Studies: Death Penalty Discourages CrimeMonday , June 11, 2007 Associated Press Anti-death penalty forces have gained momentum in the past few years, with a moratorium in Illinois, court disputes over lethal injection in more than a half-dozen states and progress toward outright abolishment in New Jersey. The steady drumbeat of DNA exonerations — pointing out flaws in the justice system — has weighed against capital punishment. The moral opposition is loud, too, echoed in Europe and the rest of the industrialized world, where all but a few countries banned executions years ago. What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument — whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer. The reports have horrified death penalty opponents and several scientists, who vigorously question the data and its implications. So far, the studies have had little impact on public policy. New Jersey's commission on the death penalty this year dismissed the body of knowledge on deterrence as "inconclusive." But the ferocious argument in academic circles could eventually spread to a wider audience, as it has in the past. "Science does really draw a conclusion. It did. There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect." A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?" Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory — if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy from murder). To explore the question, they look at executions and homicides, by year and by state or county, trying to tease out the impact of the death penalty on homicides by accounting for other factors, such as unemployment data and per capita income, the probabilities of arrest and conviction, and more. Among the conclusions: • Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14). • The Illinois moratorium on executions in 2000 led to 150 additional homicides over four years following, according to a 2006 study by professors at the University of Houston. • Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor. In 2005, there were 16,692 cases of murder and nonnegligent manslaughter nationally. There were 60 executions. The studies' conclusions drew a philosophical response from a well-known liberal law professor, University of Chicago's Cass Sunstein. A critic of the death penalty, in 2005 he co-authored a paper titled "Is capital punishment morally required?" "If it's the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple," he told The Associated Press. "Abolitionists or others, like me, who are skeptical about the death penalty haven't given adequate consideration to the possibility that innocent life is saved by the death penalty." Sunstein said that moral questions aside, the data needs more study. Critics of the findings have been vociferous. Some claim that the pro-deterrent studies made profound mistakes in their methodology, so their results are untrustworthy. Another critic argues that the studies wrongly count all homicides, rather than just those homicides where a conviction could bring the death penalty. And several argue that there are simply too few executions each year in the United States to make a judgment. "We just don't have enough data to say anything," said Justin Wolfers, an economist at the Wharton School of Business who last year co-authored a sweeping critique of several studies, and said they were "flimsy" and appeared in "second-tier journals." "This isn't left vs. right. This is a nerdy statistician saying it's too hard to tell," Wolfers said. "Within the advocacy community and legal scholars who are not as statistically adept, they will tell you it's still an open question. Among the small number of economists at leading universities whose bread and butter is statistical analysis, the argument is finished." Several authors of the pro-deterrent reports said they welcome criticism in the interests of science, but said their work is being attacked by opponents of capital punishment for their findings, not their flaws. "Instead of people sitting down and saying 'let's see what the data shows,' it's people sitting down and saying 'let's show this is wrong,'" said Paul Rubin, an economist and co-author of an Emory University study. "Some scientists are out seeking the truth, and some of them have a position they would like to defend." The latest arguments replay a 1970s debate that had an impact far beyond academic circles. Then, economist Isaac Ehrlich had also concluded that executions deterred future crimes. His 1975 report was the subject of mainstream news articles and public debate, and was cited in papers before the U.S. Supreme Court arguing for a reversal of the court's 1972 suspension of executions. (The court, in 1976, reinstated the death penalty.) Ultimately, a panel was set up by the National Academy of Sciences which decided that Ehrlich's conclusions were flawed. But the new pro-deterrent studies haven't gotten that kind of scrutiny. At least not yet. The academic debate, and the larger national argument about the death penalty itself — with questions about racial and economic disparities in its implementation — shows no signs of fading away. Steven Shavell, a professor of law and economics at Harvard Law School and co-editor-in-chief of the American Law and Economics Review, said in an e-mail exchange that his journal intends to publish several articles on the statistical studies on deterrence in an upcoming issue.
Dead Family Walking:
The guru of death row inmates, Sister Helen Prejean, wrote a book Dead Man Walking. One of the victims' family has finally answered her in DEAD FAMILY WALKING. available from the publisher www.deadfamilywalking.com.Sister Helen Prejean is a fountain of misinformation; all taken as fact because of course a nun wouldn't lie. (They can be deceived, naive and gullible, however) She has never answered why the murderers get more support than the victims or their families. She says this is not her intent, but it is the end result. On November 5, 1977, the Bourque's teenage daughter, Loretta, was found murdered in a trash pile near the city of New Iberia, Louisiana lying side by side near her boyfriend–with three well-placed bullet holes behind each head. No apparent motive. Very little clues. WHAT THE PUBLIC KNEW While the families of the murdered teenagers tried to find closure, a Catholic nun becomes spiritual advisor to one brother on death row and made it her mission to defend him, arguing that the crime was a single act of violence for which the other brother was solely responsible. Her attempts failed, killer is executed in 1984 when she and killer vow love for each other before he dies. Nun takes body to Baton Rouge for free funeral and mass performed by Bishop. Fifteen nuns brought in from New Orleans to attend funeral for stranger. Body laid to rest in Baton Rouge cemetery on sacred ground. Nun later writes book: Dead Man Walking. WHAT THE PUBLIC DID NOT KNOW Prior to the murders, posing as police, the brothers would hunt people on weekends kidnapping an estimated 30 couples. Boys would be handcuffed in view of girls being held down, raped, threatened and released. Secret conversation with Catholic priest revealed killer's funeral staged by Church hierarchy to protest capital punishment and said Bishop was subdued. Funeral home pressured for free funeral. Grounds keeper of cemetery said nun went behind Mother Superior's back to have killer buried. Thirty days after burial, upset nuns secretly tried to have killer's corpse disinterred. After 6 years of trials and appeals, the devout-Catholic Bourques hoped with the killer's execution they could put the nightmare behind them and find some peace with which to live. Instead, the surprising scorn from Church leaders in Baton Rouge was just the beginning of family pain causing them to stop attending church—but they eventually returned with unexpected disrespect for Church personnel. Nun's book contains questionable embellishments and according to one victim's parent who was sent a manuscript of Dead Man Walking, "There were lies in there!" Incarcerated Governor Edwards writes jailhouse letter contradicting nun's version of killer's last day and her secret whereabouts the night of killer's execution. Thirty days before execution, killer divulges details to homicide detective of shocking death-row proposal including confessing his hunger to kill again. Victim's family endures 25 unsuccessful years of seeking closure, finally contracting investigator to dig-up details of crime and fallacies of Dead Man Walking. Disgusting discovery found in killer's briefcase stored in courthouse evidence room for 20 years. Divine message from God to young child pertaining to murdered girl deciphered 15 years later in 2004. Surprise conversation with homicide detective reveals details of an unknown American hero that will warm the hearts of all who read this story. Death Penalty and Deterrence: Let's be clear
by Dudley Sharp, Justice Matters, 0104 The Death Penalty as a Deterrent - Confirmed - Seven Recent Studies
Dudley Sharp, Justice Matters, updated 11/12/04 Death Penalty Cases v. Equivalent Life Sentence Cases
by Dudley Sharp, Justice Matters
The REAL Death Penalty in the United States: A Review
Dudley Sharp, Justice Matters Five essays by Joel C. Gibbons, economist and a former student of Isaac Ehrlich. THE WRONG WAY TO RESTORE THE DEATH PENALTY By Jeff Jacoby The Boston Globe Sunday, May 15, 2005 Massachusetts is one of only 12 states without capital punishment, and Governor Mitt Romney came to office pledging to remove it from that list. To his credit, it is a pledge he has taken seriously. In September 2003 he charged a blue-ribbon commission with devising a death-penalty regime that would be virtually foolproof. The commission produced 10 recommendations that it said would, if adopted, make capital punishment in Massachusetts ''as infallible as possible." Those recommendations Romney has now filed as legislation, which he describes as ''the gold standard for the death penalty in the modern scientific age." The governor is right to support capital punishment. He is right as a matter of justice: Juries ought to have the option of meting out the very worst punishment to the very worst offenders. And he is right as a matter of democratic governance: Massachusetts voters have long backed the death penalty -- in 1982 they amended their Constitution to say so explicitly -- but their wishes have been thwarted by the state Legislature and supreme court. To judge from a poll released by the State House News Service in Boston last week, public opinion hasn't changed: 65 percent of Bay State residents favor Romney's new proposal, against only 33 percent who oppose it. I support capital punishment. But on this one, I'm with the 33 percent. Romney's intentions are admirable, but in his quest to make the death penalty infallible, he has offered a bill that would likely do more harm than good. Under its provisions, most vicious murderers would never face execution, victims and their families would be treated with disrespect, and one of the bedrock standards of the American criminal-justice system -- guilt beyond a reasonable doubt -- would be jettisoned. Romney's bill makes the perfect the enemy of the good: By bending over backward to achieve immaculate fairness for killers, it would end up denying fairness to everyone else. The proposed law would confine capital punishment to just a handful of precisely defined categories of murder. Murder as an act of terrorism would make the cut -- but only if the terrorism was ''political." The murder of a police officer, judge, juror, or witness would be death-eligible -- but only if committed for the purpose of obstructing a trial. A murderer who tortured his victim could be sentenced to death -- but only if the torture was intentional, ''gratuitous," ''depraved," and ''prolonged," and only if it occurred ''immediately prior to the murder." In the hands of any competent defense lawyer, each of those stipulations would be a potential escape hatch, a reason *not* to sentence a killer to death -- and Romney's bill mandates not merely competent but ''high-quality" defense counsel for every capital murder defendant, at state expense if necessary. The governor says his legislation is focused on the ''worst of the worst," but some of the most infamous killings would not qualify for capital punishment under its terms. In 1997, Salvatore Sicari and Charles Jaynes kidnapped 10-year-old Jeffrey Curley of Cambridge, suffocated him with a gasoline-soaked rag, then raped his lifeless body and threw it into a river. The case ignited a furious outcry; it was said to be a textbook example of a crime deserving death. But even if Romney's bill had been law, the death penalty wouldn't have been available: Its narrow definition of capital murder wouldn't cover Jeffrey's slaying. What good is a law targeting the ''worst of the worst" if it can't reach the likes of Sicari and Jaynes? Among the changes Romney proposes are several that would erode the rights of victims and their loved ones. Section 9(C), for instance, would not permit survivors to testify to the impact of the murder before the jury passes sentence. ''In other words," says victims'-rights advocate Michael Paranzino, ''it would only allow a victim impact statement after the statement could have no impact." (Paranzino's thoughtful critique of the bill can be found at the web site of his Maryland-based organization, Throw Away the Key. ) By far the most serious problems with Romney's ''gold standard" are the requirements that there be ''conclusive scientific physical" evidence of the defendant's guilt, and that murderers be found guilty not just beyond a reasonable doubt, but beyond any ''lingering or residual" doubt, no matter how unreasonable or frivolous. That sets the bar high, indeed -- so high that it would have kept Timothy McVeigh from being sentenced to death for the Oklahoma City bombing. Never has a state imposed such excruciating criteria, and for good reason: No valuable human enterprise can ever be perfectly flawless. That is as true of criminal law as it is of medicine, police work, and air travel. The benefits of a legal system in which savage murderers can be executed far outweigh the minuscule risk of a wrongful execution. Romney's goal is a death penalty that can never go wrong, but his bill would guarantee a system so fraught with hurdles that no murderer would ever be put to death. The result would be less justice, not more -- a society in which killers are kept safe, while more innocent lives continue to be lost.
(Jeff Jacoby is a columnist for The Boston Globe.)
-- ## -- WHY ISLAM IS DISRESPECTED (although not a dp article very interesting) By Jeff Jacoby The Boston Globe Thursday, May 19, 2005 It was front-page news this week when Newsweek retracted a report claiming that a US interrogator in Guantanamo had flushed a copy of the Koran down a toilet. Everywhere it was noted that Newsweek's story had sparked widespread Muslim rioting, in which at least 17 people were killed. But there was no mention of deadly protests triggered in recent years by comparable acts of desecration against other religions. No one recalled, for example, that American Catholics lashed out in violent rampages in 1989, after photographer Andres Serrano's ''Piss Christ" -- a photograph of a crucifix submerged in urine -- was included in an exhibition subsidized by the National Endowment for the Arts. Or that they rioted in 1992 when singer Sinead O'Connor, appearing on ''Saturday Night Live," ripped up a photograph of Pope John Paul II. There was no reminder that Jewish communities erupted in lethal violence in 2000, after Arabs demolished Joseph's Tomb, torching the ancient shrine and murdering a young rabbi who tried to save a Torah from the flames. And nobody noted that Buddhists went on a killing spree in 2001 in response to the destruction of two priceless, 1,500-year-old statues of Buddha by the Taliban government in Afghanistan. Of course, there was a good reason all these bloody protests went unremembered in the coverage of the Newsweek affair: They never occurred. Christians, Jews, and Buddhists don't lash out in homicidal rage when their religion is insulted. They don't call for holy war and riot in the streets. It would be unthinkable today for a mainstream priest, rabbi, or lama to demand that a blasphemer be slain. But when Reuters reported what Mohammad Hanif, the imam of a Muslim seminary in Pakistan, said about the alleged Koran-flushers -- ''They should be hung. They should be killed in public so that no one can dare to insult Islam and its sacred symbols" -- was any reader surprised? The Muslim riots should have been met by an international upwelling of outrage and condemnation. From every part of the civilized world should have come denunciations of those who would react to the supposed destruction of a book with brutal threats and the slaughter of 17 innocent people. But the chorus of condemnation was directed not at the killers and the fanatics who incited them, but at Newsweek. From the White House down, the magazine was slammed -- for running an item it should have known might prove incendiary, for relying on a shaky source, for its animus toward the military and the war. Over and over, Newsweek was blamed for the riots' death toll. Conservative pundits in particular piled on. ''Newsweek lied, people died" was the headline on Michelle Malkin's popular website. At NationalReview.com, Paul Marshall of Freedom House fumed: ''What planet do these [Newsweek] people live on? . . . Anybody with a little knowledge could have told them it was likely that people would die as a result of the article." All of Marshall's choler was reserved for Newsweek; he had no criticism at all -- not a word -- for the marauders in the Muslim street. Then there was Secretary of State Condoleezza Rice, who announced at a Senate hearing that she had a message for ''Muslims in America and throughout the world." And what was that message? That decent people do not resort to murder just because someone has offended their religious sensibilities? That the primitive bloodlust raging in Afghanistan and Pakistan was evidence of the Muslim world's dysfunctional political culture? That the Bush administration would redouble its efforts to defeat the Islamofascist radicals who use religion as an excuse to foment violence and terror? No: Her message was that ''disrespect for the Holy Koran is not now, nor has it ever been, nor will it ever be, tolerated by the United States. We honor the sacred books of all the world's great religions." Granted, Rice spoke while the rioting was still taking place and her goal was to reduce the anti-American fever. But what ''Muslims in America and throughout the world" most need to hear is not pandering sweet-talk. What they need is a blunt reminder that the *real* desecration of Islam is not what some interrogator in Guantanamo might have done to the Koran. It is what totalitarian Muslim zealots have been doing to innocent human beings in the name of Islam. It is 9/11 and Beslan and Bali and Daniel Pearl and the USS Cole. It is trains in Madrid and schoolbuses in Israel and an ''insurgency" in Iraq that slaughters Muslims as they pray and vote and line up for work. It is Hamas and Al Qaeda and sermons filled with infidel-hatred and exhortations to ''martyrdom." But what disgraces Islam above all is the vast majority of the planet's Muslims saying nothing and doing nothing about the jihadist cancer eating away at their religion. It is Free Muslims Against Terrorism, a pro-democracy organization, calling on Muslims and Middle Easterners to ''converge on our nation's capital for a rally against terrorism" this month -- and having only 50 people show up. Yes, Islam is disrespected. That will only change when throngs of passionate Muslims show up for rallies against terrorism, and when rabble-rousers trying to gin up a riot over a defiled Koran can't get the time of day. (Jeff Jacoby is a columnist for The Boston Globe.) - ## -- U.S. Supreme Court undermines the People of Missouri. Read the Supreme Court's Decision in Roper v. Simmons (Juvenile Executions) True Judicial Activism Please Read Justice Scalia's Dissent A PHONY 'CONSENSUS' ON YOUTHFUL KILLERS By Jeff Jacoby The Boston Globe Sunday, March 6, 2005 Now that the Supreme Court has rendered its decision in Roper v. Simmons, the debate over capital punishment for murder committed by juveniles is closed.
In the 20 states whose laws didn't previously rule out the death penalty for juvenile killers, the laws will be changed. Around the country, 72 convicted capital murderers who were not yet 18 when they committed their crimes are being removed from death row. When the Supreme Court speaks, the legal system falls in step. The United States has not reached anything like a settled view on this subject, but that no longer matters. Five justices have declared that the Eighth Amendment's ban on "cruel and unusual punishment" forbids the execution of murderers who were juveniles when they killed. And that, under our system, is that.
A good thing? Not when it comes to an issue on which public opinion is as fluid as capital punishment. The Roper majority purported to ground its ruling in the nation's "evolving standards of decency," which it says have led to a "national consensus" against the execution of juvenile murderers. Even if there were such a consensus -- and there clearly is not -- there is no reason to believe that it is chiseled in granite. But by deciding that public opinion has moved decisively on this question, then grafting that decision onto the constitution, the court has stripped lawmakers of the right to someday change their minds. Yet when has legislative support for capital punishment ever been static? As Justice Antonin Scalia notes in his dissent, it "has surged and ebbed throughout our nation's history." In the years after World War II, for example, there was a dramatic fall-off in executions, as many states went through a phase of abolishing or restricting capital punishment. For several years beginning in 1968, in fact, executions came to a halt. By the logic of the Roper majority, the Supreme Court could have declared back then that "evolving standards" had reached a "national consensus" in favor of eliminating the death penalty once and for all. In hindsight, we know that any such declaration would have been ludicrous -- within a few years, support for the death penalty had soared. "But had this court then declared the existence of such a consensus, and outlawed capital punishment," wrote Justice Sandra Day O'Connor in a 1988 opinion quoted by Scalia last week, "legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law." Of course, standards of decency do evolve. There are punishments, once common, that a true national consensus now firmly rejects -- public flogging, debtor's prison, the stocks. But the court's evidence for a consensus against the death penalty for those who murdered before their 18th birthday is pitifully thin. In recent years, it notes, executions of juvenile murderers have been few and far between, and five states that used to allow it no longer do. That's a "national consensus"? Executions of *any* murderers are few and far between -- of the more than 15,000 homicides committed each year, no more than a few dozen result in a death sentence. And if five states recently raised their death penalty age to 18, four other states, as the dissent points out, recently set theirs at 16. The bottom line hasn't changed: Fewer than half of the states that permit capital punishment restrict it to killers who were 18 or older. It is hard to read the majority opinion and not conclude that five justices ruled capital punishment of juvenile murderers unconstitutional simply because they oppose it peresonally. Their arguments are the familiar ones: Juveniles tend to be more immature and irresponsible than adults, they are more susceptible to bad influences, their character is less well formed. All obviously true -- as a rule. But just as obviously true is that there are exceptions to the rule. The average 17-year-old criminal may be less culpable than the average adult criminal, but who would deny that * some* 17-year-olds can act with depravity and ruthlessness far beyond their years? As six states noted in a short but chilling friend-of-the-court brief, "there is no magic in the age 18. Just as there are adults who, for whatever reason, cannot fully comprehend the wrongfulness of their actions, there are adolescents—16-and 17-year-olds—who *can.*” The 17-year-old in Roper v. Simmons, for example. Christopher Simmons bragged in advance that he could commit murder and "get away with it" because of his age. He and his accomplice broke in on Shirley Crook in the middle of the night, hog-tied her with duct tape and electrical wire, then threw her off a bridge, still concious, to a terrifying death in the river below. Youthful savages like Simmons may be rare, but they exist. Nothing in the Bill of Rights requires us to pretend otherwise. In almost every state, 16- and 17-year-olds can be treated as adults when it comes to noncapital crimes -- up to and including homicide. Whether capital murder should be an exception is certainly a debatable issue. It should never have been a constitutional one. (Jeff Jacoby is a columnist for The Boston Globe.)
OLD ENOUGH TO KILL. OLD ENOUGH TO DIE?
By Jeff Jacoby
The Boston Globe Thursday, October 21, 2004
The Supreme Court heard oral arguments last week in Roper v. Simmons, a Missouri case that raises the question of whether the Eighth Amendment's ban on "cruel and unusual punishment" forbids the execution of murderers who were 16 or 17 at the time they committed their crimes.
The court was supposed to have settled this issue 15 years ago. In the 1989 case of Stanford v. Kentucky, a 5-4 majority found that there was no American consensus against the use of capital punishment in such instances, and ruled accordingly that the constitutional standard -- "cruel and unusual" -- didn't apply. On that score, not much has changed. Of the 39 states that have the death penalty today, half continue to permit the execution of murderers who were under 18 at the time of the killing. (No state allows the death sentence for murderers who were younger than 16, and every killer put to death in modern times has been at least 23 at the time he was executed.)
But now the justices are being urged to overturn Stanford on supposedly scientific grounds. We know more than we used to about the way the adolescent mind works, the argument runs, and there are biological reasons why teens younger than 18 tend not to be as adept as adults in controlling their impulses.
A friend-of-the-court brief filed by a gaggle of health-care organizations, including the American Medical Association and the American Academy of Child and Adolescent Psychiatry, claims that 16- and 17-year-olds behave differently than adults because their brains are not fully developed. To execute persons who commit murder at that age would be "to hold them accountable . . . for the immaturity of their neural anatomy and psychological development."
A similar amicus brief, this one from the American Psychological Association and its Missouri affiliate, informs the court that "late adolescents are less likely to consider alternative courses of action, understand the perspective of others, and restrain impulses," since their "brain has not reached adult maturity, particularly in the frontal lobes." Tossing off references to "longitudinal MRI studies" and "cognitive neurology," the brief asserts that "16- and 17-year-olds as a group are less mature developmentally than adults." Well, stop the presses.
The problem here is that what is relevant isn't exactly new -- what parent doesn't know that adolescents don't always restrain their impulses? -- and what is new may not be legally relevant. The work of UCLA neurologist Elizabeth Sowell is prominently cited in both of these briefs, yet Sowell herself warns against using neuroscience to promote a legal agenda.
"The scientific data aren't ready to be used by the judicial system," she told Science News in April. "The hardest thing . . . is to bring brain research into real-life contexts."
Skeptical, too, is Harvard psychologist Jerome Kagan, the former director of the Mind/Brain Behavior Interfaculty Initiative. "The brain data don't show that adolescents typically have reduced legal culpability for crimes," he says. Clearly teens "can control their impulses without having fully developed frontal lobes" -- otherwise "we should be having Columbine incidents every week."
But we don't have Columbine incidents every week. The vast majority of 17-year-olds, like the vast majority of people at every age, don't commit violent crimes -- least of all the very worst violent crimes: the especially depraved homicides that the law calls capital murder. Adolescents who have not yet turned 18 may not always act wisely, but rarely do they turn to murder. Should those who do be regarded primarily as heedless kids -- or as determined killers?
Consider Christopher Simmons, the defendant in the case before the Supreme Court.
In September 1993, Simmons discussed with friends the crime he intended to commit: a victim would be robbed, then tied up and pushed off a bridge. On Sept. 8, Shirley Crook became that victim. Simmons and two friends broke into her home at 2 a.m., bound and gagged her with duct tape, then forced her into a minivan. Simmons drove the van to a railroad trestle spanning the Meramec River, where he found that she had managed to work some of the duct tape off. So he hog-tied her with electrical wire, then covered her face with even more duct tape. And then he threw into the river below.
Simmons's age wasn't ignored in his trial. It was offered as a mitigating circumstance, and the jury took it into account when deciding his punishment. That is what the Supreme Court should continue to permit every jury to do.
There are times when a bright-line rule based on age makes sense. We don't let kids drive until they are 16, or buy tobacco before turning 18. When it comes to drivers' licenses and cigarettes, an arbitrary cut-off is both reasonable and efficient.
But when someone has been brutally murdered and an accused killer is in the dock, reasonableness and efficiency are not the standards we use. Guilt must be proven beyond a reasonable doubt. Jurors must weigh all the evidence. Criminal justice is done individually, particularly, with a focus not on how people act generally, but on how *this* person acted in *this* specific case.
The law as it exists now does not condemn every 16- or 17-year-old murderer to death. It simply preserves capital punishment as one option for the jury. It allows society to say, in rare but appropriate cases, that a juvenile who plotted like an adult and murdered like an adult can be punished like an adult. That isn't cruel and unusual. It's justice.
(Jeff Jacoby is a columnist for The Boston Globe.) Why Some "Juvenile" Murderers Should Qualify For The Death Penalty
Dudley Sharp, Justice Matters, contact below
There are a number of issues raised in opposition to 16-17 year old murderers being culpable for the death penalty. Those arguments fail under review.
BRAIN SCIENCE & JUVENILE DEATH PENALTY -- NO HOLY GRAIL (1)
UCLA's Elizabeth Sowell, another prominent brain-development researcher, takes a dim view of the movement to apply neuroscience to the law. She says that no current research connects specific brain traits of typical teenagers to any mental or behavioral problems.
"The scientific data aren't ready to be used by the judicial system," she remarks. "The hardest thing [for neuroscientists to do] is to bring brain research into real-life contexts."
"The brain data don't show that adolescents typically have reduced legal culpability for crimes." Harvard University psychologist Jerome Kagan.
Brain data, particularly those on delayed frontal-lobe growth in adolescents, also need to be put in a cultural and historical perspective, Harvard's Kagan asserts. Frontal-lobe development presumably proceeds at roughly the same pace in teenagers everywhere. Yet current rates of teen violence and murder vary from remarkably low to alarmingly high from country to country, he notes.
If incomplete brains automatically reduce adolescents' capacity to restrain their darker urges, "we should be having Columbine incidents every week," he adds.
"Something about cultural context must be critical here," Kagan says. "Under the right conditions, 15-year-olds can control their impulses without having fully developed frontal lobes."
The ambiguities of science don't mix with social and political causes, contends neuroscientist Bradley S. Peterson of the Columbia College of Physicians and Surgeons in New York City. For instance, it's impossible to say at what age teenagers become biologically mature because the brain continues to develop in crucial ways well into adulthood, he argues.
Such findings underscore the lack of any sharp transition in brain development that signals maturity, according to neuroscientist William T. Greenough of the University of Illinois at Urbana-Champaign. Definitions of adulthood change depending on social circumstances, Greenough points out. Only 200 years ago, Western societies regarded 16-year-olds as adults.
"Brain science offers no simple take-home message about adolescents," says B.J. Casey of Cornell University's Weill Medical College in New York City. "It's amazing how little we know about the developing brain."
Brain-scanning techniques, including the popular MRI, remain a "crude level of analysis," Casey notes. What's more, many critical brain-cell responses are too fast for MRI to track.
Science News summarizes these positions: " . . .brain science doesn't belong in court because there's no evidence linking specific characteristics of teens' brains to any legally relevant condition, such as impaired moral judgment or an inability to control murderous impulses. "
AGE, ALONE, CANNOT DICTATE CULPABILITY
No one, including psychiatrists, psychologists and brain specialists, disputes that some 16-17 year olds are as mature, or more mature, than some of those 18 and older. US Supreme Court Justices, Nobel Peace Prize winners, the American Medical Association and the European Union agree.
Therefore, the argument against executing some 16-17 year old murderers is without merit, when it is based upon age, alone.
Is a murderer less culpable solely because they murdered someone one-second, one minute, one week, one month or one year before their 18th birthday? Of course not.
US Supreme Court Justice Sandra Day O'Connor writes:
"Furthermore, granting the premise that adolescents are generally less blameworthy than adults who commit similar crimes, it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment. Nor is there evidence that 15-year-olds as a class are inherently incapable of being deterred from major crimes by the prospect of the death penalty." (2)
It is argued that because people have to be older to drink, vote, marry, etc., that it is hypocritical to say that some 16-17 year olds are mature enough to be death eligible for committing capital murder. If society so wished it could individually evaluate 16-17 years olds (just as we do within the criminal justice system) to determine which of those were as mature as 18-21 year olds and allow those to participate in those responsibilities and privileges. No one doubts that many would qualify. Furthermore, there is a major difference between a social privilege and culpability for capital murder.
MacArthur Juvenile Competence Study: "The study did not find differences between juveniles aged 16 and 17 and young adults (18-24) in abilities relevant to their competence to stand trial." (3)
POLLING DATA
If polls reflected respondents detailed knowledge and review, as found, above, there is little doubt that a majority of the public would support the death penalty for some 16-17 year old murderers.
HUMAN RIGHTS VIOLATION
Those who claim that the death penalty is a human rights violation have failed to make their case.
It is presented that some US states are equal with a number of less democratic nations that execute those who were under age 18 when they committed their murder(s). First, the US criminal justice system is quite different from those nations. Second, as no one disputes that many 16-17 year olds are as mature as some 18-21 year olds, this argument means nothing.
In terms of proportionality, execution cannot be viewed as disproportionately severe in relation to the crime. The innocent murder victim did not earn or deserve their fate, whereas the murderer voluntarily took the lives of the innocent and thereby volunteered for the punishment available within that jurisdiction.
copyright 2001-2004 Dudley Sharp
Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com
(1) excerpts from "Teen Brains on Trial", Bruce Bower, Science News, 5/8/04, vol. 165, No. 19, p.299
www.sciencenews.org/articles/20040508/bob9.asp
(2) Thompson v. Oklahoma, 487 U.S. 815 (1988)
(3) from Study Summary, " MacArthur Juvenile Competence Study", www.mac-adoldev-juvjustice.org/competence%20study%20summary.pdf
Full Study, Results, www.mac-adoldev-juvjustice.org/page23.html
NOTE: the study was partially funded by the Open Society Institute, one of the Soros Foundations, a product of George Soros, who may be he largest financier of anti death penalty efforts, worldwide. The Innocence Fraud of death penalty opponents
by Dudley Sharp, Justice Matters
Death Penalty opponents have proclaimed that 102 inmates have been "released from death row with evidence of their innocence", since the modern death penalty era began, post Furman v Georgia (1972). (The number of "innocents" is now 113)
That number is a fraud.
Those opponents have combined the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers. In addition, they have included many other cases that cannot be claimed as actually innocent and others which were prosecuted prior to the 1972 Furman decision and thereby have no relevance to a discussion of innocence within the modern death penalty framework.
A state's example
Death penalty opponents claim that 24 of those 102 "innocent" cases are from Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be actually innocent -- an 84% error rate in death penalty opponents' claims. (1)
If that error rate is consistent, nationally, that would indicate that 17 of the alleged 102 innocents MIGHT be actually innocent -- a 0.2% actual guilt error rate for the 7300 sentenced to death in the US since 1973. None were executed.
Case examples - national
Here are a few examples of those "innocents" removed from death row.
Clarence Smith -- he was removed from the "innocents" list when it was pointed out that this supposedly innocent defendant was convicted in federal court of charges which included the murder for which he had been acquitted in the Louisiana state court.
Delbert Tibbs - the Florida Supreme Court candidly conceded that it should not have reversed Tibbs' conviction since the evidence was legally sufficient. The state prosecutor stated that "Tibbs was never an innocent man wrongly accused. He was a lucky human being. He was guilty, he was lucky and now he is free."
Richard Neal Jones-- At the very least, Jones was present at the murder scene and a party to the conspiracy leading to the murder. His culpability would appear to be no less than that of the actual murderers.
Jerry Bigelow-- conviction and death sentence were reversed for a reasons unrelated to his guilt.
Patrick Croy-- There was no dispute Croy killed the police officer.
John C. Skelton-- the court majority explained: “ . . . the evidence against appellant leads to a strong suspicion or probability that appellant committed the capital offense . . ."
Dale Johnston-- Prior to retrial, the court excluded incriminating statements Johnston made during his initial interrogation as well as incriminating evidence seized due to the interrogation. The prosecution then dismissed the case.
Jimmy Lee Mathers-- The dissent points out that there was still ample evidence of Mathers’ guilt
Bradley Scott-- the available circumstantial evidence "could only create a suspicion that Scott committed this murder."
Jay C. Smith-- the appeals court explained, “Our confidence in Smith’s convictions for the murder of Susan Reinert and her two children is not the least bit diminished -- if anything, the courts have repeatedly reaffirmed their conclusion that Smith was “actually guilty”. Smith’s inclusion on the DPIC List is a “false exoneration” at its most extreme.
Andrew Golden-- the state court noted as follows: "The finger of suspicion points heavily at Golden. A reasonable juror could conclude that he more likely than not caused his wife's death."
Troy Lee Jones--The California Supreme Court held that while the evidence of Jones’ guilt was not overwhelming, it still suggested Jones’ guilt.
Benjamin Harris--Harris admitted taking turns with Bonds in shooting Turner and admitted having a motive to murder Turner.
Robert Hayes-- Nothing about Hayes’ retrial changes the appeals court’s original observation that evidence existed to establish Hayes’ guilt.
Jeremy Sheets-- The appellate court decision explains that Sheets was convicted of a racially motivated murder of a young African American girl. The evidence of Sheets’ guilt included the tape-recorded statements of an accomplice named Barnett, who had died prior to Sheets’ trial. The Nebraska Supreme Court reversed the conviction because Sheets could not cross-examine the dead accomplice.
Larry Osborne-- A friend and potential accomplice, who died prior to trial, implicated Osborne in a grand jury proceeding. However, this witness then died prior to the first trial. His grand jury testimony was read at Osborne’s first trial and that conviction was reversed because there was no opportunity for Osborne to cross-examine the witness. On retrial, without the grand jury testimony of the dead witness, the prosecution had insufficient evidence to convince the jury of Osborne’s guilt beyond a reasonable doubt.
A complete review of these and additional "innocent" cases can be found in Footnote 2, below. Most of the case descriptions, above, are edited from Campbell's review (2a).
SUMMARY
No one disputes that innocents are found guilty, within all countries. However, when scrutinizing death penalty opponents claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be the most accurate criminal justice sanction in the world.
Under every debated scenario, not executing murderers
will always put many more innocents at risk. (3)
1. "Case Histories: A Review of 24 Individuals Released from Death Row", Florida Commission on Capital Cases, June 20, 2002, Revised September 10, 2002 at
http://www.floridacapitalcases.state.fl.us/Publications/innocentsproject.pdf
2. a) CRITIQUE OF DPIC LIST ("INNOCENCE:FREED FROM DEATH ROW"), Ward Campbell, Supervising Deputy Attorney General, California
http://www.prodeathpenalty.com/DPIC.htm
b) "Bad List", Ramesh Ponnuru, Senior Editor, National Review, 9/16/02 at
http://www.nationalreview.com/advance/advance091602.asp#title5
c) "Not so Innocent", By Ramesh Ponnuru, Senior Editor, National Review, 10/1/02 at
http://www.nationalreview.com/ponnuru/ponnuru100102.asp
d) "The Death Penalty Debate in Illinois", John J. Kinsella, J.D., DCBA Brief (Online), June 2000, at
http://www.dcba.org/brief/junissue/2000/art010600.htm
3. THE DEATH PENALTY - INNOCENCE ISSUES,
Dudley Sharp, 1/1/03.
A thorough review of the many innocence issues surrounding the death penalty. Upon request.
Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com US wins in World Court - US Courts handling Vienna Convention Properly By: Dudley Sharp, Death Penalty Resources e-mail sharpjfa@aol.com
The International Court of Justice ruled Wednesday that the United States "should provide by means of its own choosing meaningful review of the conviction and sentence'', presiding Judge Shi Jiuyong said.
This is precisely what the US had been doing all along, in accordance with the US's admitted violation of the Vienna Convention.
The finding that the US had violated the Convention was not the major issue, as all parties had conceded to that fact. In 51 of the 52 Mexican national cases, the US failed to notify the detained foreign nationals that they had the right to contact the Mexican consulate, as required by the Convention.
The important issue was: What were the remedies for such a violation.
All US jurisdictions have reviewed those issues and all have found, on final appeal, that the notification violation of the Vienna Convention should not overturn those cases.
The US has provided "meaningful review" in the past and will continue to do so in the future. The International Court has confirmed that the US is handling this appellate issue in accordance with international law.
It should be noted that if any detained foreign national or their counsel had ever sought to contact the detained parties consulate, they would have been allowed to do so. Read the latest article by Kent Scheidegger - Criminal Justice Legal Foundation
Smoke and Mirros on Race and the Death PenaltyOPED: CONGRESS PREPARES TO FUND THE ANTI-DEATH-PENALTY LOBBY.
By Ramesh Ponnuru
Why is a Republican Congress considering a bill to fund anti-death-penalty activists? A bill that could result in murderers going free? A bill that was initially introduced to hurt George W. Bush? Beats me. But that's exactly what Congress is doing.
In early 2000, Democrats were portraying George W. Bush's Texas as a third-world hellhole where the water was dirty, the churches were filled with guns, and the streets ran red with the blood of unlucky defendants. A few anecdotes in which public defenders really had been lax in capital murder cases were extrapolated into a critique of law enforcement in the state. At around this time, Senator Patrick Leahy of Vermont and Representative William Delahunt of Massachusetts, both Democrats, introduced the "Innocence Protection Act." Supposedly, the bill was going to keep innocents from getting put on death row by, among other things, providing for better legal defenses for accused capital murderers.
In a modified form, the bill has been made part of the "Advancing Justice Through DNA Technology Act of 2003." Sponsors of the bill include Orrin Hatch and James Sensenbrenner, the chairmen of the House and Senate judiciary committees. The House Judiciary Committee voted for the bill 28-1. Conservative Jeff Flake was the only dissenter.
http://www.nationalreview.com/script/printpage.asp?ref=/ponnuru/ponnuru200310290831.asp
NINTH CIRCUIT ISSUES MAJOR DEATH PENALTY RULING Conflict with Other Circuits Means Likely Supreme Court Review The United States Court of Appeals for the Ninth Circuit decided today that the Supreme Court's 2002 ruling against Arizona's capital sentencing system will apply retroactively to cases that have already been affirmed on appeal to the Arizona Supreme Court. The Arizona Attorney General estimates that the decision will affect 89 death penalty cases, unless it is reversed by the Supreme Court. Today's ruling is contrary to decisions by two other federal Courts of Appeals and the Arizona Supreme Court. "This conflict makes it nearly certain that the U. S. Supreme Court will review this issue in the near future," said Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation. The decision came in the case of Arizona murderer Warren Summerlin. The Ninth Circuit's previous decision in this case described the crime: "On April 29, 1981, petitioner Warren Wesley Summerlin killed Brenna Bailey when she went to his residence on behalf of her employer to attempt to collect a delinquent debt. Summerlin bashed in Ms. Bailey's head and skull, probably with a hatchet, wrapped her partially nude body in a bedspread, and discarded her remains in the locked trunk of her car. He was arrested a few days later, charged, and convicted under Arizona law of first-degree murder and sexual assault, and sentenced ... to death." In capital murder cases, at least one additional factor beyond the elements of murder must be found before a sentence of death can be considered. In Summerlin's case, the trial judge found two factors: that he had previously been convicted of a violent felony and that Summerlin committed the murder in "an especially heinous, cruel, or depraved manner." From the restoration of capital punishment in 1976 until recently, the Supreme Court has repeatedly held that the finding of an "aggravating circumstance" may be made by either a judge or a jury. In 2000, the court decided in Apprendi v. New Jersey that any fact other than a prior conviction that increases the maximum allowable punishment must be found by a jury. In the 2002 case of Ring v. Arizona, the high court extended this reasoning to the findings of aggravating circumstances in capital cases, so that these factors must now be found by the jury. The Ring decision overruled a 1990 Supreme Court decision which had upheld Arizona's law on exactly this point. In a pair of decisions in 1987 and 1989, the Supreme Court decided that new rules it creates would be applied retroactively in all cases that have not yet been affirmed on appeal, but, with rare exceptions, new rules of procedure would not be applied to overturn affirmed judgments. Under this framework, courts throughout the country have uniformly held that the Apprendi decision is not retroactive. Applying the same reasoning, the Arizona Supreme Court and the Atlanta-based Eleventh Circuit Court of Appeals have held that the Ring decision is also not retroactive. The Denver-based Tenth Circuit Court of Appeals has also held that Ring is not different from Apprendi in this regard. In its last term, the Supreme Court reviewed 10 cases from the Ninth Circuit in criminal and crime-related cases. That is more than all other circuits combined, even though the Ninth Circuit comprises only one-fifth of America's population. The high court reversed all 10 Ninth Circuit decisions it reviewed, two of them summarily. "Regrettably, a court with a clear agenda to block the enforcement of capital punishment has issued yet another clearly wrong decision," said Scheidegger. "We expect that this error will be corrected by the Supreme Court."
CJLF Attorney Kent S. Scheidegger is available for comment at (916) 446-0345. Note: Case is currently pending in the U.S. Supreme Court. Re: the Pennsylvania Supreme Court Commission's report on racial bias in capital sentencing
The Commission made many errors in analysis. Had they made a thorough and scientifically credible report, then the data may have been the basis for reasoned discussion and review. Unfortunately, that is not what the Commission produced.
Please review my brief analysis of racial issues, below. I hope that it will give you and idea as to how the Commission went astray.
I would be happy to discuss any issues, further, should you so desire.
Sincerely, Dudley Sharp, Resource Director, Justice For All
RACE: A Death Penalty Primer
Dudley Sharp, Justice For All
contact info below
5 studies are reviewed, herein
1) For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review is class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).
2) Drs. Stephen Klein and John Rolph
, "Relationship of Offender and Victim Race to Death Penalty Sentences in California"(Jurimetrics Journal, 32, Fall 1991, aka The Rand Corporation Study), found that, "After accounting for some of the many factors that may influence penalty decisions, neither race of the defendant nor race of the victim appreciably improved prediction of who was sentenced to death . . . ".
3) Smith College Professors Stanley Rothman and Stephen Powers ("Execution by Quota?", The Public Interest, Summer 1994), found that legal variables, such as prior criminal history and the aggravated nature of the murder, are the proven basis for imposition of the death penalty. The black/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls.
4) NO BIAS IN DEATH SENTENCING:
U of Maryland's Death Penalty Study (1)
The following are direct quotes from the Executive Summary of the U of Maryland study.
Race of the victim
"The race of the victim effect does not hold up, however, at the decision of the state's attorney to advance a case to penalty trial and at the decision of the judge or jury to impose a death sentence given that a penalty trial has occurred." p 27
In other words, the victim's race has no impact on seeking or
giving death sentences.
"The race of the victim does not appear to matter when the decision is to advance a case to the penalty phase or to sentence a defendant to death after a penalty phase
hearing." page 29
In other words, the victim's race has no impact on seeking or
giving death sentences
"Among the subset of cases where the case actually does reach a penalty trial, the victim's race does not have a significant impact on the imposition of a death sentence." page 35
In fact, the study fails to demonstrate that there is any race of the victim effect in death sentencing in Maryland.
"When the prosecuting jurisdiction is added to the model the effect for the victims race diminishes substantially, and is no longer statistically significant." page 32
In other words, when you look at the capital murder cases, from each, separate jurisdiction, individually, any alleged race of the victim effect cannot be found.
" . . . any attempt to deal with any racial disparity in the imposition of the death penalty in Maryland cannot ignore the substantial variability that exists in different state's attorney's offices in the processing of death cases." p 34
In other words, it is important to look at how each jurisdiction handles their capital cases, because each jurisdiction is different. And when that is done, no bias in death sentencing is found.
Race of victim and defendant
"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death
given a penalty hearing." page 30
In other words, neither the race of the defendant nor the race of the victim have an impact on seeking or giving death sentences.
Race of the defendant
" . . . there is no evidence that the race of the defendant matters at any stage once case characteristics are controlled for." page 26
" . . . we found no evidence that the race of the defendant matters in processing of capital cases in the state." p 26
In other words, Maryland is not looking at race, but is concentrating on the nature of the murders.
(1) Executive Summary:
An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction, www.urhome.umd.edu/newsdesk/pdf/exec.pdf
5) No Racial Bias in the New Jersey Death Penalty System
New Jersey
For release: February 11, 2003
For further information contact
Winnie Comfort, AOC
(609) 292-9580
Report on Proportionality Released
Trenton, N.J.
The 2002 report essentially mirrors the findings contained in the 2001 report, and may be summarized as follows:
--There is no sustained, statistically significant evidence that the race of the defendant affects which cases advance to penalty trial. Although bivariate analysis reveals that a greater proportion of death-eligible white defendants than African-American defendants advance to the penalty phase, that finding is not supported by regression studies and application of case-sorting techniques. There is no sustained, statistically significant evidence that the race of the defendant affects which cases result in imposition of the death penalty. Again, although bivariate analysis reveals that a greater proportion of death-eligible white defendants are sentenced to death than African-American defendants, that finding is not supported by regression studies and application of case-sorting techniques.
--There is statistically significant evidence that white victim cases are more likely than African-American victim cases to advance to penalty trial, but that finding is eradicated when county variability is taken into account. A disproportionate number of minority victim cases are tried in counties with the lowest overall rates of progression to penalty trial, while less urban counties with a high concentration of white victim cases have higher rates of capital prosecutions. Although Judge Baime notes that county variability may itself be a problem, he offers no opinion on the subject because that issue is well beyond the contours of his report.
--There is no sustained, statistically significant evidence that white victim cases are more likely than minority victim cases to result in imposition of the death penalty
The New Jersey Supreme Court has accepted the 2002 annual report prepared by Judge David S. Baime, a retired Appellate Division judge, on the monitoring of proportionality review in capital punishment cases in New Jersey. The Supreme Court adopted a monitoring system in 2000 to determine whether racial discrimination played a role in the administration of New Jersey's capital cases.
In his capacity as a "special master," a role that requires extrajudicial expertise and work with court-appointed experts, Judge Baime prepared the "Report to the New Jersey Supreme Court: Systemic Proportionality Review Project 2001-2002 Term." .
Judge Baime was assisted by statistical analysts David Weisburd, a professor at The Hebrew University of Jerusalem and The University of Maryland, College Park, and Joseph Naus, a professor at Rutgers University. In an effort to provide the most accurate analysis possible, the monitoring system approved by the Court consists of three different statistical strategies: bivariate analyses, regression studies and case-sorting techniques. In order to establish systemic disproportionality, a defendant must relentlessly document the risk of racial disparity. This requires that the outcomes produced by the three modes of analysis substantially converge, or lead to the conclusion that racial discrimination plays a part in capital sentencing.
The three modes of analysis were applied to three separate decision points: death outcomes at penalty trials, death outcomes among all death-eligible cases, as determined by Judge Baime and the Administrative Office of the Courts (AOC), and advancement of death-eligible cases to penalty trials. Three identifiable groups--African-Americans, whites and Hispanics--were examined, and possible disparities in terms of the race or ethnicity of the defendant and the race or ethnicity of the victim were considered.
6) Pro & Con: The Death Penalty in Black and White
by Dudley Sharp
Thursday, June 24, 1999
IntellectualCapital.com, 6/24/99.
stored at www.prodeathpenalty.com/racism.htm
I don't know about you, but when I get into a discussion about the death penalty, my first thoughts go to the victim and to the brutality of the murder. That is the foundation of the just nature of the death penalty.
Too often these days, however the death penalty is discussed in different terms. Inevitably, with the racial history of this country, the effect of race in the application of the death penalty has become a central part of the death-penalty discourse. This is particularly true as some politicians are making the case for a death-penalty moratorium, in part to consider whether the death penalty is inherently racist.
All too often, however, those arguments are spurious. In the death penalty debate, it should be the facts, and not the hype, that are in be black and white.
A closer look at the statistics
Often such discussion begins with the obvious: the race of the defendant. The Death Penalty Information Center (DPIC) reports that black murderers represent 35% of those executed, white murderers 56%. As the argument goes, this must be evidence of systemic racism, as blacks represent 12% of the population, whites 74%.
Fortunately, the United States does not execute people based on their population counts but on the murders they commit. As blacks represent 47% of murderers and whites 37%, we see that whites are twice as likely to be executed for committing murder as are their black counterparts.
Furthermore, the Bureau of Justice Statistics says that whites sentenced to death are executed 17 months more quickly than blacks. With 98% of all head prosecutors in the United States being white, according to DPIC, how is such a result possible? Maybe prosecutors, judges and juries are focusing on the crimes and not the race of the defendant.
That is not the case, say anti-death penalty groups, such as Amnesty International, and now the United Nations. If you adjust for the specific aggravating factors present within capital crimes, you find clear evidence of racism.
Death-penalty opponents note, for example, that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder blacks, under similar circumstances.
David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that black murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty?
Quite easily.
The Supreme Court, as well as many others, confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely.
What difference does it make?
In Baldus' Philadelphia study, we find that if only 2% more white murderers had been sentenced to death and only 2.5% fewer black murderers had been sentenced to death, then each group would have been sentenced to death by juries at the same rate -- a far cry from the 400% differential stated within the incorrect interpretation of "four times"!
A punishment that fits the crimes
The next issue raised is the victim's race. While blacks and whites comprise about an equal number of murder victims, the ratio of white-to-black victims in death-penalty cases is about 7-to-1. This has given rise to the allegation that the "system" only cares about white murder victims. A horrible accusation, if true.
However, the ratio of white-to-black victims in the aggravated circumstances necessary for a capital murder conviction (rape, robbery, car-jacking, burglary, police murders, serial/multiple murders, etc.) is from 4-to-1 to 8-to-1 -- numbers consistent with the victim ratios on death row.
The final resting place for the racism charge lies within those cases where blacks have been executed for murdering whites and whites have been executed for murdering blacks. There have been 144 blacks and 10 whites executed under such circumstances, or a ratio of 14-to-1. As blacks are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?
If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of black robber/white victims versus white robbers/black victims is 21-to-1.
Again, when looking at the circumstances consistent with capital crimes, we find no evidence of racial bias.
The determining factor for sentencing in death-penalty cases is what it should be -- the aggravating nature of the crimes. Both the Rand Corp. study of 1991 and the research presented by Smith College professors Stanley Rothman and Stephen Powers in 1994 confirm that finding. In other words, it appears that any racial variations present within the data are reflective of the crimes themselves and not racial bias within the system. A review of those studies, as well as of criminal-justice statistics, within the context of the aggravating circumstances present within capital murders and the related statutes, produces the same conclusion.
Don't assume the worst motives
There will always be some variables of race, ethnicity and class within any study of criminal-justice practices, and based on historic, as well as current prejudices, we can never lower our guard. Because all studies are subject to poor protocols, bias and misinterpretation, we must make reasoned judgments based on as many respected considerations as we may have at our disposal.
And even if criminal-justice statistics did not show the obvious correlation between crimes and the application of the death penalty, we should note what the Supreme Court stated in McCleskey: "Where the discretion that is fundamental to our criminal justice process is involved, we decline to assume that what is unexplained [by measured factors] is invidious." Sound ideas should not be eliminated based on misguided statistics.
In the case of the death penalty, the facts lead to only one conclusion. No moratorium is necessary.
Dudley Sharp, Resource Director, Justice For All, e-mail sharpjfa@aol.com, phone 713-935-9300. pager 713-508-6979
ALL MEDIA CALLS -- Dianne Clements, President, Justice For All, e-mail jfanet@msn.com, phone 713-935-9300. pager 713-508-6979
JUSTICE FOR ALL, PO Box 55159, Houston, Texas 77255
JUSTICE FOR ALL -- JFA is a criminal justice reform organization. Our focus is solely on violent crime issues and what we can do, within the criminal justice and legislative systems, to lessen injury to the innocent and to prosecute the guilty. To accomplish that goal, we are actively involved in community education, elections, legislation, victim's rights issues, including our involvement in many individual cases.
JFA websites
http://www.murdervictims.com/
http://www.jfa.net/
http://www.prodeathpenalty.com/ To: The Honorable Maryland Governor, Lt. Governor, Attorney General and all Maryland State Legislators
CC: Baltimore Sun, USA Today, Washington Post, Washington Times
THE DETERRENT EFFECT OF THE DEATH PENALTY
by Dudley Sharp, Justice For All
(contact info, below)
". . . (E)ach execution results, on average, in eighteen fewer murders . . . ".
Deterrence
The potential for negative consequences deters some behavior. The most severe criminal sanction -- execution -- does not contradict that finding. Reason, common sense, history and the weight of the studies support the deterrent effect of the death penalty. The death penalty protects innocent lives.
Is there any group, be they criminologists, historians, psychologists, economists, philosophers, physicians, journalists or criminals that does not recognize that the prospect of negative consequences constrains or deters the behavior of some? Of course not -- not even fiction writers so speculate. Even irrational people wear seat belts, choose not to smoke and do not rob police stations because of the potential for negative consequences.
I. Recent Deterrence Studies-- The death penalty saves innocent lives
University of Houston Professors Dale Cloninger and Roberto Marchesini, found that death penalty moratoriums contribute to more homicides. They found: "The (Texas) execution hiatus (in 1996), therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 (to as many as 150) additional innocent lives lost to homicide. Politicians contemplating moratoriums may wish to consider the possibility that a seemingly innocuous moratorium on executions could very well come at a heavy cost." (1)
Emory University Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna Shepherd state that "our results suggest that capital punishment has a strong deterrent effect. An increase in any of the probabilities -- arrest, sentencing or execution -- tends to reduce the crime rate. In particular, each execution results, on average, in eighteen fewer murders -- with a margin of error of plus or minus 10." (2) Their data base used nationwide data from 3,054 US counties from 1977-1996.
University of Colorado (Denver) Economics Department Chairman Naci Mocan and Graduate Assistant R. Kaj Gottings found "a statistically significant relationship between executions, pardons and homicide. Specifically each additional execution reduces homicides by 5 to 6, and three additional pardons (commutations) generate 1 to 1.5 additional murders." Their "data set contains detailed information on the entire 6,143 death sentences between 1977 and 1997. (3)
Their findings reflect the most obvious of common sense. They write:
"According to the standard economic model of crime, a rational offender would respond to perceived costs and benefits of committing crime." "Capital punishment is particularly significant in this context, because it represents a very high cost for committing murder (loss of life). Thus, the presence of capital punishment in a state, or the frequency with which it is used, should unequivocally deter homicide." Furthermore, "an increase in pardons (commutations) implies a decrease in the probability of execution, which economic theory predicts should have a positive (increase) impact on murder rates." (4)
Pubic policy makers take note. Stopping executions will sacrifice innocent lives. Reinstating capital punishment will spare more innocent lives.
ll. Historical support
Reason, history and common sense all support that the potential for negative consequences deters or alters behavior. In short, incentives, negative or positive, matter. That is undisputed.
Numerous, previous studies have also supported a deterrence finding. And the studies that find a deterrent effect of other criminal sanctions give additional support to the deterrent effect of the death penalty, because, if lesser sanctions deter, then we know that more severe sanctions also deter. The studies that find a deterrent effect of 1. increased police presence, or any other levels of security; 2. arrest/arrest rates; 3. criminal sentencing/incarceration terms; and 4. the presence of rules, laws and statutes all provide additional, collateral support for the deterrent effect of the death penalty. And there are likely hundreds, if not thousands, of such studies and examples (database in progress).
lII. Negative consequences matter
Many have discounted a deterrent effect because of the irrationality of potential and active criminals. However, both reason and the evidence support that the potential for negative consequences does affect criminal behavior.
Criminals who try to conceal their crime do so for only one reason -- fear of punishment. Likely, more than 99% of all criminals, including capital murderers, act in such a fashion. Fear of capture does not exist without an expectation of punishment.
This doesn't mean that they sit down before every crime, most crimes or even their first crime, and contemplate a cost to benefit analysis of a criminal action. Weighing negative consequences may be conscious or subconscious, thoughtful or instinctive. And we instinctively know the potential negative consequences of some actions. Even pathetically stupid or irrational criminals will demonstrate such obvious efforts to avoid detection. And there is only one reason for that -- fear of punishment.
When dealing with less marginalized personalities, those who choose not to murder, such is a more reasoned group. It would be illogical to assume that a more reasoned group would be less responsive to the potential for negative consequences. Therefore, it would be illogical to assume that some potential murderers were not additionally deterred by the more severe punishment of execution.
As legal writer and death penalty critic Stuart Taylor observes: "All criminal penalties are based on the incontestable theory that most (or at least many) criminals are somewhat rational actors who try so hard not to get caught because they would prefer not to be imprisoned. And most are even keener about staying alive than about avoiding incarceration." (5)
Based upon the overwhelming evidence that criminals do respond to the potential of negative consequences, reason supports that executions deter and that they are an enhanced deterrent over lesser punishments.
IV. The pre trial, trial and death row evidence - the survival effect
At every level of the criminal justice process, virtually all criminals do everything they can to lessen possible punishments. I estimate that less than 1% of all convicted capital murderers request a death sentence in the punishment phase of their trial. The apprehended criminals' desire for lesser punishments is overwhelming and unchallenged.
Of the 7300 inmates sentenced to death since 1973, 85, or 1.2% have waived remaining appeals and been executed. 98.8% have not waived appeals. The evidence is overwhelming that murderers would rather live on death row than die. Why? The survival effect -- life is preferred over death and death is feared more than life. Even on death row, that is the rule.
Even such marginalized personalities as capital murderers fear death more than imprisonment. And that which we fear the most, deters the most. (kudos to Ernest van den Haag and many others)
It is logical to conclude that some of those less marginalized personalities, who choose not to murder, also, overwhelmingly, fear death more than life, and, we, thus, logically conclude that some are deterred from murdering because of the enhanced deterrent effect of execution.
The evidence for the survival effect in pretrial, trial and appeals is overwhelming and that weighs in favor of execution as a deterrent and as an enhanced deterrent over lesser sentences.
V. If unsure about deterrence
Common sense, reason and history all support that the potential for negative consequences restricts the behavior of some. But, if unsure of deterrence, we face the following dilemma -- If executions do deter, halting executions causes more innocents to be murdered and gives those living murderers the opportunity to harm and murder again. If the death penalty does not deter, and we do execute, we punish murderers as the jury deemed appropriate and we prevent those executed murderers from harming or murdering again.
Oddly, death penalty opponents believe that the burden of proof is on those who say the death penalty is a deterrent. Clearly it is not. The weight of the evidence, within reason, history, common sense and the social sciences is that the potential for negative consequences restricts the behavior of some. That is not in dispute. Furthermore, if opponents cannot prove it is not a deterrent, which they never have and never will, then they are the ones who risk sacrificing innocents, both by absence of deterrence and reduced incapacitation.
Regardless of jurisdiction, under all debated scenarios, more innocents are put at risk when we fail to execute. Any alleged concern for innocents weighs in favor of executions.
Vl. The individual deterrent effect
The individual deterrent effect is represented by those who state that they were deterred from committing a murder only because of the prospects of a death sentence. Individual cases support the enhanced deterrent effect. (6)
One Iowa prisoner, who escaped from a transportation van, with a number of other prisoners, stated that he made sure that the overpowered guards were not harmed, because of his fear of the death penalty in Texas. The prisoners were being transported through Texas, on their way to New Mexico, when the escape occurred. Most compelling is that he was a twice convicted murderer from a non death penalty state, Iowa. In addition, he was under the false impression that Texas had the death penalty for rape and, as a result, also protected the woman guard from assault. (7)
New York Law School Professor Robert Blecker recorded his interview with a convicted murderer. The murderer robbed and killed drug dealers in Washington DC., where he was conscious that there was no death penalty. He specifically did not murder a drug dealer in Virginia because, and only because, he envisioned himself strapped in the electric chair, which he had personally seen many times while imprisoned in Virginia. (8)
Logic requires that the individual deterrent effect cannot exist without the general deterrent effect. Therefore, reason dictates that the general deterrent effect must exist. The question is not: "Does deterrence exist?" It does. The issue is: "What is the quantifiable impact of deterrence?"
Individual cases support the individual deterrent effect and such cases insure that general deterrence must exist. And, for both, the evidence also suggests that executions provide enhanced deterrence over incarceration.
VlI. Conflicting studies
In reviewing 30 years of deterrence studies, the strongest statement one may make against deterrence is that there is conflicting data (9).
Yet, even when academic bias against capital punishment is overt, such as in the case of the American Society of Criminology -- the subtitle to their death penalty resources page is "Anti-Capital Punishment Resources" -- even they fail to state that the death penalty does not deter some potential murderers, only that "social science research has found no consistent evidence of crime deterrence through execution." (10) That is far from stating that executions do not deter. And the criminologists are, very likely, that academic group most hostile toward the death penalty. What social science conflicts with the notion that the potential for negative consequences restrains the behavior of some? And most would agree that execution is the most serious negative consequence that a murderer may face.
Numerous studies find that executions do deter. And there is a rational conclusion based upon common experience. It appears that all criminal sanctions deter some. It would be irrational to conclude that the most severe and publicized sanction -- execution -- does not deter some potential murderers.
Those studies which do not find deterrence say that they could not detect it, not that it doesn't exist. Those studies which find for deterrence state such.
As Professor Cloninger states: " . . . (Our recent) study is but another on a growing list of empirical work that finds evidence consistent with the deterrence hypothesis. These studies as a whole provide robust evidence -- evidence obtained from a variety of different models, data sets and methodologies that yield the same conclusion. It is the cumulative effect of these studies that causes any neutral observer to pause." (11)
Conflicting studies and reason both weigh in favor of the death penalty as a deterrent and as an enhanced deterrent over lesser punishments.
VlII. The brutalization effect of executions
Some, particularly death penalty opponents, find that the brutalization effect is more likely than the deterrent effect. The brutalization effect finds that murders will increase because potential murderers will murder because of the example of state executions.
Why would potential and active murderers be so influenced by the state in such a deep philosophical manner, revealed by brutalization, but they wouldn't be more affected by the simple "you murder, we execute you?"
Death penalty opponents make an interesting about face on this issue. They insist that criminals are so thoughtless and impulsive that they can't be affected by the potential of negative consequences but, then, those same opponents see criminals as so contemplative that their criminal actions increase BECAUSE those criminals follow the example of the state. One might ask those opponents: "Is there any other government action which influences criminals in such a fashion?" Do criminals kidnap more BECAUSE the state increases incarceration rates? Do criminals give money to potential victims BECAUSE the state donates to needy causes?
Murder rates and execution rates
Although deterrence is much more than a simple look at only execution rates and murder rates, we do find that as executions have risen dramatically, the murder rate has plunged.
>From 1966-1980, a period which included our last national moratorium on executions (June 1967- January 1976), murders in the United States more than doubled from 11,040 to 23,040. The murder rate also nearly doubled, from 5.6 to 10.2/100,000. During that 1966-1980 period, the US averaged 1 execution every 3 years, with a maximum of two executions per year. From 1995-2000 executions averaged 71 per year, a 21,000% increase over the 1966-1980 period. The US murder rate dropped from a high of 10.2/100,000 in 1980 to 5.5/100,000 in 2000 -- a 46% reduction. The US murder rate is now at its lowest level since 1966 (12).
The Texas example -- The murder rate in Harris County (Houston), Texas has fallen 73% since executions resumed in 1982, through 2000, from 31/100,000 to 8.5/100,000 (13). Harris County is, by far, the most active death penalty sentencing and execution jurisdiction in the US. The Harris County murder rate dropped nearly 70% more than did the national murder rate, during similar periods. Texas' murder rate dropped 62% during that same period, or 41% more than the national average.
Potential murderers may have been affected by the example of the state of Texas but, likely, not in a manner consistent with brutalization.
And "(t)he biggest decline in murder rates has occurred in states that aggressively use capital punishment." (14)
After a thorough review of deterrence studies, Professor Samuel Cameron observed, "The brutalization idea is not one the economists have given any credence." "We must conclude that the deterrence effect dominates the opposing brutalization effect." (15)
Reason, history, common sense and the studies weigh against the brutalization effect.
lX. The incapacitation effect
The incapacitation effect states that executed murderers cannot harm or murder again. Reason dictates that living murderers are infinitely more likely to harm and murder again than are executed murderers.
That obvious logic escapes death penalty opponents who say that we can have foolproof incarceration. What hypocrisy. This is the same group of folks who tell us that our system of justice is so fraught with error that we cannot possibly continue the death penalty. Yet, the facts tell us that living murderers harm and murder again, in prison, after escape and after improper release. Executed murderers do not. In addition, the US death penalty appears to be that criminal justice sanction which is the least likely to convict the factually innocent and the most likely to remedy such rare error upon post conviction review.
Stuart Taylor: "Statistical studies and common sense aside, it's undeniable that the death penalty saves some lives: those of the prison guards and other inmates who would otherwise be killed by murderers serving life sentences without parole, and of people who might otherwise encounter murderous escapees". (16)
Under all circumstances, the execution of murderers will protect innocents at a higher rate than will incarceration.
X. Death Penalty Opponents
Why is it that some death penalty opponents appear to laugh off any potential for a deterrent effect of executions? Because to admit that executions deter some potential murderers would be to admit that, in reaching their goals, they will knowingly benefit murderers at the cost of sacrificing more innocent lives. Of course, opponents will never prove it is not a deterrent and many will admit that executions do deter some.
How many would still oppose executions if they knew that the evidence supported the deterrent effect and that many more innocents are put at risk by not executing?
Stuart Taylor: "So those of us who lean against the death penalty must confront the very real possibility that abolishing it could lead to the violent deaths of unknown numbers of innocent men, women, and children. And those who are still skeptical that the death penalty deters any killings must also confront the risk-benefit calculus suggested by political scientist John McAdams of Marquette University: 'If we execute murderers, and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.' " (17)
Xl. Conclusion
Those of us who support execution do so because it is a just punishment. The moral foundation for all punishments is that they are deserved. One cannot support a punishment based on deterrence alone.
Reason, common sense and history all fall on the side of deterrence. Be it Sweden or Rwanda, Texas or Michigan, Singapore or Chile, England or Japan, whether high crime rates or low, the death penalty will always deter some potential murderers. Regardless of jurisdiction, the potential for negative outcomes will always restrict the behavior of some. And, the weight of the evidence clearly supports execution as an enhanced deterrent.
As Professor Rubin states, "Our evidence is that there are substantial benefits from executions and, thus, substantial costs of changing this policy (18).
We support execution as a just and appropriate forfeiture of lives which deserve to be taken. We also support execution as a just and appropriate method to save lives which deserve to be saved.
1. "EXECUTION MORATORIUM IS NO HOLIDAY FOR HOMICIDES", Dale O. Cloninger and Roberto Marchesini. go to http://www.prodeathpenalty.com/Moratoriums.htm
based on the study "Execution and deterrence: a quasi-controlled group
experiment", Dale O. Cloninger (cloninger@cl.uh.edu), Roberto Marchesini (marchesini@cl.uh.edu), Applied Economics, 4/01, Vol 33, N 5, p569 -- p576
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