The death penalty debate in the U.S. is dominated by the fraudulent voice of the anti-death penalty movement. The culture of lies and deceit so dominates that movement that many of the falsehoods are now wrongly accepted as fact, by both advocates and opponents of capital punishment. The following report presents the true facts of the death penalty in America. If you are even casually aware of this public debate, you will note that every category contradicts the well-worn frauds presented by the anti-death penalty movement. The anti-death penalty movement specializes in the abolition of truth.
1) Imposition of the death penalty is extraordinarily rare. Since 1967, there has been one execution for every 1600 murders, or 0.06%. There have been approximately 560,000 murders and 358 executions from 1967-1996 FBI's Uniform Crime Report (UCR) & Bureau of Justice Statistics (BJS)
2) Approximately 5900 persons have been sentenced to death and 358 executed (from 1973-96). An average of 0.2% of those were executed every year during that time. 56 murderers were executed in 1995, a record number for the modern death penalty. This represented 1.8% of those on death row. The average time on death row for those 56 executed - 11 years, 2 months ("Capital Punishment 1995", BJS, 1996), an all time record of longevity, breaking the 1994 record of 10 years, 2 months.
3) Death penalty opponents ("opponents") state that "Those who support the death penalty see it as a solution to violent crime." Opponents, hereby, present one of many fabrications. In reality, executions are seen as the appropriate punishment for certain criminals committing specific crimes. So says the U.S. Supreme Court and so say most death penalty supporters ("advocates").
4) Opponents equate execution and murder, believing that if two acts have the same ending or result, then those two acts are morally equivalent. This is a morally untenable position. Is the legal taking of property to satisfy a debt the same as auto theft? Both result in loss of property. Are kidnaping and legal incarceration the same? Both involve imprisonment against one's will. Is killing in self-defense the same as capital murder? Both end in taking human life. Are rape and making love the same? Both may result in sexual intercourse. How absurd. Opponents’ flawed logic and moral confusion mirror their "factual" arguments - there is, often, an absence of reality. The moral confusion of some opponents is astounding. Some equate the American death penalty with the Nazi holocaust. Opponents see no moral distinction between the slaughter of 12 million totally innocent men, women and children and the just execution of society's worst human rights violators.
A. THE RISK OF EXECUTING THE INNOCENT
B. THE INCAPACITATION AND THE DETERRENT EFFECTS
C. RACE , SENTENCING AND THE DEATH PENALTY
D. THE COST OF LIFE WITHOUT PAROLE VS THE DEATH PENALTY
A. THE RISK OF EXECUTING THE INNOCENT
Great effort has been made in pretrial, trial, appeals, writ and clemency procedures to minimize the chance of an innocent being convicted, sentenced to death or executed. Since 1973, legal protections have been so extraordinary that 37% of all death row cases have been overturned for due process reasons or commuted. Indeed, inmates are six times more likely to get off death row by appeals than by execution. (“Capital Punishment 1995", BJS, 1996). And, in fact, many of those cases were overturned based on post-conviction new laws, established by legislative or judicial decisions in other cases.
Opponents claim that 69 "innocent" death row inmates have been released since 1973. ("Innocence and the Death Penalty", Death Penalty Information Center, July, 1997). Just a casual review, using the DPIC’s own case descriptions, reveals that of 39 cases reviewed (Sec. A, B, & C, pg. 12-21), that the DPIC offers no evidence of innocence in 29, or 78%, of those cases. Incredibly, the DPIC reviews "Recent Cases of Possible Mistaken Executions" (p 23-24), wherein they list the cases of Roger Keith Coleman, Leonel Herrera, and Jesse Jacobs - 3 cases which helped solidify the anti-death penalty movements penchant for lack of full disclosure and/or fraud. For the fourth case, therein, that of Coleman Wayne Gray, the DPIC makes no effort to claim innocence.
Furthermore, the DPIC and most opponents fail to review that the role of clemency and appeals in such cases is to judge the merits of death row inmates claims regarding innocence and/or additional trial error. Indeed, the release of those 69 inmates proves that such procedures worked precisely, and often generously, as intended. Also contrary to opponents claims, clemency is used generously to grant mercy to death row murderers and to spare inmates whose guilt has come into question. In fact, 135 death row inmates have been spared by clemency or commutation from 1973-95 (ibid.). This represents 43% of the total of those executed during that time - a remarkable record of consideration and mercy.
EDIT ADDED later Title only: The Bedau-Radelet Study, "Miscarriages of Justice in Potentially Capital Cases," 40, 1 Stanford Law Review, 11/87.
In reviewing the DPIC’s original 1993 study, finding 48 (of the 69) "innocent" defendants on death row, the DPIC states its debt for the " . . . ground-breaking work done by . . . Professors Michael Radelet and Hugo Bedau"(p 1) in their "Miscarriages of Justice in Potentially Capital Cases". See below.
The most significant study conducted to evaluate the evidence of the "innocent executed" is the Bedau-Radelet Study ("Miscarriages of Justice in Potentially Capital Cases," 40, 1 Stanford Law Review, 11/87). The study concluded that 23 innocent persons had been executed since 1900. However, the study's methodology was so flawed that at least 12 of those cases had no evidence of innocence and substantial evidence of guilt. Bedau & Radelet, both opponents, "consistently presented incomplete and misleading accounts of the evidence." (Markman, Stephen J. & Cassell, Paul G., "Protecting the Innocent: A Response to the Bedau-Radelet Study" 41, 1 Stanford Law Review, 11/88). The remaining 11 cases represent 0.14% of the 7,800 executions which have taken place since 1900. And, there is, in fact, no proof that those 11 executed were innocent. In addition, the "innocents executed" group was extracted from a Bedau & Radelet imagined pool of 350 persons who were, supposedly, wrongly convicted of capital or "potentially" capital crimes. Not only were they at least 50% in error with their 23 "innocents executed" claim, but 211 of those 350 cases, or 60%, were not sentenced to death. Bedau and Radelet already knew that plea bargains, the juries, the evidence, the prosecutors, judicial review and/or the legal statutes had put these crimes in the "no capital punishment" category. Indeed, their claims of innocence, regarding the remaining 139 of those 350 cases, should be suspect, given this study’s poor level of accuracy. Calling their work misleading hardly does this "academic" study justice. Had a high school student presented such a report, where 50-60% of the material was either false or misleading, a grade of F would be a likely result.
Indeed, Michigan Court of Appeals Judge Stephen Markman finds that " . . . the Bedau-Radelet study is remarkable not (as retired Supreme Court Judge Harry Blackmun seems to believe) for demonstrating that mistakes involving the death penalty are common, but rather for demonstrating how uncommon they are . . . This study - the most thorough and painstaking analysis ever on the subject - fails to prove that a single such mistake has occurred in the United States during the twentieth century." Presumably, Bedau and Radelet would have selected the most compelling 23 cases of the innocent executed to prove their proposition. "Yet, in each of these cases, where there is a record to review, there are eyewitnesses, confessions, physical evidence and circumstantial evidence in support of the defendant’s guilt. Bedau has written elsewhere that it is ‘false sentimentality to argue that the death penalty ought to be abolished because of the abstract possibility that an innocent person might be executed when the record fails to disclose that such cases exist.’ . . . (T)he Bedau and Radelet study . . . speaks eloquently about the extraordinary rarity of error in capital punishment." ("Innocents on Death Row?", National Review, September 12, 1994).
Another significant oversight by that study was not differentiating between the risk of executing innocent persons before and after Furman v Georgia (1972). There is, in fact, no proof that an innocent has been executed since 1900. And the probability of such a tragedy occurring has been lowered significantly more since Furman. In the context that hundreds of thousands of innocents have been murdered or seriously injured, since 1900, by criminals improperly released by the U.S. criminal justice system (or not incarcerated at all!), the relevant question is: Is the risk of executing the innocent, however slight, worth the justifications for the death penalty - those being retribution, rehabilitation, incapacitation, required punishment, deterrence, escalating punishments, religious mandates, cost savings, the moral imperative, just punishment and the saving of innocent lives?
Predictably, opponents still continue to fraudulently claim, even today*, that this study has proven that 23 "innocent" people have been executed, even though Bedau and Radelet, the authors of that study, conceded - in 1988 - that neither they nor any previous researchers have proved that any of those executed was innocent: "We agree with our critics that we have not proved these executed defendants to be innocent; we never claimed that we had." (41, 1 Stanford Law Review, 11/1988).
B&R END (title added later)
One of opponents most blatant frauds is their claim that the U.S. Supreme Court, in Herrera v. Collins (113 S. Ct. 853, 870{1993}), found that the Herrera "decision would allow the states to execute a defendant for a crime that he did not commit. Justice O’Connor’s concurring opinion makes clear that Herrera does not stand for that proposition. Justice O’Connor stated, ‘I cannot disagree with the fundamental legal principal that executing the innocent is inconsistent with the Constitution’ and ‘the execution of a legally and factually innocent person would be a constitutionally intolerable event.’ As Justice O’Connor stated, the Court assumed for the sake of argument ‘that a truly persuasive demonstration of actual innocence would render any such execution unconstittional and that federal habeas relief would be warranted if no state avenue were open to process the claim.’ Id., at 874. That is the holding in Herrera, and any claim to the contrary is simply not correct."
"Moreover, Herrera’s claim of innocence was weak at best, seeking to blame his dead brother for the crimes Herrera was found guilty of committing. When the evidence against Herrera is considered against the proffered evidence of innocence, it is not surprising that none of the federal judges to hear this claim, including the dissenters in the Supreme Court, have ever expressed any doubt as to Herrera’s guilt." Kenneth S. Nunnelley in Congressional testimony, July 23, 1993
*Example: Stephen Bright, Director, Southern Center For Human Rights (Atlanta, Ga.). claims that Aubrey Adams of Florida represents a case of the “innocent” executed. (Cochran & Grace, Court TV, 3/ 25/97). Since neither JFA nor the Death Penalty Information Center could locate an Aubrey Adams for which such claims had been made, JFA assumes that Mr. Bright meant the well known case of James Adams of Florida.
The James Adams case is particularly worthy of review. Not only is the Adams case one of those alleged 23 "innocent" executed, but his is the only post-Furman case cited by Bedau and Radelet. Bedau and Radelet’s claims and "evidence" are too lengthy to review here. A short review is all that is required to discredit such claims. They "proved" Adams’ innocence by a review, not of the case facts, but of Adams’ own claims from his clemency hearing! This dishonest review was presented as an objective evaluation of the case when, in fact, it was completely biased, with only one goal - to present the case facts in the light most favorable to Adams and to neglect or suppress the voluminous evidence of Adams’ guilt. Cassell and Markman exposed this academic fraud and presented the case facts from the full record, as Bedau and Radelet should have. The case for Adams’ guilt is solid. Mr. Bright is a leading spokesperson in the anti-death penalty movement.
Both Bedau and Radelet refused to claim that Adams was innocent. Yet, this does not prevent opponents from making false claims to the contrary. If Mr. Bright was discussing the James Adams case, this is a classic, standard example of the type of anti-death penalty fraud found every day.
Irresponsible editors, publishers and authors are common within this debate. Two examples: Punishment and the Death Penalty, Baird, Robert & Rosenbaum, Stuart, Prometheus, 1996 and Capital Punishment: the death penalty debate, Gottfried, Ted, Enslow, 1997. Both still claim that 23 "innocents" have been executed!
B. THE INCAPACITATION AND THE DETERRENT EFFECTS
SUMMARY - The incapacitation effect saves lives - that is, that by executing murderers you prevent them from murdering again and do, thereby, save innocent life (B.1-4, 7, 9, 10 & 15). The evidence of this is conclusive and incontrovertible. Furthermore, the individual deterrent effect also proves that executions save innocent life (B.7-9 & 11-18). This effect represents those potential murderers who did not murder under specific circumstances because of their fear of execution. There are many, perhaps thousands, of such documented cases, representing many innocent lives saved by the fear of execution. Circumstances dictate that the majority of these cases will never be documented and that the number of innocent lives saved by individual deterrence will be, and has been, much greater than we will ever be able to calculate. Finally, there are more than 30 years of respected academic studies which reveal a general, or systemic, deterrent effect, meaning that there is statistical proof that executions produce fewer murders (B. 7-9 & 11-18). However, such studies are inconclusive because there are also studies that find no such effect - not surprising, as the U.S. has executed only 0.08% of their murderers since 1973. Because such studies are inconclusive, we must choose the option that may save innocent lives. For, if there is a general deterrent effect, and we do execute, then we are saving innocent lives. But, if there is a general deterrent effect and we don’t execute murderers, we are sacrificing innocent lives. If our judgement is in error regarding general deterrence, then such error must be made on the side of saving innocent lives and not on the side of sacrificing innocent lives. This is a moral imperative. Furthermore, the individual deterrent effect could not exist without the general deterrent effect bring present. The individual deterrent effect is proven. Therefore, even though it may be statistically elusive, the general deterrent effect is proven by individual deterrence. Individually and collectively, these three effects present a strong morale argument for executions. Executions save lives. Period. Our choice is to spare the lives of the murderers and to, thereby, sacrifice the lives of the innocent or to execute those murderers and to, thereby, spare the lives of the innocent. What do you choose?
The test for deterrence is not whether executions produce lower murder rates, but that executions produce fewer murders than if the death penalty did not exist. For example, the fact that the state of Delaware executes more people per capita (1/87,500) than any other state and has a murder rate 16 times lower than Washington, D.C. (5/100,000 vs 78.5/100,000) is not proof, per se, that the death penalty deters murder in Delaware or that the lack of the death penalty escalates murders and violent crime in Washington, D.C., which has the highest violent crime and murder rates in the U.S. Be careful how you explain and understand deterrence.
1) The argument that murderers are the least likely of all criminals to repeat their crimes is not only irrelevant, but also increasingly false. 6% of young adults paroled in 1978 after having been convicted of murder were arrested for murder again within 6 years of release. ("Recidivism of Young Parolees," 4, 1987, BJS). Murderers have so violated the human rights of their victims and of society that it should be a moral imperative that they never again have that opportunity.
2) Obviously, those executed can’t murder again. "Of the roughly 52,000 state prison inmates serving time for murder in 1984, an estimated 810 had previously been convicted of murder and had killed 821 persons following their previous murder convictions. Executing each of these inmates would have saved 821 lives." (41, 1 Stanford Law Review, 11/88, pg. 153). Using a 75% murder clearance rate, it is most probable that the actual number of lives saved would have been 1026, or fifty times the number legally executed that year. This suggests that some 10,000 persons have been murdered, since 1971, by those who had previously committed additional murders (JFA). See B.5.
3) Death penalty opponents spend millions of dollars and countless man hours fighting the legal execution of, at most, 56 of our worst human rights violators per year, when they do nothing to fight for the end of those inhumane parole and probation release policies which result in the needless injury and slaughter of the innocent. "The U.S. Department of Justice estimates that convicted criminals free on parole and probation . . . commit ‘at least’ 84,800 violent crimes every year, including 13,200 murders, 12,900 rapes, and 49,500 robberies." American Guardian, May 1997, pg. 26. Incredibly, this slaughter does not include violent crimes committed by repeat offenders who are released and who are not on "supervision". Where is the compassion in honoring the previous victim’s suffering and in protecting the human rights of future victims? Opponents’ actions show virtually no compassion for the victims of violent crime or concern for future victims, yet, they exhibit overwhelming support for those who violate our human rights and murder our loved ones.
4) 9-15% of those on death row committed, at least, one additional murder, prior to that murder (or those murders) which has currently put them on death row; 67% had a prior felony conviction; 42% had an active criminal justice status when they committed their capital offense; 14% of those sentenced to death from 1988-94, had received two or more death sentences ("Capital Punishment 1994", BJS 1995 & JFA). Should we err on the side of caution and protect the innocent and honor the memories of those murdered or should we give murderers the opportunity to harm again? Should we put prison personnel and other prisoners at any additional risk from known murderers? Prisoners on death row are 250% more likely to murder, in prison, than are prisoners in the general population. Lester, D., "Suicide and Homicide on Death Row", American Journal of Psychiatry, 143, 559, 1986.
5) The expected punishment for murder was only 1.5 years in 1985 and rose to only 2.7 years in 1995! (THE REYNOLD’S REPORT, "Crime and Punishment in the U.S.", National Center for Policy Analysis, 1997). Expected punishment is calculated by measuring the probability of being caught, incarcerated, and time served. Why have we chosen to be so generous to murderers and so contemptuous of the human rights and suffering of the victims and future victims? See B. 2.
6) For a criminal justice system to have credibility and deterrent value, two factors are required: (1) a high rate of arrest and (2) punishment which reflects the severity of the crime, the criminal’s record and the demand for justice. The U.S. system has neither. Of the 10.3 million violent crimes in 1993, only 100,000 of those victimizations, or 1%, resulted in an actual jail sentence. Only 6.2% of all violent crimes result in arrest. (Prof. John J. DiIulio, Jr., Princeton Univ. 1995, The State of Violent Crime in America, 1/96 and Criminal Victimization 1993 , BJS, 1995.) The human rights of victims and future victims are consistently ignored.
7) With no death penalty and only life without parole (LWOP), there is no deterrent for LWOP inmates killing others while in prison or after escape. Indeed, there is actually a positive incentive to murder if a criminal has committed a LWOP offense and had not yet been captured. Currently, there are a number of inmates who have killed numerous people in prison or after escape. Their punishment could not be increased because there is no death penalty in those states. Therefore, they will never be punished for those crimes. Never. Totally unacceptible, by any standard. Not surprisingly, death penalty opponents believe that LWOP is more severe than the death penalty. Hamilton, V., & Rakin, L.: "Interpreting the 8th Amendment", Bedau, H., & Pierce, C., ed., Capital Punishment in the United States, New York, AMS, 1976. This absurd belief, which has now become the newest mantra of opponents, is contradicted by all other surveyed groups, including prisoners (B.11 & 16).
8) Death Penalty opponents claim that there is a "brutalization effect" with executions, meaning, that executions show a low regard for human life and do, thereby, cause an increase in the murder rate. If the brutalization effect is real, it would be the only known legal sanction to cause an increase in wrongful behavior. Why would criminals become more likely to engage in illegal activities because the punishments for those activities become more severe? How absurd. Have dramatic increases in the rates of incarceration resulted in dramatic increases in kidnappings? Just the opposite. Further denouncing the brutalization effect is the fact that many respected studies show that executions do produce an individual and a general deterrent effect. And,there is, of course, common sense.
9) There are four rational conclusions one can make regarding general, or systemic, deterrence. (1) If the death penalty is not a deterrent and we execute, then we are executing our worst human rights violators. (2) If the death penalty is a deterrent and we execute, then we are executing those criminals and saving innocent lives. (3) If the death penalty is not a deterrent and we don’t execute, then we are not sacrificing innocent lives. (4) If the death penalty is a deterrent and we don’t execute, then we are sacrificing innocent lives. Regarding deterrence, it is necessary to err on the side of saving innocent life and not to err on the side of sacrificing innocent life. These are moral imperatives.
10) There are two mistakes we can make with those convicted of violent crimes. First, we can misjudge their character and keep them incarcerated too long, when they could have become constructive free persons, repaying even more their debt to society and to their victim(s). Secondly, we can misjudge their character and release them too soon, so that they further destroy the lives of our children, our brothers and sisters, our spouses and our parents, creating additional economic, physical, emotional and spiritual loss. For far too long, the U.S. has chosen to err on the side of those who have violated our human rights and has, thereby, expanded the river of blood and tears for victims and their survivors (See B.3). No more. Not in our name. We demand that the memories and suffering of crime victims be honored by justice - that is by a just punishment which reflects the severity of the crime. And, we must always err on the side of caution and compassion for those not yet harmed.
11) The most conclusive evidence that criminals fear the death penalty more than life without parole is provided by convicted capital murderers and their attorneys. 99.9% of all convicted capital murderers and their attorneys argue for life, not death, in the punishment phase of their trial. When the death penalty becomes real, murderers fear it the most. While it is obvious that the fear of execution did not deter those murderers from committing a capital crime, it is also clear that such fear is reduced because executions are neither swift nor sure in the U.S. However, as the probability of that punishment rises for those murderers, even they show a great fear of the death penalty. Although you will never deter all murderers, the effect of deterrence will rise as the probability of executions rise. Because, as the probability of executions rises, the fear of that punishment will also rise. And, that which we fear the most deters the most. Indeed, prisoners rate the death penalty as the most feared punishment, much more so than life without parole. Sehba, L. & Nathan, G., "Further Explorations in the Scale of Penalties", British Journal of Criminology, 24:221-249, 1984.
12) Opponents proclaim that the death penalty is a barbaric act so dreadful in its implications that we can hardly bear to contemplate the horrors of its terrible character. On the other hand, they also assert that potential murderers, when confronted with the horrors of execution, will not be deterred by its infliction upon them. That proposition is, of course, absurd on the face of it (Revised from M. Stanton Evans, Clear and Present Danger).
13) Assume all murderers would instantly die upon murdering. Murderers would then kill only if they wished to die themselves. Murder/suicide is an extremely small component of all murders. Therefore, if a swift and sure death penalty was universally applied to our worst criminals, it is logically conclusive that the death penalty would be a significant deterrent and that many innocent lives would be saved. In fact, swift and sure executions do result in deterrence: (A) The greater the publicity surrounding executions, the greater the deterrent effect. Phillips, D. "The Deterrent Effect of Capital Punishment". American Journal of Sociology, 86;139-158, 1980: Philipps, D. & Hensley, J., "When Violence is Rewarded or Punished". J. Commun., 34(3); 101-116, 1984; and the various studies by Prof. Steven Stack, Wayne St. U.(1988-1995) and (B) The higher the rate of execution, the greater the deterrent effect. Lester, D. "Executions As A Deterrent To Homicide", 44:562,1979a and "Deterring Effect of Executions on Murder as a Function of Number and Proportion of Executions", 45:598, 1979b, both from Psychol. Rep. and Wasserman, L.: "Non-deterrent Effect of Executions on Homicide Rates", Psychol. Rep., 58:137-138, 1981. The State of Delaware has the highest execution rate per capita and low homicide rates.
14) The individual deterrent effect is proven by many, perhaps thousands, of individual, fully documented cases where criminals have admitted that the death penalty was the specific threat which deterred them and/or others from committing murder. Indeed, one study showed that criminals, by a 5:1 ratio, believed that capital punishment was a significant enough deterrent to prevent them and/or others from murdering their victims (People vs Love, 56 Cal 2d 720 (1961), McComb, J. dissenting. see also: (A) "Controversy Over Capital Punishment", Congressional Digest, Jan.,’73, p. 13; (B) L.A.P.D. study within Aikens vs Ca., No. 68-5027, Oct. Term, 1971, U.S. Supreme Court; ( C ) Carol Vance, "The Death Penalty After Furman", The Prosecutor, vol. 9, no. 4 (1973), p. 703; (D) Carrington, F., Neither Cruel Nor Unusual, Pgs. 92-100(1978); (E) Don Hooloschultz, "Gunman Slain, Hostages O.K.", Washington Star News, 8/23/73, p.A-1; (F) Jim Landers, "4 Guilty in Holdup Sentence", Washington Post, 12/8/73,p.B-1; (G) Larry Derryberry, "It Is The Fear That Death May Be The Punishment That Deters", Police Digest, Spring/Summer 1973, p.27, col.2. ; (H) "Langley says Texas death penalty affected his actions during escape", by Stephen Martin, The Daily Democrat (Ft. Madison, Iowa), 1/8/97, pg 1. Indeed, prisoners rate the death penalty as a much more severe penalty than they do life without parole (B.12). While it is difficult to prove a negative, i.e. "How many murders does the death penalty cause not to occur?", there is absolute evidence that the individual deterrent effect of executions saves innocent lives. Extensive worldwide research on individual deterrence would, undoubtedly, reveal significant general deterrent effect.
15) Regarding the deterrent effect of the death penalty, poet Hyam Barshay made the following observation, "The death penalty is a warning, just like a lighthouse throwing beams out to sea. We hear about shipwrecks, but we do not hear about the ships the lighthouse guides safely on their way. We do not have proof of the number of ships it saves, but we do not tear the lighthouse down." Prof. Ernest van den Haag, "On Deterrence and The Death Penalty", Journal of Criminal Law, Criminology and Police Science, vol. 60, no.2 (1969).
16) 30 years of studies suggest that the death penalty is a general, or systemic, deterrent. (See works by Profs. D. Cloninger, S. Cameron, I. Ehrlich, W. Bailey, D. Lester, S. Layson, K. I. Wolpin, L. Phillips, S. C. Ray, S. Stack, etc.) Examples: a) A 1967-68 study revealed 27 states showed a deterrent effect (Bailey, W.,1974); b) The 1960's showed a rapid rise in all crimes, including murder, while both prison terms and executions declined (Passell, P. & Taylor, T., 1977; Bowers, W. & Pierce, G., 1975); c) Murder increased 100% during the U.S.’s moratorium on executions (Carrington, F., Neither Cruel Nor Unusual); d) 14 nations that abolished the death penalty showed that murder rates increased 7% from the 5 year pre-abolition period to the 5 year post abolition period (Archer, et al, 1977); e) A 37 state study showed that 24 states showed a deterrent effect, 8 states showed a brutalization effect and 5 states showed no effect (Bailey, W., 1979-80); and f) econometric studies indicate that each execution may deter 8 or more murders ( Cameron, S., 1994). Although these studies have been produced by respected social scientists, there are also studies which show no general deterrent effect. Indeed, with the complexity of these studies and with the number of variables required to accurately measure the general deterrent effect of executions on murder rates, it is arguable if there ever will be a statistical consensus with general deterrence studies. With so few executions and so many murders, the general deterrent effect may remain statistically elusive. However, it is that very inconclusive nature of general deterrence which provides the two reasons which require executions. First, we must choose to use executions because they may save innocent life. Whereas, if we choose not to use executions and there is a general deterrent effect, we would be sacrificing innocent lives. Therefore, a moral imperative exists to choose executions (see B. 9). Secondly, the individual deterrent effect would not exist but for the presence of general deterrence. And because the individual deterrent effect is proven and cannot be contradicted, we know that the general deterrent effect must exist, even though its existence may remain inconclusive by statistical analysis.
17) Opponents state that if the death penalty was a deterrent then states that have the death penalty would have a reduced homicide rate. Delaware, which executes more murderers per capita than any other state in the U.S.A., also has low homicide rates. Furthermore, general or systemic deterrence is not necessarily measured by low or reduced homicide rates, but by rates that are lower than they otherwise would be if the death penalty was not present. Additionally, some countries, such as Saudi Arabia, have swift and sure executions and very low violent crime rates. It is not surprising that the U.S., which has executed only 0.06% of its murderers since 1967, does not overtly show a general deterrent effect. While most in the U.S. would not advocate criminal justice systems like that of Saudi Arabia, it is also very clear that the American criminal justice system fosters the additional slaughter of its own innocent citizens.
18) The highest murder rate in Houston (Harris County), Texas occurred in 1981, with 701 murders. Texas resumed executions in 1982. Since that time, Houston (Harris County) has executed more murderers than any other city or state (except Texas) AND has seen the greatest reduction in murder, 701 in 1981 down to 261 in 1996 - a 63% reduction, representing a 270% differential! (FBI, UCR, 1982 & Houston Chronicle, 2/1/97, pg. 31A).
C. RACE, SENTENCING AND THE DEATH PENALTY
1) The most vile strategy of death penalty opponents is their use of propaganda to nurture hatreds and mistrust between race and class. Bryan Stevenson, a well known opposition spokesman and attorney with Equal Justice Initiative (Montgomery, Al.), claims that the death penalty reflects the middle class’ desire to strike out at the poor and racial minorities ("A Matter of Life and Death", Christianity Today, 8/14/95). Sister Helen Prejean (Dead Man Walking) joins this hideous chorus, proclaiming that "(m)iddle-class and upper middle-class white people...are so much for the death penalty (to) ‘Keep those dangerous people (the poor and minorities) in their place.’ " ("Opposing the Death Penalty", AMERICA, 11/9/96. pg.12.) Clearly, these statements reveal only their prejudice. Prejean continues "It didn’t take long to see that for poor people, especially poor black people, there was a greased track to prison and death row." (The Progressive, 1/96, p. 32(4) 60,1). Is Sister Prejean saying that poor minorities are incapable of stopping themselves from committing capital murder!? Not only are Sister Prejean’s statements false, they are also grossly insulting to the poor and to minorities. Over 99% of all persons, including poor minorities, restrain themselves from committing capital murder. And there is, of course, no excuse for anyone that commits capital murder. Stevenson and Prejean do hereby reflect either their unbelievable ignorance or their willful and foul deception. Based on their active involvement in the death penalty debate, both Stevenson and Prejean should (must?) be aware that (1) In the most extensive study of the economics of death row inmates, it was shown that, while 74% of Georgia murderers were poor, only 38% of those on Georgia’s death row were poor (C.13).; (2) there is no consensus in statistical analysis which proves that wealthy capital murders are less likely to be executed than their poorer ilk. In fact, statistics indicate that wealthy capital murderers may be more likely to be executed. (C.13); (3) the majority of those on death row are white (NAACP LDF, 1996); (4) the majority of those executed are white (C.2); (5) since 1929, white murderers have been more likely to have been executed than black murderers (C.10); (6) "...white murderers, no matter who they kill, are more likely to get the death penalty than black murderers (11.1% to 7.3%). Furthermore, whites who kill whites are slightly more likely to be on death row than blacks who kill whites. Finally, whites who kill blacks are slightly more likely to be on death row than blacks who kill whites." (Jared Taylor, Paved With Good Intentions, 40-41,Carroll & Graf Pub.,1992; (7) whites are executed 15 months quicker than blacks ("Capital Punishment, 1995", BJS 1996); (8) Whites are executed at rates nearly 50% above their involvement in murder. Blacks are executed at rates 20% below their involvement in murder. (C.2); and finally, (9) Murderers are put to death, not based on the race or economic status of the victim or the murderer, but based upon death penalty statutes, the aggravated nature of and all specific circumstances of the crime, the criminal background of the murderer, and the other specific factors mandated by Supreme Court decisions. Since 1973, there is absolutely no credible evidence to support any other conclusion. Despicably, opponents cry "RACISM!" to further their agenda, knowing, full well, that such claims are false.
2) One of opponents’ popular false claims is that it is the race of the victim which determines who is on death row. 82% of the murder victims in death penalty cases are white, 13% are black, a 6:1 ratio (NAACP Legal Defense Fund (LDF), 1996). Opponents, such as Kica Matos, NAACP LDF, Steven Hawkins, Exec. Dir., National Coalition to Abolish the Death Penalty (NCADP) and Sister Prejean, longtime Chairperson of the NCADP and author, Dead Man Walking, present this fact as evidence that the "system" values white lives more than black lives. If true, then we must wonder why whites represent 56% of those executed, and blacks 38% (NAACP LDF, Summer 1996) when blacks have committed 47% of all murders, and whites 38%. Whites are executed at rates nearly 50% above their involvement in murder, blacks are executed at rates 20% below their involvement in murder. From 1991-94, 34% of murderers have been white, 54% black (Special run 1980-94 BJS data, 1/13/97, for non-Hispanic whites and blacks. JFA calculations for known race/ethnicity.).
Could it be that we just hate white murderers more? Or that we only care about white capital murder victims? Or should we conclude that the "system" focuses its benevolence toward black murderers, but its racism against black victims? How absurd. Such perverse conclusions, by opponents, are expected and serve only to further undermine their quickly eroding credibility. Successful capital prosecutions have nothing to do with the race of the victim or of the defendant and everything to do with the nature of the crimes. The most thorough evaluation of this subject was presented in McCleskey v. Georgia (Zant/Kemp), wherein Federal District Judge Owen Forester accurately found that "the best models which (McCleskey expert) Baldus was able to devise...produce no statistically significant evidence that race (of the victim or of the defendant) plays a part in either (the prosecution’s or the jury’s capital decisions)." (580 Federal Supplement 338, p 368, 2/1/84).
Could it be that whites are, overwhelmingly, the victims in death row cases because whites are, overwhelmingly, the victims in capital crimes? What is the ratio of white to black victims under the relevant, but non-homicide circumstances, which, when combined with homicide, become capital crimes? (A) The most relevant economic violent crime is robbery with injury, which shows a 4:1 ratio of white victims to black victims (C.5); (B) By a 5:1 ratio, whites are more likely to be victims of rape/sexual assault than are blacks (BJS, 1977-1984); ( C ) For all property crimes (theft, burglary, auto theft), there is a 7:1 ratio of white to black victims ("Sourcebook, 1994," BJS 1995, tables 3.21,3.25); (D) A comparison of only black and white perpetrators and victims reveal that whites are five times more likely to be the victims of violent crime than are blacks, or 7.5 v 1.5 million, a 5:1 ratio ("Criminal Victimization, 1993" BJS 1995); and, for homicides, which by themselves, qualify for the death penalty: (E) In death penalty states, police victim murders are capital crimes. From 1985-1994, 87% of murdered officers were white, 12% black, or 7:1 (Law Enforcement Officers Killed and Assaulted, FBI:UCR, 1994); (F) Whites make up a dominant percentage of multiple/serial murderers, whose victims are overwhelmingly white, thereby disproportionately and correctly raising the number of white victims in execution cases. In such death row cases, 87% of the victims are white, 13% black, or 7:1 (NAACP LDF data, 1996); (G) Many death row cases involve stranger murders. There is a 7:1 ratio of white to black strangers (US Census, avg. 1970-80-90); and (H) Research and appellate courts (through McCleskey) have confirmed that white victim murders are the most aggravated, thus, by statute, enhancing the likelihood of a death sentence in those cases (C. 1-5 & 9-12). These factors, and others within this section, are consistent with the 6:1 ratio of white to black victims in capital cases.
But, wait, don’t blacks and whites represent about an equal number of murder victims? Yes, but, make no mistake, murder victims and capital murder victims are two very distinct groups. And only capital murders are relevant to death penalty cases. Capital crimes are very unique, combining murder with specific circumstance, such as subsets A-H. IF homicide rates are statistically consistent within subsets A-D, as McCleskey and additional studies indicate (C. 1-5 & 9-12), then it is subsets A-H, with additional required factors such as the murderer’s criminal history, capital procedures (see F), capital statutes, crime statistics, aggravating factors and other specific facts of the case (hereinafter McCleskey et al), which result in the distribution of victims in these cases.
Should we balance the scales of justice and execute equally the killers of blacks and whites? Only if you wish to increase the number of black murderers executed. 93% of all black murder victims are murdered by blacks. The overwhelming majority of black on black murders have mitigating circumstances, thereby reducing the numbers of blacks who might otherwise be executed.
3) The U.S. General Accounting Office Report "DEATH PENALTY SENTENCING: Research Indicates Pattern of Racial Disparities" (GAO/GGD-90-57, 2/90) is cited by opponents as proof that the "race of the victim" effect has been proven. Not quite. First, some of the studies which the GAO included in their analysis included non-capital murders. This certainly impairs the integrity of the results because only capital murders should have been included. Secondly, Drs. Stephen Klein and John Rolph, "Relationship of Offender and Victim Race to Death Penalty Sentences in California"(Jurimetrics Journal, 32, Fall 1991), found that, "After accounting for some of the many factors that may influence penalty decisions, neither race of the defendant nor race of the victim appreciably improved prediction of who was sentenced to death . . . ". Thirdly, Smith College Professors Stanley Rothman and Stephen Powers ("Execution by Quota?", The Public Interest, Summer 1994), found that legal variables, such as prior criminal history and the aggravated nature of the murder, are the proven basis for imposition of the death penalty. The black/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls. Fourth, crime statistics show a 4:1 to a 7:1 ratio of white to black victims in circumstances relevant to death penalty cases.. Such ratios are consistent with the 6:1 ratio of white to black victims in death row cases (C.1,2,4,5). Fifth, any affirmative conclusions regarding the GAO study disregards the findings in McCleskey, that an empirical/statistical study cannot separate the causal effect of legitimate factors influencing jury decisions from the effects of possible racial biases, whereby The Court found "Where the discretion that is fundamental to our criminal justice process is involved, we decline to assume that what is unexplained [by measured factors] is invidious."(481 US at 313). See Dr. Joseph Katz’ enforcement of the McCleskey majority: "Statement to the Senate Subcommittee on the Judiciary Concerning the Relationship Between Race and the Death Penalty" 10/2/89.
4) Based on a study conducted by Profs. Baldus, Woodward and Pulaski, McCleskey argued that the death penalty was racist. In August, 1983 Federal District Court Judge J. Owen Forester found that the study's conclusions of racial bias were without merit. In 1985, the 11th Circuit Court of Appeals, by a 9-3 vote, stated "Viewed broadly, it would seem that the statistical evidence presented here...confirms rather than condemns the (death penalty) system." In April 1987, the Supreme Court (5-4) stated that the referenced study did not establish that capital punishment discriminates against black defendants or killers of white victims. "At most, the Baldus study indicates a statistical discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is ‘a far cry from any major systemic defects". "McCleskey offers no evidence...that would support an inference that racial considerations played a part in his sentence". "...the Baldus study is clearly insufficient to support an inference that any of the decision-makers in McCleskey’s case acted with discriminatory purpose." "Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case."
5) From 1976-1995, 5 white murderers have been put to death for the murder of black persons and 101 black murderers have been put to death for the murder of white persons (NAACP LDF, 1996). Opponents falsely contend that this is evidence of racism in the "system". That 101:5 ratio, or 20:1, is consistent with statistics that show aggravated crimes (those crimes committed with the murder which may make a crime eligible for the death penalty) are committed by blacks against whites in far greater numbers than by whites against blacks. For all violent crimes, there are ten times as many black offenders (2,016,939) involved in white victim violent crimes as there are white offenders (210,869) involved in black victim violent crimes, or a 10:1 ratio. (The State of Violent Crime in America, pg. 12,1/96, data derived from Criminal Victimization in the U.S., 1993, BJS forthcoming, tables 42 and 48. JFA has assumed multiple offenders to be two offenders for calculation purposes.) In addition, blacks are nearly three times as likely to murder whites (849), as whites are to murder blacks (304), or 3:1 (Sourcebook 1994, BJS 1995, table 3.123). IF murder rates are statistically consistent within the violent crime category, as McCleskey et al indicate, then blacks are, statistically, by a 30:1 (10:1 X 3:1) ratio, more likely to murder whites, than whites are to murder blacks, in those circumstances where an additional aggravating factor is present (see C2). These are those crimes most eligible for the death penalty. That statistically projected ratio of 30:1 is hardly inconsistent with the 20:1 ratio for black offender(s)/white victim vs white offender(s)/black victim executions. The most relevant aggravated crime is robbery with injury, wherein blacks are 21 times more likely to be involved in such crimes as are whites. This 21:1 ratio represents 1.4 million black offender(s)/white victim vs. 68,000 white offender(s)/black victim for robbery with injury crimes (JFA, using BJS, 1977-84 data). IF overall murder statistics are consistent, within this crime category, as McCleskey et al suggests, then there is a 30-60:1 ratio of black on white vs white on black murders within this robbery/murder category. (From 1977-1984).
6) 75% of blacks and 35% of whites believe that blacks are treated more harshly than whites by the criminal justice system. This is a deserved reputation, particularly in the South. Blacks have suffered some 400 years of slavery and blatantly racist criminal justice practices. From the practices of punishing blacks, who rape whites, with death and whites, who rape blacks, with a slap on the wrist, to the three trials needed to convict Byron de la Beckwith for the murder of civil rights leader Medgar Evers, generations of black Americans cannot and must not forget.
7) In 1994, in northeastern states, 36% of those on death row were white, 59% black. In southern states, 57% were white, 41% black ("Capital Punishment 1994",BJS, 1995).
8) In 1994, death row inmates median level of education was the 12th grade.("Cap.Pun.‘94",BJS 1995)
9) After examining 42,500 criminal files in the nations 75 largest counties, Patrick Langan (BJS) concluded that there was no evidence"...that, in the places where blacks in the U. S. have most of their contacts with the judicial system, that (the) system treats them more harshly than whites." (John DiIulio, Jr.,"White Lies About Black Crime", The Public Interest, 1995. See concurring support within "Research on Sentencing", National Research Council, 1983.)
10) No evidence of system wide discrimination in the imposition of the death penalty exists beyond the 1950's. From 1929-66, white murderers were more likely to be executed than black murderers (10.4 vs 9.7/1000). This trend continues today.(C.2) (Gary Kleck, "Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence with Additional Evidence on the Death Penalty", American Sociological Review, 12/81.)
11) A study of the death penalty, as imposed by Harris County (Houston, Texas, USA) juries, since 1982, found that the death penalty was imposed on white and black murderers in proportion to the capital offenses committed by those race classifications (The Houston Post, 10/16/94).
12) Although blacks make up 12% of the US population, they comprise 44% of the prison population. (BJS, Prisoners in 1994). Researchers find a close relationship between the racial distribution in arrest and prison statistics and the race of offenders as described by crime victims. In other words, according to the reports from victims, racial groups are represented in prison according to their involvement in criminal activity. (Patrick Langan, Racism on Trial; New Evidence to Explain the Racial Composition of Prisons in the U.S., 1985). Overwhelmingly, sentencing studies show that the offender’s prior criminal record and the aggravated nature of the crime are the key factors in making imprisonment decisions (See also Texas Criminal Justice Policy Council, A Source Book of Arrest and Sentencing By Race, 1994; Al Blumstein, On The Racial Disproportionalness of U.S. Prison Populations, (1982); M. Hindelang, Crime Victimization (1976) and Race and Involvement (1978);); U.S. General Accounting Office, Racial Differences in Arrests, 1/20/94.) Nevertheless, the racial aspects of crime and punishment should be continuously scrutinized. For example, Langan also finds that in 1979 and 1982, blacks were over represented in prison by 16% and 15%, respectively.
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, we 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 and Ted Bundy. 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 p rojected 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)
14) SEXISM AND THE DEATH PENALTY - Some claim that the death penalty is sexist. The ratio of men to women on death row (and executed) is 68:1, or 3400:50 (NAACP LDF, Spring 1996). Men committed 476,937 rapes, robberies and burglaries, women 47,357 or a 10:1 ratio. From 1976-94, men committed 7 times as many murders as women, or 7:1. (Sourcebook ‘94, BJS ‘95, tb.4.9 and 3.22). Therefore, it may be statistically predictable that men are, by a 70:1 ratio (10:1 X 7:1), more likely to be on death row than are women. Women appear to be on death row in numbers that would be expected. However, one would expect that 5 women would have been executed since 1976, when only 1 has been executed.
D. THE COST OF LIFE WITHOUT PAROLE VS THE DEATH PENALTY
Many opponents present, as fact, that the cost of the death penalty is so expensive (at least $2 million per case?), that we must choose life without parole ("LWOP") at a cost of $1 million for 50 years. Predictably, these pronouncements may be entirely false. JFA estimates that LWOP cases will cost $1.2 million - $3.6 million more than equivalent death penalty cases.
Cost of Life Without Parole: Cases | | | | | Cost of Death Penalty Cases | |
1. $34,200/year (1) for 50 years (2), at
| = $3.01 million | | | | $60,000/year (1) for 6 years (5), at
$1.5 million (4) for trial & appeals | =$1.88 million |
2.Same,except 3% (3) | = $4.04 million | | | | Same,except 3% (3) | = $1.89 million |
3.Same,except-4%(3) | =$5.53 million | | | | Same,except 4% (3) | = $1.91 million
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