Friday, March 08, 2013


Is There Class Disparity with Executions?
Dudley Sharp

One may presume, as do I, that wealthy capital murderers have a better chance of avoiding execution by their obvious ability to hire better counsel.

Presumption is not fact.

Is there class disparity? Maybe, but, possibly, immeasurably small.

It appears, solely,  dependent upon one's definition of "wealthy" and "poor", as to whether  wealthy murderers are any more or less likely to be executed, based upon the very small number and percentage of capital murders that are committed by the wealthy, as compared to the poor.


There is a limited study, which for me, is fairly conclusive that hired private counsel makes a huge difference.

From the brief (1).    V. Conclusion

Death penalty opponents charge that socioeconomic status shapes capital punishment. Wealthy defendants who can hire counsel are exempt from death, but poor defendants who must accept appointed counsel are condemned.

My findings both support and refute opponents claims:

--- Hiring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal.

--- Hiring counsel for a portion of the case substantially reduces the chance of death.

--- Hiring counsel is not related to wealth. Almost all capital defendants are poor.
Some other considerations, nationally.

1) Very rarely are poor murderers sentenced to death and executed.

99.8% of poor murderers have avoided execution.

There have been about 700,000 murders (1973-2012), 1973 being when the first new death penalty statutes were enacted, after Furman v Georgia. Possibly 10% of those may be death penalty eligible, or about 70,000 (a). From 1973-2012, about 1300 capital murderers have been executed, or 0.19% out of 700,000 or 1.9% out of 70,000. The overwhelming majority of those murderers are poor.

Even more rare and much less often, per capita, I venture, do the wealthy commit capital murder. Is a significantly smaller percentage of wealthy capital murderers, less than 1.9%, likely to be executed?(b). Yes, but for circumstances other than private counsel.

2) It appears, solely,  dependent upon one's definition of "wealthy" and "poor", as to whether wealthy murderers are any more or less likely to be executed, based upon the very small number and percentage of capital murders that are committed by the wealthy, as compared to the poor.

Possibly, your definition of "wealthy" will find, more or less, that 99.8% of wealthy capital murderers have avoided execution, just as the "poor" have.

3) The two most frequent crimes which put murderers on death row are robbery/murders and rape/murderers. I suspect wealthy murderers are much less likely, per capita, to commit such crimes, when compared to poor murderers. NOTE: There are a number of cases whereby children murdered their parents for an inheritance. I don't know if those children qualified as wealthy, either before or after those murders.

4) According to the Bureau of Justice Statistics Capital Punishment Series, 65% of those on death row had a prior felony conviction, with 7-8% having a prior murder conviction.

I strongly suspect that wealthy murderers, per capita, are less likely, per capita, to have either of those priors than are poor murderers. Criminal backgrounds are important in death penalty cases. This, alone, may explain any alleged disparity between the wealthy and the poor, if there is any.

For example, in the Menendez brothers case, whereby they murdered their parents, ". . . the jury rejected the death penalty because neither brother had a felony record or a history of violence. " NOTE from Sharp: Astounding that their history of violence against their parents was not enough.

5) Accounting for 3 and 4, the wealthy may be 5-10 times less likely to commit capital murders per capita and/or have existing criminal records which would make it more likely for them to be prosecuted for a death penalty eligible crime and/or sentenced to death.

Correcting for those circumstances, we might expect the wealthy  to be executed at a rate of 0.2-0.4% of the time they commit a capital murder, based upon the numbers in (1) above. (5 to 10 times less than 1.9%).

There is a reason there are few wealthy on death row or executed. In gross numbers, as well as per capita, they are much less likely to commit capital murder.

6) In Mark Castanzo's book "Just Revenge: Costs and Consequences of the Death Penalty", he claimed that 2/3 of death penalty trials ended with a sanction less than death.

Overwhelmingly, such means that poor murderers will be getting the vast majority of those benefits. Are wealthy murderers more likely to receive that benefit, per capita? Unlikely, based upon 3, 4 & 5, above, and (c) below.

7) 37% of all death row inmates have their cases overturned on appeal. Again, overwhelmingly, such means that poor murderers will be getting the vast majority of those benefits. Are wealthy death row murderers more likely, per capita, to receive that benefit? Unlikely, based upon 4 above and (c) below.

8) I have been told, repeatedly, with no supportive evidence, that 90% of those on death row had a public defender. Such would mean that some percentage of those on death row, close to 10%, must have some wealth to hire private counsel. I would be astounded if the percentage were that high.

If it is true, then there is no truth that the wealthy are barred or protected from death row or execution, based upon their wealth and ability to hire better counsel, if not just more expensive counsel.

In fact, based upon (c) below, we may be executing the wealthy at a higher rate than the poor.

Again, how one defines "wealthy" and "poor" may be the determining factor.


I will continue to believe that truly wealthy capital defendants/murderers, who can hire the finest counsel, must have an advantage over their poorer ilk, but that the database of wealthy capital murderers is so small as to, likely, make moot any statistical relevance.

Keep in mind that, so far, poor capital murderers are avoiding execution about 98% of the time - and I don't think we have any evidence that wealthy capital murderers are executed substantially less than 1.9% of the time (1 above), or a properly corrected 0.2-0.4% of the time (5 above).

We may even be executing wealthy murderers at a rate higher than expected. See (c) below.


(a) While many of those murders would have multiple victims, so to would many also have multiple murderers. So, while 50,000 cases may be death penalty eligible, because of multiple victims, it will, also, say that 70,000 murderers will be subject to execution, based upon some cases having multiple offenders.

(b) I have not tried to compile a list of the wealthy on death row, in the modern era. I just happen to know of these.

Some wealthy, sent to death row. Garza and Smith have been executed.

Robert Marshall (New Jersey), Thomas Capano (Delaware), Juan Raul Garza (federal), Markum Duff Smith (Texas)

(c) 13) THE WEALTHY AND DEATH ROW - Contrary to opponents claims, there is no systemic evidence that wealthy capital murderers are less likely to be executed that their poorer ilk. 

Drawing only on personal knowledge, with no study, I found that since 1973, in Texas, alone, at least seven middle class to wealthy murderers have been put on death row. 

Four, Markum Duff Smith, George Lott, Robert Black, Jr., and Ronald O'Bryan have been executed. Three additional await execution. Extensive, objective research would, undoubtedly, reveal many more. Don’t forget John Wayne Gacy. 

Furthermore, Dr. Joseph Katz found that, while 74% of all Georgia murder defendants were poor, only 38% of those on death row were poor (McCleskey). 

Informed Speculation: 5% of the U.S. population (12 million) can afford to pay the $400,000* cost for their capital trial and appeals. Because financial need can be excluded, the category of wealthy capital murderer can be assumed to murder at a rate 10 times less than their poorer ilk. 

Fact: 0.20% of the U.S. population commits murder. 1.3% of those are sentenced to death. Only 6% of those have been executed. 

Therefore, the projected number of wealthy executed from 1976-1996 is 2 , or 12 million x .1 x .0020 x .013 x .06. Using 1973-1996 data. 

*conservative estimate based on opponents’ high cost claims (see E) 

From C.  RACE, SENTENCING AND THE DEATH PENALTY, DEATH PENALTY AND SENTENCING INFORMATION In the United States, Dudey Sharp,  10/1/97, found 5/26/13, at


1) Brief  "Hire a lawyer, Escape the Death Penalty"
                By Scott Phillips, February 2010
This Issue Brief is based on an article entitled Legal Disparities in the Capital of Capital Punishment, 99 J. CRIM. L. & CRIMINOLOGY 717 (2009). The findings described here are confirmed in the multivariate statistical models presented in the full paper. The author may be contacted by mail at Scott Phillips; Department of Sociology and Criminology; University of Denver; 2000 E. Asbury Avenue; Denver, CO 80208-2948; or by email at

REBUTTAL: Common Anti Death Penalty Claims

Saving Costs with The Death Penalty



A review of the debate

Victims' Families for Death Penalty Repeal: More Hurt For Victims:
95% of murder victim's families support death penalty

"Killing Equals Killing:
The Amoral Confusion of Death Penalty Opponents"

"The Death Penalty: Neither Hatred nor Revenge"

"Moral/ethical Death Penalty Support: Christian and secular Scholars"

"The Death Penalty: Not a Human Rights Violation"

US Death Penalty Support at 80%; World Support Remains High

Victim's Voices - These are the murder victims

Monday, March 04, 2013


Of Course The Death Penalty Deters: A review of the debate
Dudley Sharp

If you are unsure about deterrence, then you can risk sacrificing more innocent lives by not using the death penalty or you can "risk" saving more innocent lives by using it.

Make your choice.

 It is odd that anyone would think the death penalty was not a deterrent.

1) The evidence that the death penalty deters some is overwhelming. The evidence that the death penalty deters none is non existent.

2) All prospects of a negative outcome deter some. That is a truism. Execution is the most severe negative outcome for criminals.

3) Death is feared more than life. Life is preferred over death.  That which we fear more, deters more. That which we prefer more deters less.

4) No study finds that the death penalty deters none. They cannot. No credible academic says the death penalty deters none. Rationally and factually, they cannot.

The case for death penalty deterrence, as with all criminal deterrents, overwhelms the evidence that none are deterred, an absurdity.

5) There are numerous cases where it has been found that potential murderers have been deterred from committing murder, because of their fear of the death penalty (1).

This is known as individual deterrence. The death penalty deters some. Not only is such confirmed, it cannot be rebutted, as neither rationally nor factually can anyone state the death penalty deters none.

6) General deterrence exists, because individual deterrence could not exist without it.

7) Anti death penalty folks say that the burden of proof is on those who say that the death penalty deters. Untrue. It is a rational truism that all potential negative outcomes deter some - there is no exception.

It, then, follows that it is the burden of death penalty opponents to prove that the death penalty, the most severe of criminal sanctions, is the only prospect of a negative outcome that deters none. They cannot.

8) All criminal sanctions deter. If you doubt that, what do you think would happen if we ended all laws, all criminal sanctions and all law enforcement? No rational person has any doubt. All aspects of what we now call "crime" would rise, some overwhelmingly. Somalia comes to mind.

Some would have us, irrationally, believe that the most severe sanction, execution, is the only sanction which deters none.

9) All criminal sanctions, regardless of crime/murder rates, deter some (2). Just because crime/murder rates are low in one jurisdiction and high in another, doesn't mean that no one is deterred in the jurisdiction with higher rates, as death penalty opponents would claim.

We all know that within different states or countries, there are towns, cities and neighborhoods which have varying crime/murder rates. All sanctions deter in all of those jurisdictions, but they have different rates because of different circumstances (2). It is not that none are deterred, simply because there are higher crime/murder rate in one jurisdiction than another. The claim is irrational on its face (2).

Let's say that the country of Iceland and the city/state of Singapore have the lowest of all crime and murder rates. Does that mean that in all other cities and countries that none are deterred, because all of them have higher rates than Singapore and Iceland? Again, it's ridiculous on its face, but that is what anti death penalty folks are saying, in contradiction of common sense, reason and history.

10) Anti death penalty columnists Eric Zorn of the Chicago Tribune states, "No one argues that the death penalty deters none." "Will someone bent on murder turn from the crime when he contemplates the fact that he may be executed for it? Obviously that will happen." (3).

More precisely, it "does" happen and always has.

Zorn is in error. Some do argue, without rational and factual support, that the death penalty deters none.

Zorn is correct, the issue is not "Does the death penalty deter?". It does.

The only issue is to what degree.

Therefore, anti death penalty efforts must contend with the reality that sparing murderers does sacrifice more innocent lives , by reduced deterrence, lesser incapacitation and lesser due process, and executing murderers does save more innocent lives, by enhanced incapacitation, enhanced deterrence and enhanced due process.

11) Even the dean of anti death penalty academics, Hugo Adam Bedau, agrees that the death penalty deters, but he doesn't believe it deters more than a life sentence (4).

He's right. It deters.

The evidence is that the death penalty is an enhanced deterrent over a life sentence.

Nearly 100% of those murderers subject to the death penalty do everything they can to avoid the death penalty (5).

What of potential murderers?

They, like the rest of us, embrace/prefer life more than death and fear death more than life.

That which we fear the most, deters the most. That which we embrace/prefer more, deters less.

Both the anecdotal and rational evidence finds that the death penalty is a greater deterrent than a life sentence.

The evidence is expressly clear and overwhelming that death is feared more than life and life is preferred over death, not just for potential murderers who may face execution, but by a majority of all of us.

When 99.7% of murderers, who are subject to the death penalty, tell us they fear death more than life (5) and when about 99.9% of the rest of us (excluding the determined suicidal and/or terribly ill) tell us they prefer life over death, it is a certainty that some potential murderers, overwhelmingly feel the same, and thus fear execution more than life.

What we fear the most deters the most. This is historically, factually and rationally true.

Life is preferred over death. Death is feared more than life. No surprise.

Would a more rational group, those who choose not to murder, also share in that overwhelming fear of death and be deterred by the prospects of execution? Of course - just as we all do.

12) There is substantial factual evidence for anecdotal death penalty deterrence and as an enhanced deterrent (1).

13) Consider:

a) If we execute and there is no deterrence, we have justly punished a murderer and have prevented that murderer from ever harming/murdering, again, thus saving more innocent lives.

b) If we execute and there is deterrence, we have those benefits (a), plus we have spared even more additional innocent lives via deterrence;

c) If we don't execute and there is deterrence, we have spared murderers at the cost of more innocent deaths, via the loss of a greater deterrent, as well as by lesser incapacitation;

d) If we don't execute and there is no deterrence, we risk more harm and death to innocents, because living murderers harm and murder, again. Executed murderers do not.

"If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call."

John McAdams - Marquette University/Department of Political Science

14) "How much does the death penalty deter?". There will never be a consensus answer to that question. Even the 28 studies that have found for death penalty deterrence since 1997, have widely different findings, that from 1-28 murderers are deterred per execution (or 33 to 924 saved per year via deterrence, or  1,320 -  36,960 lives saved, for the forty years, 1973-2012. This is an average from when new statutes came into law, post Furman, 1972. Executions did not resume until 1977 (6)

Although these studies have been subject to criticism, the criticism, itself, has either been rebutted and/or the criticism is weaker than the studies finding for deterrence (7), inclusive of the horrendous National Research Council hatchet job by Prof. Nagin.. To my knowledge, all of the authors finding for deterrence stand by their studies. In addition, none of the criticism negates 1-12, and/or 14, herein.

Even without those 28 studies, the argument for death penalty deterrence and its enhanced deterrent effect overwhelms any claim that the death penalty deters none, for which no evidence exists.

15) Reason, common sense, history and the facts support that the death penalty deters and deters more than lesser sanctions.

If you are concerned about innocent lives that deserve to be saved, you will support the death penalty (8).

If you are unsure about deterrence, then you can risk sacrificing more innocent lives by not using the death penalty or you can "risk" saving more innocent lives by using it.


(1)  Some factual evidence for specific cases of individual deterrence.

a)  Opinion: People v Love

starting right after that which is in bold, below, which is about 1/4 down from the top and goes to the end.

Be patient.
Gibson, C. J., Peters, J., White, J., and Dooling, J., concurred.

I dissent.

b) One Iowa prisoner, who escaped from a transportation van, with a number of other prisoners, stated that he made sure that the overpowered guards were not harmed, because of his fear of the death penalty in Texas. The prisoners were being transported through Texas, on their way to New Mexico, when the escape occurred. Most compelling is that he was a twice convicted murderer from a non death penalty state, Iowa. In addition, he was under the false impression that Texas had the death penalty for rape and, as a result, also protected the woman guard from assault. "Langley says Texas death penalty affected his actions during escape", by Stephen Martin, The Daily Democrat (Ft. Madison, Iowa), 1/8/97, pg 1.

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

d)  Senator Dianne Feinstein explained, ''I remember well in the 1960s when I was sentencing a woman convicted of robbery in the first degree and I remember looking at her commitment sheet and I saw that she carried a weapon that was unloaded into a grocery store robbery. I asked her the question: ‘Why was your gun unloaded?’ She said to me: ‘So I would not panic, kill somebody, and get the death penalty.’ That was firsthand testimony directly to me that the death penalty in place in California in the sixties was in fact a deterrent.''California District Attorneys Association, ''Prosecutors Perspective on California’s Death Penalty,'' March 2003

e)  a number of additional examples from




      c) "Death Penalty, Deterrence & Murder Rates: Let's be clear"

3) "Death penalty and deterrence -- the argument from anecdote", Eric Zorn, Change of Subject page, Chicago Tribune,4/23/2011,

4) "An Abolitionist's Survey of the Death Penalty in America Today", Hugo Adam Bedau, Chapter 2, within Debating the death penalty: should America have capital punishment? : the experts on both sides make their case, editors Hugo Adam Bedau, Paul G. Cassell, Oxford University Press, 2004. SHARP REVIEW: AN EXCELLENT BOOK PRESENTING BOTH SIDES.

99.7% of murderers tells us "Give me life, not execution"

6)     a) See sections C and D within
            The Death Penalty: Saving More Innocent Lives

        b) Brutalization & The Death Penalty: More Support for the Deterrent Effect

7)     a) DEATH PENALTY DETERRENCE: Rebuttal to Donahue and Wolfers:

         b) "Deterrence & the Death Penalty: A Reply to Radelet and Lacock

         c) Death Penalty Deterrence: Defended & Advanced

8)      a) Innocents More At Risk Without Death Penalty

         b) Brutalization & The Death Penalty: More Support for the Deterrent Effect


Victim's Voices - These are the murder victims