Thursday, November 15, 2007

Is it Time to Kill New Jersey's Death Penalty Law?

New Jersey has not carried out an execution since 1963 even though the state re-instituted it in 1982. It seems that the state is poised to abolish it, a move that predictably is not making everyone happy. Will other states follow what has become an international trend?

read more digg story

The United Nations has adopted a resolution calling on member nations to impose a moratorium on executions, among other policy issues. It seems that the State of New Jersey is poised to do what 37 other states and the federal government are unwilling to do - abolish the death penalty.

More countries are abolishing the death penalty than ever before. Just a few "rogue" states, including the U.S., account for the vast majority of executions. So we are associated with some pretty undesirable company through our continued use of the death penalty.

In the mean time, New Jersey is poised to formally abolish the death penalty. The impact of this action will result in the ability to redirect funds to other, more effective crime control policies. This benefit is just one out of many that await the citizens of New Jersey.

3 comments:

dudleysharp said...

REPORT: NJ Death Penalty Commission Made Significant Errors
by Dudley Sharp, Justice Matters, contact info below

distributed beginning May, 2007


from http://www.hallnj.org/cm/listing.jsp?cId=3

Summary

The New Jersey Death Penalty Commission made significant errors within their findings. The evidence, contrary to the Commissions findings, was so easy to obtain that it appears either willful ignorance or deception guided their report.

A brief review.

Below, are the 7 points made within the New Jersey Death Penalty Study Commission Report, January, 2007. The RUBUTTAL presents the obvious points avoided by the Commission and discussed by this author, a death penalty expert.

I was invited to be a presenter, before the NJDPSC, but my time didn't fit their schedule.

1) There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent.

REBUTTAL:

- The reason that 81% of Americans found that Timothy McVeigh should be executed was justice - the most profound concept in criminal justice, as in many other aspects of life. It is the same reason that New Jersey citizens, 12 jurors, put all those on death row.

- Although the Commission and the NJ Supreme Court both attempt to discount deterrence, logically, they cannot.

First, all prospects for a negative outcome deter some. This is not, logically or historically rebutted. It cannot be. Secondly, those studies which don't find for deterrence, do not say that it doesn't exist, only that their study didn't find it. Those studies which find for deterrence did. 10 (now 12) recent studies do.

- The Commission had ample opportunity and, more importantly, the responsibility to read and contact the authors of those many studies which have, recently, found for deterrence. There seems to be no evidence that they did so. On such an important factor as saving innocent lives, why didn't they? The testimony before the Commission, critical of those studies, would not withstand a review by the authors of those studies. That should be an important issue that the Commission should have investigated, but did not.

- LIFE WITHOU PAROLE: The Commission considered the risk of innocents executed and concluded that it wasn't worth the risk and that a life sentence would serve sufficiently without that risk to innocents.

Again, the Commission avoided both fact and reason. The risk to innocents is greater with a life sentence than with the death penalty.

First, we all know that living murderers, in prison, after escape or after improper release, are much more likely to harm and murder, again, than are executed murderers - an obvious truism ignored by the Commission.

Secondly, no knowledgeable party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, it is logically conclusive, that actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.

Thirdly, there has been a recent explosion of studies finding for death penalty deterrence. The knowledgeable criticism of those studies has, itself, been rebutted.

- Therefore, in choosing a life without parole and calling for the end of the death penalty, the Commission has made the choice to put more innocents at risk - the opposite of their stated rationale.


2) The costs of the death penalty are greater than the costs of life in prison without parole, but it is not possible to measure these costs with any degree of precision.

REBUTTAL:

- For the amount of time and resources allegedly expended by the Commission, this section of their review was unconscionable in its lack of responsibility to the Commission's directive.

- The Commission concludes that the current system in New Jersey is very expensive, without noting the obvious ways in which those issues can be addressed to lessen those costs. Why?

One example, they find that proportionality review cost $93, 000 per case. Why didn't the Commission recommend doing away with proportionality review? There is no reason, legally, to have it and it has been a disaster, cost wise, with no benefit.

Secondly, the Commission states: "Nevertheless, consistent with the Commission's findings, recent studies in states such as Tennessee, Kansas, Indiana, Florida and North Carolina have all concluded that the costs associated with death penalty cases are significantly higher than those associated with life without parole cases. These studies can be accessed through the Death Penalty Information Center." (Report, page 33).

On many topics the Death Penalty Information Center has been one of the most deceptive or one sided anti death penalty groups in the country. While it is not surprising that the Commission would give them as a reference, multiple times, it doesn't speak well of the Commission.

Did the Commission read any of the studies referenced by the DPIC? It appears doubtful, or the Commission would not have referenced them.

For example, let's look at the North Carolina (Duke University) study. That cost study compared the cost of only a twenty year "life sentence" to the death penalty. Based upon that study, a true life without parole sentence would be more costly than the death penalty. Somehow the Commission missed that rather important fact.

These types of irresponsible and misleading references by the Commission do nothing to inspire any confidence in their findings, but do reinforce the opinion that their conclusions were predetermined.

Please see "Cost Comparisons: Death Penalty Cases Vs Equivalent Life Sentence Cases", to follow.

3) There is increasing evidence that the death penalty is inconsistent with evolving standards of decency.

REBUTTAL:

The Commission uses several references to prove their point. None of them succeeded.

- The first was based upon polling in New Jersey. The data showed strong support for executions in NJ, except when asking those polled to choose between a life sentence or a death sentence, for which life gets greater support. The major problem with this long standing and misleading polling question is that it has nothing to do with the legal reality of sentencing. Secondly, that poll shows broad support for BOTH sanctions, not a call to abandon either. The Commission, somehow, overlooked that obvious point.

Jurors have the choice of both sentences in states with the death penalty and life without parole. Therefore, a proper polling question for NJ would be,

A) should we eliminate the death penalty and ONLY have life without parole? or
B) should we give jurors the OPTION of choosing life or death in capital murder cases?

Based upon other polls, I suspect B would be the resounding winner of this poll in NJ.

Secondly, the Commissions polling speaker avoided the most obvious and reliable polling question on this topic - asking about the punishment for a specific crime, just as jurors have to decide. For example, 81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial rapist/murderer Michael Ross.

Thirdly, poll New Jersey citizens with the following questions. Is life without parole or the death penalty the most appropriate punishment for those who rape and murder children? Or should NJ remove the death penalty as a jury option for those who rape and murder children?

- Two religious speakers spoke against execution. Both are easily rebutted by religious scholars holding different views.

- Another alleged example of this evolving standard is based upon the fact there has been a reduction in death sentences. Such reduction is easily explained by a number of factors, other than some imagined "evolving standard of decency".

Murders have dropped some 40%, capital murders have likely dropped by even a greater number, based upon other factors. This, by itself, explains the overwhelming percentage of the drop in death sentences.

In addition, many prosecutors, such as those in NJ, know that their courts will not allow executions, leading to prosecutorial frustration as a contributing factor in any reduction - not an evolving standard of decency, but an evolving and increasing frustration.

Please review: "Why the reduction in death sentences?", to follow.

4) The available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey.

CLARIFICATION:

In fact, there is no data to support any racial bias, invidious or otherwise. The Commission must have read the series of NJ studies.

5) Abolition of the death penalty will eliminate the risk of disproportionality in capital sentencing.

REBUTTAL:

Yes, Commission, the abolition of all criminal sentences will eliminate the risk of disproportionality in all sentences, as well. This is hardly a rational reason to get rid of any sentence. Get rid of the expensive and unnecessary proportionality review.

6) The penological interest in executing a small number of persons guilty of murder is not sufficiently compelling to justify the risk of making an irreversible error.

REBUTTAL:

- The risk to innocents is greater with life without parole than with the death penalty. See (1), above LIFE WITHOUT PAROLE.

7) The alternative of Life imprisonment in a maximum security institution without the possibility of parole would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of the families of murder victims.

REBUTTAL:

This Commission statement is quite simply, false.

- Life imprisonment puts more innocents at risk than does the death penalty.

- Justice, just punishment, retribution and/or saving innocent lives, among others, are all legitimate social and penological interests all served by the death penalty.

- 81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial, rapist/murderer Michael Ross.

The overwhelming majority of those polled did not have family members murdered.

Is the Commission trying to tell us that a poll of NJ murder victim survivors would show a majority opposed to the death penalty? Of course not, that would be as absurd as the Commissions conclusions in this section.

Conclusion:

Almost without exception, The Commission accepted the standard anti death penalty position, without presenting the easily accessible rebuttal to that position.

Enough said.

-----------------------

NJ Death Penalty Study Commission

It is alleged that the Commission had fair hearings, with both sides adequately presented.

Alleged fair hearings mean nothing, if decisions are predetermined, as this one was.

11 of the 13 committee members were either known or leaning anti death penalty. The contempt for and discounting of pro death penalty positions in both the hearings and final report confirm that.

All the prosecutors on the Commission were up for reappointment - by the staunchly anti death penalty Governor. Would any of them sacrifice their livelihood to fight for the death penalty? Of course not and they did not.

One committee member - one - was confirmable as pro death penalty.

Most, if not all, of Committee Chairman Rev. Howard's previous affiliations were anti death penalty.

Rev. Howard's fairness is best shown by the Commission's final report, which was laughable in its exclusion of pro death penalty positions, positions which would have either overwhelmed or neutralized the anti death penalty, predetermined conclusions of the panel, had those pro death penalty positions been given a fair showing in that report - which they weren't.

The Commission hearings and final report were, as all show trials, a farce.

copyright 2007 Dudley Sharp

Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, CBS, CNN, C-Span, FOX, NBC, NPR, PBS, BBC 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.

Pro death penalty sites

homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
joshmarquis(dot)blogspot.com/
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_contents.htm (Sweden)
www(dot)wesleylowe.com/cp.html

dudleysharp said...

Avoided by the UN and the NJ Death Penalty Commission:

The Death Penalty as a Deterrent - Twelve (now 14-15)Recent Studies
Dudley Sharp, Justice Matters, updated 82207

CONTACT information for all of the study authors is within the footnotes

"I oppose the death penalty. " " But my results show that the death penalty (deters) — what am I going to do, hide them?" "Science does really draw a conclusion. It did. There is no question about it." "The results are robust, they don't really go away" "The conclusion is there is a deterrent effect.".

Prof. Naci Mocan, Economics Chairman, University of Colorado at Denver
"Studies say death penalty deters crime", ROBERT TANNER, Associated Press, Jun 10, 2:01 PM ET

(2003) Emory University Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna Shepherd state that "our results suggest that capital punishment has a strong deterrent effect. An increase in any of the probabilities -- arrest, sentencing or execution -- tends to reduce the crime rate. In particular, each execution results, on average, in eighteen fewer murders -- with a margin of error of plus or minus 10." (1) Their data base used nationwide data from 3,054 US counties from 1977-1996.

(2003) University of Colorado (Denver) Economics Department Chairman Naci Mocan and Graduate Assistant R. Kaj Gottings found "a statistically significant relationship between executions, pardons and homicide. Specifically each additional execution reduces homicides by 5 to 6, and three additional pardons (commutations) generate 1 to 1.5 additional murders." Their "data set contains detailed information on the entire 6,143 death sentences between 1977 and 1997. (2)

(2001) University of Houston Professors Dale Cloninger and Roberto Marchesini, found that death penalty moratoriums contribute to more homicides. They found: "The (Texas) execution hiatus (in 1996), therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 (to as many as 150) additional innocent lives lost to homicide. Politicians contemplating moratoriums may wish to consider the possibility that a seemingly innocuous moratorium on executions could very well come at a heavy cost." (3)

(2001) SUNY (Buffalo) Professor Liu finds that legalizing the death penalty not only adds capital punishment as a deterrent but also increases the marginal productivity of other deterrence measures in reducing murder rates. "Abolishing the death penalty not only gets rid of a valuable deterrent, it also decreases the deterrent effect of other punishments." "The deterrent effects of the certainty and severity of punishments on murder are greater in retentionist (death penalty) states than in abolition (non death penalty) states." (4)

(2003) Clemson U. Professor Shepherd found that each execution results, on average, in five fewer murders. Longer waits on death row reduce the deterrent effect. Therefore, recent legislation to shorten the time prior to execution should increase deterrence and thus save more innocent lives. Moratoriums and other delays should put more innocents at risk. In addition, capital punishment deters all kinds of murders, including crimes of passion and murders by intimates. Murders of both blacks and whites decrease after executions. (5) NOTE In a later review of individual state data, Shepherd found that for states executing less than once every 27 months, that there was no effect on murders or murders actually rose. Citations to follow.

(2003) FCC economist Dr. Paul Zimmerman finds: "Specifically, it is estimated that each state execution deters somewhere between 3 and 25 murders per year (14 being the average). Assuming that the value of human life is approximately $5 million {i.e. the average of the range estimates provided by Viscussi (1993)}, our estimates imply that society avoids losing approximately $70 million per year on average at the current rate of execution all else equal." The study used state level data from 1978 to 1997 for all 50 states (excluding Washington D.C.). (6)

(2003) Emory University Economics Department Chairman Hashem Dezhbakhsh and Clemson U. Professor Shepherd found that "The results are boldly clear: executions deter murders and murder rates increase substantially during moratoriums. The results are consistent across before-and-after comparisons and regressions regardless of the data's aggregation level, the time period, or the specific variable to measure executions." (7)

(2005) In a review of Illinois state data, University of Houston Professors Dale Cloninger and Roberto Marchesini found that 150 additional Illinois' citizens died, in a four year period because of Governor Ryan suspended executions and commuted all death sentences. (Applied Economics, forthcoming 2006).


Criticisms rebutted and additional studies

(2006) "This analysis shows that attempts to make the deterrence effect disappear are ineffective." (p 16)
--- Existence of the death penalty, in law, has a statistically significant impact on reducing murders. (p 23)
--- Execution rates show significant impact in reducing murders. (p 13 & 23)
--- Death row commutations, and other removals, increase murders. (p13 & 23)
--- The criticism of our studies is flawed and does not effect the strength of the measured deterrent effect.
"The Impact of Incentives On Human Behavior: Can we Make It Disappear? The Case of the Death Penalty", Naci H. Mocan, R. Kaj Grittings, NBER Working Paper, 10/06, www(dot)nber.org/papers/w12631


(2006) " . . . (Donohue and Wolfers' "D&W") criticisms of Zimmerman's analysis are misrepresentative, moot or unsupportable in terms of the analyses they perform." "It is shown that Zimmerman's published empirical results, or the conclusions drawn from them, are not in any way refuted by D&W's critique." (pg 3) "This later estimate suggests that each execution deters 14 murders on average . . .". (pg 7) "It is shown that D&W made a number of serious misinterpretations in their review of Zimmerman's study and that none of the analyses put forward by D&W (which ostensibly refute Zimmerman's original results and conclusions) hold up under scrutiny. (pg8) " . . . D&W do not even report Zimmerman's "preferred" results correctly, and then proceed by carrying on this error throughout the remainder of their critique."(pg8) "Of course, (D&W's) omission tends to create a strong impression that Zimmerman's analysis 'purports to find reliable relationships between executions and homicides', when his actual conclusions regarding the deterrent effect of capital punishment are far more agnostic." (pg10) " . . . D&W's method of interpreting their results is not consistent with that proscribed by the received econometric literature on randomized testing . . .". "As such, D&W's interpretation of their randomized test in itself does not (and cannot) reasonably lead one to conclude that Zimmerman's estimates suggesting a deterrent effect of capital punishment are spurious." (pg12) " . . . D&W do not appear to have interpreted their randomization test in any meaningful fashion." (pg14) " . . . the state clustering correction employed by D&W may not be producing statistically meaningful results." (pg16) "And while D&W once lamented that recent econometric studies purporting to demonstrate a deterrent effect of capital punishment yield 'heat rather than light', as shown herein, their criticisms of Zimmerman (2004) tend to yield 'smoke rather than fire'."(pg26)
Zimmerman, Paul R., "On the Uses and 'Abuses' of Empirical Evidence in
the Death Penalty Debate" (November 2006). ssrn(dot)com/abstract=948424


(2007) "Had (D&W's) paper been subjected to the normal blind peer review process in an authoritative economic journal it is highly unlikely that it would have survived intact , if at all. "

"(D&W's) Quibbling over numerous and sometimes meaningless statistical issues obscures the picture painted by the cumulative effect of the nearly dozen studies published since the turn of the 21st century."

"Using differing methodologies and data sets at least five groups of scholars each working independently (and often without knowledge of the others) have arrived at the same conclusion—there is significant and robust evidence that executions deter some homicides. While there may be merit in some of (D&W's) specific criticisms, none addresses the totality of the collection of studies. The probability that chance alone explains the coincidence of these virtually simultaneous conclusions is negligible."

"DW’s unsupported claim that the appropriate variable in studies of deterrence using these borrowed tools from portfolio analysis is the amount or level of homicides in the respective jurisdictions. This claim is without theoretical basis or empirical precedent. "


"With regard to DW’s specific comments on our two papers (Cloninger & Marchesini, 2001 & 2006) we find very little requiring defense. Implicit in their critique, and explicitly stated in private communications, DW were able to replicate our results based on data we furnished, at their request, as well as data they acquired independently. "

"Reflections on a Critique", Dale O Cloninger and Roberto Marchesini, forthcoming Applied Economic Letters

The findings for deterrence reflect reason, common sense and history.

"According to the standard economic model of crime, a rational offender would respond to perceived costs and benefits of committing crime." "Capital punishment is particularly significant in this context, because it represents a very high cost for committing murder (loss of life). Thus, the presence of capital punishment in a state, or the frequency with which it is used, should unequivocally deter homicide." Furthermore, "an increase in pardons (commutations) implies a decrease in the probability of execution, which economic theory predicts should have a positive (increase) impact on murder rates." (8)

Isaac Ehrlich (1975) provided the first systemic analysis of the relationship between capital punishment and the crime of murder along with the first empirical analysis of the deterrence hypothesis. He found that each execution deterred, on average, 8 murders. Many additional studies have found corroborating evidence supporting the deterrent effect of the death penalty -- from the United States (Ehrlich, 1977, Layson, 1985, Cloninger, 1992, Ehrlich and Liu, 1999, Dezhbakhsh et al, 2000) and Canada (Layson 1983) and the UK (Wolpin, 1978). (9)

Pubic policy makers take note. Stopping executions will sacrifice innocent lives. Reinstating capital punishment will spare more innocent lives.

full report

THE DETERRENT EFFECT OF THE DEATH PENALTY
by Dudley Sharp
last update 42707
(contact info, below)

". . . (E)ach execution results, on average, in eighteen fewer murders . . . ".

Deterrence

The potential for negative consequences deters some behavior. The most severe criminal sanction -- execution -- does not contradict that finding. Reason, common sense, history and the weight of the studies support the deterrent effect of the death penalty. The death penalty protects innocent lives. The absence of the death penalty sacrifices innocent lives.

Is there any group, be they criminologists, historians, psychologists, economists, philosophers, physicians, journalists or criminals that does not recognize that the prospect of negative consequences constrains or deters the behavior of some? Of course not -- not even fiction writers so speculate. Even irrational people wear seat belts, choose not to smoke and do not rob police stations because of the potential for negative consequences.

I. Twelve (now14-15) Recent Deterrence Studies-- The death penalty saves innocent lives

Above

ll. Historical support

Reason, history and common sense all support that the potential for negative consequences deters or alters behavior. In short, incentives, negative or positive, matter. That is undisputed.

Numerous, previous studies have also supported a deterrence finding. And the studies that find a deterrent effect of other criminal sanctions give additional support to the deterrent effect of the death penalty, because, if lesser sanctions deter, then we know that more severe sanctions also deter. The studies that find a deterrent effect of 1. increased police presence, or any other levels of security; 2. arrest/arrest rates; 3. criminal sentencing/incarceration terms; and 4. the presence of rules, laws and statutes all provide additional, collateral support for the deterrent effect of the death penalty. And there are likely hundreds, if not thousands, of such studies and examples (database in progress).

lII. Negative consequences matter

Many have discounted a deterrent effect because of the irrationality of potential and active criminals. However, both reason and the evidence support that the potential for negative consequences does affect criminal behavior.

Criminals who try to conceal their crime do so for only one reason -- fear of punishment. Likely, more than 99% of all criminals, including capital murderers, act in such a fashion. Fear of capture does not exist without an expectation of punishment.

This doesn't mean that they sit down before every crime, most crimes or even their first crime, and contemplate a cost to benefit analysis of a criminal action. Weighing negative consequences may be conscious or subconscious, thoughtful or instinctive. And we instinctively know the potential negative consequences of some actions. Even pathetically stupid or irrational criminals will demonstrate such obvious efforts to avoid detection. And there is only one reason for that -- fear of punishment.

When dealing with less marginalized personalities, those who choose not to murder, such is a more reasoned group. It would be illogical to assume that a more reasoned group would be less responsive to the potential for negative consequences. Therefore, it would be illogical to assume that some potential murderers were not additionally deterred by the more severe punishment of execution.

As legal writer and death penalty critic Stuart Taylor observes: "All criminal penalties are based on the incontestable theory that most (or at least many) criminals are somewhat rational actors who try so hard not to get caught because they would prefer not to be imprisoned. And most are even keener about staying alive than about avoiding incarceration." (10)

Based upon the overwhelming evidence that criminals do respond to the potential of negative consequences, reason supports that executions deter and that they are an enhanced deterrent over lesser punishments.

IV. The pre trial, trial and death row evidence - the survival effect

At every level of the criminal justice process, virtually all criminals do everything they can to lessen possible punishments. I estimate that less than 1% of all convicted capital murderers request a death sentence in the punishment phase of their trial. The apprehended criminals' desire for lesser punishments is overwhelming and unchallenged.

Of the 7300 inmates sentenced to death since 1973, 85, or 1.2% have waived remaining appeals and been executed. 98.8% have not waived appeals. The evidence is overwhelming that murderers would rather live on death row than die. Why? The survival effect -- life is preferred over death and death is feared more than life. Even on death row, that is the rule.

Even such marginalized personalities as capital murderers fear death more than imprisonment. And that which we fear the most, deters the most. (kudos to Ernest van den Haag and many others)

It is logical to conclude that some of those less marginalized personalities, who choose not to murder, also, overwhelmingly, fear death more than life, and, we, thus, logically conclude that some are deterred from murdering because of the enhanced deterrent effect of execution.

The evidence for the survival effect in pretrial, trial and appeals is overwhelming and that weighs in favor of execution as a deterrent and as an enhanced deterrent over lesser sentences.

V. If unsure about deterrence

Common sense, reason and history all support that the potential for negative consequences restricts the behavior of some. But, if unsure of deterrence, we face the following dilemma -- If executions do deter, halting executions causes more innocents to be murdered and gives those living murderers the opportunity to harm and murder again. If the death penalty does not deter, and we do execute, we punish murderers as the jury deemed appropriate and we prevent those executed murderers from harming or murdering again.

Oddly, death penalty opponents believe that the burden of proof is on those who say the death penalty is a deterrent. Clearly it is not. The weight of the evidence, within reason, history, common sense and the social sciences is that the potential for negative consequences restricts the behavior of some. That is not in dispute. Furthermore, if opponents cannot prove it is not a deterrent, which they never have and never will, then they are the ones who risk sacrificing innocents, both by absence of deterrence and reduced incapacitation.

Regardless of jurisdiction, under all debated scenarios, more innocents are put at risk when we fail to execute. Any alleged concern for innocents weighs in favor of executions.

Vl. The individual deterrent effect

The individual deterrent effect is represented by those who state that they were deterred from committing a murder only because of the prospects of a death sentence. Individual cases support the enhanced deterrent effect. (11)

One Iowa prisoner, who escaped from a transportation van, with a number of other prisoners, stated that he made sure that the overpowered guards were not harmed, because of his fear of the death penalty in Texas. The prisoners were being transported through Texas, on their way to New Mexico, when the escape occurred. Most compelling is that he was a twice convicted murderer from a non death penalty state, Iowa. In addition, he was under the false impression that Texas had the death penalty for rape and, as a result, also protected the woman guard from assault. (12)

New York Law School Professor Robert Blecker recorded his interview with a convicted murderer. The murderer robbed and killed drug dealers in Washington DC., where he was conscious that there was no death penalty. He specifically did not murder a drug dealer in Virginia because, and only because, he envisioned himself strapped in the electric chair, which he had personally seen many times while imprisoned in Virginia. (13)

Senator Dianne Feinstein explained, ''I remember well in the 1960s when I was sentencing a woman convicted of robbery in the first degree and I remember looking at her commitment sheet and I saw that she carried a weapon that was unloaded into a grocery store robbery. I asked her the question: ‘Why was your gun unloaded?’ She said to me: ‘So I would not panic, kill somebody, and get the death penalty.’ That was firsthand testimony directly to me that the death penalty in place in California in the sixties was in fact a deterrent.''(13A)

Logic requires that the individual deterrent effect cannot exist without the general deterrent effect. Therefore, reason dictates that the general deterrent effect must exist. The question is not: "Does deterrence exist?" It does. The issue is: "What is the quantifiable impact of deterrence?"

Individual cases support the individual deterrent effect and such cases insure that general deterrence must exist. And, for both, the evidence also suggests that executions provide enhanced deterrence over incarceration.

VlI. Conflicting studies

In reviewing 30 years of deterrence studies, the strongest statement one may make against deterrence is that there is conflicting data (14).

Yet, even when academic bias against capital punishment is overt, such as in the case of the American Society of Criminology -- the subtitle to their death penalty resources page is "Anti-Capital Punishment Resources" -- even they fail to state that the death penalty does not deter some potential murderers, only that "social science research has found no consistent evidence of crime deterrence through execution." (15) That is far from stating that executions do not deter. And the criminologists are, very likely, that academic group most hostile toward the death penalty. What social science conflicts with the notion that the potential for negative consequences restrains the behavior of some? And most would agree that execution is the most serious negative consequence that a murderer may face.

Numerous studies find that executions do deter. And there is a rational conclusion based upon common experience. It appears that all criminal sanctions deter some. It would be irrational to conclude that the most severe and publicized sanction -- execution -- does not deter some potential murderers.

Those studies which do not find deterrence say that they could not detect it, not that it doesn't exist. Those studies which find for deterrence state such.

As Professor Cloninger states: " . . . (Our recent) study is but another on a growing list of empirical work that finds evidence consistent with the deterrence hypothesis. These studies as a whole provide robust evidence -- evidence obtained from a variety of different models, data sets and methodologies that yield the same conclusion. It is the cumulative effect of these studies that causes any neutral observer to pause." (16)

Conflicting studies and reason both weigh in favor of the death penalty as a deterrent and as an enhanced deterrent over lesser punishments.

VlII. The brutalization effect of executions

Some, particularly death penalty opponents, find that the brutalization effect is more likely than the deterrent effect. The brutalization effect finds that murders will increase because potential murderers will murder because of the example of state executions.

Why would potential and active murderers be so influenced by the state in such a deep philosophical manner, revealed by brutalization, but they wouldn't be more affected by the simple "you murder, we execute you?"

Death penalty opponents make an interesting about face on this issue. They insist that criminals are so thoughtless and impulsive that they can't be affected by the potential of negative consequences but, then, those same opponents see criminals as so contemplative that their criminal actions increase BECAUSE those criminals follow the example of the state. One might ask those opponents: "Is there any other government action which influences criminals in such a fashion?" Do criminals kidnap more BECAUSE the state increases incarceration rates? Do criminals give money to potential victims BECAUSE the state donates to needy causes?

Murder rates and execution rates

Although deterrence is much more than a simple look at only execution rates and murder rates, we do find that as executions have risen dramatically, the murder rate has plunged.

From 1966-1980, a period which included our last national moratorium on executions (June 1967- January 1976), murders in the United States more than doubled from 11,040 to 23,040. The murder rate also nearly doubled, from 5.6 to 10.2/100,000. During that 1966-1980 period, the US averaged 1 execution every 3 years, with a maximum of two executions per year. From 1995-2000 executions averaged 71 per year, a 21,000% increase over the 1966-1980 period. The US murder rate dropped from a high of 10.2/100,000 in 1980 to 5.5/100,000 in 2000 -- a 46% reduction. The US murder rate is now at its lowest level since 1966 (17).

The Texas example -- The murder rate in Harris County (Houston), Texas has fallen 73% since executions resumed in 1982, through 2000, from 31/100,000 to 8.5/100,000 (18). Harris County is, by far, the most active death penalty sentencing and execution jurisdiction in the US. The Harris County murder rate dropped nearly 70% more than did the national murder rate, during similar periods. Texas' murder rate dropped 62% during that same period, or 41% more than the national average.

Potential murderers may have been affected by the example of the state of Texas but, likely, not in a manner consistent with brutalization.

And "(t)he biggest decline in murder rates has occurred in states that aggressively use capital punishment." (19)

After a thorough review of deterrence studies, Professor Samuel Cameron observed, "The brutalization idea is not one the economists have given any credence." "We must conclude that the deterrence effect dominates the opposing brutalization effect." (20)

Reason, history, common sense and the studies weigh against the brutalization effect.

lX. The incapacitation effect

The incapacitation effect states that executed murderers cannot harm or murder again. Reason dictates that living murderers are infinitely more likely to harm and murder again than are executed murderers.

That obvious logic escapes death penalty opponents who say that we can have foolproof incarceration. What hypocrisy. This is the same group of folks who tell us that our system of justice is so fraught with error that we cannot possibly continue the death penalty. Yet, the facts tell us that living murderers harm and murder again, in prison, after escape and after improper release. Executed murderers do not. In addition, the US death penalty appears to be that criminal justice sanction which is the least likely to convict the factually innocent and the most likely to remedy such rare error upon post conviction review.

Stuart Taylor: "Statistical studies and common sense aside, it's undeniable that the death penalty saves some lives: those of the prison guards and other inmates who would otherwise be killed by murderers serving life sentences without parole, and of people who might otherwise encounter murderous escapees". (21)

Under all circumstances, the execution of murderers will protect innocents at a higher rate than will incarceration.

X. Death Penalty Opponents

Why is it that some death penalty opponents appear to laugh off any potential for a deterrent effect of executions? Because to admit that executions deter some potential murderers would be to admit that, in reaching their goals, they will knowingly benefit murderers at the cost of sacrificing more innocent lives. Of course, opponents will never prove it is not a deterrent and many will admit that executions do deter some.

How many would still oppose executions if they knew that the evidence supported the deterrent effect and that many more innocents are put at risk by not executing?

Stuart Taylor: "So those of us who lean against the death penalty must confront the very real possibility that abolishing it could lead to the violent deaths of unknown numbers of innocent men, women, and children. And those who are still skeptical that the death penalty deters any killings must also confront the risk-benefit calculus suggested by political scientist John McAdams of Marquette University: 'If we execute murderers, and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.' " (22)

Xl. Conclusion

Those of us who support execution do so because it is a just punishment. The moral foundation for all punishments is that they are deserved. One cannot support a punishment based upon deterrence alone.

Reason, common sense and history all fall on the side of deterrence. Be it Sweden or Rwanda, Texas or Michigan, Singapore or Chile, England or Japan, whether high crime rates or low, the death penalty will always deter some potential murderers. Regardless of jurisdiction, the potential for negative outcomes will always restrict the behavior of some. And, the weight of the evidence clearly supports execution as an enhanced deterrent.

As Professor Rubin states, "Our evidence is that there are substantial benefits from executions and, thus, substantial costs of changing this policy (23).

From Prof. Robert Blecker, New York Law School,

"We support execution as a just and appropriate forfeiture of lives which deserve to be taken. We also support execution as a just and appropriate method to save lives which deserve to be saved. "

opyright 1998-2007 Dudley Sharp

Dudley Sharp, Justice Matters
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS 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.

Pro death penalty sites

homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
www(dot)coastda.com/archives.html
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_co
www(dot)yesdeathpenalty.com/deathpenalty_contents.htm
www(dot)wesleylowe.com/cp.html

Permission for distribution of this document is approved as long as it is distributed in its entirety, without changes, inclusive of this statement.


1). "Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data", American Law and Economics Review V5 N2 2003 (344-376), Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepherd.
contact Dezhbakhsh at econhd@emory.edu, ph 404-727-4679, Rubin at prubin@emory.edu, ph 404-727-6365 and Shepherd at jshepherd@law.emory.edu, ph. 404-727-8957
The quotation is from the complete, pre publication study which can be found at
http://userwww.service.emory.edu/~cozden/Dezhbakhsh_01_01_paper.pdf
2) "Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment," Journal of Law and Economics, Volume 46, Number 2, October 2003, at
www.journals.uchicago.edu/cgi-bin/resolve?JLE460202
registration required
H. Naci Mocan (mmocan@carbon.cudenver.edu, ph 303-556-8540) and R. Kaj Gottings (rgitting@carbon.cudenver.edu),
This is a revised version of "Pardons, Executions and Homicide," NBER WP8639) at
econ.cudenver.edu/mocan/papers/GettingOffDeathRow.pdf
The quote is from the working paper "Pardons, Executions and Homicide", October 2001, located at
http://econ.cudenver.edu/beckman/kai.pdf
downloaded on 1/22/01
3) "EXECUTION MORATORIUM IS NO HOLIDAY FOR HOMICIDES", Prof. Dale O. Cloninger and Prof. Roberto Marchesini. go to http://www.prodeathpenalty.com/Moratoriums.htm
based on the study "Execution and deterrence: a quasi-controlled group
experiment", Dale O. Cloninger (cloninger@cl.uh.edu, phone 281-283-3210), Roberto Marchesini (marchesini@cl.uh.edu, phone 281-283-3215), Applied Economics, 4/01, Vol 33, N 5, p569 -- p576
4) Capital Punishment and the Deterrence Hypothesis: Some New Insights and Empirical Evidence, December 2001, Eastern Economic Journal, Forthcoming , ZHIQIANG LIU (e-mail zqliu@buffalo.edu, ph. 716-645-2121) on line at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=352681
5) Murders of Passion, Execution Delays and the Deterrence of Capital Punishment, March 2003, at http://people.clemson.edu/~jshephe/, Joanna M. Shepherd, jshepherd@law.emory.edu, ph. 404-727-8957
6). "State Executions, Deterrence and the Incidence of Murder", Paul R. Zimmerman (zimmy@att.net), March 3. 2003, Social Science Research Network, http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID354680_code021216500.pdf?abstractid=354680
7) Dezhbakhsh, Hashem and Shepherd, Joanna, "The Deterrent Effect of Capital Punishment: Evidence from a 'Judicial Experiment'" (Aug 19, 2003). Emory University Economics Working Paper No. 03-14 at
ssrn.com/abstract=432621
contact Dezhbakhsh at econhd@emory.edu or ph 404-727-4679 and Shepherd at jshepherd@law.emory.edu, ph. 404-727-8957
8) "Pardons, Executions and Homicide", H. Naci Mocan (mmocan@carbon.cudenver.edu) and R. Kaj Gottings (rgitting@carbon.cudenver.edu), Journal of Law and Economics, forthcoming. Online version located at
http://econ.cudenver.edu/beckman/kai.pdf
downloaded on 1/22/01
9) Professor Ehrlich, e-mail mgtehrl@acsu.buffalo.edu, phone (716) 645-2121. For support and defense of his work go to: http://wings.buffalo.edu/economics/IEcrime.html
Review from Capital Punishment and the Deterrence Hypothesis: Some New Insights and Empirical Evidence, December 2001, Eastern Economic Journal, Forthcoming , ZHIQIANG LIU, e-mail zqliu@buffalo.edu, ph. 716-645-2121, on line at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=352681
10) "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm
11) see paragraph 14, Section B, "The Incapacitation and the Deterrence Effects", Death Penalty and Sentencing Information in the United States, 10/1/97, at http://www.prodeathpenalty.com/DP.html
12) "Langley says Texas death penalty affected his actions during escape", by Stephen Martin, The Daily Democrat (Ft. Madison, Iowa), 1/8/97, pg 1.
13) Blecker book
13A) California District Attorneys Association, ''Prosecutors Perspective on California’s Death Penalty,'' March 2003
14) Section B, "The Incapacitation and the Deterrence Effects", Death Penalty and Sentencing Information in the United States, 10/1/97, at http://www.prodeathpenalty.com/DP.html
15) "ASC RESOLUTION ON THE DEATH PENALTY", ASC Annual Meeting, Montreal, 1987, Anti-Capital Punishment Resources from the ASC's Critical Criminology Division, go to http://sun.soci.niu.edu/~critcrim/dp/dp.html
last viewed 12/2/01.
16) "Execution and deterrence: a quasi-controlled group experiment", Dale O. Cloninger (cloninger@cl.uh.edu), Roberto Marchesini (marchesini@cl.uh.edu), Applied Economics, 4/01, Vol 33, N 5, p569 -- p576, located at http://ideas.repec.org/a/taf/applec/v33y2001i5p569-76.html
17) i) Homicide trends in the U.S., Long term trends, Homicide victimization, 1950-99, Bureau of Justice Statistics, Source: FBI, Uniform Crime Reports, 1950-2000
at http://www.ojp.usdoj.gov/bjs/homicide/tables/totalstab.htm
, Page last revised on January 4, 2001
(ii) Crime in the United States -- 2000, Section II -- Crime Index Offenses Reported, "Murder and non negligent homicide", FBI, Uniform Crime Reports at http://www.fbi.gov/ucr/cius_00/00crime2_3.pdf
(iii) "Number of persons executed in the United States, 1930-2001", Key Facts at a Glance, Executions
Bureau of Justice Statistics, Source: Capital Punishment 2000, December 2001 at
http://www.ojp.usdoj.gov/bjs/glance/tables/exetab.htm
18) Texas Department of Public Safety, Uniform Crime Reporting, Harris County data, from 1982 and 2000 database.
19) Boston Globe, 10/28/97, p A12
20) "A Review of the Econometric Evidence on the Effects of Capital Punishment", The Journal of Socio-Economics, v23 n 1/2, p 197-214, 1994
21) "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm
22) "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm
23) "Death penalty deters scores of killings ", Paul H. Rubin, The Atlanta Journal-Constitution: 3/13/02, from
www.accessatlanta.com/ajc/opinion/0302/0314death.html

dudleysharp said...

It is reasonable to challenge the extraordinarily high cost calculations of the anti death penalty folks in NJ.

Furthermore, take the NJ Supreme Court out of the constant social science study treadmill, which has cost NJ huge and ask the court to be a court, again.

Cost Comparisons:
Death Penalty Cases Vs Equivalent Life Sentence Cases
by Dudley Sharp, Justice Matters
 
In comparing the cost of death penalty cases to other sentences, many of the well known studies are woefully incomplete or inaccurate.
 
Generally, such studies have one or more of the following problems.
 
1) All studies exclude the cost of geriatric care, recently found to be $69,000/inmate/yr. A significant omission from life sentence costs.
 
 
2) All studies exclude the cost savings of the death penalty, which is the ONLY sentence which allows for a plea bargain to a maximum life sentence. Such plea bargains accrue as a cost benefit to the death penalty, such benefit being the cost of trials and appeals for that life sentence. The cost savings would be for trial and appeals and would accrue as a cost savings for the death penalty. Depending upon jurisdiction, this may result in a zero net cost for the death penalty, depending on the number of plea bargains Vs the number of death penalty trials, or an actual net cost benefit to the state.
 
 
3) a) Some studies compare the cost of a death penalty case, including pre trial, trial, appeals and incarceration, to only the cost of incarceration for 40 years, excluding all trial costs and appeals, for a life sentence. The much cited Texas "study" does this.  Obviously, a totally inaccurate cost comparison.
 
       b)1) The pure deception in some cost "studies" is overt. It has been claimed that it costs $3.2 million/execution in Florida. That "study" decided to add the cost of the entire death penalty system in Florida ($57 million), which included all of the death penalty cases and dividing that number by only the number of executions (18). One could be equally misleading by dividing the $57 million by the (estimated) 200 death row cases and stating that ever death row case cost $285,000. Both would be inaccurate and misleading.
 
        b)2)The Duke University-North Carolina death penalty cost study is a perfect example:
 
Anti death penalty folks have been deceptively stating that it costs  $2.16 million for an execution in North Carolina. However, what the study really says is that $2.16 million is the average cost of execution, for all death penalty cases.  For example, if 10 people are sentenced to death and only one of  those ten is executed and you roll all of the costs for all of those 10 death penalty cases into that 1 execution, you would get an average  cost of $2.16 million per execution.
 
You could dishonestly do the same thing with LWOP. As soon your first LWOP prisoner died, you could roll all of the LWOP costs, from all other living LWOP cases, and say that it cost $20 million on average per LWOP. That would be equally inaccurate and misleading.
 
In reality (read the Executive Summary) the difference in cost between a North Carolina murder conviction with a "life" sentence  and a death sentence is $163,000. See also paragraph 9 Summing up, page 2.(2)
 
But in the study, a life sentence is only 20 years. You need to add 20-30 years -- or $500,000 - $750,000/prisoner --  to get a real life sentence. The authors also concede leaving out geriatric care, recently found to be $69,000/yr/prisoner.
 
In other words, what the study actually tells us is that an actual life sentence costs much more than a death sentence.
 
 
4) There is no reason for death penalty appeals to take longer than 7 years. All death penalty appeals, direct and writ, should travel through the process concurrently, thereby giving every appellate issue 7 years of consideration through both state and federal courts. There is no need for endless repetition and delay.
 
Texas, which leads the nation in executions, takes over 10 years, on average, to execute murderers.  The state and federal courts, for that jurisdiction,  handle many cases. Texas has the second lowest rate of the courts overturning death penalty cases. Could every jurisdiction process death penalty appeals in 6-8 years.
 
One more, small example. A death row is completely unnecessary. Just put death sentenced prisoners in existing prisons/cells that already have enhanced security. Missouri does.
 

5)  FCC economist Dr. Paul Zimmerman finds that executions result in a huge cost benefit to society. "Specifically, it is estimated that each state execution deters somewhere between 3 and 25 murders per year (14 being the average). Assuming that the value of human life is approximately $5 million {i.e. the average of the range estimates provided by Viscussi (1993)}, our estimates imply that society avoids losing approximately $70 million per year on average at the current rate of execution all else equal." The study used state level data from 1978 to 1997 for all 50 states (excluding Washington D.C.). (1)
 
That is a cost benefit of $70 million per execution.  7 additional, recent studies support the deterrent effect. Deterrence report upon request.
 
No cost study has included such calculations.
 
Although many find it inappropriate to put a dollar value on life, evidently this is not uncommon for economists, insurers, etc.
 
We know that living murderers are infinitely more likely to harm and murder, again, than are executed murderers. There is no doubt that executions do save innocent lives. What value do you put on the lives saved? Certainly not less than $5 million.
 
Justice
 
6) The main reason death sentences are given is because jurors find that it is the most just punishment available. No state, concerned with justice, will base a decision solely on cost alone. If they did, all criminal cases would be plea bargained and every crime would have a probation option.
 

Some believe that we can only duplicate the most horrendously cost abusing death penalty systems. There is another alternative.
 
While costs can be higher, sometimes much higher, with capital punishment than with life without parole, it isn't required, States need only improve upon the examples of those states which have the most efficient death penalty systems.
 
The bottom line is that states can have a just death penalty system and not spend more than they currently do on life without parole cases. 
 
It just takes the will of the legislature and the judges.
 
1). "State Executions, Deterrence and the Incidence of Murder", Paul R. Zimmerman  (zimmy@att.net),   March 3. 2003, Social Science Research Network
2) www-pps(DOT)aas.duke.edu/people/faculty/cook/comnc.pdf
 
copyright 2004-2007
 
Dudley Sharp, Justice Matters
e-mail  sharpjfa@aol.com,  713-622-5491,
Houston, Texas
 
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS 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.
 
Pro death penalty sites 

homicidesurvivors(dot)com/categories/Dudley%20Sharp%20-%20Justice%20Matters.aspx

www(dot)dpinfo.com
www(dot)cjlf.org/deathpenalty/DPinformation.htm
www(dot)clarkprosecutor.org/html/links/dplinks.htm
joshmarquis(dot)blogspot.com/
www(dot)lexingtonprosecutor.com/death_penalty_debate.htm
www(dot)prodeathpenalty.com
www(dot)yesdeathpenalty.com/deathpenalty_contents.htm  (Sweden)
www(dot)wesleylowe.com/cp.html

Permission for distribution of this document is approved as long as it is distributed in its entirety, without changes, inclusive of this statement.