Updated 2-25-05& 2011
DEATH, DETERRENCE, AND REFORM

 

By

Jay B. Gaskill

 

“Morales”, The Poster Child for a Better Needle?

 

Bless those sincere death penalty opponents who are grounded in traditional morality.  They have the gift of intellectual honesty. As Sister Prejean – of “Dead Man Walking” fame – said in San Francisco last week: “You’re not serious about the death penalty.” With more than 600 convicted murderers in a death row queue and less than a single execution a month, Sister Prejean makes a good case.

 

The death penalty is cruel – to those who don’t deserve it, but it is not unusually so when compared with other punishments in the same class, i.e., other forms of execution. The United States Supreme court will never outlaw execution in all its forms.

 

In the latest lethal injection controversy (in the Morales case), death penalty opponents are playing chess: Move One was to press for lethal injection as “more humane.” Move Two was to press to mandate the presence of a medial professional on scene.  Move Three was to get the physicians to back out.  Checkmate? Hardly. The goal is not to save a killer’s life, but only to minimize his pain. San Quentin could get by with a vet.

 

Those humanitarian souls who oppose the death penalty lack a sufficient grasp of the workings of the brutal mind.  Here’s the hard truth: Whenever a region is infected with a critical mass of brutally minded, homicide-prone males (the sub-group is 95% male), the genteel rules of drawing room justice (“Use a gun and go to your room” or “Kill somebody and go to another room”) are ineffective.

 

I no longer oppose the death penalty because of the answer to one question: What if the legal execution of 50 actually guilty murderers worked to prevent the illegal slaughter of 800 actually innocent men, women and children?

 

If the death penalty deters murders at all, the moral calculus changes dramatically. 

 

There is a suggestion that the 9th Circuit’s intervention in the Morales execution might create a de facto California moratorium on the death penalty.  Led by Rose Bird, the California Supreme Court reversed all 61 death cases that it heard. California had a de facto moratorium from 1967 through 1991, during which there were no California executions. During this period the murder rate increased from 6 murders per 100,000 people to 12.6 murders per 100,000. After executions resumed in 1992, the homicide rate fell eventually to 6.5 per 100,000 population. 

 

Last year, the Brookings Institute (hardly a bastion of right wing thinking) and the American enterprise Institution jointly published a study (“Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs”, March 2005). Here’s the relevant pull quote: “Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution.”

 

The people at large, the ones who work, protect their children, pay taxes and vote, have already got it figured out.  Society already has been infected with a critical mass of brutally minded, homicide prone males. Many of these brutal minds are functionally undeterrable by the threat of more prison time. Some are deterred by the prospect of death row, and some is better than none. An increase of as few as 6 murders per 100,000 would represent roughly another 1,000 murder victims. Can we really afford another death penalty moratorium?

 

 

Tookie” Williams, the Poster Child for Reform

 

The execution of Stan “Tookie” Williams, founder of the archetypally violent street gang, the CRIPS, the cold blooded killer of four innocent robbery victims, the author of children’s books (of very limited circulation) marks the most egregious example of delay abuse in the administration of the death penalty in the popular literature; Mr. Williams lived two and a half decades on death row because society could not summon the will to execute justice.

 

As one commentator pointed out that was 24 years of life denied to Mr. Williams’ victims.

 

As I posted on The Policy Think Site,

 

12-13-05:

 

 It seems that, after 24 years on death row, CRIPS Gang founder, S. "Tookie" Williams, convicted of four murders, finally kept his date with the executioner.

 

The real scandal is that, having bought twenty four years of life for this man, Mr. Williams' handlers and supporters couldn't get him to say he was sorry he killed those innocent people in cold blood.

 

Death penalty opponents: Save your grief for someone else.

Can we reform the system?

 

Read my long article on the topic.

 

 

This is that article.

 

There is a solution for California’s death broken penalty system.  My proposal will save many innocent lives.  We simply need to devote all the resources and oversight needed to guarantee that every killer who is eligible for the death penalty gets a final determination of his/her fate within 4 years of conviction and sentence.  Yes it can be done. Yes, it will save lives.

 

As I demonstrate in the following piece, deterrence is a very real effect of the death penalty (when administered regularly and promptly) that saves thousands of lives. 

 

The next time someone is carjacked and shoved in a trunk, or held up and (having seen the face of the robber) is cowering under a counter, consider this:

 

He or she might well be spared because the death penalty is far, far more important to avoid than a decade behind bars with one's fellow gang members.

 

The notion that the death penalty does not deter murders is a falsehood perpetuated by two groups: well meaning dupes and manipulative ideologues.

 

A huge legal process speed-up is well within our capabilities, and the required resources would be a drop in the bucket compared to other state and federal expenditures.

 

So, why has reform been stalled?  Too few people get it.  The current delays are not legally necessary. They represent a tacit conspiracy between out-and-out death penalty opponents (I should know -- I once was among them) and a second group (I call them the process junkies) for whom perfect legal process should be pursued as if it were a moral imperative equivalent to saving the lives of Innocent murder victims. We can do much better....

 

The Case For Realism

 

Most of my former colleagues oppose the death penalty, and I am proud of their tireless efforts on behalf of individual clients.  On a public policy level, however, death penalty opponents are usually heard but not heeded, because a super majority of voters, most places, most of the time, still believe that society still needs to be able impose the ultimate sanction. For reasons that follow, I have come to qualified agreement with the general view.

 

There are general three schools of thought on this topic, but most policy is made by only one of them.

 

School One:

Retribution Idealists, i.e., those who feel that any deliberate, unlawful taking of a human life warrants the death penalty as a moral imperative. Made up predominantly of the crime victim lobby and frustrated “gung ho” police officers, opinion in this school runs from advocacy of drastic procedural shortcuts to “kill ‘em all.”

 

School Two:

Redemption Idealists, i.e., those who feel that all persons are redeemable therefore none may ever be executed no matter how heinous the offense.  Consisting of almost all of the public defense community and clergy, opinion runs between advocacy of endless procedural obstacles to a strict “execute no one” policy.

 

School Three:

Persuadable Realists. These are the actual policy makers. The realists consist of most legislators, jurists and attorneys (including most Bay Area prosecutors) and a plurality of police officials.  In this group, policy is driven by practical considerations with the overall objective of achieving the maximum feasible protection of the population from deadly violence via deterrence and the permanent removal of deadly predators. Classic cost effective analysis is often used, causing prosecutors to concentrate on the “worst of the worse.”

 

Within the realist group, reform advocates are currently advancing the following agenda:

 

(1)   Much more care and attention to screening for actual guilt;

(2)   Improved  prosecution professional and ethical standards;

(3)   Improved defense performance standards;

(4)   Much quicker finals resolution of all cases, especially at the appellate level; and

(5)   More resources to accomplish the foregoing.

 

Reform is stalled because of the convergence of three forces:

 

a.       Death penalty opponents tend to use every flaw in the current system as a reason to completely abandon executions.

b.      The retribution group refuses to commit the necessary resources for defense services.

c.       This results in a covert or unintended alliance at the legislative level to underfund defense resources.  Death penalty opponents can then use the resulting delays and system failures as arguments to abandon capital punishment altogether, while the retribution group can take satisfaction in denying “those bleeding heart defenders” needed money.

 

I’m a persuadable realist. The available evidence persuaded me that the death penalty can deter a significant percentage of deliberate homicides, especially the sub group in which there is some opportunity to reflect before killing. Retribution may be a weak moral justification for the penalty, but saving innocent lives is not. 

 

And I am a reform advocate. Only a robust, well funded defense can shrink the unconscionable lead times between charge and final resolution, (reducing the cruel years spent on death row), expose prosecution errors and police misconduct, weed out the weak cases, and protect the truly innocent.

 

The Deterrence Question

 

The deterrence effect of the death penalty for deliberate killings has been widely studied with allegedly “inconclusive” results. A number of experts and organizations still claim that the death penalty doesn’t work. But no respected study actually rules out death penalty deterrence, and some experts have found strong indications of a deterrence effect.

 

There was an interesting joint AEI/Brookings Study that found a deterrent effect.  It is no longer on the web, but  I’ve captured the pdf version and kept it on the Policy Think Site at this link http://jaygaskill.com/AEIBrookingsDeathPenalty.pdf

 

On this topic, many of my good hearted humanitarian friends are deeply out of touch with the common wisdom. I have listened for three decades to all the arguments that the death penalty is not a deterrent.  Death penalty opponents usually talk about crimes of passion, pointing out that the jealous husband was too filled with rage to give a thought to penalty, or on the homicidal maniac who is on a suicidal run.  This is all beside the point. As a realist, I have come to understand that that death penalty can deter certain murders, especially for the criminals who have gotten used to prison life. Indeed, several categories of criminals are capable of being deterred by little else.  Think of those carjackings where the victim is in the trunk.  Some are shot, others not. Many criminals think of the consequences, especially when they are as simple and vivid as the prospect of eventual execution. In general, the death penalty deters at least some murders within the entire class of  killings where there is a moment to reflect before killing.  This includes most drug dealer turf shootings, gang warfare, witness killings, robbery murders, and so on.

 

The most persuasive recent studies have been conducted by experts with formal training in economics. The field of economics is often called the “dismal science” because of its tendency to generate honest assessments, in spite of political hopes and expectations. Many death penalty opponents resist the basic assumption of economic science that, over time, incentives and disincentives will change behavior. Regrettably, an anti-death penalty bias has introduced an element of intellectual dishonesty into the deterrence debate. Evidence that the death penalty “disincentive” produces genuine results is ignored, marginalized, or denied because executions are thought to be immoral under all circumstances. “Don’t confuse me with the facts  is the motto of the true believers.

 

When the overall data are looked at square on, the conclusion is inescapable: The death penalty deters some murders. Having been responsible for saving clients lives, I am not at all enthusiastic about executions, but the murders of innocent people are far more immoral than the judicially ordered execution of culpable murderers. Killings affect the community at large, and the problem calls all of us to get outside our biases and roles.

 

I find the evidence in favor of the death penalty’s deterrent effect on homicidal behavior to be highly persuasive, leaving aside the more difficult issue of measurement of the power of the effect on a given, demographically mixed population. The so called side-by-side studies that purport not to reveal any deterrent effect (for example comparing death penalty enforcing state A with non-death penalty state B over the same time frame) fail to normalize for demographic differences.  There are always higher “crime prone” sub-populations in any geographic area. At any given moment, virtually all states differ in political and social attitudes, police funding and activities, and in the detailed operation of their respective criminal justice processes.

 

The temporary imposition of a well publicized death penalty moratorium in a given jurisdiction provides a better quasi-controlled experiment, particularly when demographic factors remain relatively stable over the sample period.  And, in these samples, the larger the population that is included, the less that pockets of demographic variations will skew the outcome.  That said, there can be demographic and cultural changes with time.

 

With those qualifications, analysis of the available data has persuaded me that the death penalty for murder may have saved a significant number of lives over the last decade in those jurisdictions where it was used. If my analysis is correct, it follows that any death penalty moratorium, however well intentioned, will come at a high social cost.

 

Several recent studies and trends have caught my attention:

 

“Journal of Applied Economics.”

4/01, Vol 33, N 5, p569 -- p576,  Execution Moratorium Is No Holiday For Homicides; Execution and deterrence: a quasi-controlled group experiment.” Professors Dale O. Cloninger and Roberto Marchesini University of Houston. [Professor Cloninger (cloninger@cl.uh.edu), Professor Marchesini (marchesini@cl.uh.edu)]

 

“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.”

 

Professor Cloninger: “ . . .  (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.”

 

Emory University Paper:

Does Capital Punishment Have a Deterrent Effect: New Evidence from Post-moratorium Panel Data”, Dezhbakhsh  econhd@emory.edu), Rubin (prubin@emory.edu) and Shepherd (jmehlho@emory.edu), January 2001. Located at userwww.service.emory.edu/~cozden/dezhbakhsh_01_01_paper.pdf January 2001.

 

Emory University Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna Shepherd: “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.” Their data base used nationwide data from 3,054 US counties from 1977-1996.

 

University of Colorado (Denver) Paper:

Pardons, Executions and Homicide”, H. Naci Mocan (mmocan@carbon.cudenver.edu) and R. Kaj Gottings (rgitting@carbon.cudenver.edu), October 2001, located at http://econ.cudenver.edu/mocan/papers/deathpenalty1007.pdf

 

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.

 

Overview of U.S. Homicide Trends:

“Long term trends, Homicide Victimization, 1950-99”, Bureau of Justice Statistics,  Source: FBI, Uniform Crime Reports, 1950-99, (ii) Crime in the United States --  2000, Section II --  Crime Index Offenses Reported, “Murder and non negligent homicide”, FBI, Uniform Crime Reports, “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

 

Between June 1967 and January 1976, there was an effective national moratorium on executions (see the California experience below for more details).  From 1966-1980, basically for the entire moratorium, U.S. criminal homicides jumped from 11,040 to 23,040, and the murder rate increased from 5.6 to 10.2/100,000.  During that quasi moratorium period, the US averaged only 1 execution every 3 years, with a maximum of two executions per year.  After the moratorium: From 1995-2000 executions averaged 71 per year. The US murder rate dropped from a high of 10.2/100,000 in 1980 to 5.5/100,000 in 2000, a 46% decrease.  For a population of 200 million, the net 4.7% increase in annual murders represents an additional 9,400 killings.

 

Analysis of California Homicide Trends:

Recent California Experience is strongly suggestive of a deterrent effect. Between 1930 (the first year for which we have reliable records) through 1976 there were 292 executions (3,859 in the US).  In the period from 1967 to 1977 there was an informal California moratorium on death penalty cases, part of a nationwide trend. No one was executed during that period in the state, and very few in the U.S. at large. 

 

In 1976 the US Supreme Court effectively overturned the death penalty laws for several states (including California) in Fuhrman vs. Georgia 408 US 153.  The Fuhrman court invalidated unfettered discretion statutes for producing “arbitrary and capricious” results. Also in 1976, “guided discretion” statutes were upheld in Gregg vs. Georgia 428 US 153  and Proffitt vs. Florida 428 US 242.  The same year, mandatory death statutes were disapproved in Woodson vs. N. Carolina 428 US 280 and Roberts vs. Louisiana 428 US 325.

 

California voters enacted a qualifying death penalty statute in 1976 by a lopsided majority, but Rose Bird was appointed Chief Justice in 1977.  [At the time, I thought it was a good appointment.]  From that year until her removal in 1986 by the voters (along with Justices Reynoso and Grodin), there was another effective death penalty moratorium. 

 

The Bird court reversed 61 death cases. From 1967 through 1991 there were no California executions. During this period the murder rate increased from 6 murders per 100,000 people to 12.6 murders per 100,000.

 

No one was executed in California until the Harris execution in 1992. In the next ten years, hundreds of death penalty cases arrived on death row, and there were 11 executions.  According to California Attorney General Bill Lockyer, violent crime declined between 1993 through 1999 by 34%.  Between 1991 and 2000, the homicide rate fell 47%, from the 1992 high of 12.9 per 100,000 to 5.9 per 100,000 at the end of 1999.

 

I am well aware of the other studies and statistics that are cited to the effect that there is no conclusive evidence of deterrence.  So what are we “realistic persuadables” to make of all this? Deterrence can be measured in a number of ways:

 

(a)    anecdotally, i.e., by collecting statements of criminals who admit to have refrained from killing someone when the opportunity and motive coincided, citing fear of the death penalty;

(b)   statistically, by measuring the increase (or decrease) of the homicide rate when the death penalty is suspended;

(c)    statistically, by measuring the decrease (or increase) of the homicide rate when the death penalty is enforced.

 

To summarize our problem: No perfect controlled experiment has yet been designed on a significant scale to produce a precise measure of the deterrence effect of the death penalty because there are too many variables: How much is the penalty actually used?  What is the street level perception of  the death penalty’s use? What is the arrest rate? The clearance rate?  What is the time lag between charge and execution? [The median stay on California’s death row is about 13 years, a product of widespread ambivalence about the death penalty within the justice system and its exploitation by death penalty opponents.]   The major problem with the statistical approaches (b) and (c) above is that demographics and other population factors shift with time.  For example, the release into a population of violent criminals can skew numbers in favor of a homicide rate increase, masking any deterrence effect.  But the larger the sample, the more the deterrence effect tends to show itself. The US and California numbers are large enough to show the trends.

 

Social Cost Analysis

 

A social cost calculation is possible, based on the value of a human life in different circumstances.  Here is the formula:

 

L = [D s] – [E p]

 

·        L is the measure of the success of the death penalty in net valuable lives.

·        D is the raw number of lives saved by deterrence.

·        s is the value assigned each life saved by deterrence. [s=1 or whatever society chooses.]

·        E  is the raw number of executions in the time frame.

·        p is the value assigned to the life of a murder perpetrator.[p = 1 or whatever society chooses.]

 

To solve for “L,” we multiply the number of lives saved by deterrence times the value “s.” From that number, we subtract the number of executions times the value “p.” L is a measure of the success of the death penalty in valuable lives.

 

In other words, whenever “L “is a positive number, net valuable lives are saved. If “p’ (the value of the life of the killer) is set at zero, then the death penalty always saves net lives unless “D s” (value of lives saved by deterrence) is zero. This never happens (unless we perversely place s, the value of a single life saved, at zero), because we can always find examples of criminals who were deterred. 

 

Some would have us assign the life of  a convicted killer exactly the same value that of a saved life. [I think this is fairly perverse. When “p” and ‘s ‘each = 1, we have a moral equivalence between killer and victim.]  But even in that calculation, the death penalty saves valuable lives because a tiny deterrent effect produces a net savings of human life whenever “E” is a small number. Only a minuscule percentage of all homicide convicts are actually executed.

 

For example, at a rate of 6 homicides per 100,000, a jurisdiction with a population of 30 million people would suffer 1,800 homicides in a year.  Let’s assume 16 are executed in a given year (which is more than the total number California executed in the last decade).  If only 2% additional homicides are deterred that year because of the possibility of the death penalty, 36 innocent lives will have been saved, a net savings of 20 lives even if we were to perversely assign the same value to the life of each murder victim and murderer. 

 

Only if the value of  p” is grossly exaggerated can that calculation outcome be changed.  If effect, the true-believer death penalty opponents are assigning an infinite value to p, the life of the killer.  This may or may not be good theology, but it is terrible public policy.

 

Let’s pick a more realistic number for p. Assume the value of the life of a convicted death eligible killer is reduced to p=.5, (a generous value considering the value most Californians would assign). If only 9 murders were deterred in the last hypothetical, society would still be ahead. And when the reduced penal consequences to the would-be killers are taken into account (after all a murder deterred is one less killer, too), the societal balance sheet is not even close.

 

Whenever the value of the convicted killer’s life is reduced from p=1,  a very, very weak deterrence effect, one measured by a handful of individual cases, always demonstrates a net social benefit.

 

But the real deterrence effect of the death penalty is undoubtedly stronger. The studies referenced and California’s recent experience are consistent with a large actual deterrence effect, one greater than the actual number of executions.  Compare the moratorium period from 67 to 92, and the resumed execution period from 92 to the present day.  There was a swing of 6 homicides per 100,000, a reduction in the murder rate attributable in whole or part to the resumption of the death penalty.  Consider that an increase of 6 homicides per 100,000 to 12 per 100,000 is an increase of 1,800 homicides per year for a population of 30 million people. Those numbers strongly suggest a deterrence effect to large to mask or deny.

 

Deterring Violence-Prone Recidivists

 

Not all sub-populations are equally deterred. Criminally prone males do most murders. Educated people with a lot to lose (i.e., most death penalty opponents) are deterred from killing each other by a moral code, coupled with the prospect of shame, arrest, and prison.  Subtract the pro-life moral code, the shame, and add gang affiliation and/or long prison experience. Move this sub-population into an urban area and ask yourself the question: Will the prospect of a return to prison deter all  these men? 

 

For example, at 113 homicides during 2002, the city of Oakland achieved a homicide rate just under 28 per 100,000, or more than twice the highest homicide rate ever recorded for the state as a whole.  Police sources confirm that most of these homicides are being committed by members of a cohort of prison parolees, about 3,000 of whom were recently released from state prison to live in Oakland. The homicide problem can be particularly acute in some urban areas because of concentrations of violence-prone former prison inmates.  Most California state prison graduates re-offend after release on parole. Obviously, most of state prison parolees are not adequately deterred by the prospect of further prison.  A fortiori, the possibility of mere incarceration even for murder is a very weak deterrent for this sub-population.

 

A critical moment comes when a prison habituated felon, who is preparing to engage in another crime, chooses to bring along a loaded pistol; a second critical moment comes when he makes the decision to pull the trigger or to refrain from that act.  We need to ask: What disincentives will get the attention of this sub group of criminals? In the current punishment scheme, what is there beyond a term for years?  There is only life incarceration without parole and, finally, the threat of execution.

 

Even for those undeterred by the prospect of an additional prison term, some criminals do hesitate when faced with the prospect of a long stay on death row, separated from the general prison population, living with the hovering ghost of the “Green Room.” As more cities like Oakland, California experience the influx of prison habituated released felons in their midst, the need for additional deterrence will grow.

 

I’m well aware of the psychological and budgetary costs of administering the death penalty.  The cases are hard on everyone in the system, especially for those assigned the responsibility of conducting an effective defense.  If it were just a question of working conditions in the legal community from which I’ve graduated, I would want to abolish the penalty.  But the social costs are too high.

 

Reform

 

Obviously, the death penalty process needs reform. Extraordinary attention needs to be given every possible instance of factual innocence. But careful jurisdictional and situational distinctions must be made. Executing the truly innocent is very, very rare in this country, especially in cases brought within the last fifteen years in the more enlightened jurisdictions that provide for an adequately funded public defense system.  Strident death penalty opponents have conflated the “error” statistics. Cases reversed for  penalty phase legal errors fall far short of exoneration. Cases reversed on guilt phase error because otherwise reliable but illegally seized evidence was introduced, also fall short, even when the retrial of a weakened case results in a hung jury and dismissal. 

 

Some advocates attempt to shoehorn the “guilty-but-misunderstood” into the niche occupied by the factually non-culpable.  Of course there is a huge difference between the factually innocent suspect who is misidentified in a lineup and goes to the executioner for a murder some miscreant, still at large, has committed, and the case of the actual killer who gets a lethal injection without having had an adequate courtroom exploration of child hood deprivation, other relevant social history mental incapacity or derangement. These mitigation errors are certainly important, but they do not support the claim that the “innocent” are routinely being executed.

 

My own state of California is hardly one of those backwater jurisdictions where defendants’ rights are routinely ignored.  Far from it. The last truly celebrated death row inmate in this state was Caryl Chessman, executed in 1960 for a 1948 kidnapping prosecuted under the “Little Lindberg” law.  It is notable that moratorium advocates in California are having trouble coming up with an actually innocent death row poster child.  This should be no surprise.  California not in the business of casual, careless executions. That said, no lawyer familiar with the system can claim that the innocent are always vindicated. Any system is capable of error.  When that error results in the execution of the wrong person, the guilty murderer at large claims an indirect victim, confidence in the justice system is undermined and support for the death penalty for the crimes of even “the worst of the worst” collapses. Extraordinary measures to prevent this are warranted.  The ultimate responsibility rests with the governors of the states, many of who seem clueless about how to go about exercising their extraordinary commutation powers. I will return to this vital issue at the end of this piece.

 

The appellate delays for prisoners on death row are cruel in themselves, running about 13 years in California at present.  Everyone, including the appellate courts and the defense bar, can improve speed and performance standards.  Delays in death penalty litigation are endemic, intolerable, and ultimately indefensible. Fixing them, however, takes a level of realism that seems to eludes the most conscientious of political leaders.

 

Death penalty defense legitimately takes more time than routine criminal defense. This is partly because no one wants an innocent defendant to slip through and because the appellate courts do look at everything with great care.  But most of the delay is because the law does not permit automatic execution.  In other words, there is no crime or set of crimes so heinous that execution can be the automatic penalty once guilt is proven.  “Mitigation” must always be considered (though ill defined) and the capacity to grant “mercy” (the criteria for which can’t arbitrarily be limited) must always exist. This tends to put the defense into a “no stone unturned” hysteria.  Was it the bad mother?  Did the kid get bonked on the head at five?  Where are those medical records from Alaska? Why won’t the warden release those records that will show that prison rape? On some level, the conscientious defense lawyer is never ready.

 

The delay issue has been distorted by the tactics of some true believers.  This is the well-meaning group of advocates who, for religious or ideological reasons, see the struggle against the death penalty as a life calling, something on the scale the rest of Americans might reserve for putting an end to the terrorist threat.  For this group, especially in a heinous murder case, delay is a calculated goal.  Every year of delay is another year the client is alive.  The ultimate political objective is to undermine the public’s willingness to put up with the penalty by dragging the process out for decades, running up the cost, hopefully delaying things until the now-maturing serial killer begins to write poetry, lands a spot on Sixty Minutes, and generates a huge candle-bearing fan club.  If the governor fails to grant a commutation, maybe the client will die of natural causes. In this case, the client’s death is victory.

 

A comment about process versus results. In this arena, as in so many others, we can observe the usual suspects playing their respective roles: (1) The “ringers” the ones for whom process is just a tool to obstruct the goal --forever if possible; (2) the process junkies, for whom process is so important that the goal is sometimes forgotten; (3) the honest brokers who run the process in order to achieve the goal; (4) the goalies, who have figured out the right outcome and would just as soon dispense with the process if possible.  A simple recommendation: Leave it to the honest brokers, weeding out the rest; fund the process to accomplish maximum speed and reliability, then get out of the way.

 

Of course, such answers are easy to prescribe, complex to implement.  Legal definitions about what warrants the death penalty and what might avert it could be made much more clear and bright line. All cases need to be expedited by a realistic but tough schedule. The resources for a vigorous, credible defense are essential to the speed and reliability of the process.  But adherence to any calendar requires that the defense in many jurisdictions must receive augmented funding. Appellate delays because the court delays preparation of the needed records for review and drags its feet in assigning defense counsel are common but inexcusable. All this can be changed with tough rules and sufficient resources.  Here I notice a virtual alliance between the true believers in the legislative process and the “kill ‘em now” block, both of whom are reluctant to provide the resources needed to get to finality within a reasonable time, the former for the obvious reasons and the latter out of hostility to the defense function. The state-level appellate process needs a sharp prod to move death penalty cases ahead of the pack.

 

Given the various legal constraints, we might reasonably expect a typical state death penalty murder case to go from charge to penalty trial in less than two years, and from there to final state appeal decision in another two. With more resources for investigation, defense services and appellate review, even this time frame could be reduced sharply.  Saying this is easy, but doing it requires staffing, will, and a general change in the justice culture. The federal system could be affirmatively helpful in providing technical support, and setting up guidelines. Jurisdictions that follow such hypothetical federal guidelines (I’m thinking time-lines, standards of performance, and resources) could be left alone by the district federal courts, as a matter of explicit policy, except in the most rare and extreme situations.

 

Innocence and Non-Uniformity

 

As a society, we should never be willing to sacrifice the lives of innocent murder victims on the altar of an ideology that assigns an unreasonably high value to the lives of convicted killers. That acknowledged, we can also notice that deterrence of a certain percentage of murders does not seem to require that a very large number of death eligible murders actually be executed.  As a practical matter, prosecutors use a cost effective analysis in pursuing the ultimate penalty. Weak cases aren’t worth the time and effort.  As a result, the number of executions at no time have amounted to more than a tiny percentage of all murders.  Yet many prospective murderers do hesitate, deterred by the very risk of life on death row and the bare possibility of facing execution.

 

Even if it were not constitutionally required, we should never constrain the power to grant mercy.  But the price of mercy is a certain non-uniformity of penalty application. Any individuation of penalty by jurors that is based on non-quantifiable mercy criteria will produce non-uniform results.  So what?  That is as it should be.  There are only two other options: uniform, mandatory death or abolition of the ultimate penalty altogether. I can’t abide either and all the polls for the last half century suggest that a super majority of the voting public can’t either.  Arguments about the alleged arbitrary and capricious nature of the death penalty’s application should be directed solely to the active use of invidious criteria by the decision makers.  Mercy should never constitute an invidious criterion in a death case.

 

The protection of the factually innocent convicted who have somehow slipped through the protracted review processes is the ultimate responsibility of those who exercise the chief executive power in the relevant jurisdictions. State governors (and even the President of the United States) can create “doubt commissions” staffed by jurists, police and defense representatives to triage the death row population.

 

I would limit such a triage inquiry to two narrow questions:

 

(a)   Did the death row candidate actually commit the act or acts leading to the death(s) of the murder victim(s)?

(b)   Was the candidate legally responsible for the killing(s)?

 

Mitigation and mercy would be separate questions, left to others. I would use a simple test: Is either (a) or (b) still subject to rational dispute?  The commissions would be budgeted and empowered to conduct witness interviews and tests.  The defense would be invited to present its views and to make the death row client available for interview as well. There would be three possible outcomes: (1) The case is dropped back into the death row pool. (2) The case is pulled out of that pool for further review and examination. (3) The case is referred to the executive for commutation to life imprisonment.

 

We would quickly discover that the great majority of death row cases in the great majority of jurisdictions would not meet the “still subject to rational dispute” test as to actual legal responsibility for unlawfully taking one or more human lives. 

 

 

 

Copyright © 2003, 2005, 2011by Jay B. Gaskill

 

Also see Thugology 101, by Jay B Gaskill at this link -- http://jaygaskill.com/THUGOLOGY101.htm

For permission to copy, print or distribute, contact:

Jay B. Gaskill, Attorney at Law

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