Oversight of the Federal Death Penalty Process

Various individuals presented testimony yesterday to the Senate Committee on the Judiciary regarding Oversight of the Federal Death Penalty. The agenda of this subcommittee included testimony regarding the actions of Attorney General Gonzales and the firing of U.S. Attorneys over the issue of capital punishment. Paul Charlton, one of the nine U.S. Attorneys dismissed by the Department of Justice (DOJ), provided testimony regarding his experience with the AG on a capital case.

The evidence presented suggests that AG Gonzales has stepped up pressure to seek more death sentences at the federal level, although no motives or other explanations were offered. The Washington Post focused on Mr. Charlton's comments and those of current and former DOJ employees. Why is the AG seeking to impose more death sentences? Why is the DOJ now trying, and succeeding, in expanding capital punishment in states that do not permit executions? Is this a maneuver to "shore up" the political base since conservatives and Republicans are more likely than liberals and Democrats to support capital punishment?

Another issue raised in the testimony is the connection between race and the death penalty. Some of the testimony referred to data that show a clear racial disparity in the imposition of capital punishment. Is there evidence that discrimination, not disparity, exists in the administration of the death penalty? The answer at the state level is yes. A plethora of studies consistently suggest that race of the victim and, depending on the state, race of the defendant are predictors of sentencing outcomes.

Is race a factor in federal death sentences? That issue was addressed in the testimony of David Mulhausen. Dr. Mulhausen, of the Heritage Foundation, presented a curious ramble during his comments to the subcommittee. He first points out that public opinion polls show support for the use of capital punishment. While this is an accurate statement, he fails to point out that, according to Gallup, public support for the death penalty has declined since 1994 from 80% to 67% in 2006, while opposition has increased from a low of 13% in 1995 to 28% in 2006. Dr. Mulhausen also fails to report that support for capital punishment drops when respondents are given alternatives such as life in prison (47% support death while 48% favor life in prison without parole.

Dr. Mulhausen then turns his attention to the issue of race in the federal death penalty system. He cites a Rand Corporation study that examined available data on federal death sentences between January 1995, and July 2000. Dr. Mulhausen acknowledges that racial disparity exists, but claimed that discrimination does not exist when the heinousness of the crime is factored in. He fails to report, however, the limitations of the Rand study, which the authors did include in the report.

Most studies of race and capital punishment, including the Rand study, try to control for the seriousness of the crime or the background of the defendant by factoring in the aggravating and mitigating circumstances. After the Gregg decision, states and the federal government adopted a process known as guided discretion for jurors in capital trials. A limitation of the methodology is that any factor can be considered as a mitigating circumstance (and thus no study can capture all possible mitigators) while the list of approved aggravators is highly suspect. For example, one of the listed aggravating circumstances is future dangerousness. Research has shown that it is virtually impossible to prove future dangerousness, so how are researchers supposed to "code" the existence of this highly subjective aggravator?

It is also curious that Dr. Mulhausen uses the phrase "heinousness" of the crime. Our study of race and aggravating circumstances in Tennessee revealed that the so-called "heinous, atrocious, and cruel" aggravator was more likely to be found by the jury if the victim was white than if the victim was non-white.

Dr. Mulhausen then goes on to examine the death penalty moratorium that existed in Maryland. Here he does cite the limitations of the research that was a component of the moratorium. While citing evidence of support for the death penalty, he fails to report NBC News/Wall Street Journal poll found that 63% of registered voters supported a moratorium. He next cites several studies that purport to show that executions prevent future murders, but again without reference to the limitations of this body of literature. Not only have these studies been discredited, but other research has shown that the death penalty is no more effective as a deterrent than is life in prison. Moreover, a Harris poll found that 41% believed that the death penalty deterred others while 53% opined that it did not have much effect.

Dr. Mulhausen then concludes with several sweeping generalizations: "Americans support capital punishment for two good reasons. First, there is little evidence to suggest that minorities are treated unfairly. Second, capital punishment produces a strong deterrent effect that saves lives."

The research shows that many people support the death penalty because they believe that killing is wrong and not because of utilitarian reasons such as deterrence. The limitations of these two statements should, by now, be fairly obvious.