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RECOVERY FROM AMBIVALENCE

MORAL AND PRACTICAL ASPECTS OF THE DEATH PENALTY

Jay B. Gaskill

Roots of Societal Ambivalence

A supermajority of Americans has consistently supported the death penalty for aggravated murders as long as we have polling records on the question. Yet, outside of Islam, is there any major religious body in this country that affirmatively favors the death penalty? Most of our intelligentsia and clerics oppose execution as punishment for murder. This is a fairly recent development in the U.S. The very notion that all murderers, even the most cold blooded and least redeemable, are entitled to keep on living at public expense, typically in air conditioned rooms with good medical care, three meals, and access to television, did not gain real traction in the culture until after WW II. Both in theological and social policy terms, the doctrinaire opposition to executions prevalent in the secular and theological academy represents a sharp break with the past.

The death penalty is a topic about which I have some special knowledge. I was an Assistant Public Defender in Alameda County, CA (Oakland, Berkeley, Livermore, etc.) from 1969 to 1989, and I served as the Public Defender for Alameda County from 1989 to1999. I have personally handled death penalty cases at the trial level and supervised the defense of many others. My professional career brought me into intimate contact with the underbelly of civilization. This window into the human condition continues to inform my opinions. I am an “ethical realist” – more on that below – who has gradually come to the position that the death penalty is both a practical and moral necessity.

The sharp division between the intelligentsia and the general population on this issue has caused a widespread ambivalence, crippling to both policy and process. The ambivalence is the product of this conflict with the popular will, and the success of death penalty opponents in gaining an upper hand in defining the “conventional wisdom” on the topic.

But the conventional wisdom is flawed. Six current arguments against the death penalty are uncritically repeated as part of the conventional wisdom. Each element of the conventional wisdom is either based on false information, is the product of conditions brought on by the machinations of ardent opponents of the death penalty who game the process, or both.

(1) The death penalty poses an unreasonable and unacceptable risk of the execution of the “innocent”. This is a modern day myth. 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. A rigorous, unsentimental fact-based post conviction forensic review can virtually eliminate this kind of error. But strident death penalty opponents have conflated the legal error statistics, claiming exoneration when nothing of the kind took place. 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. Mitigation errors are certainly important, but they do not support the claim that innocent persons are being executed.

(2) It is more expensive to administer. This is marginal but reversible defense-created circumstance. Ambivalence about the penalty has allowed the appellate process to run wild (particularly on issues other than factual guilt); the result-- in some instances the bill for all that process, post conviction, has run into the high six figures, even exceeding $1m in rare cases. But keeping the same murderers alive in high security prisons costs more than $30k per year. Assume most of them will live 35 years, given the excellent medical care provided, and we will have million dollar prisoners doing time for murder— a number not adjusted for inflation.

(3) It is not a deterrent. This is a huge and remarkably persistent error. A common argument against deterrence focuses on crimes of passion, pointing out that the jealous husband was too filled with rage to give a thought to penalty, or that the homicidal maniac, on a suicidal run, was beyond deterrence. But whole categories of criminals are more easily deterred. Think of those carjackings where the victim is in the trunk. Some are shot, others not. The criminals who did not kill didn’t want to die. It really is that simple. The death penalty, when administered fairly, regularly and with some dispatch, strongly tends to deter that class of murders where there is a moment to reflect before killing. This includes most robbery and kidnapping killings, most drug dealer turf shootings, gang warfare, various witness killings, indeed a large slice of the total number of potential murders.

(4) It is “barbaric.” Murder itself is more barbaric. Death penalty opponents are effectively asking ordinary people who can’t afford to live in completely safe environments to endure even more killings because the elites in charge of policy reject the death penalty on esthetic or “moral” grounds. This is not a morally tenable position.

(5) Execution is morally unnecessary once the murderer is safely in custody. This line of argument is based on the notion that execution can only be justified if it demonstrably saves another life. Its adherents blithely assume a circumstance that is rarely true: that a typical imprisoned killer no longer presents a danger to others. That naïve rationale gives the incarcerated homicidal maniac, i.e., the homicide prone sociopath, many chances to kill over several decades. And it ignores a separate line of justification for the penalty, the overriding importance of preserving and upholding robust justice. And it contains an implicit assumption: that the risk to other prisoners and “mere” jailers is acceptable. Far too many murderers are dangerous even in custody. We should not be comfortable with the position that the life of a “mere” jailer or fellow inmate should be placed at risk so that those too squeamish to tolerate the death penalty will feel better.

(6) The peaceful religions generally and Christianity specifically forbid the death penalty. Professor J. Budziszewski’s thoughtful piece in First Things August/September Issue Number 145 is one of several effective refutations of this position, making essentially the point that long standing Christian tradition recognizes both justice and mercy, but not such that the latter indiscriminately obviates the need for the first. Improvident clemency perverts both justice and mercy.

The Case for Ethical Realism on this Question

Professor Budziszewski’s argument in First Things is theological, making an intentional contrast with the utilitarian position. Ethical realism, as I prefer to define it, should not be confused with utilitarianism. As an ethical realist, I accept the dual aspects of the term, both the objective reality of ethics and the objective necessity of making them effective in the social context.

As one who believes in the objective reality of ethics, I find the only form of justice worthy of the name is that rationally derived from transcendent ethical precepts—moral injunctions equally binding on the powerful and the less so, the wealthy and the less so, discovered or revealed, but not merely invented. But as a realist, I recognize that even the most self evident moral principles are never self executing in the real world, except among a very small number of the enlightened. Any population can be sorted into a crude bell curve of probity, with the sociopaths and naturally enlightened occupying the respective edges, and the rest of us in the well populated middle group. Most people, most of the time are governed by a combination of moral inclination, moral training (currently in decline in this culture) and the classic rule-consequences model (currently weakened by moral relativism and the decline in the “consequences” prong of the rule-consequences model).

Ultimately, the death penalty exists and must continue to do so because it is a necessary component of a justice system that is based on rule-consequences and observes the principle of proportionality captured in the “eye for an eye” injunction. [Most Rabbinical scholars advise that was a rule of limitation, i.e., not more than an eye for and eye.]

Yes, most of my former colleagues oppose the death penalty, and I still support their tireless efforts on behalf of individual clients. But the available evidence has persuaded me that the death penalty can deter a significant percentage of deliberate homicides, especially the subgroup in which there is some opportunity to reflect before killing. The appropriateness of robust justice as an inherent good and as essential component social moral education is an independent justification for the ultimate penalty. But the obligation to save innocent lives by maintaining justice-with-deterrence is an affirmative societal duty. We should never consign hundreds of innocent lives to murder, when some of those very murders may be deterred by a justice system that is prepared to administer the ultimate penalty whenever deserved.

Is There a Deterrence Effect?

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.

Many, many criminals are not deterred by the mere prospect of imprisonment, a fact that is attested to by the current size of the prison population and the large percentage of returnees among them. Thousands and thousands of these criminals were armed during their crimes, yet somehow, they did not kill when doing so might have bought them freedom. Why, if the mere prospect of a return to jail or prison did not deter the robbery, did they refrain from shooting? The question is even more revealing where three strikes is implicated, since the return to prison for the robbery is effectively for life in prison. Yet thousands of robbers do not pull the trigger. Why? Because the risk of getting on death row, however remote the prospect of a visit with the executioner, presents a risk they are not willing to take. From this perspective, all the studies are beside the point because they are trying to measure the wrong homicide increases and decreases against an impossibly complex and fluid background. By definition, a completed homicide was not deterred. But a homicide not attempted might or might not have been deterred.

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. No respected study actually rules out death penalty deterrence, and some experts have found strong indications of a deterrence effect.

I am very well aware of the other studies and statistics that are cited to the effect that there is no conclusive evidence of deterrence. Some of them are biased – their authors having already concluded that the penalty is barbaric and outmoded. Some of the studies are measuring the wrong elements, as I’ve just indicated.

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 or where the death penalty is not in effect;

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

To summarize the statistical problem: No perfect controlled experiment can realistically be designed on a significant scale to produce a precise measure of the deterrence effect of the death penalty. There are far 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 conviction 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.

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.

The most difficult issue is the attempt to measure the deterrent effect on a given, demographically mixed population using side by side jurisdictions. 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 Moratorium Effect

But recent developments have given us a better model. 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. While there can be demographic and cultural changes with time, the magnitude of the effect over the time frame is significant.

Overview of U.S. Homicide Trends

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.

When the overall data from this model are looked at square on, I find the evidence in favor of the death penalty’s deterrent effect on homicidal behavior to be highly persuasive. Therefore, 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.

See: “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

A number of researches have begun to notice the moratorium effect. Among them, these have been brought to my attention:

Professors Dale O. Cloninger and Roberto Marchesini University of Houston.

[Professor Cloninger (cloninger@cl.uh.edu ), Professor Marchesini (marchesini@cl.uh.edu )]

Emory University Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna Shepherd

[Professor Dezhbakhsh econhd@emory.edu ), Professor Rubin (prubin@emory.edu ) and Professor Shepherd (jmehlho@emory.edu)]

University of Colorado (Denver) Economics Department Chairman Naci Mocan and Graduate Assistant R. Kaj Gottings

[Professor Mocan (mmocan@carbon.cudenver.edu ) and R. K. Gottings (rgitting@carbon.cudenver.edu ]

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. 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.

A Realistic Analysis

Even a weak deterrent effect justifies the death penalty, as long as society gives moral priority to the protection of innocent life from murderers. Whenever the number of innocent lives saved by the deterrent effect of the death penalty equals or exceeds the number of executions, there is no “pro-life” argument against the ultimate penalty’s judicious application. I submit that a general moral imperative exists favoring the conditions that generate deterrence, subject only to proportionality (as in not executing for the less serious offenses) and reasonable cost-benefit analysis (as in not squandering all criminal justice resources on a few cases).

The moratoria statistics strongly suggest that the number of murders deterred far, far exceed the number of executions during the same period. Even if that were not the case, the death penalty always saves net innocent lives… unless society were perversely assign to same or greater value to the lives of the killers.

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.

If effect, the true-believer death penalty opponents are assigning an infinite value to the life of the killer. This is bad theology and terrible public policy.

But the real deterrence effect of the death penalty is undoubtedly robust. The studies referenced and California’s recent experiences 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.

About Reform

Obviously, the death penalty process needs reform. Extraordinary attention needs to be given every possible instance of factual innocence. When a rare 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.

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.

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 has 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. An ethical realist should not abide 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.

An Urgent Issue: Deterrence of the Prison Habituated Subpopulation

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. But the costs of murder are even higher. Over any given decade, a number of indigent clients of my office were murdered. I have never bought into the idea that some murder victims are so bad that their murders can safely be given “bottom of the pond” priority. We can never afford to ignore the long term effect of any murder. A typical killer, no matter who he or she has blown away, finds the next killing easier, and the one after that easier still. It is in everyone’s interest to deter additional homicides.

As a society, we should never be willing to sacrifice the lives of innocent murder victims on the altar of an ideology or theology that assigns an unreasonably high value to the lives of convicted killers.

Jay B. Gaskill