Wednesday, April 8, 2009

The Death Penalty - Revisited

by Katherine Scardino

Every once in a while, I do some serious thinking - not often, mind you, and even when I do, it is not some subject that all of you would find interesting.

Lately, in my work as a criminal defense attorney, I have had the opportunity to review the opinions of about 200 people on various subjects, but specifically, on their thoughts about the death penalty. It always gives me pause when I hear that people seriously believe the death penalty is a deterrent to crime in their area and therefore is a valid reason to kill a fellow human being. The only valid, real deterrence is to the person killed. He will no longer be a threat to you, me or anyone in our society. That is not a bad thing. However, if we are going to support a policy as serious as taking a person’s life because he or she took another person’s life, then we should be frank with ourselves.

There are generally two reasons why people support the death penalty. The first, for revenge. Think about the Casey Anthony case. This is the case in Florida where the young mother is in jail awaiting trial for her baby daughter’s brutal, cruel murder. She was photographed dancing and partying during the period of time her baby was missing, that is, before the authorities found her little decaying body in a local woodsy area. Now, I am certainly not saying that we should believe that she is guilty prior to her trial. But, if - and that is a big “IF” - she is found guilty, it would be hard not to think that she deserves to die. Then again, there has to be something inherently wrong with her. I am not a mental health expert and have no clue what it is, but I can assure you that she is not a normal young mother who was concerned about the safety of her child. She has a warped screw somewhere. I presume her mitigation specialist and mental health expert will find it. Maybe the jury will hear about it and find that she was/is incompetent/insane or will find some other reason to lessen her culpability. But, the point is, her case is a prime example of a “revenge” killing by the State.

Another reason why people support the death penalty is that they believe having this a law in their state deters deranged people who may be bent on committing heinous crimes. Think of Ted Bundy and other serial killers we have had roaming around among us in the United States. We certainly do not want those people out and about, possibly threatening our lives and the lives of our loved ones. The death penalty will certainly deter people who get a kick out of killing other people, right? Wrong.

There have been several studies about the effects of the death penalty on crime in the United States, some of which claim that the death penalty does have a deterrent effect. There have also been several academic critiques of this research.

Dr. Jeffrey Fagan of Columbia University describes numerous serious errors in the recent deterrence studies, including improper statistical analysis as well as missing data and variables that are necessary to give a full picture of the criminal justice system. He claims that evidence which shows that executions can exert a deterrent effect are flawed and unreliable.

Stanford Law Review published an article that examined deterrence studies. The article stated “aggregating over all of our estimates, it is entirely unclear even whether the preponderance of evidence suggests that the death penalty causes more or less murder” (58 Stanford Law Review 791 (2005)).

While doing some Google research, I found a lengthy study that showed the average murder rate per 100,000 people living in states that had the death penalty was 5.5 %, while the average murder rate of states without the death penalty was 3.1%. To summarize, in reality it does not appear that having the death penalty will make us safer as a society. People who are prone to commit crimes will not avoid committing those crimes just because the state where they live has the death penalty.

Why do we have the death penalty? Why do we say it is “fair” and “just” that we kill another person because that person killed someone else. How do we reason that it is the right thing to do? My answer is revenge. It is the only honest response to this question. We kill to avenge the unwarranted, senseless killing of another person in our community.

But, is that enough? Will that pass muster in our minds if we all were to start having some serious thoughts about this issue? Personally, my answer is “no”. However, I also know that some of you will quote the Bible - “an eye for an eye”. Isn’t that simple revenge? I doubt it.


Leah said...

Great post Donna. I am not a DP proponent and never have been. The DP has been around for 100s of years. Society use to gather and watch a criminal be hanged so it is nothing new, except we have refined laws so that people don't get to watch anymore. We have more humane ways of putting someone to death. Are the reasons for the DP still the same after all these years? Revenge motivated? I don't know. Do we still use the DP because it is there and has been used for all these 100s of years? It certainly isn't a deterrant to crime, I agree with that.

Jan C said...

If there was some way to to make sure that LWOP actually meant LWOP, then the death penality wouldn't be necessary. Let them rot in jail.

But right now, we have no guarantee. People like Charles Manson and Diane Downs are eligible for parole. We, the public, have to depend on the common sense of the members of the parole board to keep these lunatics in jail. Which we all know doesn't always happen. Mistakes are made, murderers go free. And they kill again.

Soobs said...

The DP is a deterrantn to THAT particular criminal. There are plenty of cases of criminals who received LWOP who have killed in prison, either other inmates, or correction officers.

I've never believed that the DP was a deterrant to OTHER criminals. I do believe, however, that there are some individuals who have no business breathing the same air as the rest of us.

California Girl said...

The problem with the death penalty is that it is seldom carried out. Case in point, Charles Manson. Rather idiotic that the DP got "overturned" but then reinstated and some how, he managed to avoid it. People like him have no positive impact on society. Rather they are a negative influence - not only by example but in the fact the state has spent millions of dollars caring for him.
Its not "revenge". Its about limiting the influence someone like this has and protecting society from that person in the future.

A Voice of Sanity said...

California Girl said...
The problem with the death penalty is that it is seldom carried out.

No, that isn't the problem. The problem is that it IS carried out - but in a completely arbitrary way, and that wealth and position and media interest are more important than facts. Go look at the cases of T. Cullen Davis and of Robert Durst in TX and ask why their cases resulted in not guilty verdicts while hundreds of poor men were wrongly convicted and sentenced, some mere days away from death when their cases were reversed.

Death is a penalty that requires perfect justice. There is no such justice in the USA.

FleaStiff said...

Yes, the death penalty is arbitrary, capricious and excrutiating slow to constitute any sort of revenge.

Alot in life is arbitrary and capricious. Alot of our laws are lacking in evidentiary suppport or even patently nonsensical.

We do not have "evidence based public policies". Laws against theft do not deter honest men from stealing. Laws against rape do not deter men of high moral character.

The victim's family want revenge, the community in general wants revenge and the fact that mistakes can be made is no excuse for denying the victim's family their bloodlust. The family members want to win. Win at poker, win at football, win at punishing some attacker. Russia and China have the right idea: In Russia there is no execution date, someone just enters the cell and shoots him in the head whereas in China they wait a few weeks after the conviction and then they make the family pay for the bullet. In ancient China the manner of execution varied with the amount of bribe money that had been paid.

It was often hard for wardens to carry out a warrant of execution when they knew the convict was innocent, but they did it anyway.

TxMichelle said...

Interesting. I am a supporter of DP but ONLY in cases such as Bundy, Gacy, even serial rapists, and others where the evidence is so overwhelming there can be no question of innocence.
I do not support it because of revenge. I support it because we shoot rabid dogs. They will never serve a purpose on this earth. We can never fix them. In fact they continue to do as much damage as possible even from prison. How many have written to the victems. Or held out information just for the celebrity effect of showing where the bodies are?
The biggest problem with the DP is the fact that it is faulty. More so in cases of definate guilt it takes forever to get rid of them. Again the victems suffer.
I don't know the answer. I do know that I feel no pity for them being put down. It is very humane in comparison to the suffering the victems had.

Mary O'Grady said...

Great Britain abolished hanging after the execution of a mentally retarded man, Timothy Evans, who was innocent of the crime for which he was condemned.
Texas almost certainly executed an innocent man in Carlos de Luna, whose case was investigated by the Chicago "Tribune." In the case of Leonel Herrera, our Supreme Court ruled that actual innocence is no bar to execution if all legal niceties have been observed. This is the stuff of nightmares, or it should be.

Anonymous said...

I never thought the death penalty prevented a single crime.

Killers are either crazy, or they think they'll get away with it.

Besides, someones got to make all those license plates.

dudleysharp said...

Ms. Scardino:

First, you make a common error, with regard to murder rates and deterrence.

Death Penalty, Deterrence & Murder Rates: Let's be clear
by Dudley Sharp, Justice Matters, 0309

There is a constant within all jurisdictions -- negative consequences will always deter some - it is a truism. Therefore, the question is not "Can we prove that the death penalty acts to deter some?" Of course it does. The question is "Can death penalty opponents prove the death penalty does not deter some?" Of course they can't.

Whether a jurisdiction has high murder rates or low ones, rather rising or lowering rates, the presence of the death penalty will produce fewer net murders, the absence of the death penalty will produce more net murders.

It is just like smoking rates or the rates at which people speed in their cars, whether a jurisdiction has the highest such rates or the lowest of such rates, there will always be some, in all jurisdictions, who don't smoke because of the deterrence of fear of health problems and don't speed because of the deterrence of speeding violations, resulting in criminal prosecution and higher insurance costs.

The Poor Model

In their story, "States With No Death Penalty Share Lower Homicide Rates", The New York Times did their best to illustrate that the death penalty was not a deterrent, by showing that the average murder rate in death penalty states was higher than the average rate in non death penalty states and, it is. (1)

What the Times failed to observe is that their own study confirmed that you can't simply compare those averages to make that determination regarding deterrence.

As one observer stated: "The Times story does nothing more than repeat the dumbest of all dumb mistakes — taking the murder rate in a traditionally high-homicide state with capital punishment (like Texas) and comparing it to a traditionally low-homicide state with no death penalty (like North Dakota) and concluding that the death penalty doesn't work at all. Even this comparison doesn't work so well. The Times own graph shows Texas, where murder rates were 40 percent above Michigan's in 1991, has now fallen below Michigan . . .". (2)

Within the Times article, Michigan Governor John Engler states, "I think Michigan made a wise decision 150 years ago," referring to the state's abolition of the death penalty in 1846. "We're pretty proud of the fact that we don't have the death penalty."(3)

Even though easily observed on the Times' own graphics, they failed to mention the obvious. Michigan's murder rate is near or above that of 31 of the US's 38 death penalty states. And then, it should be recognized that Washington, DC (not found within the Times study) and Detroit, Michigan, two non death penalty jurisdictions, have been perennial leaders in murder and violent crime rates for the past 30 years. Delaware, a jurisdiction similar in size to them, leads the nation in executions per murder, but has significantly lower rates of murders and violent crime than do either DC or Detroit, during that same period.

Obviously, the Times study and any other simple comparison of jurisdictions with and without the death penalty, means little, with regard to deterrence.

Also revealed within the Times study, but not pointed out by them,: "One-third of the nation's executions take place in Texas—and the steepest decline in homicides has occurred in Texas, Oklahoma, Louisiana and Arkansas, which together account for nearly half the nation's executions." (4)

And, the Times also failed to mention that the major US jurisdiction with the most executions is Harris County (Houston, Texas), which has seen a 73% decrease in murder rates since resuming executions in 1982 -- possibly the largest reduction for a major metropolitan area since that time.

Also omitted from the Times review, although they had the data, is that during a virtual cessation of executions, from 1966-1980, that murders more than doubled in the US. Based upon the New York Times model, that indicates a strong and direct correlation between the lack of executions and the dramatic increase in murders, if that is specifically what you are looking for. But, you shouldn't be.

If deterrence was measured by direct correlation's between execution, or the lack thereof, and murder rates, as implied by the Times article, and as wrongly assumed by those blindly accepting that model, then there would be no debate, only more confusion. Which may have been the Times' goal.

Let's take a look at the science.

Some non death penalty jurisdictions, such as South Africa and Mexico lead the world in murder and violent crime rates. But then some non death penalty jurisdictions, such as Sweden, have quite low rates. Then there are such death penalty jurisdictions as Japan and Singapore which have low rates of such crime. But then other death penalty jurisdictions, such as Rwanda and Louisiana, that have high rates.

To which an astute observer will respond: But socially, culturally, geographically, legally, historically and many other ways, all of those jurisdictions are very different. Exactly, a simple comparison of only execution rates and murder rates cannot tell the tale of deterrence. And within the US, between states, there exist many variables which will effect the rates of homicides.

See murder rate REVIEW, below

As so well illustrated by the Times graphics, a non death penalty state, such as Michigan has high murder rates and another non death penalty state, such as North Dakota, has low murder rates and then there are death penalty states, such as Louisiana, with high murder rates and death penalty states, such South Dakota, with low rates. Apparently, unbeknownst to the Times, but quite obvious to any neutral observer, there are other factors at play here, not just the presence or absence of the death penalty. Most thinking folks already knew that.

As Economics Professor Ehrlich stated in the Times piece and, as accepted by all knowledgeable parties, there are many factors involved in such evaluations. That is why there is a wide variation of crime rates both within and between some death penalty and non death penalty jurisdictions, and small variations within and between others. Any direct comparison of only execution rates and only murder rates, to determine deterrence, would reflect either ignorance or deception.

Ehrlich called the Times study "a throwback to the vintage 1960's statistical analyses done by criminologists who compared murder rates in neighboring states where capital punishment was either legal or illegal." "The statistics involved in such comparisons have long been recognized as devoid of scientific merit." He called the Times story a "one sided affair" devoid of merit. Most interesting is that Ehrlich was interviewed by the Time's writer, Fessenden, who asked Ehrlich to comment on the results before the story was published. Somehow Ehrlich's overwhelming criticisms were left out of the article.

Ehrlich also referred Fessenden to some professors who produced the recently released Emory study. Emory Economics department head, Prof. Deshbakhsh "says he was contacted by Fessenden, and he indicated to the Times reporter that the study suggested a very strong deterrent effect of capital punishment."

Somehow, Fessenden's left that out of the Times story, as well. (5). This has become the common rule for anti death penalty journalism.

It is the same for all prospects of a negative outcome - they all deter some.

Maybe the Times will be a bit more thoughtful, next time.


"The List: Murder Capitals of the World", 09/08, Foreign Policy Magazine
Capital punishment (cp) or not (ncp)
murder rates/100,000 population

4 out of the top 5 do not have the death penalty

1. Caracas (ncp), Venezuela 130-160
Bad policing.
2. New Orleans (cp), La, USA 69-95
Variable because of different counts in surging population. Drug related.
Nos 2 & 3 in US, Detroit (ncp), 46 and Baltimore (cp), 45.
3. Cape Town (ncp), South Africa 62
Most crimes with people who know each other.
4. Port Mores (ncp), Papua New Guinea 54
Chinese gangs, corrupt policing
5. Moscow (ncp), Russia 9.6

Of the Top 10 Countries With Lowest Murder Rates (1), 7 have the death penalty

O f the Top 10 Countries With Highest Murder Rates (2), 5 have the death penalty

Top 10 Countries With Lowest Murder Rates
Iceland 0.00 ncp
Senegal 0.33 ncp
Burkina Faso 0.38 cp
Cameroon 0.38 cp
Finland 0.71 ncp
Gambia 0.71 cp
Mali 0.71 cp
Saudi Arabia 0.71 cp
Mauritania 0.76 cp
Oman cp

Top 10 Countries With Highest Murder Rates
Honduras 154.02 ncp
South Africa 121.91 ncp
Swaziland 93.32 cp
Colombia 69.98 ncp
Lesotho 50.41 cp
Rwanda 45.08 ncp
Jamaica 37.21 cp
El. Salvador 36.88 cp
Venezuela 33.20 ncp
Bolivia 31.98 cp

(1) no date

(2) no date


1) "States With No Death Penalty Share Lower Homicide Rates", The New
York Times 9/22/00 located at and
2) “Don't Know Much About Calculus: The (New York) Times flunks high-school
math in death-penalty piece", William Tucker, National Review, 9/22/00, located
3) ibid, see footnote 11
4) "The Death Penalty Saves Lives", AIM Report, August 2000, located at
5) "NEW YORK TIMES UNDER FIRE AGAIN", Accuracy in Media, 10/16/00, go to

copyright 2000-2009 Dudley Sharp: Permission for distribution of this document, in whole or in part, is approved with proper attribution.

Dudley Sharp, Justice Matters
e-mail, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally

dudleysharp said...

The death penalty is not revenge, unless you, wrongly, consider all criminal sanctions revenge.

The Death Penalty: Neither Hatred nor Revenge
Dudley Sharp, Justice Matters, contact info below

Death penalty opponents say that the death penalty has a foundation in hatred and revenge. Such is a false claim.

A death sentence requires pre existing statutes, trial and appeals, considerations of guilt and due process, to name but a few. Revenge requires none of these and, in fact, does not even require guilt or a crime.

The criminal justice system goes out of its way to take hatred and revenge out of the process. That is why we have a system of pre existing laws and legal procedures that offer extreme protections to defendants and those convicted and which provide statutes and sanctions which existed prior to the crime.

It is also why those directly affected by the murder are not allowed to be fact finders in the case.

The reality is that the pre trial, trial. appellate and executive clemency/commutation processes offer much greater time and human resources to capital cases than they do to any other cases, meaning that the facts tell us that defendants and convicted murderers, subject to the death penalty, receive much greater care and concern than those not facing the death penalty - the opposite of a system marked with vengeance.

Calling executions a product of hatred and revenge is simply a way in which "some" death penalty opponents attempt to establish a sense of moral superiority. It can also be a transparent insult which results in additional hurt to those victim survivors who have already suffered so much and who believe that execution is the appropriate punishment for those who murdered their loved one(s).

Far from moral superiority, those who call capital punishment an expression of hatred and revenge are often exhibiting their contempt for those who believe differently than they do. Instead, they might reflect on why others believe it is a just and deserved sanction for the crimes committed.

The pro death penalty position is based upon those who find that punishment just and appropriate under specific circumstances.

Those opposed to execution cannot prove a foundation of hatred and revenge for the death penalty any more than they can for any other punishment sought within a system such as that observed within the US - unless such opponents find all punishments a product of hatred and revenge - an unreasonable, unfounded position

Far from hatred and revenge, the death penalty represents our greatest condemnation for a crime of unequaled horror and consequence. Lesser punishments may suffice under some circumstances. A death sentence for certain heinous crimes is given in those special circumstances when a jury finds such is more just than a lesser sentence.

Less justice is not what we need.

A thorough review of the criminal justice system will often beg this question: Why have we chosen to be so generous to murderers and so contemptuous of the human rights and suffering of the victims and future victims?

The punishment of death is, in no way, a balancing between harm and punishment, because the innocent murder victim did not deserve or earn their fate, whereas the murderer has earned their own, deserved punishment by the free will action of violating societies laws and an individuals life and, thereby, voluntarily subjecting themselves to that jurisdictions judgment.

copyright 2001-2009 Dudley Sharp, Permission for distribution of this document, in whole or in part, is approved with proper attribution.

Dudley Sharp, Justice Matters