Capital punishment exam 3

New York Police Chief Patrick Murphy

"Like the emperor's new clothes, the flimsy notion that the death penalty is an effective law enforcement tool is being exposed as mere political puffery."

NRC (National Research Council) 2012 Report on "Deterrence and the Death Penalty"

"that research to date on the effect of capital punishment on homicide is NOT informative about whether capital punishment DECREASES, INCREASES, or has NO effect on homicide rates." Reports 3 fundamental flaws that are found in all of the research Recommends that the research "should not influence policy judgements about the DP." Concludes that other reasons for, or against, capital punishment might reasonably affect lawmaker's decisions: "Deterrence is but one of many considerations relevant to deciding whether the DP is good public policy" Did not investigate the MORAL argument for or against the DP or the empirical evidence on whether capital punishment is administered in a nondiscriminatory or consistent fashion" "Nor did it investigate whether the risk of mistaken execution is acceptably small or how the cost of administering the DP compares to other sanction alternatives"

Karl Schuessler- adjacent (contiguous) states

1st to make these types of comparisons. Found 9 of 12 comparable states had lower murder rates in the abolition states. 2.1:3.8

Waldo- L.E. officers killed

2002-2010 DP states had almost 4x as many L.E. officers killed on average. NY- 9 with DP; 0 w/o DP NJ- 1 with DP; 1 w/o DP

Waldo- Comparison of 5 states before and after abolition.

5 out of 6 states (excluding Mass.) had an increase in murder rates after the death penalty was abolished. (Vermont, Iowa, W.V., N. Dakota, R.I., Mass.) Supports deterrence hypothesis (that the death penalty deters murders)

McClesky v. Kemp: Does a statistical study showing racial disparity in DP cases est. an individual's claim of racial bias as a violation of the 8th and 14th Amendments of the Constitution.

5-4 decision with Justice Powell presenting the decision: "Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving 'the existence of purposeful discrimination... (and) the purposeful discrimination 'had a discriminatory effect' on him.." "Statistical studies that show racial prejudice in capital proceedings don't indicate constitutional violations because they fail to prove that the decision makers in a particular case acted with racial prejudice."

"Deterrence and The Death Penalty: The Views of these experts" Michael L. Radelet & Ronald L. Akers; Journal of Criminal Law & Criminology (1996) (2)

86% of pres. think that debates about the DP distract Congress and state legislatures from focusing on real solutions to crime problems, compared to 57% of police chiefs. 0% of pres. believe that DP significantly reduces # of homicides; compared to 26% of police chiefs. 94% of pres. think this statement is inaccurate, compare to 67% of police chiefs think it's inaccurate. No pres. strongly agreed that the DP deterred greater than LWOP, and only 5% agreed; 92% disagreed or strongly disagreed. 94% of pres. said either weak or no support for the belief in a deterrent effect of the DP. 79% of press disagreed that "if executions increase significantly, more homicide would be deterred." Only 18% of pres. agreed "if the period of time on death row was reduced significantly, the DP would deter more homicides." Only 29% agreed that "the presence of the DP tends to increase a state's murder rate, rather than decrease it." This response shows that the group being studied is not just a bunch of bleeding=heart liberals"

McClesky V. Kemp

A statistical study showing racial disparity in DP cases does not est. an individual's claim of racial bias as a violation of the 8th and 14th amendments of the Constitution" - "The fact that there is racial bias in the use of the the DP is not disputed." Importance: Racial bias would need to be demonstrated in each individual case. "Modern day Dredd Scott decision"

Berk (2005) Deterrence supporters (recent econometric studies)

A statistician from UCLA who used the same data set that many of the previous studies used. 50 states over 20 years which produces 1,000 data points (50 states x 20 years = 1,000) Concerned with the statistical problem of "influence" which occurs when a very small and atypical fraction of the data dominate the statistical results. "Badly skewed" "The entire deterrence relationship is created by 11 of the 1,000 observation points. If these 11 are removed there is a counter-deterrent relationship." "for the vast majority of states, for the vast majority of years, there is no evidence of deterrence in these analyses." "U.S. data can not be used to answer the deterrence question"

Ehrlich's critics: Brier and Fienberg

Argue that a RECURSIVE MODEL is more appropriate than a simultaneous equation model, and when the recursive model is used the relationship is not significant. 1934 is an outlier and when it's removed the relationship goes from pos to neg, a counter-deterrent relationship. Ehrlich logged all variable except TIME, when it is logged the relationship is reversed.

Reasons a prosecutor has struck jurors

Black man "shucked and jived" when he walked. Lived in high crime neighborhoods Are unemployed Are single parents "looked like a drug dealer"

Waldo- NJ & NY

Both abolished the death penalty in 2007. NY- 4.6 with DP; 4.2 w/o DP. NJ- 4.7 with DP; 4.1 w/o DP Shows slight counter-deterrent "brutilization" support Conservative statement would be "no meaningful difference"

Waldo- adjacent (contiguous) states (2010)

But, also found 9 of 12 comparing states favor abolition states. 2.8:3.8

Rehabilitation

Changing the offender in a way that makes him less likely to commit a crime in the future

DA, Robert Broussard

Claimed one juror seemed "arrogant" and "pretty vocal" Rejected a black woman b/c he "detected hostility" Also questioned the "sophistication" and ability to make informed decisions of: A former Army sergeant, a forklift operator with 3 years of college, a cafeteria manager, an assembly line worker, and a retired dept. of defense program analyst. Rejected a women who was studying to be a minister, but accepted a white man who was a minister.

Elrich's critics: Klein, Forst and Filatov

Commissioned by the National Academy of Sciences to analyze the Ehrlich study for a national panel that was est. to evaluate the research on deterrence and incapacitation. (Klein won Nobel Prize) Said Ehrlich's theory is stronly contrived and has little relevance for criminal behavior. Said he misspecified his model and omitted several critical variables. Also said that he used a faulty measure for the execution variable because there was a common term in the execution variable and the crime rate variable and the crime rate variable which automatically created a relationship. Agree that log-transformations were unjust.

Zimrin, Fagan and Johnson (2010) "Executions, Deterrence and Homicide: A Tale of Two Cities"

Compare homicide rates between 2 non-U.S. cities that are similar in many ways, Singapore and Hong Kong. Singapore had highest execution rate in the world; Hong Kong abolished the DP MR declined in both cities since 1970 Peak MR for both were less than 3.0, very low rate compared to the U.S. Decline in the Singapore MR began 4 years before the largest spike in execution ('94-'96) DP peaked in Singapore in ('94-96) highest in history (199 executions) When Singapore reduced the # of executions in '03-'07 perioud the # of murders remained low,with a rate < 1.0. MR the same over the past 30 years. Current rates < 1.0. Some deterrence can be found because the lowest MR for Singapore is 1996 when the execution rate was highest.

Donahue and Wolfers (2006) Deterrence Critics (recent econometric studies)

Completed a comprehensive re-analysis of most of the studies mentioned, and found similar problems to those found with Erhlich's study. Minor changes in any of them results in the disappearance of a deterrent effect; and results in a brutalization effect.

Prosecutor training tape

D.A. office release a videotape that in the words of the PA. Supreme Court "denigrated as ridiculous" the goal of selecting a fair and impartial jury and offered "various racial and gender stereotypes... as reasons to discriminate in the selection of jurors"

Conclusions of Baldus' study (used in McClesky v. Kemp) (1987)

DP is 4.3x more likely given in cases where the defendant's victim was white than whose defendants victim were black. Of the 128 cases the DP was imposed, 108- (84%) involved white victims. Prosecutors sought the DP in 70% of cases with black defendants, and only 32% of cases when both the defendant and victim were white.

Incapacitation

Death penalty Banishment Imprisonment Temporary- Handcuffs, leg shackles, straight jacket. (Sometimes referred to as structural or physical prevention)

Sellin (1967)

Death penaltyvs abolition and police murders No significant difference "it would appear that the DP does not deter the murder of police officers" 2nd study (using contiguous states) (140 officers killed) 9 in 6 abolition states (1.5 per state) 21 in 9 contiguous states (2.3 per state) 110 killed in other 35 DP states (3.1)

Samuelson study (1969)

Delaware murder rates before, during and after abolition. DP was abolished in Delaware from 58-61 Before- 22.8 During- 13.8 After- 17.5

"Deterrence and The Death Penalty: The Views of these experts" Michael L. Radelet & Ronald L. Akers; Journal of Criminal Law & Criminology (1996)

Experts: One who has been recognized by his/her peers by being elected to the highest office in a scholarly organization. Using their "expert" definition they selected all current and former living presidents of the three major Criminology, criminal justice and law associations: American Society of Criminology (ASC); Academy of Criminal Justice Sciences (ACJS); Law and Society Association (LSA) They located 71 presidents or former presidents of the 3 associations and sent a questionnaire to each of them. 67 of the 71 completed; 96% return rate (extremely high) Asked not to respond on personal opinion and to respond entirely on the "basis of their knowledge of the literature and research in criminology" Some ?'s seemed awkward b/c they wanted to use some of the exact questions that had been used on previous polls so that some comparisons could be made. Only 12% of criminology presidents said that DP acts as a deterrent. 87% of criminology presidents say "no significant effect on MR; 46% of general public say "no significant effect" 79% of pres. don't think states with the DP had lower murder rates than neighboring states which didn't have the DP; only 37% of public thought this. 100% of pres. believe politicians support DP to symbolically show that they're tough on crime; only 85% of police chiefs believe this.

General deterrence

Fear of punishment to the public Judges make examples of criminals

Specific deterrence

Fear of punishments effects recidivism

NRC (National Research Council) 2012 Report on "Deterrence and the Death Penalty" 3 fundamental flaws

Flaw 1: The studies did not account for the effects of noncapital punishment that may also be imposed. Flaw 2: The studies se incomplete or implausible models of potential murderers' perceptions of and response to the use of capital punishment. Flaw 3: Estimates of the effect of capital punishment are based on statistical models that make assumption that are not credible.

Other Early deterrence studies

Forst- study using 6 different models and does not find a deterrent relationship Passel- Cross-sectional study and finds more support for a counter-deterrent effect. Kleck- Study including gun ownership variable and finds no support for deterrence. Knorr- Very sophisticated study and found no support for deterrence.

Waldo- adjacent (contiguous) states (1996)

Found 6 of 10 comparing states favor abolition states 3.2:4.7

Waldo- adjacent (contiguous) states (2000)

Found 7 of 10 comparing states favor abolition states. 2.7:3.4

Waldo- adjacent (contiguous) states (2005)

Found 8 of 10 comparing states favor abolition states. 2.7:3.5

Ehrlich's critics: Bowers and Pierce

Found the relationship was only found in the log-linear transformed data and that it only applied to the years he selected.

4 ways utilitarian philosophers say punishment can reduce crime:

General deterrence Specific deterrence Incapacitation Rehabilitation

Isaac Ehrlich

In 1975 he published the first sophisticated multivariate study of deterrence and the DP. Has dominated the research on this topic ever since. Concluded that there appeared to be a deterrence effect. Said that one more execution per year might result in 7-8 fewer murders per year. Unit of analysis- 1933-1969; entire US pop. Used two-stage least-squares regression analysis with time-series aggregate data on executions and homicide. Used long list of variables. Did not use the actual numbers, but converted all variables (except "time") into logarithms. In the regression model, the coefficients are interpreted as "elasticity's" An elasticity indicates the % of change in murder rate that can be expected from 1% change in execution rate Highest elasticity was -.068 For every 1% increase in executions; there should be a .068% decrease in murder rates.

Mocan and Gittings (2003) Deterrence supporters (recent econometric studies)

In a large study of death sentences said that each execution save 5 lives and that each inmate removed from death row added a murder.

Batson v. KY (1986) Question: Does the equal protection clause forbid the use of peremptory challenges based solely on race?

Justice Powell presents 7-2 decision "... a State denies a black defendant equal protection when it puts him on trial before a jury from which member of his race have been purposefully excluded, is reaffirmed." Equal protection clause guarantees that jurors will not be removed on account of race or false assumption that they aren't qualified. Also discriminates against the excluded juror (right to serve on jury) Decided that lawyers must provide nonracial reasons for their strikes.

Dezhbakhsh and Shepard (2006) Deterrence supporters (recent econometric studies)

Looked at the impact of the Illinois and Maryland moratoriums and said that executions deterred murder and that murder rates increased substantially during the moratoruims.

Lynch and Haney (2000)

Mock jury studies have found that white jurors are more likely to impose the death penalty when defendants are black rather than white and that these jurors tend to supply "stereotype-consistent" justification for their sentences.

Waldo- New Mexico (2009)

Most recent state to abolish the DP. (2009) 2008- 7.2 2009- 9.9 2010- 6.9 Best interpretation- no difference.

Looking DeathworthyL Perceived Stereotypically of Black Defendants Predicts Capital-Sentencing Outcomes" (2006)

Pictures of people who had been on trial for capital murder were shown to subjects and asked to rate each person on how "stereotypically black" they were. Subjects did not know they were real people who had been on trial for murder. "The results confirmed that, above and beyond the effects of other variables that were controlled, defendants whose appearance was perceived as more stereotypically black were more likely to receive the DP than those who were "less" stereotypically black" 24% "Less" black received the DP 58% "more" black received the DP (if the victim was white) "Defendants who were perceived to be more stereotypically black were more likely to be sentence to death only when their victims were white"

Barkan and Cohn (1994)

Previous research has suggested that racial attitudes might play some role in white support for the death penalty. Our analysis has subjected this claim to a relatively stringent test, and the result has been a striking confirmation of the racial hypothesis.

Batson v. KY (1986)

Prosecutor used his peremptory challenges to strike all four black persons on the venire. Defense counsel moved to discharge the jury on the ground that the removal of the blacks was a violation of the petitioner's rights under the 6th amendment (jury drawn from a cross section of the comm.) and under the 14th amendment of equal protection. Supreme court held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.

McCleskey v. Kemp (1987)

Robbed furniture store, when white officer showed up he was shot. McCleskey confessed when arrested for another charge. Identified by one of his accomplices as the individual who killed the officer. Defense was that blacks convicted of murdering whites received the DP much more frequently than whites. Used a study from Baldus- sample 2,484 murder cases in 6 years, using 230 variables.

Prosecuting attorney Richard Gernstein

Said "capital punishment certainly deters murderers from committing more murders" Was referring to incapacitation rather than deterrence

Dezhbakhsh, Rubin and Shepard (2003) Deterrence supporters (recent econometric studies)

Said each execution would prevent 18 murders.

Joanna Sheppard; "Deterrence versus Brutalization: Capital punishment's differing Impacts Among States"

Shepard notes that in general, studies using the entire U.S. find a deterrent effect and those that use states, cities, counties or other populations fail to find a deterrent effect. Wants to remedy this by looking at the national level relationship and then at the relationship separately in each state with the same data. There is a negative (deterrent) relationship in 6 states, no relationship in 8 states, and a positive (counter deterrent or "brutalization") relationship in 13 states. "Threshold effect" - states with <9 executions, increase murders; states with >9 executions reduce murder. Estimates that in the deterrence states approx. 336 lives will be saved every year. In the brutalization states 268 innocent lives will be lost every year. "1st execution will always have "brutalization" effect. "every execution has both a 'brutalization' and a deterrent effect" Recommends that states with no deterrent effect should abolish because innocent lives are being lost

Waldo (1990-2010)

Showed death penalty states having higher murder rates. (Years used- 1990, 1995, 2000, 2005, 2010)

Karl Schuessler (1952)

Showed murder rates being higher in states with the DP (Years used- 1928, 1933, 1938, 1943, 1949)

Cloninger and Marchesini (2006) Deterrence supporters (recent econometric studies)

Studied the moratorium in Illinois as well as the commutations of the death row inmates and said these actions resulted in 150 murders.

Facts

The death penalty can not serve as a specific deterrent or rehabilitation. May serve as a general deterrent and incapacitation. Few homicides in prison are committed by LWOP inmates, and virtually no escapees who murder are LWOP cases. For before & after studies of abolition murder rates, the more years the better?

Baldus study as Reported in McClesky v. Kemp (1987)

The effects of race are not uniform across the spectrum of homicide cases. As expected, least aggravated cases, very few defendants are sentenced to death regardless of race. And Vice-versa. Mid-range cases that race has it's greatest influence. In mid-range cases DP is imposed on 34% of killers of white victims and 14% of the killers of black victims. "In other words, 20 out of 34 defendants sentenced the Dp for killing a white victim wouldn't have received the DP if their victims were white.

Brutilization

This is another term that refers to a counter-deterrent effect and it can be contrasted with General and Specific Deterrence. Instead of specific deterrence an offender is said to have been ______ by the punishment received so that they commit future crimes. Instead of general deterrence people are said to have been ____ by the punishment that others received, or they lost respect for authority, causing them to commit crimes. _____ can also refer to a case when someone murders in order to be executed.

Purkett v Elam

Unfortunately, the reason doesn't have to be persuasive or even plausible for a lawyer to strike jurors. Struck jurors for long hair and facial hair. Up to the judge to decide if there was deliberate discrimination. In this case judge ruled permissible and the supreme court did the same. "Gutted" Batson v. KY.

Shepard (2004) Deterrence supporters (recent econometric studies)

Used a panel data set that used 3,054 counties from 1977-1996. She concluded that each execution would prevent 5 murders.

Counter deterrence

When crime increases rather than decreases after a punishment has been applied. Anything that increases crime after the punishment Retaliation because an offender was punished. The major form of this is frequently called "brutalization"

Elrich's critics

When modified replications were made deterrence results disappeared and in some cases counter-deterrence ("brutalization") results were found.

Persons executed for interracial murders in the U.S. since 1976.

White defendant/ Black victim (19) 7% Black defendant/ White victim (256) 93%

Race of defendant's executed for murder in the U.S. (1930-1967)

White- 1664- 49.91% Not white- 1670- 50.09

Race of defendant's executed for rape since 1930

White- 48- 10.55% Not white- 407- 89.45%

Elrlich's supporters

Wolpin- did a study in England that showed each execution would prevent 4 murders. Yunker- Said Elrich misinterpreted; each execution would prevent 156 murders. Cloninger- found that each execution would prevent 560 murders. Only in non-southern states.

44%; 41%

____ of the death row population are white. _____ of the death row population are black.

77%; 15%

____ of victims when offender was executed were white. ____ of victims when offender was executed were black.

Elrich's critics: Passel and Thomas

found that counter-deterrence effects were obtained when LINEAR DATA were used, deterrence was only found when the data were converted to logarithms, said the use of LOGARITHMIC TRANSFORMATIONS WERE UNJUST. Also found when the years '62-'69 were removed deterrence was not found.

Suicide by Governor

used by John Blackwelder who killed an inmate in a Florida prison so he could be executed in 2004. Blackwelder was a "volunteer" in that he dropped all of the appeals on his behalf.