A few thoughts on the death penalty

Several occurances in the last week have got me thinking about the death penalty. Miguel Roman should be the new posterchild for abolishing the death penalty. Yes, he wasn’t on death row, but here is a man who spent 20 years in prison for a crime he didn’t commit.

Consider the rush to execution that the pro-death penalty crowd loves to push. Imagine if that was actually the case and Roman was on death row. He’d be dead right now. If my calculations are correct, were Roman on death row, he’d be the longest serving member of that club. And people complain about the length of time the other death row members’ appeals and habeas corpus petitions have taken. Many would have killed them already.

The arbitrariness of the death penalty is also something to ponder. Orin Kerr, over at Volokh, wrote this comment a few days ago:

I suppose I don’t like the idea of living in a world in which our constitutional rights depend entirely on what 9 people think would be a cool thing to do on any particular day: I think our rights should be more grounded and more stable, even if I think I would probably agree with what the 9 people think is cool.

This comment made me pause and reminded me of Justice Berdon‘s dissent in Ross II in 1994:

Arbitrariness also inheres in this court’s decision to resolve this appeal before a majority of the justices of this court have had an opportunity to review the constitutionality of the death penalty. Of the seven justices of the Connecticut Supreme Court, only three are qualified to sit on this case because of disqualifications by the remaining four. Of these three, only two are voting to uphold our death penalty statute. The other two judges who constitute the majority are sitting by designation of the chief justice.

In fact, to this day,14 years later, the entire panel of Supreme Court justices in CT has never considered the constitutionality of the death penalty. And yet it continues to be imposed and applied. Consider that in light of the fact that three US Supreme Court justices (former and present) have changed their views on the death penalty.

Justice Blackmun, dissenting from the denial of cert. in Callins v. Collins wrote:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. 1 Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

Justice Powell, who voted in the majority in McCleskey, soon regretted his vote:

The biographer of Associate Justice Lewis F. Powell, Jr., recently disclosed that Powell confessed the decision he most regretted was his decisive vote to uphold the imposition of the death penalty on Warren McCleskey, whose appeal attacked the racial bias inherent in the administration of the death penalty. 28 According to his biographer, four years after his retirement from the United States Supreme Court Justice Powell said, “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” The New York Times (June 23, 1994) p. A23, col. 1.

Berdon, J., dissenting in Ross II. The lack of any deterrent, the racism in the application of the death penalty, the growing number of exonerations all militate toward abolishing the death penalty.

Those in favor of the death penalty have no real argument other than to poke holes in the constitutional arguments of abolitionists. For there is but one reason to support the death penalty: retribution. If I am wrong, correct me. Why is the death penalty necessary? What purpose does it serve other than to exact revenge?

Since Gregg, the number of states that actually execute inmates has reduced. With the exception of CT, all New England states have abolished or stopped using the death penalty. Perhaps the reluctance to impose the death penalty is gaining momentum. 2008 saw only 37 executions, the lowest since 1994. [Read the DPIC‘s year end report here.]

Because I am not half the jurist that Justices Brennan and Berdon were, I will let them conclude (again quoting from Ross II):

Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose the right to have rights. A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a person for purposes of due process of law and the equal protection of the laws. The destruction of a human being does not become any more humane simply because the state is the executioner. To burn human flesh to death by electrocution or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice.

14 thoughts on “A few thoughts on the death penalty

  1. Dudley Sharp

    You are quite wrong.

    Likely, nearly 200 have been on death row, 20 years or longer, at least as of Dec, 2005, as per the BJS Capital Punishment report.

    Regarding arbitrary and capricious, about 10% of all murders within the US might qualify for a death penalty eligible trial.  That would be about 64,000 murders since 1973.  We have sentenced 8000 murderers to death since then, or 13% of those eligible.  I doubt that there is any other crime which receives a higher percentage of maximum sentences, when mandatory sentences are not available.  Based upon that, as well as pre trial, trial, appellate and clemency/commutation realities, the US death penalty is likely the least arbitrary and capricious criminal sanctions in the  US.

    Yes, the opinions of Powell and Blackmun are relvant, however, the overwheming majority of SCOTUS judges do not share their opinion. Blackmun’s opinions have been sharply and, I think, accurately rebutted.

    Furthermore, there was no reason for Powell to regret his decsion in McCleskey, particulalry in regard to the errors and common misunderstandings of it.

    How numbers are tricking you
    by Arnold Barnett
    MIT Technology Review October, 1994
    The statistics that fill the media are often subtly misleading. Here’s a guide to the most common types of errror.

    NOTE: I have removed most of this article and only retained the section on the death penalty – Dudley


    Fundamental misunderstandings of statistical results can arise when two words or phrases are unwisely viewed as synonyms, or when an analyst applies a particular term inconsistently.

    The Odds of Execution

    A powerful example of the first problem arose in 1987, when the U.S. Supreme Court issued its controversial McClesky v. Kemp ruling concerning racial discrimination in the imposition of the death penalty. The Court was presented with an extensive study of Georgia death sentencing, the main finding of which was explained by the New York Times as follows: “Other things being as equal as statisticians can make them, someone who killed a white person in Georgia was four times as likely to receive a death sentence as someone who killed a black.”

    The Supreme Court understood the study the same way. Its majority opinion noted that “even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”
    But the Supreme Court, the New York Times, and countless other newspapers and commentators were laboring under a major misconception. In fact, the statistical study in McClesky v. Kemp never reached the “factor of four” conclusion so widely attributed to it. What the analyst did conclude was that the odds of a death sentence in a white-victim case were 4.3 times the odds in a black-victim case. The difference between “likelihood” and “odds” (defined as the likelihood that an event will happen divided by the likelihood that it will not) might seem like a semantic quibble, but it is of major importance in understanding the results.
    The likelihood, or probability, of drawing a diamond from a deck of cards, for instance, is 1 in 4, or 0.25. The odds are, by definition, 0.25/0.75, or 0.33. Now consider the likelihood of drawing any red card (heart or diamond) from the deck. This probability is 0.5, which corresponds to an odds ratio of 0.5/0.5, or 1.0. In other words, a doubling of probability from 0.25 to 0.5 results in a tripling of the odds.
    The death penalty analysis suffered from a similar, but much more serious, distortion. Consider an extremely aggravated homicide, such as the torture and killing of a kidnapped stranger by a prison escapee. Represent as PW the probability that a guilty defendant would be sentenced to death if the victim were white, and as PB the probability that the defendant would receive the death sentence if the victim were black. Under the “4.3 times as likely” interpretation of the study, the two values would be related by the equation:
    If, in this extreme killing, the probability of a death sentence is very high, such that PW = 0.99 (that is, 99 percent), then it would follow that PB = 0.99/4.3 = 0.23. In other words, even the hideous murder of a black would be unlikely to evoke a death sentence. Such a disparity would rightly be considered extremely troubling.
    But under the “4.3 times the odds” rule that reflects the study’s actual findings, the discrepancy between PW and PB would be far less alarming. This yields the equation:  
    If PW = 0.99, the odds ratio in a white-victim case is 0.99/0.01; in other words, a death sentence is 99 times as likely as the alternative. But even after being cut by a factor of 4.3, the odds ratio in the case of a black victim would take the revised value of 99/4.3 = 23, meaning that the perpetrator would be 23 times as likely as not to be sentenced to death. That is:
    Work out the algebra and you find that PB = 0.96. In other words, while a death sentence is almost inevitable when the murder victim is white, it is also so when the victim is black – a result that few readers of the “four times as likely” statistic would infer. While not all Georgia killings are so aggravated that PW = 0.99, the quoted study found that the heavy majority of capital verdicts came up in circumstances when PW, and thus PB, is very high.
    None of this is to deny that there is some evidence of race-of-victim disparity in sentencing. The point is that the improper interchange of two apparently similar words greatly exaggerated the general understanding of the degree of disparity. Blame for the confusion should presumably be shared by the judges and the journalists who made the mistake and the researchers who did too little to prevent it.
    (Despite its uncritical acceptance of an overstated racial disparity, the Supreme Court’s McClesky v. Kemp decision upheld Georgia’s death penalty. The court concluded that a defendant must show race prejudice in his or her own case to have the death sentence countermanded as discriminatory.)
     webpage   http://sloancf.mit.edu/vpf/popup-if.cfm?in_spseqno=5&co_list=F 
    email   abarnett@mit.edu

  2. mglickman

    When I took CrimLaw we read Turow’s Ultimate Punishment. I was a firm believer in the death penalty, but the issues he raised, which you mirror in your post, changed my views.

    1. Ryan

      “Ultimate Punishment” cemented my views on the death penalty. Turow makes an excellent case that the death penalty in unconstitutional.

  3. Dudley Sharp

    Unconstitutional? I don’t think so.

    Is the Death Penalty Constitutional? Is this a serious question?
    Dudley Sharp, Justice Matters, contact info below

    Twice, the  5th Amendment authorizes execution.

    (1) “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ” and

    (2) “. . . nor shall any person  . . . be deprived of life, liberty, or property, without due process of law . . . ”.
    The 14th amendment is, equally, clear:

    ” . . . nor shall any State deprive any person of life, liberty, or property, without due process of law . . .”
    Not surprisingly, over 200 years of US Supreme Court decisions support those amendments and the US Constitution in authorizing and enforcing the death penalty.

    Some wrongly believe that the US Supreme Court decision, Furman v Georgia (1972), found the death penalty unconstitutional. It did not.

    The decisions found that the statutory enforcement of the death penalty in the US was a violation of the 8th Amendment.

    Based upon the death penalty being integral within the constitution, through the 5th and 14th amendments, I do not believe it will ever be found unconstitutional.

    [Ed. note: I have deleted the marketing and self-promotion aspect of this comment. The substantive discussion remains.]

  4. Dudley Sharp

    With Turow, the unconstitutional issue is, likley, based upon the actual application of the sanction. He would have a very difficult time supporting his facts, I believe.

    The Death Penalty in the US: A Review
    Dudley Sharp, Justice Matters, contact info below
    NOTE: Detailed review of any of the below topics, or others, is available upon request
    In this brief format, the reality of the death penalty in the United States, is presented, with the hope that the media, public policy makers and others will make an effort to present a balanced view on this sanction.

    Innocence Issues
    Death Penalty opponents have proclaimed that 130 inmates have been “released from death row with evidence of their innocence”, in the US, since the modern death penalty era began, post Furman v Georgia (1972).
    The number is a fraud.
    Those opponents have intentionally included both 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. This is easily confirmed by fact checking.
    Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent — an 83% error rate in for the claims of death penalty opponents. Other studies show their error rate to be about 70%. The totality of reviews points to an 80% error/fraud rate in these claims, or about 26 cases – a 0.3% actual guilt error rate for the nearly 8000 sentenced to death since 1973. 

    The actual innocents were all freed.
    It is often claimed that 23 innocents have been executed in the US since 1900.  Nonsense.  Even the authors of that “23 innocents executed” study proclaimed “We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had.”  While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.
    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 one of the most accurate criminal justice sanctions in the world. 
    Under real world scenarios, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.

    Deterrence Issues
    16 recent US studies, inclusive of their defenses,  find a deterrent effect of the death penalty.
    All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some.  The studies finding for deterrence state such.  Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence.  It cannot. 
    Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware.  Many factors are involved in such evaluations.  Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction — execution — deterred none.  No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some.  Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.

    Racial issues
    White murderers are twice as likely to be executed in the US as are black murderers and are executed, on average, 12 months more quickly than are black death row inmates.
    It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases.  Although blacks and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than black victim murders.  This, so the logic goes, is proof that the US only cares about white victims.
    Hardly.  Only capital murders, not all murders, are subject to a capital indictment.  Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, carjacking, rape, and additional murders, such as police murders, serial and multiple murders.  White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.
    Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.

    Class issues
    No one disputes that wealthier defendants can hire better lawyers and, therefore, should have a legal advantage over their poorer counterparts.  The US has executed about 0.15% of all murderers since new death penalty statutes were enacted in 1973.  Is there evidence that wealthier capital murderers are less likely to be executed than their poorer ilk, based upon the proportion of capital murders committed by different those different economic groups? Not to my knowledge.

    Arbitrary and capricious
    About 10% of all murders within the US might qualify for a death penalty eligible trial.  That would be about 64,000 murders since 1973.  We have sentenced 8000 murderers to death since then, or 13% of those eligible.  I doubt that there is any other crime which receives a higher percentage of maximum sentences, when mandatory sentences are not available.  Based upon that, as well as pre trial, trial, appellate and clemency/commutation realities, the US death penalty is likely the least arbitrary and capricious criminal sanctions in the  US.

    Christianity and the death penalty
    The two most authoritative New Testament scholars, Saints Augustine and Aquinas, provide substantial biblical and theological support for the death penalty. Even the most well known anti death penalty personality in the US, Sister Helen Prejean, author of Dead Man Walking, states that “It is abundantly clear that the Bible depicts murder as a capital crime for which death is considered the appropriate punishment, and one is hard pressed to find a biblical ‘proof text’ in either the Hebrew Testament or the New Testament which unequivocally refutes this.  Even Jesus’ admonition ‘Let him without sin cast the first stone,’ when He was asked the appropriate punishment for an adulteress (John 8:7) — the Mosaic Law prescribed death — should be read in its proper context.  This passage is an ‘entrapment’ story, which sought to show Jesus’ wisdom in besting His adversaries.  It is not an ethical pronouncement about capital punishment.”  A thorough review of Pope John Paul II’s position, reflects a reasoning that should be recommending more executions.

    Cost Issues
    All studies finding the death penalty to be more expensive than life without parole exclude important factors, such as (1) geriatric care costs, recently found to be $69,0000/yr/inmate, (2) the death penalty cost benefit of providing for plea bargains to a maximum life sentence, a huge cost savings to the state, (3) the death penalty cost benefit of both enhanced deterrence and enhanced incapacitation, at $5 million per innocent life spared, and, furthermore, (4) many of the alleged cost comparison studies are highly deceptive.

    Polling data
    76% of Americans find that we should impose the death penalty more or that we impose it about right (Gallup, May 2006 – 51% that we should impose it more, 25% that we impose it about right)
    71%  find capital punishment morally acceptable – that was the highest percentage answer for all questions (Gallup, April 2006, moral values poll). In May, 2007, the percentage dropped to 66%, still the highest percentage answer, with 27% opposed. (Gallup, 5/29/07)
    81% of the American people supported the execution of Timothy McVeigh, with only 16% opposed. “(T)his view appears to be the consensus of all major groups in society, including men, women, whites, nonwhites, “liberals” and “conservatives.”  (Gallup 5/2/01).
    81% of Connecticut citizens supported the execution of serial rapist/murderer Michael Ross (Jan 2005).
    While 81% gave specific case support for Timothy McVeigh’s execution, Gallup also showed a 65% support AT THE SAME TIME when asked a general “do you support capital punishment for murderers?” question. (Gallup, 6/10/01).
    22% of those supporting McVeigh’s execution are, generally, against the death penalty (Gallup 5/02/01). That means that about half of those who say they oppose the death penalty, with the general question,  actually support the death penalty under specific circumstances, just as it is imposed, judicially.
    Further supporting the higher rates for specific cases, is this, from the French daily Le Monde December 2006 (1): Percentage of respondents in favor of executing Saddam Hussein:USA: 82%; Great Britain: 69%; France: 58%; Germany: 53%; Spain: 51%; Italy: 46%
    Death penalty support is much deeper and much wider than we are often led to believe, with 50% of those who say they, generally, oppose the death penalty actually supporting it under specific circumstances, resulting in 80% death penalty support in the US, as recently as December 2006.
    Whatever your feelings are toward the death penalty, a fair accounting of how it is applied should be demanded.
    copyright 1998-2008 Dudley Sharp
    Permission for distribution of this document, in whole or in part,  is approved with proper attribution.
    Dudley Sharp, Justice Matters
    e-mail  sharpjfa@aol.com,  713-622-5491,
    Houston, Texas

  5. Miranda

    In fact, to this day,14 years later, the entire panel of Supreme Court justices in CT has never considered the constitutionality of the death penalty.

    Actually, in Webb in 1996, the full panel did “consider” the constitutionality of the death penalty. However, the court reiterated the analysis in Ross verbatim, so it is less than clear that the court gave the issue genuine consideration. What is true, though, is that only 3 current justices have weighed in on the issue, and two of them believe it to be unconstitutional.

    Regarding justices and judges who have changed their minds about the propriety and constitutionality of the death penalty, Justice Berdon eloquently and succinctly identified what is so troubling:

    “[T]he transformation of the thinking of these [three] justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty.”

    “Because the law evolves continuously as a result of changes in the personnel of the court or as a result of justices who revise their positions,…the imposition of the death penalty has no place in a civilized democratic society.”

    For a great read, you should check out the recent report [pdf] from the Maryland Commission On Capital Punishment, which recommended abolition and Justice Diaz’s dissenting opinion in Doss v. MS.

  6. Miranda

    It is also worth noting that in Gregg v. Georgia, Justices Blackmun, Powell and Stevens were in the 7-justice majority upholding the constitutionality of the death penalty. It’s too bad they didn’t join the ranks of Justices Brennan and Marshall sooner.

  7. Miranda

    81% of Connecticut citizens supported the execution of serial rapist/murderer Michael Ross (Jan 2005).

    Where did you find that number? Quinnipiac polling shows 70%, not 81%.

    Those polled were only 59% in favor of the death penalty generally (when not asked about Ross, who waived appeals and volunteered for execution). When asked about the death penalty vs. life without release, 49% of people favored life, as opposed to 37% who still chose death.

    Also of interest, the CT legislature voted on an abolition bill the winter before Ross’s execution, when news of the impending execution and efforts to halt it were all over the news. The bill was defeated in the House by a vote of 89-60 – only 15 more votes were needed for it to pass. This is hardly evidence of resounding support for the death penalty – even when it involved the execution of a serial killer who waived appeals and accepted death as punishment.

  8. Dudley Sharp

    When asked whether appeals to Ross’ death sentence should be mandatory, or whether he should be allowed to die without further appeal, Connecticut voters say 85 – 9 percent that Ross should be allowed to die.

  9. Pingback: Maryland commission recommends abolition of death penalty | a public defender

  10. vegasquixote

    Mr. Dudley Sharp has no credibility in the criminology community. His arguments are anti-intellectual pro-Death polemics rather than serious discussions on the research. I encourage people interested in Death Penalty research to take the time to review the literature, to look at the extensive and often conflicting research on the Death Penalty.

  11. Dudley SHarp

    To: Dahn Shaulis, aka Vegas Quixote or vegasquixote or theamericaninjusticesystem

    For anyone that takes the time to read the writings I have put together over the years, they would soon realize that your “lazy polemics” description is but a personal attack, not supported by the facts.

    It is unfortunate that you continuously follow me around the web to distribute dishonest and unconstructive posts. Certainly, one would hope, you can do better.

    For example, re the criminologists

    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.” (15) 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.


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