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January 8, 2012

Interesting new data on operation of death penalty in Connecticut

08editorial-grx-popupThanks to this New York Times editorial by Lincoln Caplan, which carries the provocative headlined "The Random Horror of the Death Penalty," I saw this fascinating new study by Professor John Donohue concerning the operation of the death penalty in the Nutmeg State.   First, from the study: it is titled "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution," and here is the start of the abstract:

This study explores and evaluates the application of the death penalty in Connecticut from 1973 until 2007, a period during which 4686 murders were committed in the state. The objective is to assess whether the system operates lawfully and reasonably or is marred by arbitrariness, caprice, or discrimination.  My empirical approach has three components. First, I provide background information on the overall numbers of murders, death sentences, and executions in Connecticut.  The extreme infrequency with which the death penalty is administered in Connecticut raises a serious question as to whether the state’s death penalty regime is serving any legitimate social purpose.

Specifically, of the 4686 murders committed during the sample period, 205 are death-eligible cases that resulted in a homicide conviction, and 138 of these were charged with a capital felony.  Of the 92 convicted of a capital felony, 29 then went to a death penalty sentencing hearing, resulting in 9 sustained death sentences, and one execution (in 2005). A comprehensive assessment of this process of winnowing reveals a troubling picture. Overall, the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution.

Second, from the start and end of the NYT editorial:

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people.  An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime....

Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence. Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.

I may have a lot more to say about the implications of Professor Donohue's research once I have a chance to reads his entire study.  But I will begin by suggesting that I do not think Furman can or should be read to hold or even imply that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional.  A state's policymakers may surely decide that such geographic differences make for bad policy and should be addressed legislatively; but I do not think the judiciary can or should hold that such differences alone make the death penalty unconstitutional.

January 8, 2012 at 12:14 PM | Permalink


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I see the liberal college professors and editorial boards just cant help themselves...barbaric and arbitrary and capricious are there favorite words. Whats really barbaric is the Ct killers just sentenced to die who actually beat, raped, and savaged a mom and two girls, tied them to a bed, lite the house on fire, and let them die. This is what a death penalty is reserved for. No matter how hard these liberals try distorting the facts and making insane legal arguments to try to impose their BELIEFS on the public, it isn't going to happen. A state or two might get rid of the death penalty, assuming they elect a mad liberal governor, but states like TX, OK, NC, SC, FL, and yes even CA will Always have the death penalty. I can't wait for the stats to go up this year and watch the abolitionists cry and pout.

Posted by: DeanO | Jan 8, 2012 2:29:33 PM

1. Anyone who thinks that this is a research piece rather than an advocacy piece is a fool. You don't have to read very far at all to see that NO findings would have satisfied this guy that the DP is OK. It's exactly like having the value of the war in Iraq "studied" by Donald Rumsfeld. Is it really news that "studies" conducted by die-hard partisans aren't worth the paper they're printed on?

2. And even with all, he fails to find the one thing that counts the most, to wit, that those sentenced to death did not deserve it on the grisly facts of their own case, or that any of them was arguably innocent.

3. You have to hand it to abolitionists, however. Knowing that the DP continues to command a huge majority with the public -- it hasn't been less than 60% for decades -- the strategy has been to winnow it down, rather than seek unattainable outright abolition. This strategy has had no little success, principally due to the increased costs and delay they have foisted on the public by boatloads of almost entirely frivolous, and losing -- but costly and time-consuming -- litigation.

That done, they now say -- guess what! -- that the DP is imposed so seldom, and on so few, and costs so much, that it has become freakish and lost its deterrent value! In other words, because society has been attentive to their PR-savvy moderate pleas to cut back on its use, it has now lost the right to impose it at all.

Far out. A more disingenuous and cynical strategy is hard to imagine.

Posted by: Bill Otis | Jan 8, 2012 3:40:46 PM

LOL bill i think your barking up the wrong tree using this 60% are in favor of DP. After all if we went by the % of something's popularity..

The ENTIRE U.S. govt would have been lined up and executed YEARS AND YEARS AND YEARS AGO!

hell i think congress is running at 4% approval right now and has for a LONG time!

Posted by: rodsmith | Jan 8, 2012 5:06:20 PM

Seems to me the issue is not whether the nine deserved death. I presume they did. The potentially troubling question is why the others didn't get death. I don't know if Donohue's methodology was sound. But if it was, he seems to have ruled out the correlation most of us would expect: the more egregious the crime and the defendant, the more likely the jury will decide that death is the right punishment. The absence of that correlation is disquieting.

Speculating about other potential factors is a different question. I don't buy the knee-jerk notion that if the expected correction fails, the real reason for disparate sentences has to be race or geography. Even if there might be an association between those factors and death sentences, that doesn't prove causation. And I'm not sure there is even a reliable association.

Posted by: arfarf | Jan 8, 2012 6:43:18 PM

How can you draw a statistical conclusion from a pool as small as the number on death row in Connecticut? It's statistically insignificant.

Posted by: MikeinCT | Jan 8, 2012 9:01:42 PM


You are correct to suggest that Furman hardly stands for the proposition "that county-by-county differences in the application of the death penalty within a state serve to make the operation of the death penalty unconstitutional." But what about Bush v. Gore? If it violates the Equal Protection Clause to have different vote-counting procedures in different counties, isn't there a good argument that it violates the Equal Protection Clause to have different standards for inflicting the death penalty in different counties? Pre-Bush v. Gore, I would have thought such a claim to border on the frivolous, but I would have said the same of the claim made in Bush v. Gore itself.

Posted by: Michael J.Z. Mannheimer | Jan 9, 2012 12:58:44 AM

NYT editorial: "The Supreme Court has not banned capital punishment, as it should"

Arfarf: "The potentially troubling question is why the others didn't get death."

I am fond of this comment to the Charlotte Observer:

(mytemp001): "If you want to use stats go ahead. Only one caveat: if there is a [bias] it should be corrected to make sure more cold-blooded murders die, not less."

Posted by: Adamakis | Jan 9, 2012 2:52:03 PM

So Doug, you are fine with a situation where, for decades, counties X, Y, and Z have 0 death sentences a year, while counties A and B have, say, 10 a year? (Assuming equal population and murder rates in each county)

I find it disturbing that life or death could depend so clearly on which side of a line your crime occurs, given that, within a particular state, all defendants are ostensibly subject to the same criminal law.

Posted by: Anon | Jan 10, 2012 12:16:14 PM

why not anon! we have the same problem over any number of diff crimes in this country depending on where your charged.

Posted by: rodsmith | Jan 10, 2012 2:16:03 PM

Anon --

I have always found somewhat odd the argument that, because the Commonwealth's Attorney in County A snoozes his way through the job and hands out irrational leniency, his counterpart in County B is required, by the Constitution no less, to have an equally lazy/indifferent/careless attitude. What case says that?

Posted by: Bill Otis | Jan 10, 2012 2:50:52 PM

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