On June 25, 2008 the Supreme Court decided Kennedy v. Louisiana, holding that the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child. On April 16, 2008, the Supreme Court decided Baze v. Rees, a case considering the constitutionality of Kentucky's method of lethal injection. The Court upheld Kentucky's lethal injection protocol, which is fairly close to the protocol used in 36 states and by the federal government. In light of the important death penalty questions considered this term, a panel of experts-- Former Chief of the Appellate Division in the U.S. Attorney's Office, Eastern District of Virginia Bill Otis, the Northern California ACLU's Director of Death Penalty Policy, Natasha Minsker, the Legal Director & General Counsel, Criminal Justice Legal Foundation, Kent Scheidegger, and University of Houston Law professor David Dow --discuss the legal and moral implications of capital punishment.
Questions and Answers:
Bill Otis: From wire reports, August 24, 2007:
"A Florida judge sentenced John Evander Couey to death Friday for the kidnap, rape and murder of 9-year-old Jessica Lunsford.
"Couey, a previously convicted sex offender, buried Lunsford alive in two black trash bags with her hands bound and her favorite purple stuffed dolphin tucked in her arms, Circuit Judge Richard Howard said. Lunsford's body was found in a grave in Couey's yard about three weeks after she disappeared.
"'He secured her fate with a second bag,' Howard told the court.
Howard called the murder 'cold and calculated,' causing a 'slow, suffering and conscious death.'"
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It's often said in the debate over the death penalty that "death is different." Indeed it is. Jessica Lundsford's was very different.
It is, or was, a commonplace in criminal law that the punishment should fit the crime. It is a related commonplace -- in every discussion except the one about the death penalty -- that the punishment should reflect the facts of the offense. But abolitionists tell us, not only that there is no set of facts about offense behavior that would warrant our keeping capital punishment, but that in addressing that question, no set of facts can even be considered.
The movement to end the death penalty is distinctive not only in its intentional obliviousness to the facts of the crime, but in its ahistorical and elitist character. The Framers explicitly contemplated death as a punishment, and in the early days of the Republic, it was applied to more crimes and with fewer safeguards than today. Of the 112 Supreme Court justices in the nation's history, only four (Brennan, Marshall, Blackmun and Stevens) have taken the view that the death penalty is per se cruel and unusual punishment. It has been not only supported but used by Presidents from Bill Clinton to Dwight Eisenhower, Franklin Roosevelt and Abraham Lincoln. It is currently approved by more than two-thirds of the public.
A stunningly broad and longstanding consensus in favor of the death penalty -- one that includes Lincoln and more recent figures like Sandra Day O'Connor and Lewis Powell -- does not make it right. It does, however, oblige the abolitionist side to establish overwhelmingly that it's wrong. Readers will have the opportunity to judge for themselves whether the able abolitionists in our debate have done so. At the outset, however, let me address what I view as the most compelling argument on their side, and the most compelling argument on mine.
The abolitionist argument that, I believe, gives most people pause is the observation that, because of errors and biases in the system, an innocent person might be executed, and if that happens, there's no going back.
No honest person can deny that possibility. But the "evidence" that such a thing has actually happened in anything like recent times simply does not exist (see, e.g., Justice Scalia's concurring opinion in Kansas v. Marsh). There is no case accepted by any neutral and authoritative source for at least 40 years that we have executed an innocent person. There have been some exonerations from death row, true. But mere erroneous convictions are not the moral engine of abolitionism, and are impossible to avoid in any alternative system, including the one abolitionists most frequently suggest (life without parole). Murders by incarcerated killers are also impossible to avoid, and in fact have happened by the dozen, because prisons are at least as fallible as courtrooms.
Accordingly, the fact of fallibility does not, as abolitionists frequently argue, mean that the death penalty must stop. It means that we must choose which fallibility is likely to kill the smaller number of innocent people -- prison errors or judicial ones. Not surprisingly, the factual record is unambiguous as to which kind of error is actually the most lethal to the innocent.
And none of this is to speak to the deterrent effect of the death penalty. Deterrence undoubtedly will be the subject of future entries here. Suffice it to say for now that a spate of studies over the last few years, by independent researchers with no axe to grind, has found almost uniformly that the death penalty saves lives, even while reaching varying conclusions on its exact quantitative effect.
There are differing views about the most compelling argument in favor of capital punishment, but for me it is this: The United States and its people have earned the right to say "no" and mean it. I do not see the land that abolitionists decry, a land so blackened with racism and class-structure that we lack the moral authority even to execute child killers. At the center of abolitionism is a deep and paralyzing moral skepticism about the country, a reservoir of distrust about its basic fairness and decency. Abolitionism is the domestic first cousin of what in foreign affairs is called "Blame America First." In this recounting, it's not John Couey who's really responsible for raping and murdering a nine year-old. It's us. We failed to treat Couey's problems, failed to rehabilitate him, failed to give him a job, failed in our caring, failed in our compassion.
Blame America First.
I don't think so. I don't think the jury that gave Couey death consisted of a bunch of Rotary Club monsters. I don't think the country where those jurors live is barbaric, or backwards, or morally indifferent. The jury knew evil when it saw it, and had the wisdom and, properly, the power, in that instance, to bring it to a permanent end. Elite opinion to the contrary, the next jury facing the next Couey should have the same chance.
Natasha Minsker: When it comes to public safety, we all have the same goals. We want to live in safe communities, where people are treated equally and have the freedom to pursue their dreams. We want our children to grow up safe and healthy, with the best education, so that any child, no matter how poor, can grow up to be president.
Unfortunately, our criminal justice system fails to achieve these basic goals. Too many communities are plagued by too much violence and too often, these communities are predominately poor. In my state of California, the majority of homicides are not even solved. In the county where I live, three out of four killers continue to walk the streets. We are falling far short of our basic public safety goals.
The reality is that the death penalty makes it more difficult for us to achieve these goals. The death penalty costs millions more than the alternative of condemning the worst offenders to permanent imprisonment. The death penalty costs more because of the protections needed to ensure that we do not execute an innocent person. Since 1973, 129 innocent people have been freed from death rows in the U.S. Death penalty cases also require additional safeguards to ensure that we do not execute someone because of such factors as race, poverty or mental illness. Finally, many procedural safeguards are needed to protect the interests of the prosecution. For example, someone who opposes the death penalty is not allowed to serve on a death penalty jury. As a result, jury selection is incredibly time consuming and expensive in death penalty cases.
Having the death penalty means paying more, much more, indeed hundreds of millions more. That means real world tradeoffs. Prosecutors frequently say “you can’t put a price on justice.” But those of us who pay their salaries—the taxpayers—know all too well that there is simply not enough money for all of our public safety needs. Choices must be made.
If our goal is to protect innocent people from homicide, then we would be better served if we spent our scarce resources to catch more killers. If a person thinks he or she can “get away with murder,” that person is more likely to kill than a person who believes it is almost certain he or she will be caught, regardless of the punishment. But even more effective at reducing homicide is education. Fight Crime, Invest in Kids—a law enforcement group—concluded that a 10% increase in high school graduation rates would result in 500 less homicides every year in California.
I understand the view that some people deserve to die for their crimes. Much more important, I believe the rest of us deserve to live and that we deserve to live in safe communities. Replacing the death penalty with permanent imprisonment will bring us closer to that goal by allowing us to invest scarce resources in truly effective public safety programs.
Bill Otis: Natasha argues that the death penalty is too expensive, certainly compared to the costs of life without parole (LWOP), and that we would be smarter and safer if we used the money currently invested in seeking capital punishment for more effective police work and other public safety programs. I would make several points in response.
1. Those who do their best to drive up the cost of capital prosecutions by filing multitudinous motions, including numerous eve-of-execution motions, are not ideally positioned, in a debate of this kind, to try to leverage the expenses they do everything they can to balloon. Moreover, the majority of these motions are not designed to make sure we have the "real killer;" to the contrary, motions contesting factual guilt are by far the exception, not the rule. The procedure-oriented motions that actually get filed are mostly devoid of merit, and, with all respect, more than a few are just gaming the system.
2. While I'm happy to see a representative of the ACLU speak up in favor of expanded police power to help keep us safe, I have some trouble reconciling that with the more typical ACLU position, which is that even the present extent of police power is excessive if not affirmatively dangerous.
3. I am no expert on the finances of either capital punishment or imprisonment, but I believe there is room to question the undocumented assertion that death penalty litigation costs more, and perhaps vastly more, than LWOP. If a murderer is imprisoned at 30 and dies at 70, the taxpayers will be on the hook for 40 years of incarceration. With the elaborate additional security that will be needed for inmates of this type -- killers who'll know they have nothing but canteen privileges to lose by doing it again -- the costs of 40 years' imprisonment are certain to be enormous.
4. Assuming arguendo that capital litigation does indeed cost substantially more than LWOP, however, the question whether it's worth the candle is for the taxpayers to decide. It is well known that these prosecutions are costly (well known because abolitionists make sure that it is). Despite this, public support for the death penalty is overwhelming, and has grown over the last few years from slightly less than two-thirds to slightly more.
5. The centerpiece of the argument -- that we are safer without capital punishment and its costs than with it -- is demonstrably incorrect. Indeed, recent history proves beyond sensible dispute that we are more secure when executions are carried out and more endangered when they are not.
In the late sixties and seventies, the United States had a virtual moratorium on executions. From the end of 1965 through 1980, there were only six of them. Over that same 15-year period, the murder rate DOUBLED. It rose from 5.1 murder victims per 100,000 to 10.2. The number of murders in 1965 was slightly less than 10,000; the number in 1980 was 23,040 -- an increase of somewhat more than 13,000 murder victims.
When the moratorium petered out and executions began again in significant numbers, a very different picture emerged. In the 15-year period from 1991 to 2005 (inclusive), there were 861 executions. In that same period, the murder rate dropped from 9.8 to 5.5 -- a decrease of 44%. The number of murder victims decreased from 24,700 to about 16,200. In other words, with the end of the moratorium and the resumption of executions, there were more than 8000 fewer murder victims in a single year. To my knowledge, no one has claimed, much less shown, that funneling more money to the police will result in anything approaching that improvement.
Of course it may well be that circumstances in addition to the resumption of capital punishment contributed to the precipitous decline in the murder rate. But to say that we would be safer by eliminating the death penalty simply blinks the reality of the last 40 years.
Kent Scheidegger: It is simply not true that, "The death penalty costs more because of the protections needed to ensure that we do not execute an innocent person." The marginal costs of the death penalty -- the difference between what we spend on a capital case over what we would spend if the same case were not capital -- have very little to do with insuring we have correctly identified the perpetrator. Indeed, the death penalty would probably cost less than life-without-parole if we did them both correctly.
The Supreme Court has created a host of pseudoconstitutional rules for capital cases under the rubric of "death is different," but not a single one of them applies to the guilt phase of the trial. These rules all apply to the bifurcated penalty trial that follows the verdict of guilt. Many jurisdictions provide a second lawyer for capital defendants, though this is not constitutionally required, but the second lawyer typically concentrates on the penalty phase as well.
The largest additional expense at trial comes from the Supreme Court’s decision in Lockett v. Ohio, 438 U.S. 586 (1978), that the state must allow consideration in the penalty phase of any circumstance the defendant proffers as mitigating. This requirement has morphed into a requirement of an exhaustive psychosocial analysis of the defendant’s entire life. The requirement is a complete fabrication. Nothing like it was known to the law at the time the Eighth Amendment was ratified or at the time the Fourteenth Amendment, which supposedly incorporates the Eighth, was ratified. The simple answer for this added trial expense is for the Supreme Court to recognize that it grievously erred in Lockett and overrule it.
In the review of the case, the biggest difference in expense is that the federal government and almost all states provide appointed counsel on collateral review for capital defendants. Issues relating only to penalty and having nothing whatever to do with identity of the perpetrator consumes the bulk of these collateral proceedings. Persons sentenced to life-without-parole have appointed counsel as a matter of right only for direct appeal. They may or may not get appointed counsel for collateral review.
We have the priorities backwards here. A death-sentenced murderer whose guilt is certain gets a taxpayer-paid lawyer to argue about whether he will get the penalty he deserves as a matter of justice or whether he will be given mercy and let off with something less than he deserves. Meanwhile, a person sentenced to life-without-parole who has a colorable claim that he is actually not a murderer may go unrepresented on collateral review. He may have a longer time to prove his innocence than a person sentenced to death, but with no resources to do so he will very likely die in prison.
Whatever we need to spend to be sure we have the right person in a capital case, there is no moral justification for spending a penny less in a life-without-parole case. For all issues unrelated to guilt, we don’t need to spend as much as we presently do. A single review of those issues on direct appeal or state habeas is all that is needed.
So long as we are looking at things in economic terms, we should also consider the dollars that would be saved if the death penalty were carried out correctly. In the typical capital case with no serious question of guilt, all reviews can and should be completed in five years, and the judgment, if affirmed as most should be, should be executed at that time. Decades of incarceration cost would be saved. The escalating cost of medical care for aging inmates would be saved. Taking these savings together with the reduced difference between death and LWOP cases if we did both correctly, the death penalty would not cost significantly more and would probably cost less.
Bill Otis: I would add a few thoughts to what Kent has said.
At the outset, to use cost as the opening attack on the death penalty has an odd quality to it. Suppose the data showed that death penalty litigation was less expensive overall than life without parole. Would anyone then say that we ought to impose death sentences as a means to save money to use in improving schools or police work? To ask the question is to answer it.
I suspect that the reason support for the death penalty has increased even as its costs become better known is that people understand that expense cannot be the controlling factor where the stakes are this high. Indeed, even among death penalty opponents, expense is not a primary, or even much of a secondary, reason for their position; a 2003 Gallup poll found that expense was not cited often enough by opponents to warrant a separate category (and therefore got lumped in with "other reasons for opposing").
Kent also makes the point that much of the expense -- if not almost all of it -- has nothing to do with factual guilt or innocence. It is instead devoted to an exploration of the defendant's psyche, in the hopes that something will turn up that can be used in mitigation. The quest for some newly-minted "syndrome" can and does go on for years, and the quality of the evidence that eventually gets adduced, if any, is, to put it charitably, open to question. Not for nothing has the phrase "Twinkie Defense" become a marker of the razzle-dazzle junk science that tends to surface in these pysche-plumbing explorations. "Urban Survival Syndrome" is another. For the uninitiated, "victims" of "Urban Survival Syndrome" are, for example, gun-toting enforcers of the local drug dealer's turf. When I was in law school, these people were known by a less sophisticated name, i.e., "thugs."
Lastly, I suspect Kent may be questioned about his proposed five-year limit on post-judgment review in cases where there is no serious question about guilt. But the problem in the system is not that post-judgment review is, or is about to become, too short. The problem is that it is scandalously long. The average interval between the imposition of a death sentence and its being carried out is now close to 12 years. Having litigated many cases in the United States Attorney's Office, I can say with assurance that it does not take 12 years to find out whatever needs to be known to bring a criminal case to an end. Still less does it take 20 years, which is the average in California.
The real purpose of these delays is simply to run the clock. Having failed to convince either the electorate or the judiciary that the death penalty should end, opponents have settled on a strategy of stealth abolition, in which capital punishment remains on the books but is interminably delayed, if not nearly impossible to enforce as a practical matter. Hence the "moratorium movement," which is designed to produce a "moratorium" with no ending date.
A society with decent respect for its own law wouldn't buy it. Whether our society will remains to be seen.
Bill Otis: The Roger Keith Coleman Innocence Hoax
In his testimony before the Senate Judiciary Committee, Marquette University Professor John McAdams demonstrated the tendency of even prominent death penalty opponents to make florid if not entirely well-founded claims about innocent people being executed. As Professor McAdams noted, in those instances in which these claims have actually been tested, the results differ from what was advertised.
Professor McAdams' testimony pointed in particular to "the case of Roger Keith Coleman, who was tried for a rape/murder, and finally executed by the State of Virginia in 1992. An essay still on the site of the Death Penalty Information Center [14 years later] discusses the case at considerable length, and clearly leaves the impression that Coleman must [have been] innocent. After attacking all the evidence against Coleman, the essay claims that 'official misconduct that has left the case against Roger Coleman in shreds' and goes on to claim:
'. . . there is dramatic evidence that another person, Donney Ramey, committed the murder. For one thing, a growing number of women in the neighborhood have reported being sexually assaulted by Ramey in ways strikingly similar to the attack on Wanda McCoy. For another, one of these rape victims, Teresa Horn, has courageously signed an affidavit stating that Ramey told her he had killed Mrs. McCoy.'
"Someone reading the Death Penalty Information Center website, and lacking due skepticism toward the assertions there, would doubtless conclude that Coleman was innocent. Unfortunately, the State of Virginia undertook DNA testing of key evidence in 2005, using technology unavailable in 1992, and proved decisively that Coleman was in fact guilty as charged. The credibility of anti-death penalty activists when making claims of innocence – whether for those on death row or those who have been executed – is tenuous at best."
For whatever problems Professor McAdams may have found with abolitionists' credibility, however, there are none with their PR prowess. For more than a decade, Coleman was the poster-boy of abolition. Around the time of his execution, "his picture was on the cover of Time magazine ('This Man Might Be Innocent. This Man Is Due to Die'). He was interviewed from death row on 'Larry King Live,' the 'Today' show, 'Primetime Live,' 'Good Morning America and 'The Phil Donahue Show.' " Frankel, Burden of Proof, Washington Post, May 14,2006, pp. W8, Wll. Even one Supreme Court Justice, in an opinion filed shortly before the execution, cautioned that "Coleman has now produced substantial evidence that he may be innocent of the crime for which he was sentenced to die." Coleman v. Thompson, 504 U. S. 188, 189 (1992) (Blackmun, J., dissenting).
To its credit, the DPIC now has a three-paragraph disclaimer at the front of its (still posted) 31-page article about Coleman and other cases in which it claims that innocent people are more-or-less routinely condemned by corrupt police, dishonest prosecutors and morally brain-dead juries. Oddly, though, the disclaimer ends with this: "Peter Neufeld, co-director of the Innocence Project, praised the governor's decision to allow the testing and noted that, 'The real issue is not whether one man was in fact guilty or innocent, it's rather that he set the example of what the other 49 governors should do.'"
I cannot agree. When, in order to erode public support for the death penalty, abolitionists choose to mount a years-long, major media campaign to show that a particular executed prisoner was innocent, the "real issue" is -- with all respect -- whether he was innocent. Coleman wasn't. And so far as evidence accepted by any neutral arbiter establishes, neither was any other prisoner executed in the modern era.
Natasha Minsker: I am glad to see that we agree on a few basic points: (1) the death penalty costs substantially more than condemning offenders to permanent imprisonment, and (2) policy makers need to decide if it is worth the price. The problem is that most policy makers, including voters, have the basic facts wrong.
Most people do not know that we have the alternative of condemning the worst offenders to permanent imprisonment. Permanent imprisonment is a certain, swift and severe punishment. In California, we have more than 3,600 people serving this sentence. All of them will die in prison in the same way that nearly everyone on California’s death row will die, from disease or old age. The past 30 years have proven that California can effectively remove dangerous individuals from our streets and keep them in secure facilities where they cannot harm anyone. The costs of this high security housing is $90,000 less than the cost of housing for each individual on California’s death row. That alone adds up to a difference of $63 million in California. As noted by Mr. Scheidegger, when someone is condemned to permanent imprisonment, the appeals process is generally limited to one appeal which is usually completed within 18 months. Permanent imprisonment thus does not result in years of litigation as the death penalty always does.
Most people also do not know that the death penalty costs more and will always cost more. Thirty years ago, when the Supreme Court allowed states to resume death sentencing, we had no idea what would be required. Advances in technology mean that DNA evidence can exonerate an innocent individual. But DNA does not find itself and it does not test itself. Experienced investigators and scientists are needed. Advances in medical science have also enhanced our ability to identify individuals with severe mental illness. But this requires the services of experts and brain imaging scans.
Little attention has been given to the high costs of death penalty cases to prosecutors and law enforcement. In the Scott Petterson case, prosecution staff logged more than 20,000 hours. 33 employees worked on the case, including five attorneys and seven investigators. As a result of the increased workload, the prosecutor’s office was forced to reduce work on other cases. Other California district attorneys have been required to hire additional attorneys, investigators and support staff because of the increased work caused by death penalty cases. Likewise, Sheriffs and local law enforcement report that the increased work required by death penalty cases has forced them to pay millions in overtime, hire additional staff, or reduce services in other areas.
Mr. Sheidegger and Mr. Otis seem to think that they can speed up the death penalty process and reduce the costs, all while maintaining the high quality justice that Americans demand. Yet, the past 30 years have proven that they cannot deliver on that promise. In contrast, 30 years of experience have shown that we can quickly and efficiently condemn the worst offenders to permanent imprisonment. Promises of change versus proven experience. Which would you choose?
David Dow: I think it would be useful if death penalty debates could avoid sinking into two distracting morasses, both of which have been dredged up by Mssrs. Otis and Scheidegger. The first is innocence. I have spent a lot of time arguing with my friends in the abolitionist community about whether it is morally or tactically wise to try to win the death penalty debate by calling attention to error. But one thing I do not disagree with them about is this: You would have to be the most naive -- or disingenuous -- person in America to think that we have not executed even a single innocent person. As I say, I think innocence is a distraction, and so I will not here recite the list of executed men who were more likely innocent than not. My only point is that spending several hundred words talking about Roger Coleman hardly establishes that no one innocent has been executed. We can say with confidence that no two snowflakes are exactly alike even though we have not yet seen every snowflake. The death penalty is part of a human criminal justice system; human beings err; ergo, the death penalty will occasionally err. It's really that simple.
Now I can understand why a death penalty supporter -- Justice Scalia comes prominently to mind, so does former Florida Congressman McCollum -- would support capital punishment notwithstanding the occasional loss of an innocent person. But someone who stubbornly denies the risk of error is just not being honest. If your argument in favor of capital punishment is that we have not and never will execute an innocent person, then you've lost the debate.
Second, I understand why death penalty supporters spend so much ink and emotion recounting the horrific crimes carried out by murderers. It's the same reason that lawyers representing the state do it in death penalty appeals, and the samereason the courts of appeals, and the Supreme Court as well, do it in their opinions: because when someone hears about the intimate details of a crime like John Couey's, and the unimaginable suffering experienced by his victim, young Jessica Lunsford, it's hard to care about constitutional rights or legal procedures. I've known murder victims, and I've known family members of murder victims, and I suspect I feel the retributive impulse about as powerfully as anyone. My wife and I have a 7-year-old son -- a beautiful boy less than two years younger than Jessica was when Couey murdered her -- and I neither know nor represent John Couey, so it is pretty easy for me to feel anger and disgust and vengeance. Death penalty supporters routinely ask me how I would feel if a murderer injured my wife or our son. I say that I'd want to tear him limb from limb. I don't think there's anything wrong with that. I feel it sometimes even toward the men I do represent.
But I do not understand how any of those feelings have anything to do with whether the state ought to kill murderers. Society exists for one reason: to keep us safe. It already failed Jessica Lunsford. In a sense, it has failed every murder victim. But the question is whether it makes us safer when it executes the people who have already killed. The answer to that is "no." Economics apart (and I suppose it goes without saying that I think Ms. Minsker is absolutely rights on the balance sheet of LWOP versus death), the state keeps us safest when it locks murderers up.
Bill Otis: Mr. Dow argues that the death penalty debate would be more useful without two "distracting morasses," to wit, the dispute about the possibility that innocent people have been executed, and an exploration of the facts of the offenses for which criminals have been sentenced to death.
Let me take them in reverse order.
In no other context of which I am aware is it said that a discussion about the proper punishment for a crime should disregard the crime. To discuss the death penalty while attempting to stuff in the closet the murder of Jessica Lunsford (or the spree murders by the beltway sniper, or Timothy McVeigh, or what have you) is to attempt to debate capital punishment by de-legitimizing any mention of the principal reason the majority of Americans support it. Utilitarian aspects of punishment -- i.e., whether the death penalty or imprisonment keeps us safer -- are perfectly sensible components of the debate about capital punishment, but in addition to, not in place of, the question whether, for some particularly grotesque crimes, it is just.
On that question, it is noteworthy that our abolitionists have, to date, written two posts about the finances of the death penalty, and one about "distractions" in discussing it, but have yet even to claim that it is unjust. This is understandable, since it would put them in opposition to leaders from Abraham Lincoln to Franklin Roosevelt, and thinkers such as John Stuart Mill. Instead, Mr. Dow indirectly attacks the motives of death penalty proponents, by arguing that they are animated not by a desire for justice but by anger and vengeance. That, however, is not the case; indeed it's upside-down. If one wants to look for base motives for killing, the place to start is not with the American public. It's with John Couey.
On the "distracting" question whether innocent persons have been executed, Mr. Dow notes, "[S]omeone who stubbornly denies the risk of error is just not being honest. If your argument in favor of capital punishment is that we have not and never will execute an innocent person, then you've lost the debate."
Assuming arguendo the novel proposition that a participant in a debate gets to be its judge as well, I am delighted to report that Kent and I are still in the game. Far from claiming that there was no risk of error, I said precisely the opposite: "The abolitionist argument that, I believe, gives most people pause is the observation that, because of errors and biases in the system, an innocent person might be executed....No honest person can deny that possibility." What I also said, however, was that the evidence that such a thing has actually happened in anything like recent times simply does not exist, and that there is no case accepted by any neutral and authoritative source for at least 40 years that we have executed an innocent person. None of that is disputed. Instead, the response seems to be that we know human beings are fallible, so it must have happened.
It was that sort of thinking that lay behind the Roger Keith Coleman innocence campaign: It must have happened, therefore it did happen, and now we know to whom, namely, Roger Keith Coleman. The point of recounting the false claim of innocence in that case was not to show that no such episode could ever happen. It was to illustrate that abolitionists are capable of making, and have made, the most florid, detailed and forceful claims of innocence -- and being 100% wrong. This is worth bearing in mind when we hear watered down versions as well, such as Mr. Dow's that he has a "list of executed men who were more likely innocent than not."
David Dow: Let me begin by saying explicitly what I would have thought is obvious, but that Mr. Otis seems confused about my not having said: Killing without adequate excuse or justification is wrong; capital punishment is killing without adequate excuse or justification; therefore, capital punishment is wrong.
Now that we are clear about my attitude toward the morality of executions, let's turn to the most recent post. I would expect someone who trades in distractions -- as Mr. Otis does -- to continue with distractions -- which Mr. Otis does. I do not disagree with him that Couey's murder was vile, or that McVeigh's was. What I would say is that most every murder is vile and despicable. Did young Jessica suffer more than most? Quite possibly she did. But my own personal view is that most murder victims suffer. Most have a moment when they realize that they will not see their loved ones again, that they will not get to say goodbye. Every murder takes an innocent life, and leaves other innocent lives broken or in tatters. My opposition to capital punishment does not disregard the crime in the slightest. Quite the contrary, it treats all murder victims as equally worthy of society's respect and concern. I think no murderers should be executed, that they should all be sentenced to long prison terms, some to life in prison. I wonder whether Mr. Otis thinks they should all be executed, or whether he privileges certain victims over others.
From his tenacious clinging to the fantastic myth that there is no evidence that a wrongful person has been executed, I can only conclude two things: First, that Mr Otis and (perhaps Mr. Scheidegger, though I will let him speak for himself) is willing to believe that it is -- miraculously -- only non death row inmates who have been wrongfully convicted and sentenced. Second, that when DNA does establish that an innocent person was executed, he will join the voices demanding abolition.
Bill Otis: Mr. Dow begins his response by stating, "Killing without adequate excuse or justification is wrong; capital punishment is killing without adequate excuse or justification; therefore, capital punishment is wrong. "
How this advances any analytical thinking about the death penalty is hard to fathom. The first part of the sentence is a truism, and the second is a conclusion, not an argument.
Mr. Dow continues, "My opposition to capital punishment does not disregard the crime in the slightest. Quite to the contrary, it treats all murder victims as equally worthy of society's respect and concern." But to treat every murder as equal is precisely to disregard the facts of individual cases -- and individual cases vary considerably, as Mr. Dow surely knows. Nonetheless, Mr. Dow builds on this theme, asking whether I believe that all murderers "should be executed, or whether [I] privilege{ ] certain victims over others."
This is both misleading and self-contradictory. It is misleading because, as I have previously said, the death penalty should be preserved for "particularly grotesque" murders. At no point have I stated or implied that all killers should be executed, and have plainly taken the opposite position by insisting that the facts of each case individually considered should inform the punishment. Mr. Dow's view is self-contradictory in light of his statement, in his immediately preceding sentence, that murderers "should all be sentenced to long prison terms, some to life in prison." Does Mr. Dow's support for unequal terms of imprisonment mean that he "privileges certain victims over others"?
Of course it doesn't. It means that he understands, and rightly so, that the punishment for murder depends in part on the circumstances of the victim, but in part on the culpability, brutality and cruelty of the killer.
Finally, Mr. Dow takes me to task for "clinging to the fantastic myth that there is no evidence that a wrongful person has been executed,” Of course that's not what I said. What I said is that there is no evidence accepted by a neutral and authoritative body that a factually innocent person has been executed for at least the last 40 years. I would respectfully submit that the way to impeach my assertion (besides stating it correctly) is to go ahead and produce the evidence. The partisans of Roger Keith Coleman at least attempted to. When their "case” was exposed and collapsed, they were indignant, as Mr. Dow seems to be now. But indignation about the absence of proof is not proof.
David Dow: Actually, the opening sentence of my post is what is known as a syllogism. I was not intending to develop a robust argument with my opening sentence, nor was I elaborating an analytical claim. I was simply replying to Mr. Otis's wonderment, expressed in a prior post, as to why neither I nor Ms. Minsker had stated our opposition to the death penalty. If he doesn't like the answer, he shouldn't ask the question.
And he continues, now predictably, with the two distractions. As for innocence, I’m perplexed as to how even a syllable of anything I’ve written evinces "indignation" about Roger Coleman. I’m glad Coleman was guilty. Indeed, I wrote an op-ed piece saying so. I don't see the need to belabor innocence. When people continue to assert, over and over and over again, that the system has never erred, that all the innocent people sent to death row get released just in the nick of time, they are living in a fantasy land. (I notice that Mr. Otis did not say whether the eventual proof that an innocent man has been executed will transform him into an abolitionist.)
Mr. Otis says he wants to reserve capital punishment for particularly grotesque murders. I’d like to know what the criteria are for satisfying that standard. The actual history of the death penalty in the U.S. suggests that race plays a significant role in that calculus.
Blacks and whites are victims of homicide in roughly equal numbers, yet 80 percent of all people executed were executed for killing a white.
Perhaps the "particularly grotesque" murders are those where the victim has white skin. If that's not it, what are the criteria?
Bill Otis: The principal theme of our abolitionists' argument to date is that life without parole can keep us as safe from killers as the death penalty and at lesser cost. Ms. Minsker put it this way: "The past 30 years have proven that California can effectively remove dangerous individuals from our streets and keep them in secure facilities where they cannot harm anyone."
Clarence Ray Allen would beg to differ.
In 1974, Allen enlisted the help of his son, Roger, and two other men to rob Fran's Market, a store east of Fresno owned by the Schletewitz family.
Roger invited the Schletewitz's son, Byron, to a party, where his keys were stolen. Allen's gang robbed the store as planned. Later, Roger's 17 year-old girlfriend, Mary Sue Kitts, confessed to Byron that she helped cash some of the stolen money orders. After Byron confronted Roger about the theft (armed with Kitts' information), Clarence Ray Allen ordered Kitts erased. Shortly thereafter, when Byron learned that Kitts was missing, he went to the authorities. After a 1977 trial, Allen was convicted of Kitts' murder and sentenced to life without parole.
He wasn't done. Perhaps he had read the abolitionist list of the "exonerated." In any event, he set out to join it.
In Folsom prison, he met up with a fellow named Billy Ray Hamilton. As recounted by the Ninth Circuit:
"Allen stated that Hamilton was 'going to take care of some rats for [him].' Allen later elaborated that Hamilton was going to 'get paid for the job' and that 'Kenny [Allen's eldest son] was going to take care of transportation.' Allen said that he could likely 'win his appeal' if the witnesses were killed and offered to have witnesses [of interest to Hamilton] killed as well.”Allen asked...Kenneth, and Kenneth’s wife Kathy to visit him in jail...Allen told Kenneth that both Ray and Bryon Schletewitz were going to be murdered and that the other witnesses against him would also be eliminated so that he would prevail on retrial if he won his appeal."
After being paroled Hamilton visited Fran's Market as Allen had directed, sawed-off shutgun in tow. He led Bryon Schletewitz and others into the stock room where, without going into unpleasant details, he blew Bryon's head off. He also killed Douglas White and Josephine Rocha, 17, by shooting her through the heart and stomach.
This time -- too late for Byron, Douglas and Josephine -- Clarence Ray Allen was sentenced to death. In rejecting his attempt to overturn that sentence, a unanimous Ninth Circuit panel, in an opinion by Clinton-appointed Judge Kim Wardlaw, had this to say (emphasis added):
"Evidence of Allen’s guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran’s Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose, it is to prevent the very sort of murderous conduct for which Allen was convicted."
So which is correct: The abolitionist claim that life without parole can be counted on to keep us safe, or the Ninth Circuit's finding that it can't?
Kent Scheidegger: Like David Dow, I would like to be able to debate the death penalty without “distracting morasses.” Exactly how my single post to date directly responding to a point by an opposing party constitutes dredging up a morass, as he says I did, I do not understand and he does not specify.
More importantly, though, I would be happy to be able to debate the death penalty without having to digress from discussion of issues to refute false allegations on questions of fact. Yet it is necessary, every single time.
Ms. Minsker writes, “Since 1973, 129 innocent people have been freed from death rows in the U.S.” (Emphasis added.) This is obviously a reference to the notorious “innocence” list now maintained by the Death Penalty Information Center, the anti side’s info operation. Asserting that the 129 people on this list are actually innocent is just flat false. This claim has been refuted over and over and over. There are a lot of guilty people on this list. See Brief for California, et al., as Amici Curiae in House v. Bell, U.S. Supreme Court No. 04-8990; Kansas v. Marsh, 548 U.S. 163 (2006) (Scalia, J., concurring). Yet someone makes this claim every time I debate the death penalty, and the press frequently cites it as fact.
The criteria to get on the list, according to the DPIC, are: “Defendants must have been convicted, sentenced to death and subsequently either- a) their conviction was overturned AND i) they were acquitted at re-trial or ii) all charges were dropped [or] b) they were given an absolute pardon by the governor based on new evidence of innocence.” Alternative (b) occurs so infrequently that the bulk of the cases come under (a).
Conspicuously absent from the criteria under prong (a) is any evidence, much less proof, that the person was actually innocent. All that is required to get on the list is that a jury or prosecutor decided that the evidence still available and admissible at the time of retrial, often many years after the crime, did not reach the lofty level of proof beyond a reasonable doubt. Our system of justice sets this high level fully aware that many guilty criminals, and even murderers, will escape justice as a result, but we believe that is a price worth paying. The number of guilty but acquitted defendants is further increased by other advantages that criminal defendants enjoy uniquely among all litigants. They alone are privileged not to take the stand, and they have much less obligation to hand over information in discovery than other litigants. The O. J. Simpson cases illustrate these effects. With the high burden of proof and the self-incrimination privilege, the criminal jury found that guilt had not been proven beyond a reasonable doubt. When those advantages were removed and he had to take the stand, the civil jury found by clear and convincing evidence that he really did it. Yet Simpson would be “innocent” by the DPIC definition.
These choices that have been written into our Constitution mean that the government sometimes cannot punish a person even though he is very likely guilty. With the double jeopardy protection, the same government cannot punish the person even if absolute proof of guilt subsequently becomes available. However, it most certainly does not mean that for the purpose of policy discussions we have to accept as fact that all such persons are actually innocent. That is the argument DPIC makes for its list. I find that argument unconvincing, but an argument that frankly acknowledges that it is not claiming factual innocence is at least an honest one.
The quality of the debate would be improved if the other side would cite this list for what it is – a list of people whose convictions were overturned and who, for a variety of reasons, were not successfully re-prosecuted. It is not a list of innocent people, and calling it that is deception, plain and simple.
Bill Otis: In response to Mr. Dow's post:
"I was simply replying to Mr. Otis’s wonderment, expressed in a prior post, as to why neither I nor Ms. Minsker had stated our opposition to the death penalty."
At no point did I say that Ms. Minsker or Mr. Dow had failed to state opposition to the death penalty. I pointed out that their opposition emphasized that it's costly but said little to argue that it's unjust.
"I don't see the need to belabor innocence..."
A point more aptly addressed to Mr. Dow's fellow abolitionists, who belabor it without relent (or evidence they think will sell in court).
If a point be made of it, however, I'll bet the house that if Roger Keith Coleman had been found to be blameless, Mr. Dow would be notably more enthusiastic about "belaboring" innocence. It's only now that the Coleman hoax has blown up in the hands of those who crafted it that it has turned into a "distraction" to be stuffed down the memory hole.
"[But] when people continue to assert, over and over and over again, that the system has never erred...they are living in a fantasy land."
This makes me very happy that I did not say over and over and over again that the system never errs. Indeed, I never said it. The system errs with depressing frequency -- when, for example, on account of such things as witness murder, guilty and dangerous men go free.
"Mr. Otis says he wants to reserve capital punishment for particularly grotesque murders. I’d like to know what the criteria are for satisfying that standard. the actual history of the death penalty in the U.S. suggests that race plays a significant role in that calculus. Blacks and whites are victims of homicide in roughly equal numbers, yet 80 percent of all people executed were executed for killing a white. Perhaps the "particularly grotesque" murders are those where the victim has white skin. If that's not it, what are the criteria?" [Emphasis mine]
I was hoping the debate here could be conducted without the weary, and phony, charge that retentionists have one foot in the Klan, but I see this is not to be.
I will answer the question nonetheless, since it is relevant to what we ought to be discussing. The answer is pretty simple. Grotesque murders would include -- to give a non-exhaustive list -- child murder; murder by, during or after torture or other acts of sadism; witness murder; murder of a police officer or judge; contract murder; murder during or in connection with an act of terrorism; murder by an inmate serving a life sentence; murder in the commission of a violent or drug-related felony; and multiple murder. I'm sure I've missed some, but this list ought at least to provide a flying start for the abolitionists to explain why none of it is all that bad, certainly compared to the real problem of Jurors Who Sleep Through the Twinkie Defense.
Finally, now that I have answered Mr. Dow's question, I hope he will answer one of mine. Some time ago, I posted statistics showing that over an extended (and therefore fairly representative) period of time, when executions decreased to the vanishing point, the murder rate increased (indeed it doubled for the time period I cited, 1965 - 1980). By contrast, when executions increased, and took place in significant numbers, the murder rate decreased substantially (by 44% to be precise, from 1990 - 2005, when there were hundreds of executions).
In view of these facts, how is it possible to maintain that we're safer without executions than with them?
In answering this question (if it gets answered), I hope Mr. Dow will not just fall back on the Hail Mary notion that it was a bunch of mysterious "other factors" that produced these results. Of course other factors could have been partly responsible. But to believe that the death penalty had nothing to do with the startling drop in murder in the period when executions were underway is, to quote Mr. Dow, to be "living in a fantasy land."
Bill Otis: The question has been posed whether, if there were proof, instead of mere insistence, that an innocent person had been executed in the modern era, I would become an abolitionist.
I would not, for several reasons.
First, while the state's taking the life of an innocent person is, to say the least, an extremely bad thing, the real world demands that we ask: what are the alternatives?
In the wake of 9-11, we launched the war in Afghanistan, knowing that we would wind up killing hundreds or perhaps thousands of innocent people -- which has happened, and will continue to happen as long as we are engaged there. Our citizens know this, but support the war in overwhelming numbers.
Why?
Because the alternative is worse.
The killing of innocent people that our war entails is acceptable because of what we get for it, namely, the demolition of terrorist infrastructure. This was also true in World War II on a far larger scale. We killed thousands of innocent Germans and Japanese, including children, knowing full well what we were doing. We did it anyway, because the alternative was a fascist empire ruling the world.
Accordingly, whether we should bear the moral cost of killing the innocent is not, as abolitionists surmise, a question that answers itself. It depends on what we get in exchange.
This trade-off is recognized in ordinary law as well. The law of self-defense permits an individual (including a police officer acting as an agent of the state) to use deadly force when he reasonably, though mistakenly, believes he is facing an imminent threat of serious bodily harm or death. The reason we permit police and others to kill even when they are wrong is that we want to preserve their right effectively to defend themselves in the far more numerous instances when they are right.
The same recognition of unhappy but justified trade-off's applies to the death penalty. (Indeed, in view of the accumulating evidence that capital punishment saves hundreds of lives through deterrence, one could argue that it is justified by a fairly straightforward application of the principles of societal self-defense, see Sunstein, "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," 58 Stanford Law Review 703 (2005) (with Adrian Vermeule)). We know how to reduce the risk of executing the innocent, and we have done so to an astonishing degree. Not for nothing is there no consensus proof that we have executed an innocent person in the modern era. There is no judicial process in the world as rigorous, painstaking and demanding as the process in this country for putting someone to death.
At the same time, we value a justice that, in extreme cases, can say "enough" and make it stick. There are still the John Couey's, Clarence Ray Allen's, and Timothy McVeigh's of this world. Their guilt is beyond rational doubt. Abolitionists notwithstanding, they are not "distractions," and the desire to execute them does not take root in a petulant anger, much less barbarism. The desire to execute Couey & Co. is, instead, the desire for the only punishment that fits. Preserving society's right to impose the death penalty, even knowing that there is a (miniscule) risk of executing the innocent, is, in short, worth the justice we get in exchange.
I would add only one more point. Ms. Minsker and Mr. Dow have shown that they understand the importance of trade-off's. Indeed they have invested considerable energy arguing that the cost trade-off's between the death penalty and life without parole clearly favor the latter.
At the same time, and curiously, they have not addressed a far more important trade-off. That is the trade-off between lives that may be lost to the fallibility of judges and juries versus those we know have been lost to the fallibility of prison administrators and guards.
If we abandon capital punishment, the killers who would have been executed are not going to disappear. They are going to prison. Those who work in prisons provide as much security as they possibly can, since they don't want to fall victim to a direct attack, or get hurt (or killed) having to intervene in a fight among inmates or inmate gangs. But even with the strongest incentives to make prisons safe, it cannot be done infallibly. Indeed, more than 100 defendants found guilty of capital murder since Gregg was decided were already in prison when they murdered their victims. (I am putting to one side here the dozens of additional murders commited by inmates who escaped or were erroneously released).
The point abolitionists miss (or more likely avoid) is that inescapable human fallibility is massively more likely to result in the deaths of innocent people if we keep determined killers in prison than if we execute them. So it turns out that in the calculus of trade-off's between capital punishment and life imprisonment, the death penalty achieves more than simply deserved justice, although that would be enough. It achieves the saving of innocent life on a scale imprisonment has shown it cannot even approach.
Kent Scheidegger: There is much, much more that needs to be said on this subject. However, we must wind up this debate for now, so I will give some links to further information and address one topic that has not yet been addressed: deterrence.
Comments on the death penalty as news breaks can be found on our blog, Crime & Consequences. A more static set of information is available on our web site.
On the subject of cost, further information is available in mystatement to the California Commission on the Fair Administration of Justice, pages 6-9. In short, the death penalty would not cost significantly more than life in prison, and may cost substantially less, if we did them both correctly.
On the spurious statistic of "race of the victim bias," see my article in the October 2003 issue of Engage, which is also attached to the CCFAJ statement. In a nutshell, the statistical "disparity" disappears when the wholly legitimate factor of local jurisdiction is taken into account. That variation by jurisdiction is simply local democracy and jury of the vicinage working as designed.
On deterrence, there has been a sea change in the scholarly literature in recent years. Dr. Paul Rubin of Emory University summarized it in his congressional testimony in 2006. "The literature is easy to summarize: almost all modern studies and all the refereed studies find a significant deterrent effect of capital punishment. Only one study questions these results." That testimony is available on the Senate Judiciary Committee website and is attached to my CCFAJ statement.
Opponents frequently make the claim that the lower homicide rates in states that do not have capital punishment disprove deterrence. This argument is so obviously invalid that a sophomore social science student could see it. Such simplistic comparisons fail to control for the other ways in which the states vary. We don't have to guess about this; we know. Those same states had lower rates during the moratorium period of the late 1960s to mid 1970s when no executions occurred in the United States.
The studies that properly control for the other variables are the ones referred to in Dr. Rubin's testimony. Although it is not an exact science, and probably never will be, a remarkable number of researchers using different approaches have produced a strong consensus that there is a deterrent effect where the death penalty is genuinely enforced. Estimates vary, but it is likely that somewhere in the range of 5 to 18 innocent lives are saved per execution.
What happens in states where the death penalty is obstructed, such as California and Pennsylvania, is insufficiently researched to draw any firm conclusions, but in any event the correct policy response is to remove the obstruction.
Faced with the modern deterrence studies, opponents usually cite the critical article by Donohue and Wolfers. Unlike the authors of the studies finding deterrence, Donohue and Wolfers chose not to publish their article through the peer-reviewed publication process that is the standard in the field for assuring that research meets at least the basic criteria for validity. Instead, they chose to publish in a law review. We can have confidence that the student editors of a law review take scrupulous care to ensure that every footnote is in full accord with the Harvard Bluebook, but they are unlikely to have the education or experience to distinguish valid social science methodology from statistical sleight-of-hand. Why did Donohue and Wolfers bypass the standard review process? Applying the Harry Truman principle, if you see someone avoiding the kitchen, there is a good chance he can't take the heat. Dezhbakhsh and Rubin's response to Donohue and Wolfers is presently in the "working paper" stage and is available on SSRN, abstract 1018533.
It is a basic principle of human behavior that incentives matter. Increase the cost of doing anything, and fewer people do it. When the price of gas goes up, more people take the bus rather than drive. Applying that basic principle, we would expect that a credible, enforced death penalty would reduce the number of homicides, particularly the premeditated homicides that are generally punished by death. (Whether second-degree murder or voluntary manslaughter would be deterred is moot, as these crimes are not capital, and there is no serious proposal they should be.) Those who would claim that murder is somehow different, an exception to this basic principle, would need powerful empirical evidence to support that claim. The evidence is powerful in the other direction.
Death is the only adequate punishment for the worst murders as a matter of "just deserts." The death penalty, when genuinely enforced, saves innocent lives through deterrence as well as incapacitation. Either of these reasons alone makes a strong case for keeping and enforcing the death penalty. Combined, they make an overwhelming case.
Natasha Minsker: Last year, the nationwide murder rate dropped by 2.7%. Last year, executions were at their lowest levels in 13 years. The only region of the county that saw an increase in homicides in 2007 was the south, were 86% of executions occurred. Real life experience shows, executions do not deter homicide.
What prevents homicide is catching killers and education. In the city where I live, communities continue to be terrorized as most murderers walk free. Meanwhile, our district attorney wastes millions of county dollars sending people to death row where they will almost certainly grow old and die of natural causes. Every death penalty trial costs this county at least $1.1 million more than a trial ending in permanent imprisonment. Just yesterday, I attended a budget hearing where the Chief Probation Officer said that proposed cuts to community programs would lead to an increase in crime and arrests. The money wasted on just one death penalty trial would be more than enough to maintain all the programs the Chief fears will be reduced. If our goal is to create safe communities, than we need to invest our limited resources in programs that have been proven to reduce violence, rather than a proven failure, the death penalty.
Indeed, California has proven how unnecessary the death penalty is. For all intents and purposes, California does not have a death penalty. We have two types of permanent imprisonment. Almost every person sentenced to death row in this state will die just the same way as every person condemned to permanent imprisonment: as a result of illness and old age. California’s pseudo-death penalty proves we don’t need a death penalty at all. We house people on death row in secure facilities where they cannot hurt anyone, including guards or individuals on the outside. Clarence Ray Allen lived for 25 years on death row without ever hurting anyone—to the ripe old age of 76. We can keep our communities safe by condemning offenders to permanent imprisonment.
California’s death penalty is nothing but a cruel hoax that traps family members of murder victims in decades of appeals. It is all well and good for proponents of the death penalty to say “it doesn’t have to be that way” and “we can do it cheaper and faster;” but the past 30 years have proven that those statements are, at best, false promises. That’s why more and more survivors of murder victims in California and the country are speaking out loudly against the death penalty.
At bottom, proponents of the death penalty simply think some people “deserve” to die. That is a very understandable and very strong emotion. But strong emotions are not a good basis for public policy.
The death penalty has failed. It’s time we acknowledge that reality and begin building an effective criminal justice system for the 21st century, based on reason and rationality.