"In depth" this week gives a small example of what lies hidden away in the  Kentucky Department of Public Advocacy's Advocate, "Cost, Deterrence, Incapacitation, Brutalization and the Death Penalty The Scientific Evidence: Statement Before the Joint Interim Health and Welfare Committee" by  Gary W. Potter, PhD.

As always, this newsletter was put together, flying by the seat of my pants, late at night, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue. 

Held:   1.  The Court of Appeals’ analysis failed to reveal whether retroactive application of the amendment to Rule 475—3—.05(2) violated the Ex Post Facto Clause. The controlling inquiry is whether such application creates a sufficient risk of increasing the measure of punishment attached to the covered crimes. Morales, supra, at 509. Here, the question is whether amended Rule 475—3—.05(2) creates a significant risk of prolonging respondent’s incarceration. That risk is not inherent in the amended Rule’s framework, and it has not otherwise been demonstrated on the record. While Morales identified several factors convincing this Court that California’s law created an insignificant risk of increased punishment for covered inmates, the Court was careful not to adopt a single formula for identifying which parole adjustments would survive an ex post facto challenge. States must have due flexibility in formulating parole procedure and addressing problems associated with confinement and release. This case turns on the amended Rule’s operation within the whole context of Georgia’s parole system. Georgia law gives the Board broad discretion in determining whether an inmate should receive early release. Such discretion does not displace the Ex Post Facto Clause’s protections, but the idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. The statutory structure, its implementing regulations, and the Board’s unrefuted representations regarding its operations do not support respondent’s conclusion that the Board will not exercise its discretion in the period between parole reviews. The Georgia law is qualified in two important respects. First, it vests the Board with discretion as to how often to set an inmate’s date for reconsideration, with an 8-year maximum. Second, the Board’s policies permit expedited reviews in the event of a change in circumstance or new information. These qualifications permit the Board to set reconsideration dates according to the likelihood that a review will result in meaningful considerations as to whether an inmate is suitable for release. The Board’s policy of providing reconsideration every eight years when it does not expect that parole would be granted during the intervening years enables the Board to ensure that those prisoners who should receive parole come to its attention. Given respondent’s criminal history, it is difficult to see how the Board increased his risk of serving a longer time when it set an 8-year, not a 3-year, interval. Yet, even he may seek earlier review upon showing changed circumstances or new information. The Eleventh Circuit’s supposition that the Rule seems certain to result in increased incarceration falls short of the rigorous analysis required by the Morales standard. When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule. On the record in this case, it cannot be concluded that the change in Georgia law lengthened respondent’s actual imprisonment time. Pp. 5—11.

    2.  The Eleventh Circuit erred in not considering the Board’s internal policy statement regarding how it intends to enforce its rule. At a minimum, such statements, along with the Board’s actual practices, provide important instruction as to how the Board interprets its enabling statute and regulations, and therefore whether the amended Rule created a significant risk of increased punishment. Absent a demonstration to the contrary, it is presumed that the Board follows its statutory commands and internal policies. Pp. 11—12.

    3.  The Eleventh Circuit’s analysis failed to reveal whether the amended Rule, in its operation, created a significant risk of increased punishment for respondent. He claims that he has not been permitted sufficient discovery to make this showing. The matter of adequate discovery is one for the Court of Appeals or, as need be, for the District Court in the first instance. P. 12.
164 F.3d 589, reversed and remanded.
 

    Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Thomas, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part in the judgment. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined.

Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded in Parts III and IV that:

    1.  Government restrictions on public nudity such as Erie’s ordinance should be evaluated under the framework set forth in United States v. O’Brien, 391 U.S. 367, for content-neutral restrictions on symbolic speech. Although being “in a state of nudity” is not an inherently expressive condition, nude dancing of the type at issue here is expressive conduct that falls within the outer ambit of the First Amendment’s protection. See, e.g., Barnes, supra, at 565—566 (plurality opinion). What level of scrutiny applies is determined by whether the ordinance is related to the suppression of expression. E.g.,Texas v. Johnson, 491 U.S. 397, 403. If the governmental purpose in enacting the ordinance is unrelated to such suppression, the ordinance need only satisfy the “less stringent,” intermediate O’Brien standard. E.g., Johnson, supra, at 403. If the governmental interest is related to the expression’s content, however, the ordinance falls outside O’Brien and must be justified under the more demanding, strict scrutiny standard. Johnson, supra, at 403. An almost identical public nudity ban was held not to violate the First Amendment in Barnes, although no five Members of the Court agreed on a single rationale for that conclusion. The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. By its terms, it regulates conduct alone. It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity. Although Pap’s contends that the ordinance is related to the suppression of expression because its preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at Kandyland, that is not how the Pennsylvania Supreme Court interpreted that language. Rather, the Pennsylvania Supreme Court construed the preamble to mean that one purpose of the ordinance was to combat negative secondary effects. That is, the ordinance is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing. See 391 U.S., at 382; see also Boos v. Barry, 485 U.S. 312, 321. The Pennsylvania Supreme Court’s ultimate conclusion that the ordinance was nevertheless content based relied on Justice White’s position in dissent in Barnes that a ban of this type necessarily has the purpose of suppressing the erotic message of the dance. That view was rejected by a majority of the Court in Barnes, and is here rejected again. Pap’s argument that the ordinance is “aimed” at suppressing expression through a ban on nude dancing is really an argument that Erie also had an illicit motive in enacting the ordinance. However, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. O’Brien, supra, 391 U.S., at 382—383. Even if Erie’s public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is therefore de minimis. If States are to be able to regulate secondary effects, then such de minimis intrusions on expression cannot be sufficient to render the ordinance content based. See, e.g.,Clark v. Community for Creative Non-Violence, 468 U.S. 288, 299. Thus, Erie’s ordinance is valid if it satisfies the O’Brien test. Pp. 7—15.

    2.  Erie’s ordinance satisfies O’Brien’s four-factor test. First, the ordinance is within Erie’s constitutional power to enact because the city’s efforts to protect public health and safety are clearly within its police powers. Second, the ordinance furthers the important government interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing. In terms of demonstrating that such secondary effects pose a threat, the city need not conduct new studies or produce evidence independent of that already generated by other cities, so long as the evidence relied on is reasonably believed to be relevant to the problem addressed. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51—52. Erie could reasonably rely on the evidentiary foundation set forth in Renton and Young v. American Mini Theatres, Inc., 427 U.S. 50, to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. See Renton, supra, at 51—52. In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. The evidentiary standard described in Renton controls here, and Erie meets that standard. In any event, the ordinance’s preamble also relies on the city council’s express findings that “certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare … .” The council members, familiar with commercial downtown Erie, are the individuals who would likely have had first-hand knowledge of what took place at and around nude dancing establishments there, and can make particularized, expert judgments about the resulting harmful secondary effects. Cf., e.g., FCC v. National Citizens Comm. for Broadcasting,436 U.S. 775. The fact that this sort of leeway is appropriate in this case, which involves a content-neutral restriction that regulates conduct, says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. Also, although requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects, O’Brien requires only that the regulation further the interest in combating such effects. The ordinance also satisfies O’Brien’s third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra. The fourth O’Brien factor–that the restriction is no greater than is essential to the furtherance of the government interest–is satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The pasties and G-string requirement is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer’s erotic message. See, e.g., Barnes, supra, at 572. Pp. 15—21.

    Justice Scalia, joined by Justice Thomas, agreed that the Pennsylvania Supreme Court’s decision must be reversed, but disagreed with the mode of analysis that should be applied. Erie self-consciously modeled its ordinance on the public nudity statute upheld in Barnes v. Glen Theatre, Inc., 501 U.S. 560, calculating (one would have supposed reasonably) that the Pennsylvania courts would consider themselves bound by this Court’s judgment on a question of federal constitutional law. That statute was constitutional not because it survived some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it was not subject to First Amendment scrutiny at all. Id., at 572 (Scalia, J., concurring in judgment). Erie’s ordinance, too, by its terms prohibits not merely nude dancing, but the act–irrespective of whether it is engaged in for expressive purposes–of going nude in public. The facts that the preamble explains the ordinance’s purpose, in part, as limiting a recent increase in nude live entertainment, that city councilmembers in supporting the ordinance commented to that effect, and that the ordinance includes in the definition of nudity the exposure of devices simulating that condition, neither make the law any less general in its reach nor demonstrate that what the municipal authorities really find objectionable is expression rather than public nakedness. That the city made no effort to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the time the ordinance became effective does not render the ordinance discriminatory on its face. The assertion of the city’s counsel in the trial court that the ordinance would not cover theatrical productions to the extent their expressive activity rose to a higher level of protected expression simply meant that the ordinance would not be enforceable against such productions if the Constitution forbade it. That limitation does not cause the ordinance to be not generally applicable, in the relevant sense of being targeted against expressive conduct. Moreover, even if it could be concluded that Erie specifically singled out the activity of nude dancing, the ordinance still would not violate the First Amendment unless it could be proved (as on this record it could not) that it was the communicative character of nude dancing that prompted the ban. See id., at 577. There is no need to identify “secondary effects” associated with nude dancing that Erie could properly seek to eliminate. The traditional power of government to foster good morals, and the acceptability of the traditional judgment that nude public dancing itself is immoral, have not been repealed by the First Amendment. Pp. 6—10.
 

    O’Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Rehnquist, C. J., and Kennedy, Souter, and Breyer, JJ., joined, and an opinion with respect to Parts III and IV, in which Rehnquist, C. J., and Kennedy, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Souter, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Held:  An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer’s stop and frisk of that person. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 30. Here, the officers’ suspicion that J. L. was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of reliability to provide reasonable suspicion to make a Terry stop:  It provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. See Alabama v. White, 496 U.S. 325, 327. The contentions of Florida and the United States as amicus that the tip was reliable because it accurately described J. L.’s visible attributes misapprehend the reliability needed for a tip to justify a Terry stop. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. This Court also declines to adopt the argument that the standard Terry analysis should be modified to license a “firearm exception,” under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing. The facts of this case do not require the Court to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great–e.g., a report of a person carrying a bomb–as to justify a search even without a showing of reliability.
727 So. 2d 204, affirmed.

Smith v. USA  (8th) Smith had adequate notice that government would seek to use evidence presented at co-defendant's trial to enhance his sentence. 

Dye v. Stender  (8th) Dye failed to show government witnesses had undisclosed deals with the government; in any event, evidence of Dye's guilt was overwhelming. 

Mason v. Meyers (3rd) "In Miller [v United States], we recounted how the AEDPA  had "dramatically  altered the form and timing of habeas petitions in the federal courts" and observed that petitioners" must marshal in one S 2255 writ all the arguments they have to collaterally attack their convictions." Miller, 197 F.3d at 649.8 We stressed that out of a sense of fairness, a district court should not prevent a pro se petitioner from presenting all of his claims in one full-fledged S 2255 attack upon his conviction. Accordingly, we have now required that under Miller, district courts provide certain prophylactic "notice" measures before either re-characterizing a post conviction motion as a S 2255 motion or ruling on a S 2255 motion denominated as such when the petitioner is proceeding pro se. " 

Starting next week a serialized version on one of the numerous "death penalty manuals" will begin a run in this space.

Introduction

There is probably no public policy issue related to crime control that has been researched and studied over as long a period of time as the death penalty; in more varied ways than the death penalty; or in greater volume than the death penalty. Put simply, the dilemma is this: there is no crime control issue we know more about than the death penalty and there is no crime control issue where the scientific research has been more ignored by decision-makers and the public than the death penalty. The fact is that the death penalty debate is much more than a matter of conflicting opinions, morals, ethics, and values. There are a plethora of well established, scientifically documented facts at the disposal of both the public and lawmakers. These facts have emanated from research that has been replicated over and over again and subjected to the most rigorous scientific review process available. These facts are well beyond refutation. In sum, it is fair to say to a level of certainty that far exceeds the most rigorous standards of proof in any court in America, that the death penalty, as presently constructed and administered is deplorably bad public policy. In studies using entirely different methodologies, at different times, in different places, constructing research questions in different ways, the facts are immutable and unchanging. The scientifically proven facts of the death penalty are clear. Those facts are:
 

1. The death penalty has no deterrent value to society. No evidence supporting either a general deterrent or a specific deterrent impact exists and no evidence supporting an incapacitation impact exists. The death penalty performs no crime control function whatsoever.

2. The death penalty, in fact, not only does not deter homicide and other crimes, but through a brutalization effect actually increases both homicide and violent crime markedly, seriously increasing the danger to society in states where it is used with any degree of frequency whatsoever.

3. The death penalty, even as constructed in post-Furman statutes, is arbitrary, discriminatory and capricious in its application. The death penalty, in every jurisdiction, discriminates on the basis of race of offender, race of victim, gender, age, and socio-economic status.

4. The death penalty, as currently structured and administered, results in jury confusion and misinterpretation of the law at every stage of the process. This confusion seriously prejudices the defendant and results in both reversals on appeal and in a large number of wrongful convictions.

5. The death penalty, as currently structured and administered, results in the wrongful conviction and execution of the innocent at a level totally unacceptable in any civilized society.

6. The death penalty is enormously costly, strains the budgets of both state and local governments and diverts funds from more effective crime control strategies and victim assistance programs. This is true in all jurisdictions regardless of state statute. The cost of executions exceeds the cost of life imprisonment by a factor of better than two to one in every jurisdiction studied. And this enormous cost is borne by the taxpayers for a crime control policy that only makes violent crime worse.

The overwhelming body of scientific studies supporting each of these propositions is presented in a written addendum to my testimony, summarizing every important scholarly study on the death penalty since 1980. I believe that if you take the time to read that scientific evidence it will become obvious that the weight of the scientific evidence against the death penalty is not just in preponderance, it is overwhelming and virtually unrefutable.

I have been asked today to specifically discuss in some detail issues of cost, deterrence and brutalization. Allow me to begin with the evidence on cost.

The Cost of the Death Penalty

One of the least obvious, but most important problems with the death penalty is it’s enormous cost. Research on cost has consistently shown that pursuing a capital case is at least twice as costly as housing a convicted murderer for life in a high security correctional institution. Cost studies in North Carolina, Kansas, Texas, Kentucky, Nebraska and New York all show varying costs but similar ratios with regard to expense of death as a sentencing option:

1. In New York each death penalty trial costs $1.4 million compared with $602,000 for life imprisonment. The cost of imposing the death penalty in New York State has been estimated to be $3 million for each case (NY Daily News, July, 28, 1998).

2. In Florida the cost of each execution was estimated to be $3.2 million, about 6 times the amount needed to incarcerate a convicted murderer for life. From 1973 to 1988 Florida spent $57 million on the death penalty (Miami Herald, July 10, 1988).

3. In Kentucky the cost of a capital trial varied between $2 and $5 million dollars (Blakley, A.F. 1990. Cost of Killing Criminals. Northern Kentucky Law Review 18, 1: 61-79).

4. The most comprehensive study of the costs of the death penalty found that the state of North Carolina spends $2.16 million more per execution than for a non-capital murder trial resulting in imprisonment for life (Duke University, May 1993; Carter, M. 1995. Cost of the Death Penalty: An Introduction to the Issue. Nebraska Legislature, Legislative Research Division; Cook, P.J. and D.B. Slawson. 1993. Costs of Processing Murder Cases in North Carolina. North Carolina Administrative Office of the Courts.).

5. In California the death penalty adds $90 million annually to the costs of the criminal justice system. $78 million of that cost is incurred at the trial level (Sacramento Bee, March 18, 1988).

6. The Judiciary Committee of the Nebraska legislature reported that any savings from executions are outweighed by the legal costs of a death penalty case. The report concluded that death penalty does not serve the best interests of Nebraskans (Nebraska Press & Dakotan, January 27, 1998; Carter, M. 1995. Cost of the Death Penalty: An Introduction to the Issue. Nebraska Legislature, Legislative Research Division.).

7. In Texas the cost of capital punishment is estimated to be $2.3 million per death sentence, three times the cost of imprisoning someone at the highest possible security level, in a single prisoner cell for 40 years (Dallas Morning News, March 8, 1992; Dieter, R.C. 1994. Future of the Death Penalty in the U.S.: A Texas-Sized Crisis. Death Penalty Information Center. Washington, D.C.).

These high costs strain local and state budgets, divert money from other crime control and victim assistance programs, result in tax increases, prolong and extend the anguish of victims families over years of appeals and successive execution dates, reduce other governmental services and often results in deferring salary increases for governmental employees
 

1. In Indiana three recent capital cases cost taxpayers over $2 million just for defense costs. Prosecution costs usually exceed those of the defense (Indianapolis Star/News February 7, 1999).

2. In Washington State, officials are concerned that costs for a single capital case will approach $1 million. The county in which the trial was held had to let one governmental position go unfilled, postponed employee pay hikes, drained the county’s $300,000 contingency fund and eliminated all capital improvement projects for the fiscal year (The Spokesman-Review, January 19, 1999).

3. Thurston County in Washington has budgeted $346,000 for 1999 alone, to seek Mitchell Rupe’s third death sentence. Rupe is dying from liver disease and the state of Washington has had to undertake extreme measures to save Rupe from a natural death so that he may be executed. Since 1997, Thurston County has spent $700,000 just for the most recent sentencing hearing (Seattle Times, March 12, 1999).

4. The state of Ohio spent over $1.5 million to execute one mentally ill man who was a death penalty volunteer. Some of the costs included $18,147 in overtime for prison employees and $2,250 in overtime for State Highway Patrol officers to provide support for the execution. In addition the state had to pay overtime for 25 prison public information officers who worked the night of the execution. The state also spent $5,320 on a satellite truck so the official announcement of the execution could be beamed to outside media. Ohio’s Attorney General had between 5 and 15 prosecutors working on the case, expending 10% of the state’s annual budget for its capital crimes section, over a five year period. Keeping the man who was executed in prison for his entire life would have cost less than half as much (Columbus Dispatch, February 28, 1999).

5. Because of death penalty trial costs, Okanogan County Washington had to delay pay raises for the county’s 350 employees; could not replace two of four public health nurses in the county, and had to stop all non-emergency travel and put on hold on updating county computers and vehicles (Associated Press, April 2, 1999).

The death penalty also has a negative impact on the ability of criminal justice agencies to carry out their missions and perform their duties. The immense cost of the death penalty endangers the public in tangible and compelling ways as these examples indicate:
 

1. New Jersey laid off more than 500 police officers in 1991, at a time when it was putting into place a death penalty statute that would cost $16 million a year, more than enough to rehire all 500 officers (American Bar Association, 1992; 16).

2. In Florida, budget cuts resulting in a reduction of $45 million in funding for the Department of Corrections required the early release of 3,000 inmates (American Bar Association, 1992: 21) while spending an estimated $57.2 million on executions (Von Drehle, 1988: 12A).

3. Professors Richard Moran and Joseph Ellis estimated that the money it would take to implement the death penalty in New York for just five years would be enough to fund 250 additional police officers and build prisons for 6,000 inmates (Moran and Ellis, 1989).

4. Ten other states also reported early release of prisoners because of overcrowding and underfunding (American Bar Association, 1992: 54). In Texas, the early release of prisoners has meant that inmates are serving only 20 percent of their sentences and re-arrests are common. On the other hand, Texas spent an estimated $183.2 million in just six years on the death penalty (American Bar Association, 1992: 54).

5. Georgia's Department of Corrections lost over 900 positions in the past year while local counties have had to raise taxes to pay for death penalty trials (American Bar Association, 1992: 18).

There are a large number of factors which come together to create the exceptionally high costs associated with the death penalty. First of all, both procedural and substantive constitutional safeguards put in place by the Supreme Court in death penalty cases drive up trial costs and the cost of appeals. As a result there is limited plea bargaining in death penalty cases (a factor which keeps down costs in all other prosecutions); there are lengthy pretrial motions; extensive investigations; increased use of expert witnesses; extensive voir dire; preemptory challenges; and extensive trial and appeal processes. Virtually none of these requirements are subject to reform or state recourse because they were necessitated by Supreme Court guidelines for the death penalty. In addition, almost every capital defendant in America is poor and taxpayers must invariably pay defense costs.

Let me emphasize two issues here:
 

1. While it is true that some of the costs of death penalty cases result from the appeal process the vast majority of the increased costs are front-end costs. That is, prosecutors spend much more on death penalty cases than on noncapital homicide cases. They reassign prosecutors from other cases, they divert monies for expert witnesses, jury consultants, additional investigation and legal research. This means that not only are enormous sums of money dedicated to death penalty prosecutions, but those moneys are diverted from literally dozens of other criminal cases.

2. The net effect of this front-end cost in capital prosecutions is that victims in many cases seen as less important by prosecutors’ offices are not given adequate support or vigorous advocacy by the state. It also means that victim assistance programs, which should provide financial aid to victims, counseling for victims, and vital assistance in reconstituting their own lives are nonexistent and underfunded, all for the sake of a crime control policy which has no measurable social benefit.

In view of the fact, as we shall in the next portion of my testimony, that scientific research can establish no incapacitative or deterrent benefit from the death penalty, this cost is entirely wasted.

General Deterrence

The most commonly advanced argument in support of capital punishment has been that no offender wants to die, therefore the threat of execution will deter homicide in society at large. While this may seem a common sense fact, it is anything but sensible. The scientific facts are very simple. No credible study of capital punishment in the United States has ever found a deterrent effect.

In studies of contiguous states, at least one with the death penalty and at least one without, research has shown that there is no deterrent impact from capital punishment (Sellin, T. 1980. The Penalty of Death. Beverly Hills, CA: Sage Publications).

In studies of states where the death penalty was adopted or reinstated after having been abolished, research has once again failed to show any deterrent effect. (Sellin, T. 1980. The Penalty of Death. Beverly Hills, CA: Sage Publications; Zeisel, H. 1977. The deterrent effect of the death penalty: Facts v. Faith. In The Supreme Court Review 1976. P. Kurland (ed.). Chicago: IL: University of Chicago Press).

Comparative data also fails to demonstrate any deterrent value to the death penalty. The United States is the only Western democracy that retains the death penalty. The United States also has, far and away, the highest homicide rate in the industrialized world (Kappeler, V., M. Blumberg, and G. Potter. 1996. The Mythology of Crime and Criminal Justice (2nd ed.). Prospect Heights, IL: Waveland Press: 310).

Comparative data compiled by region within the United States shows the same pattern. According to data from the Bureau of Justice Statistics, Southern states have consistently had the highest homicide rates in the country. In 1997, the South was the only region with a homicide rate above the national average, despite the fact that it accounts for 80% of all executions. The Northeast, which accounts for less than 1% of all executions in the U.S., has the lowest homicide rate. Similarly, when states with the death penalty are compared to those without the death penalty, the data show that a majority of death penalty states have homicide rates higher than non-death penalty states. In 1997 the average homicide rate for death penalty states was 6.6, while the average homicide rate for non-death penalty states was only 3.5.

The alleged deterrent value of the death penalty is refuted by all the data we have on violent crime. The death penalty, if it is to deter, must be a conscious part of a cost-benefit equation in the perpetrator’s mind. There are very few murders that involve that level of rationality or consciousness of the outcomes. Most murders are (1) committed under the influence of drugs or alcohol; (2) committed by people with severe personality disorders; (3) committed during periods of extreme rage and anger; or (4) committed as a result of intense fear. None of these states of mind lend itself to the calm reflection required for a deterrent effect.
 
 

Specific Deterrence

Some proponents of the death penalty argue that capital punishment provides a specific deterrent which controls individuals who have already been identified as dangerous criminal actors. According to this argument, the presence of the death penalty ought to reduce a wide variety of criminal acts. The weight of scientific evidence tells us that it does not.

If the death penalty deters homicide then it should prevent incarcerated people from killing again and reduce the number of homicides among prisoners. The fact of the matter is that over 90% of all prisoner homicides, killings of other prisoners or correctional officers, occur in states with capital punishment (Sellin, T. 1980. The Penalty of Death. Beverly Hills, CA: Sage Publications).

An extensive death penalty study, using multiple means of measurement that measured the impact of capital punishment in three distinct and different ways could find no evidence that the death penalty had any effect on felony crime rates, "this pattern holds for the traditional targeted offense of murder, the personal crimes of negligent manslaughter, rape, assault and robbery, as well as the property crimes of burglary, grand larceny, and vehicle theft. In other words, there is no evidence ... that residents of death penalty jurisdictions are afforded an added measure of protection against serious crimes by executions" (Bailey, W. 1991. The general prevention effect of capital punishment for non-capital felonies. In R. Bohm (ed.) The Death Penalty in America: Current Research. Cincinnati, OH: Anderson and the Academy of Criminal Justice Sciences).

Finally, it has been argued that capital punishment specifically protects law enforcement officers by deterring assaults on and killings of police. There have been five major studies addressing the question of whether capital punishment protects police officers. In no case did the death penalty provide any deterrent to killing law enforcement officers, nor did it reduce the rate of assaults on police (Bailey, W. and R. Peterson. 1987. Police killings and capital punishment: The post-Furman period. Criminology 25, 1: 1-25; Bailey, W. 1992. Capital punishment and lethal assaults against police. Criminology 19: 608-625; Sellin, T. 1980. The Penalty of Death. Beverly Hills, CA: Sage Publications; Cardarelli, A. 1968. An analysis of police killed in criminal action: 1961-1963. Journal of Criminal Law, Criminology, and Police Science. 59: 447-453; Hunter, R. and R. Wood. 1994. Impact of felony sanctions: An analysis of weaponless assaults upon police. American Journal of Police 13, 1: 65-89).

Once again the scientific evidence is clear, the death penalty does not provide specific deterrence from other crimes. It has no deterrent impact on other felonies, it has no deterrent impact on crimes against law enforcement officers, it has no deterrent impact on drug crimes, and it has no deterrent impact on violent crimes. In fact, the death penalty is more likely to endanger the lives of police who investigate crime and pursue fugitives, and endanger the lives of witnesses who may provide evidence necessary for conviction. The reason is obvious, preventing capture and conviction becomes far more pressing a matter in death penalty states.

Incapacitation

Another frequently advanced argument is that the death penalty protects society by incapacitating violent criminals and thereby preventing further offenses. The evidence for this proposition is also weak. Obviously, an executed murderer is unlikely to recidivate, but so is a murderer in prison for life without parole. The facts, however, indicate that even if not executed and even if not incarcerated for life, it is unlikely that a person convicted of homicide will kill again, or even commit an additional serious offense.

A massive study which tracked the post-release behavior of 6,835 male prisoners serving sentences for homicide offenses, who were paroled from state institutions, found that only 4.5% of them were subsequently convicted of another violent crime and only 0.31% committed another homicide (Sellin, T. 1980. The Penalty of Death. Beverly Hills, CA: Sage Publications). This means that for every 323 executions we might prevent one additional murder. Other studies find essentially the same results. For example, a study of prisoners whose sentences were commuted as a result of the Furman decision (Marquart, J. and J. Sorensen. 1988. Institutional and post-release behavior of Furman-commuted inmates in Texas. Criminology 26: 677-693), found that 75 percent of these inmates committed no serious infractions of prison rules, and none of these inmates were involved in a prison homicide. Some of the Furman-commuted inmates were paroled back into the community. Only 14 percent of them committed a new crime, and only one committed an additional homicide.

Vito, Koester and Wilson (1991) also analyzed the behavior of inmates removed from death row as a result of the Furman decision. Their study found that of those inmates eventually paroled only 4.5% committed another violent crime and only 1.6 percent committed another homicide. The authors conclude "that societal protection from convicted capital murderers is not greatly enhanced by the death penalty" (Vito, G., P. Koester, and D. Wilson. 1991. Return of the dead: An update on the state of Furman-commuted death row inmates. In R. Bohm (ed.) The Death Penalty in America: Current Research. Cincinnati, OH: Anderson and the Academy of Criminal Justice Sciences).

Even in states with capital punishment the overwhelming majority of people convicted of homicide receive a prison sentence, and many of them will eventually be released on parole. A review of the data on these released murderers clearly reveal that they have the lowest recidivism rates of any felons. In addition, paroled murderers in states without the death penalty had a much lower rate of recidivism than parolees released in states with the death penalty (Bedau, H. (ed.) 1982. The Death Penalty in America. 3rd ed. Oxford: Oxford University Press).

The death penalty does not protect society from further crimes of violence in any way. Eleven additional studies from the National Criminal Justice Reference Service database for the period 1980-1998 all fail to find any general or specific deterrent or any incapacitive impact from the use of the death penalty (Bailey, W.C. and R.D. Peterson. 1994.Murder, Capital Punishment, and Deterrence: A Review of the Evidenceand an Examination of Police Killings. Journal of Social Issues 50, 2: 53-74; Cheatwood, D. 1993. Capital Punishmentand the Deterrence of Violent Crime in Comparable Counties. Criminal JusticeReview 18, 2: 165-181; Grogger, J. 1990. Deterrent Effect ofCapital Punishment: An Analysis of Daily Homicide Counts. Journal of the American Statistical Association 85, 410: 295-303; Decker, S. H. and C. W. Kohfeld. 1990. Deterrent Effect of Capital Punishment in the Five Most Active Execution States: A Time Series Analysis. Criminal Justice Review 15, 2: 173-191; Decker, S.H. and C.W. Kohfeld. 1987. Empirical Analysis of the Effect of the Death Penalty in Missouri. Journal of Crime and Justice 10, 1: 23-46; Decker, S.H. and C. W. Kohfeld. 1986.Deterrent Effect of Capital Punishmentin Florida: A Time Series Analysis. Criminal Justice Policy Review 1, 4: 422-437; Decker, S.H. and S.W. Kohfeld. 1984. Deterrence Study of the Death Penalty in Illinois, 1933-1980. Journal of CriminalJustice 12, 4: 367-377; Archer, D., R. Gartner and M. Beittel.1983. Homicide and the Death Penalty - A Cross-National Test of a DeterrenceHypothesis. Journal of Criminal Law and Criminology 74, 3: 991-1013; Forst, B. 1983. Capital Punishment and Deterrence - Conflicting Evidence?Journal of Criminal Law and Criminology74, 3: 927-942).

The Brutalization Effect of the Death Penalty

Neither incapacitation nor deterrence theories are supported by the scientific research on capital punishment. In most public policy debates the burden of proof is on those advocating a measure to demonstrate its effectiveness. If that were the case in the death penalty debate adherents would fail miserably. But the fact is that the death penalty not only doesn’t deter murder, it encourages people to kill.

Studies of capital punishment have consistently shown that homicide actually increases in the time period surrounding an execution. Social scientists refer to this as the "brutalization effect." Execution stimulates homicides in three ways: (1) executions desensitize the public to the immorality of killing, increasing the probability that some people will be motivated to kill; (2) the state legitimizes the notion that vengeance for past misdeeds is acceptable; and (3) executions also have an imitation effect, where people actually follow the example set by the state, after all, people feel if the government can kill its enemies, so can they (Bowers and Pierce, 1980; King, 1978, Forst. 1983).

Let me clear here. The scientific evidence on the brutalization effect is compelling. We are not talking about one or two speculative studies. We are talking about a body of research that has found over and over again, in state after state, that the use of the death penalty increases, and often sharply increases, the number of homicides. Let me be specific:
 

1. OKLAHOMA: Oklahoma’s return to capital punishment in 1990 was followed by a significant increase in killings that involved strangers, with an increase one stranger homicide per month for the year following an execution. In addition, the analysis also showed a brutalization effect for total homicides as well as a variety of different types of killings that involved both strangers and nonstrangers (Bailey, W.C. 1998. Deterrence, Brutalization, and the Death Penalty: Another Examination of Oklahoma’s Return to Capital Punishment. Criminology 36, 4: 717- 733; Cochran, J.K., M.B. Chamlin, and M. Seth.1994. Deterrence or Brutalization? An Impact Assessment of Oklahoma’sReturn to Capital Punishment. Criminology 32, 1: 107-134).

2. ARIZONA: Studies in Arizona found an increase in specific types of homicides following an execution in that state. In particular the Arizona study found large increases in spur-of-the-moment homicides that involve strangers and/or arguments and a large increase in gun-related homicides (Thomson, E. 1997. Deterrence Versus Brutalization: The Caseof Arizona. Homicide Studies 1, 2: 110-128).

3. GEORGIA: A study in Georgia fount that a publicized execution is associated with an increase of 26 homicides, or 6.8 percent increase, in the month of the execution. Overall, publicized executions were associated with an increase of 55 homicides during the time period analyzed (Stack, S. 1993. Execution Publicity and Homicide in Georgia. American Journal Of Criminal Justice 18, 1: 25-39).

4. ILLINOIS: A study of capital punishment in Illinois found that the net effect of executions was to increase rather than decrease Chicago first degree murders and total criminal homicides (Bailey, W.C. 1983. Disaggregation in Deterrence and Death Penalty Research - The Case of Murder in Chicago. Journal of Criminal Law andCriminology 74,3: 827-859).

5. CALIFORNIA: In California studies have found that the number of murders actually increased in the days prior to an execution and on the day of the execution itself. In addition homicides rates were even higher in the weeks after executions (Bowers, W., G. Pierce, and J. McDevitt. 1984. Legal Homicide: Death as Punishment in America, 1864-1982. Boston, Northeastern University Press)

6. PENNSYLVANIA: A study looking at data for both California and Pennsylvania found that each execution studied was followed by a two- to threefold increase in the number of homicides the next month (Bowers, W, and G. Pierce. 1980. Deterrence or brutalization: What is the effect of executions? Crime and Delinquency 26: 453-484). And in the earliest study demonstrating a brutalization effect, Robert Dann found an average increase of 4.4 homicides for each execution (Dann, Robert. 1935. The deterrent effect of capital punishment. Friends Social Service Series 29).

Once again the scientific research provides compelling evidence against the death penalty as public policy. The death penalty does, invariably and without exception increase the number of homicides in jurisdictions where it is applied. This has been proven in Pennsylvania, California, Oklahoma, Arizona, Illinois and other jurisdictions. The brutalization thesis is not mere speculation. It has been verified in study after study. If a legislature were looking at the impact of a pharmaceutical drug and only one study suggested that the drug killed more than it cured, legislators would no doubt ban the drug. The evidence with regard to the brutalization theory is far stronger, with at least eleven unrefuted, replicated and valid studies clearly showing a brutalization impact. In the case of the death penalty the cure is clearly worse than the disease, and like a dangerous drug, this cure should be banned.

Conclusion

Criminologists and criminal justice scholars are constrained to make their judgments on facts and scientifically valid and reliable scholarly research. It is the judgment of the overwhelming majority of criminologists and criminal justice scholars that the death penalty is bad policy and is in fact criminogenic in its social impact. The American Society of Criminology, an organization made up of the best researchers and scholars in the country, has strongly condemned the death penalty:

Be it resolved that because social science research has demonstrated the death penalty to be racist in application and social science research has found no consistent evidence of crime deterrence through execution, the ASC publicly condemns this form of punishment and urges its members to use their professional skills in legislatures and the courts to seek a speedy abolition of this form of punishment (ASC Annual Meeting, Montreal, 1987).

The scientific evidence on the death penalty is clear and unequivocal. The use of the death penalty in American society is the rough equivalent of a person hitting himself or herself repeatedly on the head with a hammer in order to treat a headache resulting from a brain tumor. It can only make a very bad situation much worse. This judgment is not based upon vague conceptions of morality or popular formulations of common sense or the vagaries of political opinion, it is based on rigorous evaluation of the state's two primary responsibilities: (1) to protect the public health and safety; and (2) to provide equity, fairness and justice to its citizens. The death penalty is anathema to both goals. It is the worst kind of crime-control policy. 

Philippines President Declares Moratorium on Executions 
On March 24, Philippines President Joseph Estrade announced a moratorium on executions for this year. The moratorium was requested by the Catholic Bishops Conference of the Philippines to mark the 2,000 anniversary of Jesus' birth. Although the moratorium is scheduled to be lifted in January of next year, the death sentences of at least 18 prisoners have effectively been commuted to life sentences because, under Philippines law, they would have to be executed within the next six months. The Philippines abolished the death penalty in 1987, but reinstated it in 1994. Since then, more than 1,000 people have been sentenced to death, and seven have been executed. (Associated Press, 3/24/00) 

Tennessee Execution Temporarily Halted Robert Coe was scheduled to become the first person to be put to death in Tennessee in 40 years until a federal judge issued a stay of execution on March 22. Coe's lawyers filed a petition stating that Coe is insane and that executing him would violate the 8th Amendment's ban on cruel and unusual punishment. (Associated Press, 3/22/00)

Archive search

DISCLAIMER & CREDITS --   Anti-copyrite 1997-2000.   ISSN: 1523-6684. Written  with  the legal professional in mind.  Use does not constitute creation of an attorney-client relationship.  If you have a legal question contact a lawyer authorized to practice in your state. This weekly  has been prepared for educational and information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read.   Complete disclaimer located at  http://capitaldefenseweekly.com/disclaimer.html. This letter may be freely redistributed with attribution.  CDW is in no way affiliated with, endorsed by, or supported by the AOC or capdefnet.org.

Please note that the current set up of the weekly is a one way list.  Subscription information, including all names and addresses are private and unavailable to third parties. As always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.Please note all rights to terminate a subscription are retained by the editorial staff.

Publisher information: All  comments, inquiries or complaints  may be sent to: Capital Defense Weekly/Karl R. Keys/167 Milk Street/Suite 127/Boston, MA 02109/capdefense@capitaldefenseweekly.com/617.249.0219

ISSN: 1523-6684   Volume III, issue 12