unusually crueller than a 30 minute death-by-hanging. Is it?]

Posted by: adamakis | Sep 7, 2011 2:36:38 PM

peter --

"I do not share your view that "the indisputably guilty" assessment is one that can be trusted. "

Please describe in all the detail you care to muster any reason a rational person would doubt the guilt of John Allen Muhammed, the Beltway sniper, who spent a few weeks several years ago gunning down people at random, from ambush, and using a telescopic sight.

You know perfectly well there are hundreds of capital cases in which the defendant is indisputably guilty. You ignore those in favor of concocting cases of supposed innocence such as Roger Keith Coleman. The whole abolitionist schtick with Coleman was a pack of lies. Will you finally admit it?

Posted by: Bill Otis | Sep 7, 2011 2:39:36 PM

i have to give bill that one!

in this country you could have someone on national tv in front of 50,000 witness's execute 20 people and on the natiional news the headline would be

"The suspect"

sorry when caught directly in the act in front of MULTIPLE witnesses especialy in groups that have no real realationship with each other just strangers. justice should be swift and complete!

Posted by: rodsmith | Sep 7, 2011 3:51:53 PM

Bill - you conveniently forget Professor Liebman's 9 year study of capital cases released in 2000:

"The unreliability of guilty verdicts and sentences in capital cases has been revealed by what may be the most important study in the history of American jurisprudence. Released to the public on June 12, 2000, the 9-year study of capital cases was conducted by Columbia University School of Law Professor James S. Liebman. The study examined every capital conviction and appeal in the United States between 1973 and 1995. One noteworthy finding of the study is that at least 68% of all the thousands of capital convictions in this country finalized during the study's 23-year period were reversed on appeal.

In summarizing the study titled, "A Broken System: Error Rates in Capital Cases," Professor Liebman said, "American capital sentences are persistently and systematically fraught with serious error. Indeed, capital trials produce so many mistakes that it takes three judicial inspections to catch them, leaving grave doubt as to whether we do catch them all."

Professor Liebman is an eminent legal scholar who, among his extensive writings, coauthored a leading American treatise on habeas corpus, the two-volume "Federal Habeas Corpus Practice and Procedure" (3rd ed. 1998). He has argued four major habeas corpus or capital cases in the U.S. Supreme Court. The study, begun in 1991 at the request of the Chair of the U.S. Senate Judiciary Committee, was coauthored by Jeffrey Fagan and Valerie West."

More details can be found here:
Click on my name for direct link

Posted by: peter | Sep 7, 2011 4:03:35 PM

peter --

Since you didn't answer the point I raised, I'll go through it again: Please describe in all the detail you care to muster any reason a rational person would doubt the guilt of John Allen Muhammed, the Beltway sniper, who spent a few weeks several years ago gunning down people at random, from ambush, and using a telescopic sight.


Posted by: Bill Otis | Sep 7, 2011 11:16:19 PM

rodsmith --

A good illustration of exactly what you're talking about is Jared Loughner, who killed several people in front of a large audience and was tackled by some brave fellow on the spot.

According to peter, since the system is so fouled up, we still can't know who did it.

The solipsism of abolitionism is amazing. This is one reason a lot of them (although not all) still refuse to admit that their side spent years cutting loose with one lie after the next about the supposed innocence of the earlier incarnation of Todd Willingham (a pretty grisly killer named Roge Keith Coleman).

Posted by: Bill Otis | Sep 7, 2011 11:26:39 PM

in his case i agree. in a situation like that the individual should just NOT survive the arrest! problem would be over!

Posted by: rodsmith | Sep 8, 2011 1:28:40 AM

Bill - the Law pertaining to the death penalty is a general one, that is, it relates to a class of criminal act, not a specific act. It does not of itself distinguish between the particular (as in the case of John Allen Muhammed) and the case of a similar, less clear suspect. A judge and jury have the responsibility of determining the relative strength of evidence and argument put forward by the prosecution and defense. All the evidence is (and confirmed by Professor Liebman's study)that this determination may be unreliable in 68% of convictions/sentences. Whilst you may indeed be able to point to a specific instance of truly irrefutable guilt, as in the recent Norwegian atrocity), even that is not enough to determine that a particular punishment/sentence is the correct one. Issues of culpability arise as in mental competence, age, and a wide range of history that might impact on mental or personality development etc. In other words, nothing is quite ever so black and white as you would like to paint it. We cannot make a separate law for each specific act of murder since each is different. The law that is used to prosecute capital cases is therefore a blunt instrument, open to abuse as is evidenced by the multiplicity of interpretation and use by prosecutors across America. For example, Harris County in Texas (until recently), became notorious for its indiscriminate application of the death penalty. It was not the law which eventually restrained Harris County, but individuals who eventually came into a position of authority to do so, that is, a new prosecutor/DA.
Therefore, in spite of examples such as John Allen Muhammed or the Norwegian Anders Behring Breivik, the law should not endanger a broader class. The law pertaining to the death penalty demonstrably does, and after decades of trying, it is no less dangerous today in spite of changes such as the attempt to exclude the mentally incompetent (which is so vague as to be easily ignored) and juveniles. Therefore the law is both unfit for purpose and an abuse of human rights.

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