Creative Ideas

Case 5

Email Death Penalty Debate, copyright 2004 &endash; 2006

Daniel Brady

This is the text of a series of letters exchanged between myself, DB, and another, DS. DS initially asked how long my death - penalty arguments had been up. I replied to that query. I did not save those two letters, I call these letters "A" and "B". Some time later, he wrote another brief letter and I replied, I call these letters "C" and "D". Originally, I did not save either of those two letters, but when he wrote back again this time with eight letters, each containing his responses to parts of my letter "D", I was able to compile a collection of what was most likely contained in that letter and reconstruct it. This reconstructed letter is letter number two in the series since it was, originally a response to one of his.

In his letters I have changed "black" to African American. Also I have corrected spelling and some grammatical errors throughout.

This document then consists of the following:

Letter #2 written by DB responding to DS

Letter #3 written by DS responding to DB

Letter #4 written by DB responding to DS

Letter #5 written by DS responding to DB

Letter #6 written by DS responding to DB

Letter #7 written by DS responding to DB

Letter #8 written by DS responding to DB

Letter #9 written by DS responding to DB

Letter #10 written by DS responding to DB

I never received a reply after letter number 4. I had hoped to exchange letters all the way around, but that was not to be. Emails bounced back and so I left off. The remaining letters, those he had already sent to me, each begin with a few quotes DS extracted from my second letter and consist, in the main, of his refutation of their points. In these letters, my extracted quote is in blue, bold and italics. My further responses to his comments on those extracted quotes are in blue, bold text.

He marshals a great deal of resources and arguments so I have taken the time to reply to each one of them. I have also referenced web sites to balance those he selected

My design has been to go through the letters and reply to them both in quality and kind. My responses will be in blue, his will remain in black.

Dan Brady

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DB to DS Debate Letter #2

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These are the statements from my second letter. I extracted this text from the letters DS sent to me. I have put them here in the order of his letters, presumably that is also in the order in which they appeared in my letter. To some extent, there are references to his letter.

Interesting that the person writing this simply dismisses arguments that are valid, there is a racial imbalance in executions, innocent persons have been executed, deterrence has never been proven in the U.S., revenge is an insufficient motive, to many governments abuse their power to execute, and the justice system is flawed and fallible. Those are the facts of the matter.

That this writer dismisses them indicates that he has no intention of arguing logically, or from an established position, but rather is anxious to present his point of view, regardless of the truth.

The writer of the original article made his position clear. He did simply dismiss the arguments that I outlined. There are statistical proofs for the statements that follow: "African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics. Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

"African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics.

Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

In light of the fact that that innocents have found their way to death row, the first of those two statements repeats, by implication, that innocents are put to death, or have been, its just that the person being quoted has not seen the proof, strange when he just admitted that it happens.

The second says our system is the most accurate criminal justice sanction in the world, which it may be, even when it has an error rate that is extremely low. I am sure the low error rate is solace to someone who, in all his or her innocence, awaits his or her death.

An absolute punishment demands an absolute accuracy. We do not have absolute accuracy.

You make a statement to the effect that; no one will deny that there is racism in our society, which says it all. This pervasive condition is slowly being addressed, but until it is, and successfully, the social systems of our nation will have this, as well as other, built in biases. The bias exists and it is systemic. Then you proceed to debunk your own words with reports of studies:

Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

In light of the fact that it is admitted that innocents have found their way to death row, the first of the two statements repeats, by implication that innocents are put to death, or have been, its just that the person being quoted has not seen the proof, strange when he just admitted that it happens.

The second says our system is the most accurate criminal justice sanction in the world, which it may be, even when it has an error rate that is extremely low. I am sure the low error rate is solace to someone who, in all his or her innocence awaits his or her death.

An absolute punishment demands an absolute accuracy. We do not have absolute accuracy

There are two sets of states, those with and those without death penalties. The overall murder rate has risen and fallen over the decades. The murder rate between the two sets of states has had no significant difference during all that time. If the death penalty had some effect, this would have shown up in some detectable and significant differential in the rates between those two groups of states. There is not differential rate, there is no effect that is measurable

Yes, perhaps those who premeditate, not for the large majority for whom the death penalty had no bearing in their mind or spirit when they "did the deed."

Hundreds of studies, over decades, counterbalance the few studies that you mention.

Racism is a factor in our society. The justice system is part of our society and it has a racial factor, bias if you will, built into it, as a rule of thumb.

. . . the number of poor people on death row vastly outnumbers the number of rich. This is true for a reason: poverty is a factor in the justice system. Some can afford to mount an effective defense. The system allows this. And so, a rich person who murders someone is far less likely to be executed than an abysmally poor one. Just as this is true an African American who murders is far more likely to face the death penalty, all the more so if he or she is poor.

This simply is debatable. Many who write me about my stance on the death penalty claim that this is the reason they support it, to "kill the killer" as they say. One said, "It's no crime to kill a killer." And, logically speaking, I had a field day with that statement.

Many supporters of the death penalty quote the famous "Eye for an eye" quotation and, in their view, the justice system is merely the means to obtaining revenge. They say it all the time. You may not, or this writer may not, but the people who write me do, fervently, believe that revenge is, or should be, the purpose of the death penalty.

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DS to DB Debate Letter #3

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Thank you, Dan. I understand you wrote what was in blue. In reading your first reply, below, it could be said that "you are anxious to present your point of view, regardless of the truth. My response is in black.

Interesting that the person writing this simply dismisses arguments that are valid, there is a racial imbalance in executions, innocent persons have been executed, deterrence has never been proven in the U.S., revenge is an insufficient motive, to many governments abuse their power to execute, and the justice system is flawed and fallible. Those are the facts of the matter.

Not so fast. Or could it be that you have wrongly assumed those positions, without factual support?

That this writer dismisses them indicates that he has no intention of arguing logically, or from an established position, but rather is anxious to present his point of view, regardless of the truth.

Or that author was accurate.

Innocence Issues

Death Penalty opponents have proclaimed that 117 inmates have been "released from death row with evidence of their innocence", in the US, since the modern death penalty era began, post Furman v Georgia (1972). That number is a fraud. Those opponents have intentionally included both the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers.

Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent -- an 83% error rate in death penalty opponents claims. If that error rate is consistent, nationally, that would indicate that 20 of the alleged 117 innocents MIGHT be actually innocent -- a 0.3% actual guilt error rate for the over 7500 sentenced to death since 1973. None were executed.

It is often claimed that 23 innocents have been executed in the US since 1900. Nonsense. Even the authors of that "23 innocents executed" study proclaimed "We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had." While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.

No one disputes that innocents are found guilty, within all countries.

However, when scrutinizing death penalty opponent's claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be the most accurate criminal justice sanction in the world. Under every real world scenario, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.

Deterrence Issues

Seven recent studies, all finding for deterrence.

One study, specifically, found that moratoriums on the death penalty sacrificed innocent lives. All of the other studies confirm that conclusion.

All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some. The studies finding for deterrence state such. Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence. It cannot.

Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some. Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.

Racial issues

White murderers are twice as likely to be executed in the US as are African Americans murderers and are executed, on average, 12 months more quickly than are African Americans death row inmates.

It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases. Although African Americans and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than African American victim murders. This, so the logic goes, is proof that the US only cares about white victims.

Hardly. Only capital murders, not all murders, are subject to a capital indictment. Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, car jacking, rape, and additional murders, such as police murders, serial and multiple murders. White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.

Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.

The Death Penalty: Neither Hatred nor revenge

Death penalty opponents say that the death penalty has a foundation in hatred and revenge. Such is a false claim.

A death sentence requires pre existing statutes, trial and appeals, considerations of guilt and due process, to name but a few. Revenge requires none of these and, in fact, does not even require guilt or a crime.

The criminal justice system goes out of its way to take hatred and revenge out of the process. That is why we have a system of pre existing laws that limit punishments and prosecutions to specific actions in response to specific rules of evidence and procedure. And it is also, why those directly affected by the murder are not allowed to be fact finders in the case.

Calling executions a product of hatred and revenge is simply a way in which some death penalty opponents attempt to establish a sense of moral superiority. It is also a transparent insult which results in additional hurt to those victim survivors who have already suffered so much and who believe that execution is the appropriate punishment for those who murdered their loved one(s).

Those opposed to execution cannot prove a foundation of hatred and revenge for the death penalty any more than they can for any other punishment sought within a system such as that observed within the US.

The punishment of death can in no way be a balancing between harm and punishment, because the victim did not deserve or earn their punishment, whereas the murderer has earned their own, deserved punishment by the free will action of violating societies laws and an individuals life and, thereby, voluntarily subjecting themselves to that jurisdictions judgment.

Far from hatred and revenge, the death penalty represents our greatest condemnation for a crime of unequaled horror and consequence. Lesser punishments may suffice under some circumstances. A death sentence for certain heinous crimes is given in those special circumstances when a jury finds such is more just than a lesser sentence.

Sincerely, DS

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DB to DS Debate letter #4

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A reply to DS his comments are in black, mine are in blue.

Thank you, DB. I understand from you wrote what was in blue. In reading your first reply, below, it could be said, "you are anxious to present your point of view, regardless of the truth." My response is in black.

Interesting that the person writing this simply dismisses arguments that are valid, there is a racial imbalance in executions, innocent persons have been executed, deterrence has never been proven in the U.S., revenge is an insufficient motive, to many governments abuse their power to execute, and the justice system is flawed and fallible. Those are the facts of the matter.

Not so fast. Or could it be that you have wrongly assumed those positions, without factual support?

The writer of the original article made his position clear. He did simply dismiss the arguments that I outlined. There are statistical proofs for the statements that follow: "African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics. Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

The writer of the article simply dismisses those realities

That this writer dismisses them indicates that he has no intention of arguing logically, or from an established position, but rather is anxious to present his point of view, regardless of the truth.

Or that author was accurate.

Or that the author was simply anxious to get into his own proof making polemics.

Innocence Issues

Death Penalty opponents have proclaimed that 117 inmates have been "released from death row with evidence of their innocence", in the US, since the modern death penalty era began, post Furman v Georgia (1972).

That number is a fraud.

Those opponents have intentionally included both the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers.

Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent -- an 83% error rate in death penalty opponents claims. If that error rate is consistent, nationally, that would indicate that 20 of the alleged 117 innocents MIGHT be actually innocent -- a 0.3% actual guilt error rate for the over 7500 sentenced to death since 1973. None were executed.

It is often claimed that 23 innocents have been executed in the US since 1900. Nonsense. Even the authors of that "23 innocents executed" study proclaimed "We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had." While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.

No one disputes that innocents are found guilty, within all countries. However, when scrutinizing death penalty opponents claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be the most accurate criminal justice sanction in the world. Under every real world scenario, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.

Let me take the statement you used apart for you. The statement admits that "factually innocent" persons have been released from death row. Then two other quotes stand out, first, "no one would claim that an innocent has never been executed" and then you include, "the US death penalty process may be the most accurate criminal justice sanction in the world"

In light of the fact that it is admitted that innocents have found their way to death row, the first of the two statements repeats, by implication that innocents are put to death, or have been, its just that the person being quoted has not seen the proof, strange when he just admitted that it happens. The second says our system is the most accurate criminal justice sanction in the world, which it may be, even when it has an error rate that is extremely low. I am sure the low error rate is solace to someone who, in all his or her innocence awaits their death.

An absolute punishment demands an absolute accuracy. We do not have absolute accuracy.

Deterrence Issues: Seven recent studies, all finding for deterrence.

One study, specifically, found that moratoriums on the death penalty sacrificed innocent lives. All of the other studies confirm that conclusion.

All the studies which have not found a deterrent effect of the death penalty have refused to say that it does not deter some. The studies finding for deterrence state such. Confusion arises when people think that a simple comparison of murder rates and executions, or the lack thereof, can tell the tale of deterrence. It cannot.

There are two sets of states, those with and those without death penalties. The overall murder rate has risen and fallen over the decades. The murder rate between the two sets of states has had no significant difference during all that time. If the death penalty had some effect this would have shown up in some detectable and significant differential in the rates between those two groups of states. There is not differential rate; there is no effect that is measurable.

Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish eneenough to suggest that the potential for negative consequences does not deter the behavior of some.

Yes, perhaps those who premeditate, not for the large majority for whom the death penalty had no bearing in their mind or spirit when they "did the deed."

Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.

Hundreds of studies, over decades, counterbalance the few studies that you mention. Then too what you've said does not alter the simpler facts; murder is of several kinds, in the main, those committed when a person is not, for some reason, in their right mind.

Whether this is because of substance abuse, psychological dementia, or "emotional psychosis" meaning anger, rage, and the like, are all possibilities. For these cases, consequence is not in the picture. For those who premeditate a killing its "deterrent" value, if you want to call it that consists in motivating the perpetrator toward better planning. Then there are those that fall in the "accident" category, the criminal who kills during the course of a crime, the dispute that results in a death neither party intended, for example two men get into a fight and one is hit so hard he falls down and breaks his neck. Then too, there are those who have some racial, political, and now some religious cause to fight for. In these cases too, the death penalty is not part of the persons calculus when they make their decision, at least not in a way that deters them, terrorists, for example, don't care what happens to them after they've "made their point."

Racial issues

White murderers are twice as likely to be executed in the US as are African Americans murderers and are executed, on average, 12 months more quickly than are African Americans death row inmates.

It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases. Although African Americans and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than African American victim murders. This, so the logic goes, is proof that the US only cares about white victims.

Hardly. Only capital murders, not all murders, are subject to a capital indictment. Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, car jacking, rape, and additional murders, such as police murders, serial and multiple murders. White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.

Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.

The first statement might well be true, but look at it this way, the number of poor people on death row vastly outnumbers the number of rich. This is true for a reason: poverty is a factor in the justice system. Some can afford to mount an effective defense. The system allows this. And so a rich person who murders someone is far less likely to be executed than an abysmally poor one. Just as this is true an African American who murders is far more likely to face the death penalty, all the more so if he or she is poor.

Racism is a factor in our society. The justice system is part of our society and it has a racial factor, bias if you will, built into it, as a rule of thumb. There are other biases as well, those of property rights, business interests, and religiosity, but they are not especially germane to this discussion.

The Death Penalty: Neither Hatred nor Revenge

Death penalty opponents say that the death penalty has a foundation in hatred and revenge. Such is a false claim.

This simply is debatable. Many who write me about my stance on the death penalty claim that this is the reason they support it, to "kill the killer" as they say. One said, "It's no crime to kill a killer." In addition, logically speaking, I had a field day with that statement.

A death sentence requires pre existing statutes, trial and appeals, considerations of guilt and due process, to name but a few. Revenge requires none of these and, in fact, does not even require guilt or a crime.

Many supporters of the death penalty quote the famous "Eye for an eye" quotation and, in their view, the justice system is merely the means to obtaining revenge. They say it all the time. You may not, or this writer may not, but the people who write me do, fervently, believe that revenge is, or should be, the purpose of the death penalty.

The criminal justice system goes out of its way to take hatred and revenge out of the process. That is why we have a system of pre existing laws that limit punishments and prosecutions to specific actions in response to specific rules of evidence and procedure. And it is also why those directly affected by the murder are not allowed to be fact finders in the case.

They can try to take it out of the system, but that is a whole different thing than taking it out of a survivor's heart, out of a family's mind and soul, or dealing with cultural values that instill a righteousness to those who "right wrongs." Mr. McVeigh was seeking revenge and so were some of the survivors of his horrid act. The system, if you will recall, is made up of persons, flawed, human persons whose feelings do effect how they act, react, and read evidence.

Calling executions a product of hatred and revenge is simply a way in which some death penalty opponents attempt to establish a sense of moral superiority. It is also a transparent insult which results in additional hurt to those victim survivors who have already suffered so much and who believe that execution is the appropriate punishment for those who murdered their loved one(s).

I don't believe that all death penalty cases involve revenge; I do not now offer that as a reason for challenging its legitimacy. I do say that many, many of its supporters voice revenge as being the primary reason why they support it. Say what you will about the detractors of the death penalty, but it is the persons who support it who do so because they want the system to exact revenge for murder.

Those opposed to execution cannot prove a foundation of hatred and revenge for the death penalty any more than they can for any other punishment sought within a system such as that observed within the US.

Dear sir, I have seen the proof. You can find the proof as well. Just go to a bar on a Friday night and start talking about the death penalty. You will hear, from its supporters that vengeance is a big part of their equation.

The punishment of death can in no way be a balancing between harm and punishment, because the victim did not deserve or earn their punishment, whereas the murderer has earned their own, deserved punishment by the free will action of violating societies laws and an individuals life and, thereby, voluntarily subjecting themselves to that jurisdictions judgment.

You are saying that the death penalty cannot balance harm and punishment because the victim did not earn their "consequence" while the perpetrator did. First I have to say that it bizarrely strange you call it the victim's suffering "punishment", I would have thought you'd not use that word there, it is so inappropriate, misleading, or, at the least, in error. Second, this is an old argument, saying that the perpetrator, in making a choice, has sealed his or her fate.

Pretty sentiments, but it is rather misleading for all that. As I said toward the beginning many classes of murderers do not make the choice to kill, indeed, many never considered the possibility that they'd kill. Many did not "intend" "mean" to kill. Yet, many of these are treated as if that is exactly what they did do.

Far from hatred and revenge, the death penalty represents our greatest condemnation for a crime of unequaled horror and consequence. Lesser punishments may suffice under some circumstances. A death sentence for certain heinous crimes is given in those special circumstances when a jury finds such is more just than a lesser sentence.

I have to repeat since you do, that revenge is a large portion of the reason why persons support the death penalty. I also feel that it is not the, as you put it, "greatest condemnation." I have other options in mind, ones that would, upon consideration, be far worse and have none of the drawbacks that capital punishment has. I believe in restitution and amelioration. In sum the person perpetrator lives until such time as they an repay damages to their victim, reimburse the state for the costs of their being found, and are forgiven in full by their victim's survivors, community or interested parties. There would be no such thing as parole for any murderer, at all, until those conditions would be met. The perpetrator would be available to their victim's survivors and have to face the consequences of their act. They'd be coerced to work to produce some measure of recompense to their victim's survivors and community.

This, not the death penalty, would be a true deterrent to crime, and for all the reasons that the death penalty is supposed to have, and with none of the drawbacks.

I have thought about this and written about it, but I prefer to argue against the death penalty and challenge it on its own ground, though I have to admit that a real "life without parole" has real merit.

Sincerely DB

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DS to DB Debate letter #5

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Thank you for the consideration of a reply. Your comments are in blue

"African Americans are over represented on death row and in the numbers of those executed." The government provides such statistics.

I believe this goes to your wrongful assumption. African Americans are not over represented on death row. People are put on death row based upon committing capital murder. I suspect your overrepresentation claim is based upon population counts.

In your letter you state,

You make a statement to the effect that; no one will deny that there is racism in our society, which says it all. This pervasive condition is slowly being addressed, but until it is, and successfully, the social systems of our nation will have this, as well as other, built in biases. The bias exists and it is systemic. Then you proceed to debunk your own words with reports of studies:

RACE: A Death Penalty Primer DS, Justice Matters contact info below

5 studies are reviewed, herein

1) For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review is class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).

How could population count be irrelevant? When proportionate representation and or disproportionate representation in legislatures, schools, business, home ownership, as well as a raft of other societal measures have been used to prove and disprove bias, prejudice, and discrimination? They have been used to determine whether or not Gerrymandering has been done in representative districts. The disproportionate representation of ethnic minorities on death row is an indicator or social imbalance. So how can you say that class is not relevant? Is it possible that you do not know that minorities are over represented in the lower and lowest of classes? Simply, if class is relevant, race is relevant.

Then you say that the distribution of ethnicity when comparing the ethnicity of perpetrator versus victim is a relevant factor. You might be right but it would only weaken your argument no matter which way it proved out.

If it is proven, that one race is more the victim of the other that would only indicate the existence of prejudice, tension between races and such like. If there is no exceptional difference in the victims versus perpetrator ratios then it is simply irrelevant, if equal numbers of minorities kill majorities and visa versa.

2) Drs. Stephen Klein and John Rolph

"Relationship of Offender and Victim Race to Death Penalty Sentences in California"(Jurimetrics Journal, 32, Fall 1991, aka The Rand Corporation Study), 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 . . . ".

3) 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 African American/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls.

Look at what you quoted (see #1) as a means of supporting your claim that race does not matter: "For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review are class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).

This quotation mentions class as being relevant. Since African Americans are more of one class than another, the classist effect is also simultaneously a racist one and view it this way if you want, we still have African Americans disproportionately being affected by death penalty laws.

Population counts comparing the proportionate representation of one race as opposed to another on death row do indicate bias. Just as such, comparisons have been used to determine the effect of systemic prejudice in other parts or institutions of our society, even if no singular event, person, or case can be proven. You cite five studies, when there are decades of civil rights actions, supreme court decisions, lawsuits, lower court decisions and even the flawed Affirmative Action laws which recognize such conditions as evidence for bias and use such statistics to prove a need for redress.

Systemic problems do exist and therefore population count is not irrelevant and it is, therefore, at least one indicator that the system is biased. It is also biased in favor of economic status. Given the "norms" or "betting expectations" that are evident one can clearly state the obvious: a poor African American man is more likely than a rich African American man of being found guilty and rich white man would be less likely than either of those to be convicted.

Also, in 96% of the states where there have been reviews of race and the death penalty there was a pattern of race-of-victim or race-of-defendant or both. (Professor David Baldus' report to the ABA, 1998)

It was a great relief, however, to learn that the excerpts you provided assured me that there is no absolutely no racial bias in the New Jersey justice system despite your commentary to the contrary. I am sure that those persons of color, residing in New Jersey, would overwhelmingly support your assertion, not.

Those items, #1, #2, and #3, are therefore, are belied by the facts mentioned above. There is systemic bias. Are we to believe that a biased system, investigating itself and then, subsequently, exonerating itself is to be a fair measure proving a lack of bias? Indeed, and especially, when so much would be at stake?

For the following items, #4 and #5, I offer these salient points:

Since 1973, over 100 people have been released from death row with evidence of their innocence. (Staff Report, House Judiciary Subcommittee on Civil and Constitutional Rights, Oct. 1993, with updates from DPIC).

In 2000, 8 inmates were freed from death row and exonerated; in 201 &endash; 2002 12 were freed; and in 2003, 12 were exonerated. In 2004, there were 6 exonerations.

According to information at http://www.deathpenaltyinfo.org/FactSheet.pdf, 99% of the chief district attorneys are white; only 1% are African American that is a substantial indicator of systemic bias.

Over 80% of the murder victims in cases resulting in an execution were white, even though, nationally, only 50% of the murder victims generally are white.

Putting these facts together we can say the following: since African Americans are disproportionately represented on death rows around the nation, since the system has a substantial error rate, (After the reinstatement of the death penalty about 1,000 have been executed and here we see evidence that more than 100 have been removed from death row producing an error rate in excess of 10%), since the teams leading the prosecution are almost exclusively white and there is a national trend indicating bias in the victim vis a via perpetrator, we have, as the astronauts once told Houston, "a problem"

It is simply irrational to expect an all to human system, beset by biases, which varied over the generations from those against race, religion, and economic status to those against political views, that it perform, as you claim, with absolute perfection. You have quoted others as saying that there is not one case of an innocent person being executed. This is, to me marvelous, not a single error in any state, at any time during the last 100 years? Even though in other letters you admit that persons were removed from the Death Row? Truly a quite remarkable statement of belief and evidence of a faith which once stated in this way shows itself to be not only unrealistic, but unreasonable as well.

4) NO BIAS IN DEATH SENTENCING:

University of Maryland's Death Penalty Study

(1) The following are direct quotes from the Executive Summary of the U of Maryland study.

Race of the victim

"The race of the victim effect does not hold up, however, at the decision of the state's attorney to advance a case to penalty trial and at the decision of the judge or jury to impose a death sentence given that a penalty trial has occurred." p 27

In other words, the victim's race has no impact on seeking or giving death sentences.

"The race of the victim does not appear to matter when the decision is to advance a case to the penalty phase or to sentence a defendant to death after a penalty phase hearing." page 29

In other words, the victim's race has no impact on seeking or giving death sentences

"Among the subset of cases where the case actually does reach a penalty trial, the victim's race does not have a significant impact on the imposition of a death sentence." page 35

In fact, the study fails to demonstrate that there is any race of the victim effect in death sentencing in Maryland.

"When the prosecuting jurisdiction is added to the model the effect for the victims race diminishes substantially, and is no longer statistically significant." page 32

In other words, when you look at the capital murder cases, from each, separate jurisdiction, individually, any alleged race of the victim effect cannot be found.

" . . . any attempt to deal with any racial disparity in the imposition of the death penalty in Maryland cannot ignore the substantial variability that exists in different state's attorney's offices in the processing of death cases." p 34

In other words, it is important to look at how each jurisdiction handles their capital cases, because each jurisdiction is different. And when that is done, no bias in death sentencing is found.

Race of victim and defendant

"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing." page 30

In other words, neither the race of the defendant nor the race of the victim have an impact on seeking or giving death sentences.

Race of the defendant

" . . . there is no evidence that the race of the defendant matters at any stage once case characteristics are controlled for." page 26

" . . . we found no evidence that the race of the defendant matters in processing of capital cases in the state." p 26

In other words, Maryland is not looking at race, but is concentrating on the nature of the murders.

(1) Executive Summary:

An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction: www.urhome.umd.edu/newsdesk/pdf/exec.pdf

In response to #4 I have the following resources to offer the considerate reader of this debate:

In 2004 the "Innocence Protection Act" was passed. Part of its provisions were for DNA testing in capital cases. Part of success of this act was evidenced by the fact that of the more than 100 people exonerated from death row, more than a dozen were proven innocent via DNA testing.

See: This link: http://ccjr.policy.net/cjreform/ipa/

Regarding racial bias statistics, this brief article instructs:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=34201

This comprehensive study, which discovered racial and gender bias in many areas of the justice system, recommended a moratorium on executions in Pennsylvania, until the role of race in death-penalty cases can be examined.

This link below has a summary of the finding, a link to the actual study itself is also on that web page:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=33826

Poverty is a factor, here is a report from Georgia the title of which is "If you cannot afford a lawyer" despite the Georgia Supreme Court decision Gideon vs Wainwright, guaranteeing right to counsel, it simply is not happening for many individuals. Here is a link to the overview of the situation:'

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=33828

Here is the link, a pdf file, which details facts and figures:

http://ccjr.policy.net/relatives/21303.pdf

5) No Racial Bias in the New Jersey Death Penalty System

New Jersey For release: February 11, 2003 For further information contact Winnie Comfort, AOC (609) 292-9580 Report on Proportionality Released Trenton, N.J.

The 2002 report essentially mirrors the findings contained in the 2001 report, and may be summarized as follows:

--There is no sustained, statistically significant evidence that the race of the defendant affects which cases advance to penalty trial. Although bivariate analysis reveals that a greater proportion of death-eligible white defendants than African-American defendants advance to the penalty phase, that finding is not supported by regression studies and application of case-sorting techniques. There is no sustained, statistically significant evidence that the race of the defendant affects which cases result in imposition of the death penalty. Again, although bivariate analysis reveals that a greater proportion of death-eligible white defendants are sentenced to death than African-American defendants, that finding is not supported by regression studies and application of case-sorting techniques.

--There is statistically significant evidence that white victim cases are more likely than African-American victim cases to advance to penalty trial, but that finding is eradicated when county variability is taken into account. A disproportionate number of minority victim cases are tried in counties with the lowest overall rates of progression to penalty trial, while less urban counties with a high concentration of white victim cases have higher rates of capital prosecutions. Although Judge Baime notes that county variability may itself be a problem, he offers no opinion on the subject because that issue is well beyond the contours of his report.

--There is no sustained, statistically significant evidence that white victim cases are more likely than minority victim cases to result in imposition of the death penalty

The New Jersey Supreme Court has accepted the 2002 annual report prepared by Judge David S. Baime, a retired Appellate Division judge, on the monitoring of proportionality review in capital punishment cases in New Jersey. The Supreme Court adopted a monitoring system in 2000 to determine whether racial discrimination played a role in the administration of New Jersey's capital cases.

In his capacity as a "special master," a role that requires extra judicial expertise and work with court-appointed experts, Judge Baime prepared the "Report to the New Jersey Supreme Court: Systemic Proportionality Review Project 2001-2002 Term."

Judge Baime was assisted by statistical analysts David Weisburd, a professor at The Hebrew University of Jerusalem and The University of Maryland, College Park, and Joseph Naus, a professor at Rutgers University. In an effort to provide the most accurate analysis possible, the monitoring system approved by the Court consists of three different statistical strategies: bivariate analyses, regression studies and case-sorting techniques. In order to establish systemic disproportionality, a defendant must relentlessly document the risk of racial disparity. This requires that the outcomes produced by the three modes of analysis substantially converge, or lead to the conclusion that racial discrimination plays a part in capital sentencing.

The three modes of analysis were applied to three separate decision points: death outcomes at penalty trials, death outcomes among all death-eligible cases, as determined by Judge Baime and the Administrative Office of the Courts (AOC), and advancement of death-eligible cases to penalty trials. Three identifiable groups--African-Americans, whites, and Hispanics--were examined, and possible disparities in terms of the race or ethnicity of the defendant and the race or ethnicity of the victim were considered.

In response to #5 I have the following resources to offer the considerate reader of this debate:

An Empirical Analysis of Maryland's Death Sentencing System With Respect to the Influence of Race and Legal Jurisdiction

When the race of the offender and victim are examined together, the study finds: Black offenders who kill blacks are significantly less likely to face the death penalty, while black offenders who kill whites are significantly more likely to face a death sentence than all other racial combinations. Prosecutors in different jurisdictions exhibit considerable variation in the extent to which they seek the death penalty

Here is the link to the summary of the finding:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=32881

Here is a link to a pdf file for the details:

http://ccjr.policy.net/relatives/21200.pdf

Report of Former Governor Ryan's Commission on Capital Punishment

Gov. Ryan submitted the recommendations to the state legislature for implementation. While some recommendations have been adopted, many still need to be addressed. Upon leaving office in 2003, Governor Ryan, believing that Illinois' system was still "broken," commuted the sentences of the remaining 167 people on death row.

The summary:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=39174

The recommendations:

http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/summary_recommendations.pdf

In general there are a few sites that may come in handy:

http://www.deathpenaltyinfo.org/

http://ccjr.policy.net/cjedfund/pop/

http://www.capitaldefenseweekly.com/index.html

This "Capital Defense Weekly is a publication that details what is currently happening. It has news updates, reports on capital cases and more.

For a list of exonerations: http://deathpenaltyinfo.org/article.php?did=412&scid=6

In response the next section, #6, in general:

I have concerns for the victim as well. Persons who defend the death penalty are wont to say, "Well, what about the victim?" and "Why do you, (detractors of the death penalty) always focus on the perpetrator?"

To this I have to say the following: I have lost loved ones. I know how much it hurts. I would be loath to tell anyone how to feel or how to react upon discovering that someone they loved has been brutally murdered. I would sympathize immediately and offer condolences. I would help them however I could. I would care.

I would want justice were I to be the survivor of a victim.

The problem is that the death penalty itself makes new victims. Innocent people have been executed in this country. As I have shown, above, that at least 100 have been released from death rows and those are the ones that we know about. DNA evidence has been in the news recently because it has been used to prove the innocence of yet others who were, if not on death row, incarcerated for something, it turns out, they did not do.

The justice system is systemically flawed and cannot be trusted to hand out absolute punishments, which are by their nature irreversible. The point is, to spell it out clearly and simply, you cannot use a flawed system and expect it to make absolute decisions. To do so invites grievous errors and systematic injustice.

You have said elsewhere that some of those must have been released on technicalities and perhaps you guess that a good lawyer or an error by the prosecution might be responsible for those releases and not the merits or facts of the case being reviewed. Certainly that's the impression you give.

To that I say what of it? If a person is going to be executed, an absolute punishment, and the system is just there shouldn't be any such reversals, ever. You have quoted others as saying that there is not one case of an innocent person being executed; perhaps people' being released in this way is one reason for that? Perhaps there are others who were not so lucky and, with no on to tell the tale, well, there is no record of such a person is there? Would there be?

Indeed, the fact that even you admit that there have been reversals shows that the system for executing people is flawed and thus an absolute punishment being meted out by such a system is bound to produce grievous errors, and, in fact, has in all probability, produced such errors.

It is hardly likely however that a system so biased as to produce the results would have any interest in a complete and public opening of all executions, those whose cases had them wind up on death row, those who were exonerated and or prove innocent. It would be a good task to undertake, a comprehensive study of all capital cases in those categories.

6) Pro & Con: The Death Penalty in Black and White by DS, Thursday, June 24, 1999 Intellectual Capital.com, 6/24/99. stored at www.prodeathpenalty.com/racism.htm

I don't know about you, but when I get into a discussion about the death penalty, my first thoughts go to the victim and to the brutality of the murder. That is the foundation of the just nature of the death penalty.

Too often these days, however the death penalty is discussed in different terms. Inevitably, with the racial history of this country, the effect of race in the application of the death penalty has become a central part of the death-penalty discourse. This is particularly true as some politicians are making the case for a death-penalty moratorium, in part to consider whether the death penalty is inherently racist.

All too often, however, those arguments are spurious. In the death penalty debate, it should be the facts, and not the hype, that are in be black and white.

A closer look at the statistics

Often such discussion begins with the obvious: the race of the defendant.

The Death Penalty Information Center (DPIC) reports that African American murderers represent 35% of those executed, white murderers 56%. As the argument goes, this must be evidence of systemic racism, as African Americans represent 12% of the population, whites 74%.

Fortunately, the United States does not execute people based on their population counts but on the murders, they commit. As African Americans represent 47% of murderers and whites 37%, we see that whites are twice as likely to be executed for committing murder as are their African American counterparts.

Look again at the statistics quoted. 35% of those executed are African American, while they represent 12% of the population. Random chance would not allow for such a result. If the justice system were blind, if all the background factors ever associated with perpetrators, for example class, as you suggested, were equal such a result would be evidence for an inequitable system. The same logic then applies to whites, if they are 74% of the population and only account for 56% of the executions they are under represented.

You then cite the statistics that 35% of those executed are African Americans while 56% are white. You say that this proves that white perpetrators are more likely to be executed. I urge you to look at the figures:

If whites represent 74% of the population and yet 56% of those executed for the perpetration, they are very under represented, if all predisposing effects were equal. Then, and still, African Americans would be over represented in those executed vis a vis their proportion of the population.

Then we look at the perpetration statistic itself: if African Americans represent 47% of the perpetrators and yet only 12% of the population and

Whites 37% of the perpetrators and 74% of the population you seem to see this as evidence that Whites more likely than African Americans to be executed.

Whites seem to under represented by half and African Americans seem to be over represented by a factor of nearly four.

Furthermore, the Bureau of Justice Statistics says that whites sentenced to death are executed 17 months more quickly than African Americans. With 98% of all head prosecutors in the United States being white, according to DPIC, how is such a result possible? Maybe prosecutors, judges, and juries are focusing on the crimes and not the race of the defendant.

You put forth that since 98% of all head prosecutors in the United States are white, how is it possible that it takes longer, 17 months on average, to prosecute an African American than a White American? You sly ask: maybe prosecutors, judges and juries are focusing on the crimes and not the race of the defendant. How could that be? If all things were equal there would be no such differential. Maybe the system is being overly careful and is "trying to be careful" to avoid seeming racist. However this could be another bias in the system. From my point of view, any bias affecting the life or death dealings of the justices system is an argument against the Death Penalty. I would think you'd have to see that.

So, here again there is bias, and perhaps it is in favor of African Americans but again that should not be in a system which is supposed to be fair, balanced, and unbiased and, like I say, should be as absolutely correct in its decisions and operations as the punishment it metes out.

That is not the case; say anti-death penalty groups, such as Amnesty International, and now the United Nations. If you adjust for the specific aggravating factors present within capital crimes, you find clear evidence of racism.

Death-penalty opponents note, for example, that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder African Americans, under similar circumstances.

David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that African American murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty?

Quite easily.

The Supreme Court, as well as many others, confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely.

What difference does it make?

In Baldus' Philadelphia study, we find that if only 2% more white murderers had been sentenced to death and only 2.5% fewer African American murderers had been sentenced to death, then each group would have been sentenced to death by juries at the same rate -- a far cry from the 400% differential stated within the incorrect interpretation of "four times"!

Indeed what difference does it make?

Another choice error: you point out that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder African Americans, under similar circumstances.

You state that David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that African American murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty? And you say that this is done, "quite easily"

You say the Supreme Court confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely. So I ask you this which would you rather risk an unfavorable outcome rated against you at odds of 4 to 1, or just having the unfavorable outcome be 4 times more likely than the favorable one?

I don't think either choice is appealing, since the favorable outcome, in either case, is the least likely. I am sure you would agree.

You are saying if African American's had 2.5% fewer and Whites had 2%more they'd have been even. Putting those figures together you have a spread of 5%, which is statistically significant. Here again your own statistics prove your undoing. If the system were unbiased and justice truly blind, there would be no difference whatsoever at all, one way or the other!

A punishment that fits the crimes

The next issue raised is the victim's race. While African Americans and whites comprise about an equal number of murder victims, the ratio of white-to-African American victims in death-penalty cases is about 7-to-1. This has given rise to the allegation that the "system" only cares about white murder victims. A horrible accusation, if true.

However, the ratio of white-to-African American victims in the aggravated circumstances necessary for a capital murder conviction (rape, robbery, car-jacking, burglary, police murders, serial/multiple murders, etc.) is from 4-to-1 to 8-to-1 -- numbers consistent with the victim ratios on death row.

Here is the salient point against any such argument, first if all things were equal, if all criminal behavior were equally distributed between the races and justice were blind, there would be no differential between the races in these statistics you quote. To the extent that there is a difference is the extent to which the society has become dysfunctional. How so?

First, you state that the rate for "aggravated circumstances" is similar to the rate for African Americans in death-penalty cases &endash; and you state that because these two factors are consistent that there is no bias in the death penalty ratio. Well what if both those statistics are produced by the same biased system? What if both are a product of a social structure which penalizes one's poverty, has a disproportionate allocation of wealth, is classist in nature therefore and is known to have "built in" prejudices? The surprise would be if the proportions were not similar.

The final resting place for the racism charge lies within those cases where African Americans have been executed for murdering whites and whites have been executed for murdering African Americans. There have been 144 African Americans and 10 whites executed under such circumstances, or a ratio of 14-to-1. As African Americans are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?

If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of African American robber/white victims versus white robbers/African American victims is 21-to-1.

Again, when looking at the circumstances consistent with capital crimes, we find no evidence of racial bias.

The determining factor for sentencing in death-penalty cases is what it should be -- the aggravating nature of the crimes. Both the Rand Corp. study of 1991 and the research presented by Smith College professors Stanley Rothman and Stephen Powers in 1994 confirm that finding. In other words, it appears that any racial variations present within the data are reflective of the crimes themselves and not racial bias within the system. A review of those studies, as well as of criminal-justice statistics, within the context of the aggravating circumstances present within capital murders and the related statutes, produces the same conclusion.

This is my favorite part, as if the other parts were not just as enjoyable:

You assert that final resting place for the racism charge lies within those cases where African Americans have been executed for murdering whites and visa versa. You say there have been 144 African Americans and 10 whites executed under such circumstances, or a ratio of 14-to-1. As African Americans are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?

A rhetorical question from you is so cute. This is what you do when faced with a fact that flies in the face of your theory; you do a bait and switch and hope that no one notices. You say "If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of African American robber/white victims versus white robbers/African American victims is 21-to-1"

Well the aggravated crime stats sure look good but despite your saying "If we look at robbery, the aggravated crime found most often in capital cases we find. A ration of…. 21 to 1" Interesting but not related to the fact you were trying to disprove. Perhaps there is some overlap, perhaps not. "Found most often" is a vague phrase and you offer no proof that the 21 to 1 figure is related in detail to the 14 to 1 figure in the first paragraph. Your argument fails on the grounds of faulty substitution, or at least one that is contestable on a level of logic or reason.

However, ignore the fact that a differentiation between crime rates is a symptom of our society's systemic injustice and disproportionate poverty and its correlation with an inability to access legal aid, your statistics prove my point. If justice were blind, if poverty were not a factor, if classism and systemic lack of opportunity were not factors and each and every crime's perpetrator were given fair their due, there would be no differential, one way or the other in conviction rates between races. Your own facts provide the proof I need to make my point.

There is vast and systemic bias in the justice system, in the allocation of society's resources, and the differential you point out only exemplifies the symptomatic results of those causes.

Don't assume the worst motives

There will always be some variables of race, ethnicity, and class within any study of criminal-justice practices, and based on historic, as well as current prejudices, we can never lower our guard. Because all studies are subject to poor protocols, bias and misinterpretation, we must make reasoned judgments based on as many respected considerations as we may have at our disposal.

You end up with saying "there will always be some variables of race, ethnicity and class within any study of criminal-justice practices" You say we can never "lower our guard" Fine words, but they ring hollow in the light of the fact that your own statistics proved my point.

And even if criminal-justice statistics did not show the obvious correlation between crimes and the application of the death penalty, we should note what the Supreme Court stated in McCleskey: "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." Sound ideas should not be eliminated based on misguided statistics.

Pardon me if I take exception to the quoted remark. They may "decline to assume that what is unexplained … is invidious" But that is hardly a scientific attitude, hardly rational when it comes to guaranteeing the rights of humans. In such vital circumstances one would want to be as certain as possible that what is not explainable is, to the best degree possible, not at all invidious.

In the case of the death penalty, the facts lead to only one conclusion. No moratorium is necessary.

Copyright 1998-2005, DS

Your facts lead me to only one conclusion that the only way to prevent innocent's from being executed, from alienating large subset of our population, from continuing the most egregious forms of miscarried justice that the moratorium on the death penalty should be immediate, complete and irreversible. We are guaranteed the right to life in this country. I think it is time we take that right and reaffirm it.

I close my arguments from A member of the Supreme Court:

If statistics are any indication, the system may well be allowing some innocent defendants to be executed…Serious questions are being raised about whether the death penalty is being fairly administered in this country. Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.

Sandra Day O'Connor 7/2/2001, speech to the Minnesota Women Lawyers group

*************************************************************

DS to DB Debate letter #6

************************************************************

Innocent persons have been executed; it is a matter of historical fact. The justice system is therefore flawed. An absolute punishment cannot be dealt out by a system that is not absolutely flawless. Humans make mistakes; our justice system is not perfect therefore, the death penalty's existence is flawed. Many, many government do abuse their power and use their right to execute persons, for whatever reason.

All punishments and all government institutions have flaws. There is no proof of an innocent executed in the US since 1900. The proof is overwhelming that living murderer harm and murder, again.

Your key word there is "flaw." If the system implementing the death penalty is flawed then there is, by your own admission, the possibility of a innocent being put to death. That there is no proof, yet, in your mind is not superfluous. Because it is a flawed system dealing out irrevocable sentences there is reason to suspect that innocents have been put to death, or that some will in the future. The logic is inescapable.

The system anticipates error and provides remedy. The rare occurrence of convicting innocent people to death is only the beginning of the process. Appeals are required in capital cases, but not in non-capital cases.

This argument here considers your own words, the system is fallible. It is not perfect, not as absolute as the punishment which it metes out. So the system of appeals which may "catch" an error may also not catch an error. That is the meaning of imperfect, or fallible or error prone.

ALL INNOCENCE ISSUES -- THE DEATH PENALTY

by DS, Justice Matters (contact info, below) no. 100904

A thorough review finds that death penalty opponents have lied, extensively, regarding the numbers of innocents sentenced to death, that such risk is extraordinarily low and that the cessation of executions will put many more innocents at risk.

Wonderful, the risks are extraordinarily low. How low is that? What level of innocent's dying is acceptable. Again, anything more than zero, for me, is not acceptable. My solution of real lifetime imprisonment with a program that helps make the perpetrator make some kind of recompense is far better.

I. Innocents Released from Death Row: A Critical Review of the Claims

Death penalty opponents claim that "Since 1973, 102 (now 116) people in 25 states have been released from death row with evidence of their innocence," (1)

That is a blatantly false claim.

The foundation for these claims begins in 1993, when a study, released by US Rep. Don Edwards, purported to find that 48 innocents had been released from death row since 1973 (2). Rep. Edwards concluded that "Under the law, there is no distinction between definitively innocent and those found innocent after a trial."

This is flat out wrong and Edwards knew it. There is no finding of innocent after a trial. A not guilty verdict means that the prosecution failed to prove guilt beyond a reasonable doubt.

Yes there is a finding of innocent after a trial. If a person shown to be incorrectly imprisoned for a crime they did not commit, then what do you call that? Ask Mr. Ernest Willis of Texas, see the following web page and the brief story:

http://deathpenaltyinfo.org/article.php?did=412&scid=6

There are some cases of innocent's being executed as well:

http://www.deathofinnocents.net/

The law recognizes the specific distinction between those legally innocent and those actually innocent, just as common sense dictates. Yes, there is a difference between the truly "I had no connection to the murder" cases and "I did it but I got off because of legal error" cases.

Among other improprieties, Rep. Edwards and other death penalty opponents combine these two conflicting groups to increase their "innocents" number. This is a continuation of a pattern of deception by death penalty opponents, that had been obvious for years, for anyone that cared to look.

Look again at that page, it lists over 100 persons who were exonerated since 1973. Exonerated means just this: "clear from accusation or blame"

In addition, Rep. Edwards selected an anti death penalty group, The Death Penalty Information Center (the DPIC), to conduct the study, thereby negating objective confidence in the results.

The source for the updated 102 innocent number is also the DPIC (3). Richard Dieter, head of the DPIC, has confirmed, again, what their "innocent" means:

" . . . according to death penalty opponents, who say they make no distinction between legal and factual innocence because there is no difference between the two under the law and because there is no objective way to make such a determination. ' They're innocent in the eyes of the law,' Dieter says. 'That's the only objective standard we have.' " (4)

What nonsense.

What do you mean what nonsense? If being "guilty in the eyes of the law" is enough to put some one to death, then "being innocent in the eyes of the law" should be good enough to release them; it is good enough to release them and to hold differently is to spout nonsense! Not that I personally agree with that but you seem to think the first part of the statement is true. If that is the case, then, quite logically, the second, being is logical reciprocal is also true. So as I say, to accept one and not the other is nonsense by your own terms.

As this public policy debate is only about the actually innocent, we know why the DPIC fails to make that obvious distinction -- they wish to, deceptively, expand their "innocents" claims.

Well, what I have to say is this: what of it? What if there is only a one in one hundred chance of the death penalty being exacted incorrectly, or a one in one thousand chance? That constitutes a monstrous injustice, one which is easily avoided by a real life imprisonment sentence.

Furthermore, for many years, the United States' courts have repeatedly enforced the obvious, common sense, important distinction between the actually innocent and the legally innocent (5). Mr. Dieter and all of those active in this debate are well aware of this. Death penalty opponents have chosen to be deceptive. (also see Sections IV. OK to Execute the Innocent? and VI. The Innocent Executed, below). This is hardly surprising.

As Dieter and other death penalty opponents make no distinction between the actually innocent and the legally innocent, why don't they claim that over 2500 innocents have been "exonerated" from death row? That is the number of legally and actually innocent released from death row since 1973 (6).

The answer is obvious. They hoped that the media and others might just assume that the 102 (and the previous lesser numbers) were actually innocent and not ask any questions. And that is exactly what has happened -- a successful deception, aided by the poor fact checking standards of the media. The 2500 number, even for the media, is just too large a number for such blind acceptance.

As this deception has begun to unravel, Dieter "clarifies" that all 102 former death row inmates on the innocence list have been exonerated in one of three ways.

"A defendant whose conviction is overturned by a judge must be further exonerated in one of three ways: he must be acquitted at a new trial, or the prosecutor must drop the charges against him, or a governor must grant an absolute pardon." (7)

Dieter is consistent.

None of those exoneration categories establishes, or even suggests, actual innocence.

Acquittal, which is a "not guilty" verdict, means that the state was unable to meet the necessary burden of proof, in establishing guilt beyond a reasonable doubt. It has nothing to do with establishing actual innocence.

Again if, as you persist in implying, that the system works and is fair, then so be it, and letting someone off, for any of a host of "legal reasons" is fair enough, since executing persons for any of a host of "legal reasons" is fair in your mind. You cannot say that the system is fair, and then disallow the argument that persons who are exonerated, acquitted or whatever cannot be counted by those opposing the death penalty because they are "unfairly included in their total." Either you defend the system as a whole, because you believe it is fair, that is to say the convictions, exonerations, acquittals and all the rest are just and right, or you don't. You cannot have it both ways. My humble opinion is that if someone is prosecuted for an offense for which the their life is put at stake, and they are found guilty, all such persons could be put in the statistical heap of cases to be studied in the "debate" over the death penalty. If any of those are found innocent, exonerated or otherwise released from the threat of death it proves the system to be faulty, as would any who, being found guilty and executed. The total universe of persons in the "capital punishment universe" should be included in the debate. Either you include all the persons effected by the process or you decide to pick and choose, Dieter may be more "inclusive" than I'd be but you are also clearly attempting to stack the deck.

In a case that has been overturned on appeal, the prosecution may drop the charges because of many reasons, the least likely being actual innocence (insert citation). For example, appellate courts may rule that evidence or testimony was constitutionally inadmissible, thereby removing the specific evidence of actual guilt from any prospect of a new trial and, thereby, precluding another trial.

And an absolute pardon may have nothing to do with actual innocence.

Just as persons who are actually innocent but are beyond the point of rescue by any proof of the fact can be executed and this has nothing to do with actual guilt.

Just recall all the uproar over the pardons granted by President Clinton on the eve of his leaving office. I recall only one of those many cases wherein the defendant claimed actual innocence, and I don't recall any appellate judge giving any support to such a claim. Or recall ex-President Richard Nixon, pardoned by President Gerald Ford? Does anyone doubt that President Nixon was actually guilty of obstructing justice? Of course not.

Once again, we have example after example, whereby Dieter tells us that the DPIC standards have nothing to do with actual innocence. And this is simply back peddling on his part. As more and more people observe the extent of the fraud within the innocence claims of death penalty opponents, Dieter and other opponents will continue to change their definitions to justify their deceptive numbers.

Perhaps Dieter and I part company, as I've mentioned before, but also, as I've said before anyone whose life is impacted by being prosecuted under the threat of death should be included in the statistics of the debate. Why would we exclude such? After all they are part of the effected population, those with a "concern" for the death penalty's application. Deceptive numbers? Hardly! On the other hand, you, by restricting the argument to just those who are absolutely innocent artificially restrict the debate to those. I think the debate could be framed in this way: We should look at how many people were placed on death row and how many were then taken off as opposed to how many were put on and executed. That ratio or figure would compare the effectiveness of the system by comparing the total number of those it selects as fit for execution and compares it to the number that are selected and yet still finds unfit for execution. Using your argument, the reason that supporters would not want to use that kind of figure is that it would clearly show that to high a proportion are placed there only to be removed. It would show the system to be flawed and would thus demolish their argument.

And the "innocence" standards get worse.

Death penalty opponents have " . . . included supposedly innocent defendants who were still culpable as accomplices to the actual triggerman." (8). The law often finds such criminal accomplices legally guilty for their involvement in murders, even if they, themselves, didn't "pull the trigger." For example: Does anyone think that Bin Laden was innocent in the 9/11 World Trade Center bombings?

The DPIC, and other opponents, allegedly so devoted to legal standards in one circumstance -- presumption of innocence -- abandon a legal standard -- the law of parties -- when doing so can further increase their false "innocents" claims.

What "standards" will death penalty opponents create next to deceptively raise their innocence claims?

As the innocence frauds of death penalty opponents continue to unravel, they are now changing their definitions, as if they never meant that all the cases were actually innocent. In other words, they are just piling lie upon lie.

The evidence is overwhelming that some death penalty opponents were stating that the 102, nationwide, were actually innocent people, who had no connection to the murders. They lied.

Now they are stating it was just some function of release, as related above, or that they were only speaking of the "presumption of innocence", the legal standard for defendants, during trial. They have always been lying about the collective innocence claims, now they deceptively change the definitions, as their previous claims are imploding.

Just as it may be said that the proponents of the death penalty must be lying when they say that the death penalty is clearly supported by research, acts as a deterrent, and is rational. It is none of those things.

The DPIC's newest standard?

"There may be guilty persons among the innocents, but that includes all of us." (9). Good grief. DPIC wishes to apply collective guilt of capital murder to all of us. Alternatively, maybe DPIC is about to declare all those sentenced to death and executed as innocent. Take your pick, they could go either way.

A society can be held responsible for its practices, they have been in the past. The US attack on Afghanistan is an example where we held a nation responsible for the actions of a resident accused of being a terrorist act and for which we never bothered to offer proof or take any kind of "legal" action. We can go to the The Nuremburg trials and the division and occupation of Germany for another example or the Treaty of Versailles, which ended WW1. One can go back to the the Civil War too, if you'd like for examples where society was held for collective guilt.

A final mea culpa?

Dieter states: "I don't think anybody can know about a person's absolute innocence." (Green). In other words, Dieter won't assert absolute innocence in 1, 102 or 350 cases. Not today, anyway.

Just the same, with the spate of cases where DNA and or other more common kind of evidence or evidence of systemic problems, as in Illinois, it seems more and more difficult to establish absolute guilt. And, as I've said before, an absolute punishment can only be just if it is absolutely correct. We don't have absolute correctness in the application of the death penalty, just as we may not have absolute certainty of someone's innocence - again your choice of words, in this case a quote, seems to, at best, not supportive of your cause.

Or, Dieter will declare all innocent: "If you are not proven guilty in a court of law, you're innocent." (Green) By this all inclusive (and ridiculous) standard, Dieter would call Hitler and Stalin innocent.

While you, on the other hand, would have it that anyone "proven guilty" by a biased, sometimes corrupt, inefficient and inequitable system is in fact guilty. When, as we have seen, many have been taken off death row.

So no one deludes themselves, the innocence concern has always been about convicting the actually innocent -- the "I had no connection to the murder" cases -- and what risk that represents for executing an actually innocent person.

Even Dieter has always known (and never disputed, so far) that we don't execute legally innocent people.

He should.

Death penalty opponents wrongly state the burden of proof for "innocents" is not theirs to make -- that defendants are "innocent until proven guilty." This is pure sophistry. The "innocent until proven guilty" is a legal standard, that only applies to fact finders in a criminal case. The "innocent" claims by death penalty opponents are part of a public policy debate which, allegedly, is concerned with the actually innocent sent to death row and how that may result in an actually innocent executed.

No, innocent until proven guilty is a fundamental principal in our concept of justice. It is more than a legal standard in many, many people's mind. It is, in fact, ingrained in western culture. If millions upon millions of people can quote anything about our justice system they can recognize and or report out something to that effect at least. I feel that the burden for proof, for guaranteeing that innocents are never executed lay with both sides. It is in the interests of both sides to guarantee that such horrific occurrences never happen in the present or the future. Those against capital punishment are doing their part, even if in a biased way, so where are those who are interested in supporting capital punishment? Are they investigating, demanding information about cases and the law? Hardly.

What is the real number of actual innocents released from death row?

A review of the DPIC 102 case descriptions finds that only about 32 claim actual innocence, with alleged proof to support the claim. 12 of those 32 are DNA cases. That is 32 cases out of about 7300 death sentences since 1973, or 0.4%. National Review's Senior Editor Ramesh Ponnuru, independently, came up with the same number for his "Bad List" article (10).

When reviewing various case descriptions by DPIC and then comparing them to the actual record, there is an obvious pattern of inaccuracy (11). This provides little doubt that many of the remaining 32 case descriptions by DPIC are also inaccurate. No responsible, objective party would depend upon the DPIC case descriptions.

Furthermore, Northwest U. Law Prof. Lawrence Marshall, a death penalty opponent, who organized the National Conference on Wrongful Convictions and the Death Penalty in Chicago 1998, stated that, "In a good half of these 75 [now 102] cases, the exoneration is so complete that it erases any doubt whatsoever," (12). Prof. Marshall's uncorroborated claims find proof of factual innocence in 38 cases.

Why do death penalty opponents claim that they have proof for half their innocent claims, then claim twice that number as innocent?

Well, it seems you do not doubt that some are innocent, even in your mind. What I'd like to know is what percentage of innocent persons being executed is acceptable. What error rate is OK by you? How many innocent's dying is your limit. That is the question here.

This claim is consistent with the 13 innocents/exonerations from Illinois. There appears to be some doubt about an innocence claim in about half of those cases. (13)

California Assistant Attorney General Ward Campbell finds that at least 68 of the DPIC 102 cases do not belong on the innocence list. He has not conceded that all the remaining 34 do belong on the list. (14).

"On July 1, 2002, in the case of United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y. 2002) the United States District Court for the Southern District of New York declared that the Federal Death Penalty Act (was) unconstitutional."

"The federal court based its decision in part on the DPIC List. The federal court itself analyzed the List and applied undefined "conservative criteria" to conclude that 40 defendants on the List were released on grounds indicating "factual innocence." However, 23 of the names on the Quinones' List are names which (Ward Campbell's) study submits should be eliminated from the DPIC List."

"If the Quinones court's analysis of the DPIC List is combined with this critique's (Campbell's) analysis, only 17 defendants should be on the List, not the 102 defendants currently listed." (14A).

Furthermore, the Judge in that Quinones case, Rakoff, has since stated that the innocence number might be 30, not the 40 he stated during the case, indicating the combined numbers are, now, most certainly, lower than 17.

Of those 102 DPIC "innocent" cases, 24 have been identified by the DPIC as being from the state of Florida. The Florida Commission on Capital Cases conducted a thorough review of those 24 cases. The Commission found that 4 of those might have a credible claim of actual innocence. (15).

Again, I ask you: How many innocent's dying is acceptable? My answer to that question is simple. It is zero. You seem to be quibbling about this percentage or that. I would like to know what percentage is acceptable.

Further, I might add, that an innocent being executed is one thing, horrible as it is, but it also means that whoever did the crime has not been punished and the victim's family, the legal system and society has wasted a substantial effort and vital resources all while remaining at risk as the real perpetrator has his or her freedom.

That reveals an 83% error by the DPIC in their Florida case descriptions. If the DPIC has a consistent error rate, nationwide, that would indicate that there is evidence for claiming 17 actual innocents within their 102 innocents claim -- or 0.2% of the 7400 sentenced to death since 1973.

It is hardly a coincidence that the same number of likely actual innocents -- 17 -- is also found when combining the Campbell and Quinones lists.

Based upon those three reviews, 17 is the most credible number for actual innocents released from death row since 1973. And 83% seems to be the common error rate for "innocents" claims by death penalty opponents.

Even when using the DPIC's updated number of 117, The New York Times found that: "To be sure, 30 or 40 categorically innocent people have been released from death row . . .". (15A). Using the 30 number, even the Times find as a 72% error rate in the claims of death penalty opponents.

Your supportive quote has these words: "30 to 40 persons categorically innocent people have been released from death row." If they are categorically innocent then they should not have been there in the first place. What if these weren't lucky enough to be taken off? Again and again, I ask how do we know that all those who have been executed were in fact completely guilty, when, as you point out, numbers of them have been released. The system which puts people on Death Row is flawed, it is not perfect, not absolutely correct. For those reasons it is dangerous. It is dangerous because it allows murderers to go free while an innocent takes the blame for them. They learn a very dangerous lesson: how to kill and not get caught. It is dangerous because it subverts justice not only for the innocent executed, but for his or her family and community. Those who are innocent and released have their lives ruined and their sense of justice severely damaged, not to mention their family, community and so forth. Then, when that happens, the original victim's family has another grand trauma to suffer through. They have to wonder who DID kill their beloved. These concerns show the system is flawed, seriously so, if that many persons could wind up on death row only to be found categorically innocent we are harming individuals both the victims and the wrongfully accused, a communities sense of justice, and the perception that the legal system works.

However, using the DPIC's consistent error rate, as found by the most through reviews, the number is likely closer to 20.

SPECIFIC CASES

See "The Innocence Fraud of Death Penalty Opponents"

Another case on the DPIC list is James Creamer, who was never subject to execution (17). The jury gave him a death sentence, even though there was no death penalty option, because the Furman v Georgia case (1972) had voided all death penalty statutes then in existence Even so, Creamer was sentenced to death on 2/4/73 and then was re sentenced to life on 9/28/73. He is still on the DPIC innocents released from death row list (No. 5, as of 6/3/02).

Death penalty opponents (and the media) gave much play to that "100th case" - Ray Krone. It is an instructive example.

He was not on death row, at the time he was found innocent via DNA testing. His death sentence was overturned in 1995. He was retried and given a life sentence in 1996 (18). Inmates released from prison sentences, because of innocence evidence, are not "released from death row with evidence of their innocence." which is the DPIC "standard" to be on the list. Death penalty opponents do what they can to fraudulently raise their numbers.

This only demonstrates several of my points, one that the system of justice is not working correctly. How is it possible that a person is sentenced to death when, in fact, as you state, such a penalty was not actionable? Also, it shows that a person was convicted, given a death sentence only to have DNA prove the system in error. You don't think anything is wrong with that because the man wasn't executed? To me is shows a system that is faulty and dangerous.

Certainly a "100" could be considered a milestone. What few realized (or cared to investigate) is that it was a milestone of deception by death penalty opponents.

At least 11 of the cases were not even on death row at the time of their "innocence" discovery. 6 of the DPIC listed cases were not on death row when released and were prosecuted prior to 1973, in the pre Furman v Georgia (1972) era and, therefore, have no place in a modern era discussion of "innocents" released from death row (19).

And, at least four of the post 1973 convictions, Henry Drake, Jay Smith, Kirk Bloodsworth and Ray Krone, were not on death row when they won their freedom. Krone, the now famous 100th case, had not been on death row for 7 years, when he was found innocent via DNA.

You quibble with facts and niggle the details. Your own words provide my evidence against your cause. Here is another case where persons were found guilty and put on death row, yet, eventually DNA evidence found the justice system flawed. In my book each and every one of those cases are valid for the arguments against the death penalty. Why? Because they were found guilty, they were put on death row and they did win their freedom.

And you ignore what you yourself said: "They won their freedom." Which means they shouldn't have been put on death row in the first place!

None of those 11 are death row exonerations. They are prison exonerations. Therefore, the 32 cases becomes the 21 "released from death row with evidence of their innocence." And, obviously, no one can depend on the DPIC case descriptions regarding how many more of the 102 (or the 21) cases were not on death row at the time they were "released from death row with evidence of their innocence." Nor should anyone blindly accept the uncorroborated claims of death penalty opponents that all of those 21 are actually innocent.

Professor Marshall stated that "the exoneration is so complete that it erases any doubt whatsoever." If true, where is the independent, objective study which removes all doubt in 21-32 cases? It doesn't exist. Can death penalty opponents present, at least, a review wherein 21-32 cases have a consensus of opinion, whereby the evidence, the prosecutors, defense counsel and the appellate courts agree on the actual innocence issue? If so, it is no where to be found.

How many of those sentenced to death since 1973 have subsequently been released from death row because of actual innocence? It is likely between 15 and 30. 17 being the most realistic number, as it reflects findings in the three most thorough reviews -- Rakoff/Quinones, Campbell and the Florida Commission.

Again, how many? What would be an acceptable death rate for innocents? That is the main question I would ask anyone who espouses what you do.

The 102 number means nothing, except as a ruse to fool the press and the public.

In a joint press release, dated May 7, 2002, the National Coalition to Abolish the Death Penalty and the Texas Coalition to Abolish the Death Penalty stated:

"More than 100 people have now been released from death row due to actual innocence." (20)

Are such comments part of an organized deception or do they reflect willful ignorance?

THE MEDIA

With remarkably few exceptions, neither the media nor public policy makers have required death penalty opponents to support their claims or to define their standards.

In fact, the rule is that the media repeats exactly what anti death penalty sources tell them, without question and passes it along to their audience. This may be one of the worst "no fact checking" examples in journalistic history.

No, I think the worst "no fact checking" example would be how our nation was misled into invading Afghanistan and Iraq. But seriously, you manage to quote the New York Times in a favorable light, clearly not all the media is lending an "easy ear" to the opponents of the death penalty.

The media, overall, is conservative, either moderately or mainly so. For that reason they tend, actually, to support conservative points of view.

If you want to argue that point consider this: how many television or radio networks, mainstream and or large metropolitan newspapers would be considered truly liberal? By that I mean how many have a "labor section" instead of a "business section" how many consistently support worker's rights, ecological viewpoints, favor the multinational approach to world problems, are antimilitary when it comes to foreign policy, questions the current administration, runs articles usually found in the "10 most under reported stories list", provides support for community organizing against corporate bullying and so forth? The answer is there are none. Period.

As previously suggested (21), possibly, in the future, both the media and policy makers may inquire:

-- For how many of these claims is there proof of actual innocence?

---Were those "innocents" completely unconnected to the murder?

---Were they on death row at the time their innocence was proven?

---Can you provide confirmable, independent support of these claims?

---What are the opinions by the district attorneys and the appellate courts for these claims?

All reasonable and necessary questions to ascertain the veracity of the claims.

Isn't it better to be clear and specific? As opposed to unclear, unsure and nebulous?

Does the number matter? Only if accuracy and truth are important in public policy decisions and media reports.

(NOTE -- The DPIC list is now over 102. Their claims are so misleading we have stopped updating at 102.)

II. The Risk to Innocents if We Don't Execute

We have overwhelming proof that living murderers harm and murder again, in prison, after improper release and, as we so recently experienced, after escape. No one disputes that living murderers are infinitely more likely to harm and murder again than are executed murderers. And, there is no proof of an innocent executed within the US since 1900.

Some supporters of a moratorium and death penalty opponents claim that a concern for innocents is why they want to halt executions. Yet, history and reason confirm that an end to executions will result in more innocents harmed and murdered.

Not if a life imprisonment sentence actually mean that and such was the consequence of every person who committed murder. This would have tremendous advantages over capital punishment. For those who would eventually be executed it would save precious funds and court time. For those who would not be, it prevents them from ever committing any other such act ever. Also, there'd be no concern for wrongful executions.

Furthermore, any assertion that the death penalty is not a deterrent is false. Those studies not finding for deterrence do not say it doesn't exist. Those studies finding for deterrence state that is does. A statutory challenge caused a temporary halt to executions in Texas, in 1996. The result? "The [Texas] execution hiatus, therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 [up to 150) additional innocent lives lost to homicide. Politicians contemplating moratoriums may wish to consider the possibility that a seemingly innocuous moratorium on executions could very well come at a heavy cost." (22)

Let us take a look at some statistics from the FBI's Uniform Crime Reporting Program. This graphic shows that the 5 states with the highest murder rates all have capital punishment. It shows that of the 5 states with the lowest murder rates three do not have capital punishment, one, New Hampshire, does but has not used it in nearly 30 years. If capital punishment had the effect its defendants claim it would be the opposite of what is shown, if capital punishment varied so widely in application that comparing the two kinds of states was not rational we'd not see any overall pattern between those states with the highest rates and those with the lowest, however we do.

http://www.al.com/opinion/birminghamnews/choosinglife/rates.jpg

It would seem, implied anyway, that the capital punishment is associated with a higher rate of murder.

The southern region of the US has the highest murder rates despite carrying out more executions than other regions.

http://www.al.com/opinion/birminghamnews/choosinglife/murder_exec.jpg

Then too there is this: An analysis of Alabama's system which shows that of those who are accused of murder in 2003, 132 in all, that 8 were dismissed and 3 were acquitted; that is a total of 11. Which can be seen as an "error" rate of 8.3 percent. This is not acceptable.

This is not surprising, as history, reason, common sense and the social sciences all support that the potential for negative consequences deters or alters the behavior of many, if not most.

Recently, at least three innocent people were murdered by escaped murderers. That is three more than we have proof for innocents executed since 1900.

What you seem to be saying here is that it would be OK to kill innocents as long as all the guilty ones were killed. Also, death penalty or no, an escaped killer, killing again would happen no matter if we had a death penalty or not.

At least 8% of those on death row had committed one or more murders prior to the murder(s) which put them on death row (23), suggesting that with 7,300 sentenced to death, since 1973, that those sent to death row had murdered at least 600 additional innocents after we failed to properly restrain them after their previous murder(s). Justice Department studies suggest that it is likely that some 2 million innocents have been harmed, 100,000 murdered, since 1973, by criminals while "supervised" by US criminal justice systems (parole, probation, mandatory release, furloughs, pre trial releases, etc.) (24).

Yes, wonderful, and my option, a real life time's imprisonment for murder such things wouldn't have happened. And we'd have no risk of executing anyone who was innocent or who shouldn't have been put up on death row.

In any review of criminal justice practices and their failings, we are looking at errors in judgment and procedure. Yet, with such catastrophic harm to innocents, coming from other criminal justice shortcomings, some have chosen to pursue a moratorium on executions -- a criminal justice practice lacking proof of an innocent killed, at least since 1900. Is the priority to protect innocent lives or to get rid of the death penalty? A review of criminal justice realities makes that an obvious question.

In Alabama many people in a recent poll believe that capital punishment is unfairly administered, does execute innocents and support a suspension of the practice.

http://www.al.com/opinion/birminghamnews/choosinglife/poll.jpg

Also it would be interesting to hear the explanation for "hot spots" that is to say why certain Alabama counties, 7 of them, account for nearly half the death row inmates at the time the study was done.

http://www.al.com/opinion/birminghamnews/choosinglife/locales.jpg

So how close a call do you want? This story from Alabama, involving a Mr. Ray Hinton being sent to Death Row, was a close call. He was exonerated after the evidence originally used against him was found to be flawed. And the article mentions that a number of others have also been exonerated in recent years.

It currently takes nearly 12 years to execute those sentenced to death (25). And some elected officials are debating a moratorium on executions. Yet, under all debated scenarios, halting executions will put more innocents at risk.

III. Due Process and The Risk to Innocents

Protecting innocent defendants/inmates

Is there any other criminal sanction, anywhere in the world, where one might find a 99.6% guilt accuracy rate, after 30 years of biased, unverified review by opponents of that sanction, wherein all those allegedly innocents had been secured from their punishments by post conviction review?

The US Supreme Court has stated that those subject to the death penalty in the US receive super due process. It is easy to see why. From 1973-2001, 7096 people were sent to death row. 2523 of those cases, or 35.4%, were overturned on appeal or had their sentence commuted. 749, or 10.6%, were executed (26), after an average of over 10 years on death row (27). The time between sentencing and execution has risen from an average of 8 years in 1989 to nearly 12 years in 2001 (28).

Consideration of error, be it the actually innocent convicted or procedural, is why we have appeals and the commutation/clemency process. The system anticipates error and provides remedy. While the actually innocent convicted is a horrible result, in the subject cases, none have been executed.

And we still have numbers of persons winding up on death row, by your own accounting, or that of the New York Times and other places you reported, who shouldn't have been put there. There is to much error, period. My option removes all of that risk, at less cost, and would save time as well as resolve the whole issue of protecting the safety of the community and the interests of society.

Few dispute that death penalty cases have the greatest level of due process protections. Therefore, if your objection to execution is the possibility of irreversible error, such due process concludes that it is much more likely that an innocent sentenced to a life term will die, as an innocent in prison, than it is that an innocent will be executed. Both irreversible error, but one much more likely than the other.

Again you seem to think that the "cost of doing business" the risk of innocents dying is acceptable. It is not, not when it does not have to be.

It appears that the US death penalty is that criminal justice sanction which is the least likely to find the innocent guilty and the most likely to correct those rare errors upon post conviction review.

And, again, I say, that if we had a true "life sentence" then we wouldn't need all that expense and extra procedures. We'd be saving money and time and the courts would be freed to do much more work over time.

Sacrificing the innocent

The due process protections of the US death penalty are so extraordinary, that we have released over 2500 people from death row since 1973. Although no known study of the harm committed by those so taken off death row has been performed, there is no doubt that many innocents have been murdered or otherwise harmed by those so released.

One group of released death row inmates has been subject to limited review. When the US Supreme Court found in Furman v Georgia, in 1972, that the death penalty, as it was then enforced, was unconstitutional, all death row inmates had their death sentences commuted. It appears that some 12 innocents have been murdered by those Furman releases, through 1987, in addition to other horrendous crimes committed by that same group. (still finalizing confirmation). We are unaware of any updated review covering the next 15 years, through 2002.

This is not an argument against super due process, but a recognition of one reality of it.

Such due process provides unparalleled protection for the actually innocent, extraordinary generosity to guilty murderers -- relief that turns into suffering for those innocents harmed by those spared murderers.

Yet, clearly, persons who shouldn't be on death row wind up there, don't they? The heart of the problem is a fallible system serving up absolute decisions. As long as we have that as "normal" then we'll continue to have persons put on death row who shouldn't be, 2,500 by your count. That could mean that as many as 2,500 persons, those who actually did the crime for which these 2,500 were imprisoned, went free. There is no statistics to determine how many of these guilty yet "invisible" murderers went on to commit more crimes, even murders &endash; is there?

Again, in this passage you go for the grim statistics, weighing one set of innocents against another. Clearly having a real life imprisonment with no parole is the way to resolve that issue. My standard, different from perhaps most persons standards has come to this: If you murder you forfeit all the benefits of society, meaning you are removed from it. It could be done and it would save time, effort, and money.

See what they are thinking about in Alabama:

http://www.al.com/opinion/birminghamnews/index.ssf?/base/opinion/113127255523690.xml&coll=1

IV. OK to Execute the Innocent?

Some death penalty opponents have wrongly interpreted that the US Supreme Court decision in Herrera v Collins (113 S. Ct. 853, 870{1993}) found that executing the innocent was quite all right.

"Justice [Sandra Day] 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 unconstitutional 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." (Kenneth S. Nunnelley's Congressional testimony, July 23, 1993)

V. Future innocence considerations

The DPIC alleges that 12 of their 102 "innocents" were proven actually innocent because their DNA screenings were negative. Based upon the DPIC's standards, we cannot be sure of all such innocent claims because, in some of the cases, "Non-matching DNA is consistent with the prosecution's theory of multiple perpetrators" (29) and, therefore, may not signify innocence.

In any future cases, where DNA is determinative of guilt or innocence, any such innocent cases will never go to trial. For many reasons, including DNA testing, the US death penalty, is much safer today than it has ever been.

As the best predictor of future performance is past performance, what will the future risk to innocents be?

Based upon the evidence we have today, using anti death penalty standards and their uncorroborated claims, with the next 7300 death sentences given, nationwide, we may sentence 3-18 actually innocent persons to death, or about 0.2%, (30) and the alleged innocent will all be taken off death row via post conviction review or, otherwise, not be executed. What this doesn't take into account is that many jurisdictions have, for quite some time, already raised the qualification level for defense counsel and prosecutors and some also require two defense attorneys to be appointed in capital cases.

So you are OK with 3 to 18 innocents being killed by the state? Is that it? Then we can take a look at Alabama, the article describes how that for every execution there have been nearly five reversals for inmates of Death Row. With an error rate this high, how could one not help but see that some innocents have been executed, and, bear in mind, that we are having this kind of error rate even with DNA testing. The error rate could only have been worse in the times before its use not to mention in the times when racism was an even more salient factor in the legal process.

http://www.al.com/opinion/birminghamnews/index.ssf?/base/opinion/113127217923690.xml&coll=2

Almost without exception, those few highly publicized death penalty cases, which have caused great public rancor, were prosecuted 15-25 years ago. Cases that are more recent are much less likely to provoke controversy or false claims of innocence. Why? There is a higher quality of prosecution and defense in these cases and new death penalty law, which began after Furman v Georgia (1972), is more settled than it had been from 1973-1987.

Finally, a review of many of those earlier highly publicized cases revealed that many of the anti-death penalty claims were and are either false or deceptive. (31)

VI. The Innocent Executed

It is not at all uncommon for death penalty opponents to make false claims about innocents executed. As of 1/1/03, The National Coalition to Abolish the Death Penalty (NCADP) claims that "Twenty three (23) innocent people have been mistakenly executed (in the US) this (the 20th) century." (32) This is a common false claim, even though the authors of that 1987 study, in response to a deconstruction of their work, stated, in 1988, that "We agree with our critics that we have not proved these (23) executed defendants to be innocent; we never claimed that we had." (33). The NCADP is well aware of this, yet it doesn't stop their deception.

The proof is that many innocent persons have been placed on Death Row. The fact is that in some places, such as Alabama there are four such persons released for every one executed. Other states also have substantial numbers of person who are placed on Death Row only to be released. This basic fact has to make any reasonable person question the idea that innocents have not been executed. The system is flawed, seriously so. Justice that deals out an absolute consequence has to be absolutely accurate. We are human; we make mistakes &endash; life without parole solves the problems. I would have more individuals placed in such "care" because of arguments you and others have put forth.

Barry Scheck, cofounder of the Innocence Project and featured speaker at the National Conference on Wrongful Convictions and the Death Penalty (11/13-15/98), stated that he had no proof of an innocent executed (in the US since 1976) (34).

Not even the nation's leading, biased source for anti death penalty information, the DPIC, says there is proof of an innocent executed. They list 5 "doubt" cases (35): Gary Graham, Joseph O'Dell, Roger Keith Coleman, Leo Jones and David Spence. A review shows how deceptive the DPIC case descriptions are (36) and how lacking any proof of innocence is.

The Texas case of Lionel Herrera, like others, nationally, has been labeled, by many death penalty opponents, as an innocent executed. I believe that Herrera, once upon a time, was also included in a previous incarnation of the DPIC list. A comment from Supreme Court Justice O'Connor. "[T]he proper disposition of this case is neither difficult nor troubling . . . The record overwhelmingly demonstrates that petitioner [Herrera] deliberately shot and killed Officers Rucker and Carrisalez the night of September 29, 1981; petitioner's new evidence is bereft of credibility. Indeed, despite its stinging criticism of the Court's decision, not even the dissent expresses a belief that petitioner might possibly be actually innocent." Herrera v. Collins, 506 US 390, 421(1993) (O'Connor, J., concurring)

Of all the world's social and governmental institutions, that do put innocents at risk, I am aware of only one, the US death penalty, that has no proof of an innocent killed since 1900. Can you name another?

I have proven this statement to be false. What of the legal system in the old south? There are books out now detailing the use of capital punishment against African Americans during several decades. No one will successfully argue that all of those executed during that time were guilty or deserving of being executed. I am not talking about lynch mobs, or riots. I am talking about court - sanctioned findings of guilt which resulted in executions. One might argue that these were "less than standard courts" but I reply the deaths were also "not standard" but just a certifiable and certain.

VII. Conclusion

No one disputes that an innocent sentenced to death is a horrible result. Appeals and commutation/clemency deliberations are an integral and inescapable part of a criminal justice system that both anticipate error and provide remedy. Both sides of the death penalty debate are equally concerned about the moral implication of executing an innocent. Those of us who support execution recognize that any innocents sentenced to death or executed injure our position.

A concern for the innocent will result in a rejection of a moratorium and more support for executions. Either by a moratorium, or by outright repeal, stopping executions will always put many more innocents at risk. Death penalty opponents knows this. Their alleged concern for innocents is but another distortion based campaign to end the death penalty.

When reason and all the facts prevail, support for executions will rise.

Your own words have proven you are willing to sacrifice one set of persons for another. You seem to be saying, overall, that the system is pretty darned good, innocents might be killed, but overall more other innocents might be saved. A moratorium on the death penalty plus a true, meaning real, life sentencing is the only real, practical solution. It obviates the innocent from ever being harmed, prevents the release of those who would kill again. Remind that I would want a redefinition of who would be put on "life without parole" I think we shouldn't let most murderers out, plain and simple. If we did that we'd have the best of both worlds.

Certainly

Certainly

FOOTNOTES cut due to length. Supplied upon request Copyright 1998-2005 DS

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DS to DB Debate letter #7

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In light of the fact that it is admitted that innocents have found their way to death row, the first of the two statements repeats, by implication that innocents are put to death, or have been, its just that the person being quoted has not seen the proof, strange when he just admitted that it happens.

Conceding that something has happened and acknowledging lack of proof for its actual occurrence is not strange. There are many things that reason, probability and common sense tell us have occurred that we may have no proof for.

The second says our system is the most accurate criminal justice sanction in the world, which it may be, even when it has an error rate that is extremely low. I am sure the low error rate is solace to someone who, in all his or her innocence awaits his or her death.

Nor for someone given probation or given a prison sentence. Solace, regret, horror are all understood in this context, but such was not the specific issue, here

An absolute punishment demands an absolute accuracy. We do not have absolute accuracy

There are many government and private institutions that we know will result in many innocent deaths. All death is absolute. All time lost, as an innocent incarcerated is also absolutely gone and cannot be returned. Innocents die in prison, with prison sentences. I find the evidence overwhelming that innocents are much more at risk without the death penalty. Your absolute statement spares guilty murderers at the cost of sacrificing more innocent lives.

There are two sets of states, those with and those without death penalties. The overall murder rate has risen and fallen over the decades. The murder rate between the two sets of states has had no significant difference during all that time. If the death penalty had some effect, this would have shown up in some detectable and significant differential in the rates between those two groups of states. There is not differential rate, there is no effect that is measurable.

Yes, it is measurable. And you wrongly assume.

Death Penalty and Deterrence: Let's be clear by DS, Justice Matters

In their story, "States With No Death Penalty Share Lower Homicide Rates", The New York Times did their best to illustrate that the death penalty was not a deterrent, by showing that the average murder rate in death penalty states was higher than the average rate in non death penalty states and, it is. (1)

What the Times failed to observe is that their own study confirmed that you can't simply compare those averages to make that determination regarding deterrence.

As one observer stated: "The Times story does nothing more than repeat the dumbest of all dumb mistakes &emdash; taking the murder rate in a traditionally high-homicide state with capital punishment (like Texas) and comparing it to a traditionally low-homicide state with no death penalty (like North Dakota) and concluding that the death penalty doesn't work at all. Even this comparison doesn't work so well. The Times own graph shows Texas, where murder rates were 40 percent above Michigan's in 1991, has now fallen below Michigan . . .." (2)

Within the Times article, Michigan Governor John Engler states, "I think Michigan made a wise decision 150 years ago," referring to the state's abolition of the death penalty in 1846. "We're pretty proud of the fact that we don't have the death penalty." (3)

Even though easily observed on the Times' own graphics, they failed to mention the obvious. Michigan's murder rate is near or above that of 31 of the US's 38 death penalty states. And then, it should be recognized that Washington, DC (not found within the Times study) and Detroit, Michigan, two non death penalty jurisdictions, have been perennial leaders in murder and violent crime rates for the past 30 years. Delaware, a jurisdiction similar in size to them, leads the nation in executions per murder, but has significantly lower rates of murders and violent crime than do either DC or Detroit, during that same period.

Obviously, the Times study and any other simple comparison of jurisdictions with and without the death penalty, means little, with regard to deterrence.

Also revealed within the Times study, but not pointed out by them,: "One-third of the nation's executions take place in Texas&emdash;and the steepest decline in homicides has occurred in Texas, Oklahoma, Louisiana and Arkansas, which together account for nearly half the nation's executions." (4)

And, the Times also failed to mention that the major US jurisdiction with the most executions is Harris County (Houston, Texas), which has seen a 73% decrease in murder rates since resuming executions in 1982 -- possibly the largest reduction for a major metropolitan area since that time.

Also omitted from the Times review, although they had the data, is that during a virtual cessation of executions, from 1966-1980, that murders more than doubled in the US. Any other rise and fall in murders, after that time, has been only a fraction of that change, indicating a strong and direct correlation between the lack of executions and the dramatic increase in murders, if that is specifically what you are looking for.

This is from the previous letter:

Let us take a look at some statistics from the FBI's Uniform Crime Reporting Program. This graphic shows that the 5 states with the highest murder rates all have capital punishment. It shows that of the 5 states with the lowest murder rates three do not have capital punishment, one, New Hampshire, does but has not used it in nearly 30 years. If capital punishment had the effect its defendants claim it would be the opposite of what is shown, if capital punishment varied so widely in application that comparing the two kinds of states was not rational we'd not see any overall pattern between those states with the highest rates and those with the lowest, however we do.

http://www.al.com/opinion/birminghamnews/choosinglife/rates.jpg

It would seem, implied anyway, that the capital punishment is associated with a higher rate of murder.

The southern region of the US has the highest murder rates despite carrying out more executions than other regions.

http://www.al.com/opinion/birminghamnews/choosinglife/murder_exec.jpg

And according with what seems to be the point of your piece below that one cannot accurately compare the statistics of death penalty and non death penalty states because there are to many variables to allow a simple comparison. So there is then no proof that the death penalty works to reduce crime or deter murderers from murdering. Does it?

The rise in the murder rates cannot then be solely connected to the lack of the death penalty can it? I mean over time the legal rights, procedures, guarantees and such like all might change. So might the paroling policies which would let murderers loose earlier or later. To many variables is what you mention before and I'd have to agree with you.

If deterrence was measured by direct correlation's between execution, or the lack thereof, and murder rates, as implied by the Times article, and as wrongly assumed by those blindly accepting that model, then there would be no debate, only more confusion. Which may have been the Times goal.

Let's take a look at the science.

Some non death penalty jurisdictions, such as South Africa and Mexico lead the world in murder and violent crime rates. But then some non death penalty jurisdictions, such as Sweden, have quite low rates. Then there are such death penalty jurisdictions as Japan and Singapore which have low rates of such crime. But then other death penalty jurisdictions, such as Rwanda and Louisiana, that have high rates.

To which an astute observer will respond: But socially, culturally, geographically, legally, historically and many other ways, all of those jurisdictions are very different. Exactly, a simple comparison of only execution rates and murder rates cannot tell the tale of deterrence. And within the US, between states, there exist many variables which will effect the rates of homicides

If I wanted to use your words against you here would be a good point to do just that. If what you say is true then there can be no way of proving, statistically speaking, that the death penalty works. How could it - if what you state as being true?

And, as so well illustrated by the Times graphics, a non death penalty state, such as Michigan has high murder rates and another non death penalty state, such as North Dakota, has low murder rates and then there are death penalty states, such as Louisiana, with high murder rates and death penalty states, such South Dakota, with low rates. Apparently, unbeknownst to the Times, but quite obvious to any neutral observer, there are other factors at play here, not just the presence or absence of the death penalty. Most thinking folks already knew that.

As Economics Professor Ehrlich stated in the Times piece and, as accepted by all knowledgeable parties, there are many factors involved in such evaluations. That is why there is a wide variation of crime rates both within and between some death penalty and non death penalty jurisdictions, and small variations within and between others. Any direct comparison of only execution rates and only murder rates, to determine deterrence, would reflect either ignorance or deception.

See the notes for Ehrlich below, a fraudulent study which has been percolating through the public debate for some time now.

Ehrlich called the Times study "a throwback to the vintage 1960s statistical analyses done by criminologists who compared murder rates in neighboring states where capital punishment was either legal or illegal." "The statistics involved in such comparisons have long been recognized as devoid of scientific merit." He called the Times story a "one sided affair" devoid of merit. Most interesting is that Ehrlich was interviewed by the Time's writer, Fessenden, who asked Ehrlich to comment on the results before the story was published. Somehow Ehrlich's overwhelming criticisms were left out of the article.

This then puts to rest the idea that the death penalty can be proven to work using such statistics or studies, so it would seem to an astute observer who would take your word at face value. I do not have to read the article you are decrying, your own "logic" makes this unnecessary.

"… the mid-1970's economist Isaac Ehrlich reported that his research had uncovered a significant deterrent effect. He estimated that each execution between 1933 and 1969 had prevented eight homicides (Ehrlich, 1975). This research gained widespread

attention, in part because Solicitor General Robert Bork used it to defend the death penalty in the 1970's when the Supreme Court was considering whether to make permanent its 1972 ban of the death penalty (Bedau, 1981:95). Although Ehrlich's work was strongly criticized for methodological and conceptual shortcomings by scholars (e.g., Forst, 1983; Waldo, 1981) and even a panel appointed by the National Academy of Sciences (Klein et al., 1978), it continues to be cited by some as more or less conclusive proof that the death penalty has a deterrent effect on homicide (e.g., Sowell, 1994)…"

See: http://sun.soci.niu.edu/~critcrim/dp/dppapers/mike.deterence

Ehrlich also referred Fessenden to some professors who produced the recently released Emory study. Emory Economics department head, Prof. Deshbakhsh "says he was contacted by Fessenden, and he indicated to the Times reporter that the study suggested a very strong deterrent effect of capital punishment." Somehow, Fessenden's left that out of the Times story, as well. (5).

There is a constant within all jurisdictions -- negative consequences will always have an effect on behavior. Copyright 2000-2004 DS

1) "States With No Death Penalty Share Lower Homicide Rates", The New

York Times 9/22/00 located at www.nytimes.com/2000/09/22/national/22STUD.html andwww.nytimes.com/2000/09/22/national/22DEAT.html

2) "Don't Know Much About Calculus: The (New York) Times flunks high-school math in death-penalty piece", William Tucker, National Review, 9/22/00, located at www.nationalreview.com/comment/comment092200c.shtml

3) ibid, see footnote 11

4) "The Death Penalty Saves Lives," AIM Report, August 2000, located atwww.aim.org/publications/aim_report/2000/08a.html

15) "NEW YORK TIMES UNDER FIRE AGAIN," Accuracy in Media, 10/16/00, go to www.aim.org/

DS

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DS to DB Debate letter #8

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Both high and low murder rates are found within death penalty and non death penalty jurisdictions, be it Singapore, South Africa, Sweden or Japan, or the US states of Michigan and Delaware. Many factors are involved in such evaluations. Reason and common sense tell us that it would be remarkable to find that the most severe criminal sanction -- execution -- deterred none. No one is foolish enough to suggest that the potential for negative consequences does not deter the behavior of some.

Yes, perhaps those who premeditate, not for the large majority for whom the death penalty had no bearing in their mind or spirit when they "did the deed."

There are both subconscious responses and instinctive responses that have an influence on behavior. I think almost all people recognize this. A large majority leaves a huge minority, when it comes to saving innocent life. All concede that deterrence only need to effect a few to be extremely important in this context.

Therefore, regardless of jurisdiction, having the death penalty will always be an added deterrent to murders, over and above any lesser punishments.

Hundreds of studies, over decades, counterbalance the few studies that you mention.

Actually, if you read the studies, they do not counterbalance them. Even the most well known anti death penalty academic now admits that the death penalty does deter. In fact, many will concede that all negative consequences deter some people.

THE DETERRENT EFFECT OF THE DEATH PENALTY by DS

" . . (E)ach execution results, on average, in eighteen fewer murders . . ."

Deterrence

The potential for negative consequences deters some behavior. The most severe criminal sanction -- execution -- does not contradict that finding. Reason, common sense, history and the weight of the studies support the deterrent effect of the death penalty. The death penalty protects innocent lives. The absence of the death penalty sacrifices innocent lives.

I have proven, using your own words, that the implementing of the death penalty causes the loss of innocent lives and while it may save some, trading numbers in this way is a grim game. The solution is a life imprisonment that means just that.

Is there any group, be they criminologists, historians, psychologists, economists, philosophers, physicians, journalists or criminals that does not recognize that the prospect of negative consequences constrains or deters the behavior of some? Of course not -- not even fiction writers so speculate. Even irrational people wear seat belts, choose not to smoke and do not rob police stations because of the potential for negative consequences.

My dear boy, I have to point out that people who murder are often times impaired in their mental state. Mental disability or disease, illegal drugs, alcohol, rage or other such debilitating factors are vital factors in the vast majority of murders. In such a state of mind one is not rational. One is not thinking of the consequences. One is not, properly speaking, thinking at all!

I. Seven Recent Deterrence Studies-- The death penalty saves innocent lives

CONTACT information for all of the study authors is within the footnotes

"The results are boldly clear: executions deter murders and murder rates increase substantially during moratoriums."

(2003) Emory University Economics Department Chairman Hashem Dezhbakhsh and Emory Professors Paul Rubin and Joanna Shepherd state that "our results suggest that capital punishment has a strong deterrent effect. An increase in any of the probabilities -- arrest, sentencing or execution -- tends to reduce the crime rate. In particular, each execution results, on average, in eighteen fewer murders -- with a margin of error of plus or minus 10." (1) Their data base used nationwide data from 3,054 US counties from 1977-1996.

The deterrence aspect of Capital Punishment is at best illusory. Please see this URL: http://www.tcadp.org/factsAndFigures.htm

(2003) University of Colorado (Denver) Economics Department Chairman Naci Mocan and Graduate Assistant R. Kaj Gottings found "a statistically significant relationship between executions, pardons and homicide. Specifically each additional execution reduces homicides by 5 to 6, and three additional pardons (commutations) generate 1 to 1.5 additional murders." Their "data set contains detailed information on the entire 6,143 death sentences between 1977 and 1997. (2)

Please see the prior article referenced, and then read this brief article for an overview and some pointed points:

http://www.geocities.com/pdaug1pg/End_Capital_Punishment.html

(2001) University of Houston Professors Dale Cloninger and Roberto Marchesini, found that death penalty moratoriums contribute to more homicides. They found: "The (Texas) execution hiatus (in 1996), therefore, appears to have spared few, if any, condemned prisoners while the citizens of Texas experienced a net 90 (to as many as 150) additional innocent lives lost to homicide. Politicians contemplating moratoriums may wish to consider the possibility that a seemingly innocuous moratorium on executions could very well come at a heavy cost." (3)

This argument has been dismissed.

(2001) SUNY (Buffalo) Professor Liu finds that legalizing the death penalty not only adds capital punishment as a deterrent but also increases the marginal productivity of other deterrence measures in reducing murder rates. "Abolishing the death penalty not only gets rid of a valuable deterrent, it also decreases the deterrent effect of other punishments." "The deterrent effects of the certainty and severity of punishments on murder are greater in retentionist (death penalty) states than in abolition (non death penalty) states." (4)

This argument has been dismissed.

(2003) Clemson U. Professor Shepherd found that each execution results, on average, in five fewer murders. Longer waits on death row reduce the deterrent effect. Therefore, recent legislation to shorten the time before execution should increase deterrence and thus save lives that are more innocent. Moratoriums and other delays should put more innocents at risk. In addition, capital punishment deters all kinds of murders, including crimes of passion and murders by intimates. Murders of both African Americans and whites decrease after executions. (5)

With error rates and releases from Death Rows as high as they are, any argument to speed along the process would only increase the possibility that an innocent would be executed. It is a ridiculous idea. Life with out parole, except perhaps for my version of parole, which is radically different from that currently allowed, is the only rationale solution. That plus putting more persons in the "life without parole" category.

(2003) FCC economist Dr. Paul Zimmerman finds: "Specifically, it is estimated that each state execution deters somewhere between 3 and 25 murders per year (14 being the average). Assuming that the value of human life is approximately $5 million {i.e. the average of the range estimates provided by Viscussi (1993)}, our estimates imply that society avoids losing approximately $70 million per year on average at the current rate of execution all else equal." The study used state level data from 1978 to 1997 for all 50 states (excluding Washington D.C.). (6)

This reference is suspect, not that it isn't real. But simply looking at what is written here one can see the problems: How could each state execution deter between 3 and 25 murders per year when states which have capital punishment have higher murder rates than states without it?

http://www.al.com/opinion/birminghamnews/choosinglife/rates.jpg

Then read this article for all sorts of fun facts and figures:

http://www.al.com/opinion/birminghamnews/index.ssf?/base/opinion/113127255523690.xml&coll=1

Then, if the average income of a US citizen is 30, 000 dollars a year and they work for 45 years, from age 20 to age 65, simple math shows that 1,350,000 would be more like the amount. If the average income was about 110,000 then simple math would show: this would get you about 5,000,000

Please see this for the cost, in North Carolina the cost for completing a capital case through to execution is 2 million dollars.

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=35801

The average cost of a capital trial hovers around 2 million dollars, from the article above, if that is so Death Penalty states are much more at risk for fiscal impact than are states with out that penalty

(2003) Emory University Economics Department Chairman Hashem Dezhbakhsh and Clemson U. Professor Shepherd found that "The results are boldly clear: executions deter murders and murder rates increase substantially during moratoriums. The results are consistent across before-and-after comparisons and regressions regardless of the data's aggregation level, the time period, or the specific variable to measure executions." (7)

The findings reflect reason, common sense and history.

"According to the standard economic model of crime, a rational offender would respond to perceived costs and benefits of committing crime." "Capital punishment is particularly significant in this context, because it represents a very high cost for committing murder (loss of life). Thus, the presence of capital punishment in a state, or the frequency with which it is used, should unequivocally deter homicide." Furthermore, "an increase in pardons (commutations) implies a decrease in the probability of execution, which economic theory predicts should have a positive (increase) impact on murder rates." (8)

Here again I stress the irrational nature of the perpetrator. Murder is not, generally, committed by one in their right mind. Most commonly, there is some form of inebriation, intoxication, mental problems, or rage. That is why the death penalty will not deter.

Isaac Ehrlich (1975) provided the first systemic analysis of the relationship between capital punishment and the crime of murder along with the first empirical analysis of the deterrence hypothesis. He found that each execution deterred, on average, 8 murders. Many additional studies have found corroborating evidence supporting the deterrent effect of the death penalty -- from the United States (Ehrlich, 1977, Layson, 1985, Cloninger, 1992, Ehrlich and Liu, 1999, Dezhbakhsh et al, 2000) and Canada (Layson 1983) and the UK (Wolpin, 1978). (9)

"A student of Ehrlich's, Stephen Layson, later reported his estimation that each execution deterred approximately 18 homicides (Layson, 1985). This

research, too, was criticized as fatally flawed (Fox and Radelet, 1989), but nonetheless it continues to be embraced by proponents of the death penalty (e.g., Cassell, 1993)."

See: http://sun.soci.niu.edu/~critcrim/dp/dppapers/mike.deterence

I wonder how this would logically be true if identical crimes in different parts of a given state are handled differently. It seems economics, and not only those of the perpetrator are involved in whether a case becomes handled as a capital crime or not. With such variables as these, how can such deterrence be determined for one thing.

http://www.cuadp.org/news/CL-20051108.htm

Pubic policy makers take note. Stopping executions will sacrifice innocent lives. Reinstating capital punishment will spare more innocent lives.

ll. Historical support

Reason, history and common sense all support that the potential for negative consequences deters or alters behavior. In short, incentives, negative or positive, matter. That is undisputed.

It is disputed, again I stress the irrational nature of murder. It is not, generally, committed by one in their right mind. Most commonly, there is some form of inebriation, intoxication, mental problems, or rage. That is why the death penalty will not deter. For those who are rational, who are coldly planning someone's death, the death penalty is not so much a deterrence. For these persons planning is supposed to obviate the concern for any penalty whatsoever at all.

Numerous, previous studies have also supported a deterrence finding. And the studies that find a deterrent effect of other criminal sanctions give additional support to the deterrent effect of the death penalty, because, if lesser sanctions deter, then we know that more severe sanctions also deter. The studies that find a deterrent effect of 1. increased police presence, or any other levels of security; 2. arrest/arrest rates; 3. criminal sentencing/incarceration terms; and 4. the presence of rules, laws and statutes all provide additional, collateral support for the deterrent effect of the death penalty. And there are likely hundreds, if not thousands, of such studies and examples (database in progress).

Please! The deterrence effects: for 1) increased police presence makes sense, the criminal can see the officer, or reasons that they are to close, thus they wait for the officer to move on, time the shift changes and so forth, 2) arrest rates do not stop someone from committing a crime, it only has them plan all the more carefully, taking such factors into consideration &endash; however such considerations are usually weighed after the fact, 3) punishment to the extent that it effects planning it forces the criminal to spend more time planning and understanding the nuances, perhaps, of the action(s) he or she is about to take, 4 the presence of rules, well, that makes all the difference doesn't it? Make a law and, poof, no one breaks it. Yet norms do have a force all their own. However, if you will note, all of those effects concern rational processes, thinking things through, planning and contemplating &endash; most murders are not done in that fashion. So this person's argument that the four aspects of deterrence lend collateral support fails, and miserably so.

lII. Negative consequences matter

Many have discounted a deterrent effect because of the irrationality of potential and active criminals. However, both reason and the evidence support that the potential for negative consequences does affect criminal behavior.

Criminals who try to conceal their crime do so for only one reason -- fear of punishment. Likely, more than 99% of all criminals, including capital murderers, act in such a fashion. Fear of capture does not exist without an expectation of punishment.

Ok, here again your words help me make my case. Yes, criminals conceal their act for fear of punishment, but by then they've already "done the act".

Fear of being discovered did not stop them from doing anything. The fear did not deter them did it?

This doesn't mean that they sit down before every crime, most crimes or even their first crime, and contemplate a cost to benefit analysis of a criminal action. Weighing negative consequences may be conscious or subconscious, thoughtful or instinctive. And we instinctively know the potential negative consequences of some actions. Even pathetically stupid or irrational criminals will demonstrate such obvious efforts to avoid detection. And there is only one reason for that -- fear of punishment.

Again in a rationally minded criminal this might be the case, somewhat. Fear of punishment is what makes them plan accordingly. The existence of a punishment does not stop the crime before it happens. It does not deter them from pursuing their "impulses' or making their plans. The punishment is something that is taken into account, but does not stop them. If the mere threat of punishment was a deterrent the laws now on the books would stop criminals before they did anything. Such is a ridiculous supposition to forward.

When dealing with less marginalized personalities, those who choose not to murder, such is a more reasoned group. It would be illogical to assume that a more reasoned group would be less responsive to the potential for negative consequences. Therefore, it would be illogical to assume that some potential murderers were not additionally deterred by the more severe punishment of execution.

Perhaps it would be more accurate to say that some potential murderers couldn't find a way to do kill without being caught. If they can figure they will not be caught the deterrence factor is eliminated. Then too this assumes that they are in their right mind and thinking clearly enough to evaluate their situation.

As legal writer and death penalty critic Stuart Taylor observes: "All criminal penalties are based on the incontestable theory that most (or at least many) criminals are somewhat rational actors who try so hard not to get caught because they would prefer not to be imprisoned. And most are even keener about staying alive than about avoiding incarceration." (10)

This person is a rational person. He believes others are rational too. This is simply not the case. We have many people who are not mentally stable, not emotionally stable, with addictions or mental illnesses &endash; for such as these the concept of rational planning is vastly different than what it may be for me or most anyone reading this.

Based upon the overwhelming evidence that criminals do respond to the potential of negative consequences, reason supports that executions deter and that they are an enhanced deterrent over lesser punishments.

There is no overwhelming evidence. Criminals may respond to negative consequences, but not when they are operating under some form of diminished capacity, psychologically or sociopathically impaired.

IV. The pre trial, trial and death row evidence - the survival effect

At every level of the criminal justice process, virtually all criminals do everything they can to lessen possible punishments. I estimate that less than 1% of all convicted capital murderers request a death sentence in the punishment phase of their trial. The apprehended criminals' desire for lesser punishments is overwhelming and unchallenged.

Of the 7300 inmates sentenced to death since 1973, 85, or 1.2% have waived remaining appeals and been executed. 98.8% have not waived appeals. The evidence is overwhelming that murderers would rather live on death row than die. Why? The survival effect -- life is preferred over death and death is feared more than life. Even on death row, that is the rule.

This is beside the point. By the time criminals who are incarcerated for murder, they've already killed one or more persons. Yes they want to survive. What of it? The threat of punishment clearly did not deter them from perpetrating the murder that caused them to be there in the first place.

Even such marginalized personalities as capital murderers fear death more than imprisonment. And that which we fear the most, deters the most. (kudos to Ernest van den Haag and many others)

As we have demonstrated it does not deter. Perhaps after a criminal is caught they may "go through changes" but up until then deterrence does not happen.

It is logical to conclude that some of those less marginalized personalities, who choose not to murder, also, overwhelmingly, fear death more than life, and, we, thus, logically conclude that some are deterred from murdering because of the enhanced deterrent effect of execution.

The evidence for the survival effect in pretrial, trial and appeals is overwhelming and that weighs in favor of execution as a deterrent and as an enhanced deterrent over lesser sentences.

The evidence of a murderers fighting for his or her life, going for appeals, pleading not guilty, their fear of death &endash; does not deter them. It has not.

If it did there would be some solid proof in the form of capital punishment states having a murder rate that is different from those of a non capital punishment state. In another letter you declared that "impossible to prove."

V. If unsure about deterrence

Common sense, reason and history all support that the potential for negative consequences restricts the behavior of some. But, if unsure of deterrence, we face the following dilemma -- If executions do deter, halting executions causes more innocents to be murdered and gives those living murderers the opportunity to harm and murder again. If the death penalty does not deter, and we do execute, we punish murderers as the jury deemed appropriate and we prevent those executed murderers from harming or murdering again.

And we risk, at this time, to me, substantial possibilities of executing innocents. That is unacceptable when a perfectly safe alternative exists.

That of true life sentencing.

In fact in 2004 President Bush signed into law the Justice For All Act. This act contained the Innocence Protection Act. Part of that act funds DNA testing for those already found guilty. According to the information on this act 100 persons have been exonerated from Death Row, 12 of them were proven innocent.

http://ccjr.policy.net/cjreform/ipa/

Oddly, death penalty opponents believe that the burden of proof is on those who say the death penalty is a deterrent. Clearly it is not. The weight of the evidence, within reason, history, common sense and the social sciences is that the potential for negative consequences restricts the behavior of some. That is not in dispute. Furthermore, if opponents cannot prove it is not a deterrent, which they never have and never will, then they are the ones who risk sacrificing innocents, both by absence of deterrence and reduced incapacitation.

It is not odd. It is perfectly just. You need to prove that a system which has in the past killed innocents, which has been demonstrably shown as inefficient, inaccurate and unproven. You yourself said that statistics which show DP states and Non DP states cannot be compared, the differences are to full of variables. Well, if that is the case the DP is not proven to be effective is it? It carries the risks of killing innocents. It is expensive and flawed. The burden of proof falls on DP proponents because of those factors alone. Yet there is another reason for them to carry that burden &endash; making law is a rational act. Each law has a purpose and functions within a framework. Since CP involves the taking of lives, a serious matter in a free society, the burden of proof falls on its proponents to prove that such a consequence clearly functions as intended, that there is absolute unequivocal proof that a permanent consequence, CP, performs its declared functions: to reduce crime and deter murderous acts. It does not do either of those things.

Regardless of jurisdiction, under all debated scenarios, more innocents are put at risk when we fail to execute. Any alleged concern for innocents weighs in favor of executions.

Again you trade one group of innocents for another. That is simply not good enough.

Vl. The individual deterrent effect

The individual deterrent effect is represented by those who state that they were deterred from committing a murder only because of the prospects of a death sentence. Individual cases support the enhanced deterrent effect. (11)

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. (12)

There are cases where the deterrent had no effect as well. Witness your own statements concerning convicted murderers in states with capital punishment who are released, for whatever reason, only to murder again. One would think such persons would learn. One would think they are deterred, they are not. Such cases as you have here are examples which are supportive of your viewpoint, the many others you cited in other letters are supportive of my viewpoint. There may be cases where deterrence is documented, just as there are many cases where it is not. In sum, at best, one can say deterrence sometimes occurs but one of your most important arguments concerns killers who area released in death penalty states only to kill again.

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. (13)

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.'' (13A)

Logic requires that the individual deterrent effect cannot exist without the general deterrent effect. Therefore, reason dictates that the general deterrent effect must exist. The question is not: "Does deterrence exist?" It does. The issue is: "What is the quantifiable impact of deterrence?"

I suggest that my solution, a "life imprisonment" that means exactly that, given to each and every murderer would have also have a deterrent effect and would not risk the loss of innocent life, would not put at risk those who may be killed by convicted murderers who are released on parole.

Individual cases support the individual deterrent effect and such cases insure that general deterrence must exist. And, for both, the evidence also suggests that executions provide enhanced deterrence over incarceration.

VlI. Conflicting studies

In reviewing 30 years of deterrence studies, the strongest statement one may make against deterrence is that there is conflicting data (14).

Such as the conflicting data you provide. When you talk of statistics from states with the death penalty which release convicted murderers on parole &endash; and speak of how these persons sometimes kill again. That data conflicts with the wonderful statements you collected regarding deterrence.

Yet, even when academic bias against capital punishment is overt, such as in the case of the American Society of Criminology -- the subtitle to their death penalty resources page is "Anti-Capital Punishment Resources" -- even they fail to state that the death penalty does not deter some potential murderers, only that "social science research has found no consistent evidence of crime deterrence through execution." (15) That is far from stating that executions do not deter. And the criminologists are, very likely, that academic group most hostile toward the death penalty. What social science conflicts with the notion that the potential for negative consequences restrains the behavior of some? And most would agree that execution is the most serious negative consequence that a murderer may face.

I enjoy using this person's quotes against him. For example while one could say that the quotation, "social science research has found no consistent evidence of crime deterrence through execution" is not the same as saying deterrence through execution does not work the logical parallel statement also cannot be made, which is to say, that deterrence through execution is not supported either. Since the writer used the quotation in support of their cause I feel perfectly free to use its logical parallel or corollary against him.

I think that many religious groups are against the death penalty, political figures are, national and international groups are. I think that criminologists are the least of the groups or figures in the collection of those who oppose the death penalty.

Numerous studies find that executions do deter. And there is a rational conclusion based upon common experience. It appears that all criminal sanctions deter some. It would be irrational to conclude that the most severe and publicized sanction -- execution -- does not deter some potential murderers.

This is incorrect. This paper lays to rest the idea that deterrence is anything like a strong force in crime prevention.

http://sun.soci.niu.edu/~critcrim/dp/dppapers/mike.deterence

Some of the findings in this report:

" … most deterrence research has found that the death penalty has virtually the same effect as long imprisonment"

Those studies which do not find deterrence say that they could not detect it, not that it doesn't exist. Those studies which find for deterrence state such.

As Professor Cloninger states: " . . . (Our recent) study is but another on a growing list of empirical work that finds evidence consistent with the deterrence hypothesis. These studies as a whole provide robust evidence -- evidence obtained from a variety of different models, data sets and methodologies that yield the same conclusion. It is the cumulative effect of these studies that causes any neutral observer to pause." (16)

Conflicting studies and reason both weigh in favor of the death penalty as a deterrent and as an enhanced deterrent over lesser punishments.

No they do not. Please see the relevant sections of this document which has been referenced before in this document:

http://sun.soci.niu.edu/~critcrim/dp/dppapers/mike.deterence

VII. The brutalization effect of executions

Some, particularly death penalty opponents, find that the brutalization effect is more likely than the deterrent effect. The brutalization effect finds that murders will increase because potential murderers will murder because of the example of state executions.

Why would potential and active murderers be so influenced by the state in such a deep philosophical manner, revealed by brutalization, but they wouldn't be more affected by the simple "you murder, we execute you?"

One would think you would not ask such a question as the answer is so obvious. First, many killings, as I've pointed out before, occur when the perpetrator is "not in their right mind" for whatever reason or reasons. Second, some people do fully and wholly believe in revenge. Mr. McVeigh is the most recent and famous example of someone who believes, deeply, in revenge. If the state has the right to kill, he felt he did too. If a person kills in response to the state's execution of someone they know or have positive regard for, the desire for revenge become paramount in their thinking and, outside of trying to "get away" with their crime, they perpetrate it anyway, despite being aware of the consequences, because they believe it is right for them to seek revenge. Thus a person can be effected by the state's act of execution and be completely unaffected by the consequences.

Death penalty opponents make an interesting about face on this issue. They insist that criminals are so thoughtless and impulsive that they can't be affected by the potential of negative consequences but, then, those same opponents see criminals as so contemplative that their criminal actions increase BECAUSE those criminals follow the example of the state. One might ask those opponents: "Is there any other government action which influences criminals in such a fashion?" Do criminals kidnap more BECAUSE the state increases incarceration rates? Do criminals give money to potential victims BECAUSE the state donates to needy causes?

Murderers, in the main, are those who act under some form of diminished capacity, though by no means all, there are some who plan quite carefully and extensively. The latter seem to have all their faculties intact. The fact is that because of the "state of mind" of the murder at the time he or she commits the act is "impaired" renders the idea of deterrence silly. The fact that others may see the state's willingness to execute offenders as a rationale for their own acts is, contrariwise, not so silly. I mean, groups of radicals in the US and elsewhere have used that justification when they execute those they deem fit for execution. I cannot say that this happens to any great extend but it has and does happen.

Murder rates and execution rates

Although deterrence is much more than a simple look at only execution rates and murder rates, we do find that as executions have risen dramatically, the murder rate has plunged.

From 1966-1980, a period which included our last national moratorium on executions (June 1967- January 1976), murders in the United States more than doubled from 11,040 to 23,040. The murder rate also nearly doubled, from 5.6 to 10.2/100,000. During that 1966-1980 period, the US averaged 1 execution every 3 years, with a maximum of two executions per year. From 1995-2000 executions averaged 71 per year, a 21,000% increase over the 1966-1980 period. The US murder rate dropped from a high of 10.2/100,000 in 1980 to 5.5/100,000 in 2000 -- a 46% reduction. The US murder rate is now at its lowest level since 1966 (17).

Scientific studies have consistently failed to find convincing evidence that the death penalty deters crime more effectively than other punishments. The most recent survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, concluded: ". . .it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment."

(Reference: Roger Hood, The Death Penalty: A World-Wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 230)

Reviewing the evidence on the relation between changes in the use of the death penalty and homicide rates, a study conducted for the United Nations in 1988 and updated in 2002 stated: "The fact that the statistics continue to point in the same direction is persuasive evidence that countries need not fear sudden and serious changes in the curve of crime if they reduce their reliance upon the death penalty".

Recent crime figures from abolitionist countries fail to show that abolition has harmful effects. In Canada, for example, the homicide rate per 100,000 population fell from a peak of 3.09 in 1975, the year before the abolition of the death penalty for murder, to 2.41 in 1980, and since then it has declined further. In 2003, 27 years after abolition, the homicide rate was 1.73 per 100,000 population, 44 per cent lower than in 1975 and the lowest rate in three decades.

(Reference: Roger Hood, The Death Penalty: A World-Wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 214)

The Texas example -- The murder rate in Harris County (Houston), Texas has fallen 73% since executions resumed in 1982, through 2000, from 31/100,000 to 8.5/100,000 (18). Harris County is, by far, the most active death penalty sentencing and execution jurisdiction in the US. The Harris County murder rate dropped nearly 70% more than did the national murder rate, during similar periods. Texas' murder rate dropped 62% during that same period, or 41% more than the national average.

Or the New York example:

The number of violent crimes continues to fall since the death penalty was overturned.

In 2004, the year when New York State's death penalty was overturned, the state's crime rate continued to drop, with murder going down 2.9% and violent crimes 5.9%. See the statistics: http://www.nyadp.org/main/crime0405

Most New Yorkers prefer life in prison without parole.

"By a margin of 46-42 percent, New Yorkers do not want to see the death penalty reinstituted. And by a nearly two-to-one margin (56-29 percent) they favor life without parole over the death penalty for first-degree murderers." See the statistics: http://www.nyadp.org/main/siena510

Here are a couple of other note worthy facts:

During the 1980's, death penalty states averaged an annual rate of 7.5 criminal homicides per 100,000 of population; abolition states averaged a rate of 7.4. Uniform Crime Reports, annually, 1980-1989

Homicide rates from 1907 - 1963 in New York (which carried out 692 executions during the period) showed an average of two additional homicides in the month following an execution. Bowers and Pierce 'Deterrence or Brutalization' in Crime of Delinquency (1980)

Potential murderers may have been affected by the example of the state of Texas but, likely, not in a manner consistent with brutalization.

And "(t)he biggest decline in murder rates has occurred in states that aggressively use capital punishment." (19)

Not that is not true. How could it be when the five states with the highest murder rates those with capital punishment, while of the five with the lowest rates three are abolitionist, one has not exercised the option in 30 years and the other is Utah something of a different kettle of fish.

http://www.al.com/opinion/birminghamnews/choosinglife/rates.jpg

After a thorough review of deterrence studies, Professor Samuel Cameron observed, "The brutalization idea is not one the economists have given any credence." "We must conclude that the deterrence effect dominates the opposing brutalization effect." (20)

Reason, history, common sense and the studies weigh against the brutalization effect.

Hardly

lX. The incapacitation effect

The incapacitation effect states that executed murderers cannot harm or murder again. Reason dictates that living murderers are infinitely more likely to harm and murder again than are executed murderers.

Not if they are given true "life imprisonment" sentences. Then they wouldn't be capable. I too, decry the release of convicted murderers from prison. But I usually argue against the death penalty on its own demerits. However, I have, in these letters, decided that an alternative is necessary since I do not approve of the status quo any more than my esteemed opponent in this debate.

That obvious logic escapes death penalty opponents who say that we can have foolproof incarceration. What hypocrisy. This is the same group of folks who tell us that our system of justice is so fraught with error that we cannot possibly continue the death penalty. Yet, the facts tell us that living murderers harm and murder again, in prison, after escape and after improper release. Executed murderers do not. In addition, the US death penalty appears to be that criminal justice sanction which is the least likely to convict the factually innocent and the most likely to remedy such rare error upon post conviction review.

Yes we can have foolproof incarceration. Unless you think our prison system is easy to escape from or that chipping cannot be made more effective or that other high tech solutions are not at all possible. The justice system is biased and does need fixing that is why a real "life sentence" is a far better solution than executions. It costs less, would unburden the courts, speed justice thereby and disallow any "capital error." It would ease the extradition of terrorists, say, and others from other nations who now do not send us the persons we need to try because we do have a death penalty. That is a problem that is, in this time in the world, quite important.

And still you persist, saying, "the least likely to convict the factually innocent" and I have to reply asking, how many innocents would be "OK" in your mind. What rate of that supreme act of horrific injustice would be acceptable?

Stuart Taylor: "Statistical studies and common sense aside, it's undeniable that the death penalty saves some lives: those of the prison guards and other inmates who would otherwise be killed by murderers serving life sentences without parole, and of people who might otherwise encounter murderous escapees". (21)

The death penalty may indeed same some lives just as it puts others at risk, again it seems those who favor this argument seem to believe that some grim calculus would be reasonable. If we only execute so many innocents then it is OK because a greater number of others might be saved. While such thinking is good for a battlefield commander, it is not good enough for a justice system which seeks to be, but is not yet, equitable where justice is truly blindfolded save for the weighing of objective facts and evidence.

Under all circumstances, the execution of murderers will protect innocents at a higher rate than will incarceration.

No, it would not, not at least not under all circumstances. Under all circumstances? What of the "circumstance" of a maximum security center where only life time prisoners who've murdered are kept? A center built with absolute detention in mind &endash; a national reserve as it were. With each inmate chipped, wearing a version of the computerized anklets which could impair their movement? With other technological devices that would render them unconscious or such like? Those circumstances are possible, it is just that we have not decided to provide them. My thinking has it that some form of parole would still be allowed, but the process would include the unanimity of the victim's family, friends or community, the justice system, counselors or other such appropriate professionals, as well as the perpetrator's family. All would have to be in agreement. This would or could be done only after the perpetrator has made restitution for the act in some way. There is some precedent for prisoners who make valuable contributions to society, the famed "Bird Man of Alcatraz" is one and there are others no doubt. In any case parole, the way I would view it, would a very difficult but not impossible goal for someone to work toward.

X. Death Penalty Opponents

Why is it that some death penalty opponents appear to laugh off any potential for a deterrent effect of executions? Because to admit that executions deter some potential murderers would be to admit that, in reaching their goals, they will knowingly benefit murderers at the cost of sacrificing more innocent lives. Of course, opponents will never prove it is not a deterrent and many will admit that executions do deter some.

I'd be willing to grant that some potential murderers are deterred if you would kindly admit that the vast majority of murderers have not thought whatsoever at all about the consequences of their act as they perpetrate it. At best they consider it afterwards which is small solace to those whose lives are either ruined or impacted.

Of course CP proponents will never prove it is a deterrent and many will admit that executions do not enter into the mind of a crazed, drug ruined junky bashing in the head of some hapless, homeless person who happens to have change jingling in his or her pocket as they pass by the maniac.

How many would still oppose executions if they knew that the evidence supported the deterrent effect and that many more innocents are put at risk by not executing?

Here we again have the grim calculus arguing that it is OK to put some innocents at risk by having a biased and unjust system operating so as to save others who are also innocent. My problem with this goes further, for every innocent person executed there is a killer who has successfully escaped. How many lives do such people take?

Also, for the serial killers or serial child molester/killers. These people are well aware of their nature. Most know the consequence of their acts, but are completely unable to stop themselves, turn themselves in and these keep on killing and killing and killing. Where is the deterrence effect for such as these? It does not exist for them.

Stuart Taylor: "So those of us who lean against the death penalty must confront the very real possibility that abolishing it could lead to the violent deaths of unknown numbers of innocent men, women, and children. And those who are still skeptical that the death penalty deters any killings must also confront the risk-benefit calculus suggested by political scientist John McAdams of Marquette University: '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.' " (22)

What this person is saying would be true if the abolition of the death penalty was not connected with a true life sentence and the securing of such persons in a place all their own with the kind of security that we know we can provide. Look at camp X-Ray in Cuba, no escapees there and these are supposedly the most dangerous persons in the world. If we can create a place that holds some thousand or more, we can create something that can hold more than that and keep everyone secure. All with no risk of innocents dying in any way.

Xl. Conclusion

Those of us who support execution do so because it is a just punishment. The moral foundation for all punishments is that they are deserved. One cannot support a punishment based upon deterrence alone.

No, too many of your kind support it out of revenge, to many say "life for life" to many believe that the state has the right to execute and to many simply do not support the kind of change I suggest, a true life sentence. I would be willing to bet the following: Given a true life sentence, the secure removal of any perpetrator of murder from society pending a completely amenable amelioration of the crime, as described earlier in my responses, that we'd have a deterrence that works, no innocents being killed either by the state or by released murderers, and that we'd be all the more secure for it.

Reason, common sense and history all fall on the side of deterrence. Be it Sweden or Rwanda, Texas or Michigan, Singapore or Chile, England or Japan, whether high crime rates or low, the death penalty will always deter some potential murderers. Regardless of jurisdiction, the potential for negative outcomes will always restrict the behavior of some. And, the weight of the evidence clearly supports execution as an enhanced deterrent.

As Professor Rubin states, "Our evidence is that there are substantial benefits from executions and, thus, substantial costs of changing this policy (23).

The key word in that statement is some. Yes, as I have said, I'll admit that some persons are deterred by the threat of capital punishment if the opposition will admit that for the vast most part the person committing murder is not at all thinking clearly and that they only think of the consequence after they've "done the deed."

We support execution as a just and appropriate forfeiture of lives which deserve to be taken. We also support execution as a just and appropriate method to save lives which deserve to be saved.

If you support just and appropriate forfeiture of lives how can you support a system which places innocents in danger of their lives? How can you support a system which by its bias, and inefficiency denies due process? How can you support a system that still puts innocents at risk and has killed them? How can you not support what I might call the "Camp X-Ray" Murderer's Reservation idea. It would obviate the possibility of innocents dying in any way, due to early release, escapees and the like. It would obviate all the objections any DP opponent has. It would be a non-absolute consequence for an imperfect system. It would work if we designed the facility correctly.

In Ohio Between 1927 and 1986, the state of Ohio released 6 men who had been condemned to death for murder based on evidence of actual innocence.

See: http://www.otse.org/issuesmore.htm#innocence

So how is putting innocents in jail for the crime that someone else does just and appropriate? What if these persons had not been found innocent? How do we KNOW that others who were innocent simply fell through the proverbial cracks in the "system"?

Most all of these following references have been countered by arguments given above. Some have were specifically searched out and countered in the text above. Others, being supportive or similar were not specifically countered.

1). "Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data," American Law and Economics Review V5 N2 2003 (344-376), Hashem Dezhbakhsh, Paul H. Rubin and Joanna M. Shepherd. contact Dezhbakhsh at econhd@emory.edu, ph 404-727-4679, Rubin at prubin@emory.edu, and Shepherd at jshepherd@law.emory.edu, ph.

The quotation is from the complete, pre publication study which can be found at http://userwww.service.emory.edu/~cozden/Dezhbakhsh_01_01_paper.pdf

(This has been dismissed, by earlier references or arguments.)

2) "Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment," Journal of Law and Economics, Volume 46, Number 2, October 2003, at www.journals.uchicago.edu/cgi-bin/resolve? JLE460202

registration required

H. Naci Mocan (mmocan@carbon.cudenver.edu,) and R. Kaj Gottings (rgitting@carbon.cudenver.edu),

This is a revised version of "Pardons, Executions and Homicide," NBER WP8639) at econ.cudenver.edu/moan/papers/GettingOffDeathRow.pdf

The quote is from the working paper "Pardons, Executions and Homicide," October 2001, located at http://econ.cudenver.edu/Beckman/kai.pdf downloaded on 1/22/01

(This has been dismissed, by earlier references or arguments.)

3) "EXECUTION MORATORIUM IS NO HOLIDAY FOR HOMICIDES", Prof. Dale O. Cloninger and Prof. Roberto Marchesini. go to http://www.prodeathpenalty.com/Moratoriums.htm

based on the study "Execution and deterrence: a quasi-controlled group

experiment", Dale O. Cloninger (cloning@cl.uh.edu), Roberto Marchesini (martinis@cl.uh.edu), Applied Economics, 4/01, Vol. 33, N 5, p569 -- p576

(This has been dismissed, by earlier references or arguments.)

4) Capital Punishment and the Deterrence Hypothesis: Some New Insights and Empirical Evidence, December 2001, Eastern Economic Journal, Forthcoming , ZHIQIANG LIE (e-mail zqliu@buffalo.edu) on line at http://papers.ssrn.com/sola/papers.cfm?abstracted=352681

(This has been dismissed, by earlier references or arguments.)

5) Murders of Passion, Execution Delays and the Deterrence of Capital Punishment, March 2003, at http://people.clemson.edu/~jshephe/, Joanna M. Shepherd, jshepherd@law.emory.edu

6). "State Executions, Deterrence and the Incidence of Murder", Paul R. Zimmerman (jimmy@att.net), March 3. 2003, Social Science Research Network, http://papers.ssrn.com/sola/delivery.cfm/SSRN_ID354680_code021216500.pdf?abstracted=354680

(This has been dismissed, by earlier references or arguments.)

7) Dezhbakhsh, Hashem and Shepherd, Joanna, "The Deterrent Effect of Capital Punishment: Evidence from a 'Judicial Experiment'" (Aug 19, 2003). Emory University Economics Working Paper No. 03-14 at

ssrn.com/abstract=432621

contact Dezhbakhsh at econhd@emory.edu or ph 404-727-4679 and Shepherd at jshepherd@law.emory.edu

(This has been dismissed, by earlier references or arguments.)

8) "Pardons, Executions and Homicide," H. Naci Mocan (mmocan@carbon.cudenver.edu) and R. Kaj Gottings (rgitting@carbon.cudenver.edu), Journal of Law and Economics, forthcoming. Online version located at

http://econ.cudenver.edu/Beckman/kai.pdf

downloaded on 1/22/01

(This has been dismissed, by earlier references or arguments.)

9) Professor Ehrlich, e-mail mgtehrl@acsu.buffalo.edu. For support and defense of his work go to: http://wings.buffalo.edu/economics/IEcrime.html

Review from Capital Punishment and the Deterrence Hypothesis: Some New Insights and Empirical Evidence, December 2001, Eastern Economic Journal, Forthcoming , ZHIQIANG LIE, e-mail zqliu@buffalo.edu, on line at http://papers.ssrn.com/sola/papers.cfm?abstracted=352681

"… the mid-1970's economist Isaac Ehrlich reported that his research had uncovered a significant deterrent effect. He estimated that each execution between 1933 and 1969 had prevented eight homicides (Ehrlich, 1975). This research gained widespread attention, in part because Solicitor General Robert Bork used it to defend the death penalty in the 1970's when the Supreme Court was considering whether to make permanent its 1972 ban of the death penalty (Bedau, 1981:95). Although Ehrlich's work was strongly criticized for methodological and conceptual shortcomings by scholars (e.g., Forst, 1983; Waldo, 1981) and even a panel appointed by the National Academy of Sciences (Klein et al., 1978), it continues to be cited by some as more or less conclusive proof that the death penalty has a deterrent effect on homicide (e.g., Sowell, 1994)…"

See: http://sun.soci.niu.edu/~critcrim/dp/dppapers/mike.deterence

10) "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm

11) see paragraph 14, Section B, "The Incapacitation and the Deterrence Effects," Death Penalty and Sentencing Information in the United States, 10/1/97, at http://www.prodeathpenalty.com/DP.html

12) "Largely says Texas death penalty affected his actions during escape," by Stephen Martin, The Daily Democrat (Ft. Madison, Iowa), 1/8/97, pg. 1.

13) Blecker book

13A) California District Attorneys Association, ''Prosecutors Perspective on California's Death Penalty,'' March 2003

14) Section B, "The Incapacitation and the Deterrence Effects," Death Penalty and Sentencing Information in the United States, 10/1/97, at http://www.prodeathpenalty.com/DP.html

15) "SAC RESOLUTION ON THE DEATH PENALTY", SAC Annual Meeting, Montreal, 1987, Anti-Capital Punishment Resources from the Sac's Critical Criminology Division, go to http://sun.soci.niu.edu/~critcrim/dp/dp.html

last viewed 12/2/01.

16) "Execution and deterrence: a quasi-controlled group experiment", Dale O. Cloninger (cloning@cl.uh.edu), Roberto Marchesini (martinis@cl.uh.edu), Applied Economics, 4/01, Vol. 33, N 5, p569 -- p576, located at http://ideas.repec.org/a/taffy/apple/v33y2001i5p569-76.html

17) i) Homicide trends in the U.S., Long term trends, Homicide victimization, 1950-99, Bureau of Justice Statistics, Source: FBI, Uniform Crime Reports, 1950-2000 at http://www.ojp.usdoj.gov/bis/homicide/tables/totalstab.htm, Page last revised on January 4, 2001

(ii) Crime in the United States -- 2000, Section II -- Crime Index Offenses Reported, "Murder and non negligent homicide," FBI, Uniform Crime Reports at http://www.fbi.gov/cur/cius_00/00crime2_3.pdf

(iii) "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/bis/glance/tables/exetab.htm

18) Texas Department of Public Safety, Uniform Crime Reporting, Harris County data, from 1982 and 2000 database.

19) Boston Globe, 10/28/97, p A12

20) "A Review of the Econometric Evidence on the Effects of Capital Punishment", The Journal of Socio-Economics, v23 n 1/2, p 197-214, 1994

(This has been dismissed, by earlier references or arguments.)

21) "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at

http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm

22) "Does the Death Penalty Save Innocent Lives?", Stuart Taylor, National Journal. D.C. Dispatch, 5/31/02 at

http://www.theatlantic.com/politics/nj/taylor2001-05-31.htm

(This has been dismissed, by earlier references or arguments.)

23) "Death penalty deters scores of killings ," Paul H. Rubin, The Atlanta Journal-Constitution: 3/13/02, from

www.accessatlanta.com/a/c/opinion/0302/0314death.html

(This has been dismissed, by earlier references or arguments.)

copyright 1998-2005 DS

Racial issues

White murderers are twice as likely to be executed in the US as are African American murderers and are executed, on average, 12 months more quickly than are African American death row inmates.

Funny you should put this up as a defense of the system. If this were the case then it seems to demonstrate that the race of the individual does matter in the course of justice. It verifies one of the things I have been saying, so I thank you, the system is biased because the race of the defender matters.

It is often stated that it is the race of the victim which decides who is prosecuted in death penalty cases. Although African Americans and whites make up about an equal number of murder victims, capital cases are 6 times more likely to involve white victim murders than African American victim murders. This, so the logic goes, is proof that the US only cares about white victims.

Hardly. Only capital murders, not all murders, are subject to a capital indictment. Generally, a capital murder is limited to murders plus secondary aggravating factors, such as murders involving burglary, car jacking, rape, and additional murders, such as police murders, serial and multiple murders. White victims are, overwhelmingly, the victims under those circumstances, in ratios nearly identical to the cases found on death row.

Ohio, typical of other states, has this to report out:

Nationally, those who kill white people are four times as likely to be sentenced to death as those who kill people of color In Ohio, "[o]fenders facing a death penalty charge for killing a white person were twice as likely to go to death row than if they had killed a black victim. Death sentences were handed down in 18 percent of cases where the victims were white, compared with 8.5 percent of cases where victims were black." Victim demographics in Ohio for the year 2002 show that Caucasians accounted for 66% of the total victims in capital cases, while African-Americans only accounted for 29% of the victims in capital cases, although people of color make up more than half of all the homicide victims.

http://www.otse.org/issues.htm#racialbias

Any other racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system, as confirmed by studies from the Rand Corporation (1991), Smith College (1994), U of Maryland (2002), New Jersey Supreme Court (2003) and by a view of criminal justice statistics, within a framework of the secondary aggravating factors necessary for capital indictments.

The first statement might well be true, but look at it this way, the number of poor people on death row vastly outnumbers the number of rich. This is true for a reason: poverty is a factor in the justice system. Some can afford to mount an effective defense. The system allows this. And so a rich person who murders someone is far less likely to be executed than an abysmally poor one. Just as this is true an African American who murders is far more likely to face the death penalty, all the more so if he or she is poor.

Racism is a factor in our society. The justice system is part of our society and it has a racial factor, bias if you will, built into it, as a rule of thumb. There are other biases as well, those of property rights, business interests, and religiosity, but they are not especially germane to this discussion.

This in from New Mexico:

The death penalty is applied unfairly and arbitrarily.

In 1999, the American Bar Association, a conservative group of 400,000 lawyers, reiterated its call for a moratorium on executions because of serious concern with racial disparity in death sentences and the failure to provide adequate counsel and resources to capital defendants. In January 2000, Republican Governor George Ryan called for a moratorium on executions in the state of Illinois and in May 2002 Governor Paris Glendening did the same in Maryland. In January 2003, Governor Ryan pardoned four men and commuted the sentences of 167 death row inmates to life without parole or less because he found the death penalty process "arbitrary and capricious and therefore immoral". The men currently on New Mexico's death row could not afford to hire their own lawyers. In January 2002, Republican Governor Gary Johnson declared New Mexico's death penalty to be bad public policy because it was not applied fairly and innocent people could be executed.

See the resource: http://nmrepeal.org/DPF1.htm

The Death Penalty: Neither Hatred nor Revenge

Death penalty opponents say that the death penalty has a foundation in hatred and revenge. Such is a false claim.

This simply is debatable. Many who write me about my stance on the death penalty claim that this is the reason they support it, to kill the killer as they say. One said, "It's no crime to kill a killer". And, logically speaking, I had a field day with that statement.

A death sentence requires pre existing statutes, trial and appeals, considerations of guilt and due process, to name but a few. Revenge requires none of these and, in fact, does not even require guilt or a crime.

Many supporters of the death penalty quote the famous Eye for an eye quotation and, in their view, the justice system is merely the means to obtaining revenge. They say it all the time. You may not, or this writer may not, but the people who write me do, fervently, believe that revenge is, or should be, the purpose of the death penalty.

The criminal justice system goes out of its way to take hatred and revenge out of the process. That is why we have a system of pre existing laws that limit punishments and prosecutions to specific actions in response to specific rules of evidence and procedure. And it is also why those directly affected by the murder are not allowed to be fact finders in the case.

They can try to take it out of the system, but that is a whole different thing than taking it out of a survivor's heart, out of a family's mind and soul, or dealing with cultural values that instill a righteousness to those who right wrongs. Mr. McVeigh was seeking revenge and so were some of the survivors of his horrid act. The system, if you will recall, is made up of persons, flawed, human persons whose feelings do effect how they act, react, and read evidence.

Calling executions a product of hatred and revenge is simply a way in which some death penalty opponents attempt to establish a sense of moral superiority. It is also a transparent insult which results in additional hurt to those victim survivors who have already suffered so much and who believe that execution is the appropriate punishment for those who murdered their loved one(s).

I don't believe that all death penalty cases involve revenge, I do not now offer that as a reason for challenging its legitimacy. I do say that many, many of its supporters voice revenge as being the primary reason why they support it. Say what you will about the detractors of the death penalty, but it is the persons who support it who do so because they want the system to exact revenge for murder.

Those opposed to execution cannot prove a foundation of hatred and revenge for the death penalty any more than they can for any other punishment sought within a system such as that observed within the US.

Dear Sir, I have seen the proof. You can find the proof as well. Just go to a bar on a Friday night and start talking about the death penalty. You will hear, from its supporters that vengeance is a big part of their equation.

The punishment of death can in no way be a balancing between harm and punishment, because the victim did not deserve or earn their punishment, whereas the murderer has earned their own, deserved punishment by the free will action of violating societies laws and an individuals life and, thereby, voluntarily subjecting themselves to that jurisdictions judgment.

You are saying that the death penalty cannot balance harm and punishment because the victim did not earn their consequence while the perpetrator did. First I have to say that it bizarrely strange you call it the victim's suffering punishment, I would have thought you'd not use that word there, it is so inappropriate, misleading, or, at the least, in error. Second, this is an old argument, saying that the perpetrator, in making a choice, has sealed his or her fate.

Pretty sentiments, but it is rather misleading for all that. As I said toward the beginning many classes of murderers do not make the choice to kill, indeed, many never considered the possibility that they'd kill. Many did not intend or mean to kill. Yet, many of these are treated as if that is exactly what they did do.

Far from hatred and revenge, the death penalty represents our greatest condemnation for a crime of unequaled horror and consequence. Lesser punishments may suffice under some circumstances. A death sentence for certain heinous crimes is given in those special circumstances when a jury finds such is more just than a lesser sentence.

I have to repeat since you do, that revenge is a large portion of the reason why persons support the death penalty. I also feel that it is not the, as you put it, greatest condemnation. I have other options in mind, ones that would, upon consideration, be far worse and have none of the drawbacks that capital punishment has. I believe in restitution and amelioration. In sum the person perpetrator lives until such time as they an repay damages to their victim, reimburse the state for the costs of their being found, and are forgiven in full by their victims survivors, community or interested parties. There would be no such thing as parole for any murderer, at all, until those conditions would be met. The perpetrator would be available to their victim's survivors and have to face the consequences of their act. They'd be coerced to work so as to produce some measure of recompense to their victim's survivors and community.

This, not the death penalty, would be a true deterrent to crime, and for all the reasons that the death penalty is supposed to have, and with none of the drawbacks.

I have thought about this and written about it, but I prefer to argue against the death penalty and challenge it on its own ground.

sincerely, DB

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DS to DB Debate letter #9

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Racism is a factor in our society. The justice system is part of our society and it has a racial factor, bias if you will, built into it, as a rule of thumb.

No one disputes that there is racism and/or "other"ism in all communities and societies.

. . . the number of poor people on death row vastly outnumbers the number of rich. This is true for a reason: poverty is a factor in the justice system. Some can afford to mount an effective defense. The system allows this. And so a rich person who murders someone is far less likely to be executed than an abysmally poor one. Just as this is true an African American who murders is far more likely to face the death penalty, all the more so if he or she is poor.

Whites murderers are twice as likely to be executed as African American murderers and white death row inmates are executed more quickly than African American death row inmates.

No one disputes that wealthier defendants can hire better lawyers and, therefore, should have a legal advantage over their poorer counterparts. The US has executed about 0.15% of all murderers since new death penalty statutes were enacted in 1973. There is no evidence that wealthier capital murderers are less likely to be executed than their poorer ilk, based upon the proportion of capital murders committed by wealthier criminals.

You say no one disputes wealthier defendants can hire better lawyers and there fore, should have a legal advantage. But in some bizarre logic come to the conclusion that it doesn't matter. You cannot say one thing and then assert its opposite. One can be true or the other, but not both.

RACE: A Death Penalty Primer by DS, Justice Matters

5 studies are reviewed, herein

1) For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review is class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

How could population count be irrelevant? When proportionate representation and or disproportionate representation in legislatures, schools, business, home ownership, as well as a raft of other societal measures have been used to prove and disprove bias, prejudice, and discrimination? They have been used to determine whether or not Gerrymandering has been done in representative districts. The disproportionate representation of ethnic minorities on death row is an indicator or social imbalance. So how can you say that class is not relevant? Is it possible that you do not know that minorities are over represented in the lower and lowest of classes? Simply, if class is relevant, race is relevant.

Then you say that the distribution of ethnicity when comparing the ethnicity of perpetrator versus victim is a relevant factor. You might be right but it would only weaken your argument no matter which way it proved out.

If it is proven, that one race is more the victim of the other that would only indicate the existence of prejudice, tension between races and such like. If there is no exceptional difference in the victims versus perpetrator ratios then it is simply irrelevant, if equal numbers of minorities kill majorities and visa versa.

2) Drs. Stephen Klein and John Rolph

"Relationship of Offender and Victim Race to Death Penalty Sentences in California"(Jurimetrics Journal, 32, Fall 1991, aka The Rand Corporation Study), 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 . . . ".

3) 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 African American/white variation in sentencing has generally been reduced to zero when such legal variables are introduced as controls.

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

Look at what you quoted (see #1) as a means of supporting your claim that race does not matter: "For emphasis, population count is TOTALLY irrelevant, regarding any consideration of class or race/ethnicity bias in the application of the death penalty. The ONLY relevant factors in such a review are class, race/ethnic distribution of murderers and their victims in capital murders, as well as criminal history and the specific circumstances of the crime(s).

This quotation mentions class as being relevant. Since African Americans are more of one class than another, the classist effect is also simultaneously a racist one and view it this way if you want, we still have African Americans disproportionately being affected by death penalty laws.

Population counts comparing the proportionate representation of one race as opposed to another on death row do indicate bias. Just as such, comparisons have been used to determine the effect of systemic prejudice in other parts or institutions of our society, even if no singular event, person, or case can be proven. You cite five studies, when there are decades of civil rights actions, supreme court decisions, lawsuits, lower court decisions and even the flawed Affirmative Action laws which recognize such conditions as evidence for bias and use such statistics to prove a need for redress.

Systemic problems do exist and therefore population count is not irrelevant and it is, therefore, at least one indicator that the system is biased. It is also biased in favor of economic status. Given the "norms" or "betting expectations" that are evident one can clearly state the obvious: a poor African American man is more likely than a rich African American man of being found guilty and rich white man would be less likely than either of those to be convicted.

Also, in 96% of the states where there have been reviews of race and the death penalty there was a pattern of race-of-victim or race-of-defendant or both. (Professor David Baldus' report to the ABA, 1998)

It was a great relief, however, to learn that the excerpts you provided assured me that there is no absolutely no racial bias in the New Jersey justice system despite your commentary to the contrary. I am sure that those persons of color, residing in New Jersey, would overwhelmingly support your assertion, not.

Those items, #1, #2, and #3, are therefore, are belied by the facts mentioned above. There is systemic bias. Are we to believe that a biased system, investigating itself and then, subsequently, exonerating itself is to be a fair measure proving a lack of bias? Indeed, and especially, when so much would be at stake?

For the following items, #4 and #5, I offer these salient points:

Since 1973, over 100 people have been released from death row with evidence of their innocence. (Staff Report, House Judiciary Subcommittee on Civil and Constitutional Rights, Oct. 1993, with updates from DPIC).

In 2000, 8 inmates were freed from death row and exonerated; in 201 &endash; 2002 12 were freed; and in 2003, 12 were exonerated. In 2004, there were 6 exonerations.

According to information at http://www.deathpenaltyinfo.org/FactSheet.pdf, 99% of the chief district attorneys are white; only 1% are African American that is a substantial indicator of systemic bias.

Over 80% of the murder victims in cases resulting in an execution were white, even though, nationally, only 50% of the murder victims generally are white.

Putting these facts together we can say the following: since African Americans are disproportionately represented on death rows around the nation, since the system has a substantial error rate, (After the reinstatement of the death penalty about 1,000 have been executed and here we see evidence that more than 100 have been removed from death row producing an error rate in excess of 10%), since the teams leading the prosecution are almost exclusively white and there is a national trend indicating bias in the victim vis a via perpetrator, we have, as the astronauts once told Houston, "a problem"

It is simply irrational to expect an all to human system, beset by biases, which varied over the generations from those against race, religion, and economic status to those against political views, that it perform, as you claim, with absolute perfection. You have quoted others as saying that there is not one case of an innocent person being executed. This is, to me marvelous, not a single error in any state, at any time during the last 100 years? Even though in other letters you admit that persons were removed from the Death Row? Truly a quite remarkable statement of belief and evidence of a faith which once stated in this way shows itself to be not only unrealistic, but unreasonable as well.

4) NO BIAS IN DEATH SENTENCING:

U of Maryland's Death Penalty Study (1)

The following are direct quotes from the Executive Summary of the U of Maryland study.

Race of the victim

"The race of the victim effect does not hold up, however, at the decision of the state's attorney to advance a case to penalty trial and at the decision of the judge or jury to impose a death sentence given that a penalty trial has occurred." p 27

In other words, the victim's race has no impact on seeking or giving death sentences.

"The race of the victim does not appear to matter when the decision is to advance a case to the penalty phase or to sentence a defendant to death after a penalty phase hearing." page 29

In other words, the victim's race has no impact on seeking or giving death sentences

"Among the subset of cases where the case actually does reach a penalty trial, the victim's race does not have a significant impact on the imposition of a death sentence." page 35

In fact, the study fails to demonstrate that there is any race of the victim effect in death sentencing in Maryland.

"When the prosecuting jurisdiction is added to the model the effect for the victims race diminishes substantially, and is no longer statistically significant." page 32

In other words, when you look at the capital murder cases, from each, separate jurisdiction, individually, any alleged race of the victim effect cannot be found.

" . . . any attempt to deal with any racial disparity in the imposition of the death penalty in Maryland cannot ignore the substantial variability that exists in different state's attorney's offices in the processing of death cases." p 34

In other words, it is important to look at how each jurisdiction handles their capital cases, because each jurisdiction is different. And when that is done, no bias in death sentencing is found.

Race of victim and defendant

"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing." page 30

In other words, neither the race of the defendant nor the race of the victim have an impact on seeking or giving death sentences.

Race of the defendant

" . . . there is no evidence that the race of the defendant matters at any stage once case characteristics are controlled for." page 26

" . . . we found no evidence that the race of the defendant matters in processing of capital cases in the state." p 26

In other words, Maryland is not looking at race, but is concentrating on the nature of the murders.

(1) Executive Summary: An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction, www.urhome.umd.edu/newsdesk/pdf/exec.pdf

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

In response to #4 I have the following resources to offer the considerate reader of this debate:

In 2004 the "Innocence Protection Act" was passed. Part of its provisions were for DNA testing in capital cases. Part of success of this act was evidenced by the fact that of the more than 100 people exonerated from death row, more than a dozen were proven innocent via DNA testing.

See: This link: http://ccjr.policy.net/cjreform/ipa/

Regarding racial bias statistics, this brief article instructs:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=34201

This comprehensive study, which discovered racial and gender bias in many areas of the justice system, recommended a moratorium on executions in Pennsylvania, until the role of race in death-penalty cases can be examined.

This link below has a summary of the finding, a link to the actual study itself is also on that web page:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=33826

Poverty is a factor, here is a report from Georgia the title of which is "If you cannot afford a lawyer" despite the Georgia Supreme Court decision Gideon vs Wainwright, guaranteeing right to counsel, it simply is not happening for many individuals. Here is a link to the overview of the situation:'

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=33828

Here is the link, a pdf file, which details facts and figures:

http://ccjr.policy.net/relatives/21303.pdf

5) No Racial Bias in the New Jersey Death Penalty System

New Jersey For release: February 11, 2003 For further information contact Winnie Comfort, AOC (609) 292-9580 Report on Proportionality Released Trenton, N.J.

The 2002 report essentially mirrors the findings contained in the 2001 report, and may be summarized as follows:

--There is no sustained, statistically significant evidence that the race of the defendant affects which cases advance to penalty trial. Although bivariate analysis reveals that a greater proportion of death-eligible white defendants than African-American defendants advance to the penalty phase, that finding is not supported by regression studies and application of case-sorting techniques. There is no sustained, statistically significant evidence that the race of the defendant affects which cases result in imposition of the death penalty. Again, although bivariate analysis reveals that a greater proportion of death-eligible white defendants are sentenced to death than African-American defendants, that finding is not supported by regression studies and application of case-sorting techniques.

--There is statistically significant evidence that white victim cases are more likely than African-American victim cases to advance to penalty trial, but that finding is eradicated when county variability is taken into account. A disproportionate number of minority victim cases are tried in counties with the lowest overall rates of progression to penalty trial, while less urban counties with a high concentration of white victim cases have higher rates of capital prosecutions. Although Judge Baime notes that county variability may itself be a problem, he offers no opinion on the subject because that issue is well beyond the contours of his report.

--There is no sustained, statistically significant evidence that white victim cases are more likely than minority victim cases to result in imposition of the death penalty

The New Jersey Supreme Court has accepted the 2002 annual report prepared by Judge David S. Baime, a retired Appellate Division judge, on the monitoring of proportionality review in capital punishment cases in New Jersey. The Supreme Court adopted a monitoring system in 2000 to determine whether racial discrimination played a role in the administration of New Jersey's capital cases.

In his capacity as a "special master," a role that requires extrajudicial expertise and work with court-appointed experts, Judge Baime prepared the "Report to the New Jersey Supreme Court: Systemic Proportionality Review Project 2001-2002 Term." .

Judge Baime was assisted by statistical analysts David Weisburd, a professor at The Hebrew University of Jerusalem and The University of Maryland, College Park, and Joseph Naus, a professor at Rutgers University. In an effort to provide the most accurate analysis possible, the monitoring system approved by the Court consists of three different statistical strategies: bivariate analyses, regression studies and case-sorting techniques. In order to establish systemic disproportionality, a defendant must relentlessly document the risk of racial disparity. This requires that the outcomes produced by the three modes of analysis substantially converge, or lead to the conclusion that racial discrimination plays a part in capital sentencing.

The three modes of analysis were applied to three separate decision points: death outcomes at penalty trials, death outcomes among all death-eligible cases, as determined by Judge Baime and the Administrative Office of the Courts (AOC), and advancement of death-eligible cases to penalty trials. Three identifiable groups--African-Americans, whites, and Hispanics--were examined, and possible disparities in terms of the race or ethnicity of the defendant and the race or ethnicity of the victim were considered.

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

In response to #5 I have the following resources to offer the considerate reader of this debate:

An Empirical Analysis of Maryland's Death Sentencing System With Respect to the Influence of Race and Legal Jurisdiction

When the race of the offender and victim are examined together, the study finds: Black offenders who kill blacks are significantly less likely to face the death penalty, while black offenders who kill whites are significantly more likely to face a death sentence than all other racial combinations. Prosecutors in different jurisdictions exhibit considerable variation in the extent to which they seek the death penalty

Here is the link to the summary of the finding:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=32881

Here is a link to a pdf file for the details:

http://ccjr.policy.net/relatives/21200.pdf

Report of Former Governor Ryan's Commission on Capital Punishment

Gov. Ryan submitted the recommendations to the state legislature for implementation. While some recommendations have been adopted, many still need to be addressed. Upon leaving office in 2003, Governor Ryan, believing that Illinois' system was still "broken," commuted the sentences of the remaining 167 people on death row.

The summary:

http://ccjr.policy.net/proactive/newsroom/release.vtml?id=39174

The recommendations:

http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/summary_recommendations.pdf

In general there are a few sites that may come in handy:

http://www.deathpenaltyinfo.org/

http://ccjr.policy.net/cjedfund/pop/

http://www.capitaldefenseweekly.com/index.html

This "Capital Defense Weekly is a publication that details what is currently happening. It has news updates, reports on capital cases and more.

For a list of exonerations: http://deathpenaltyinfo.org/article.php?did=412&scid=6

In response the next section, #6, in general:

I have concerns for the victim as well. Persons who defend the death penalty are wont to say, "Well, what about the victim?" and "Why do you, (detractors of the death penalty) always focus on the perpetrator?"

To this I have to say the following: I have lost loved ones. I know how much it hurts. I would be loath to tell anyone how to feel or how to react upon discovering that someone they loved has been brutally murdered. I would sympathize immediately and offer condolences. I would help them however I could. I would care.

I would want justice were I to be the survivor of a victim.

The problem is that the death penalty itself makes new victims. Innocent people have been executed in this country. As I have shown, above, that at least 100 have been released from death rows and those are the ones that we know about. DNA evidence has been in the news recently because it has been used to prove the innocence of yet others who were, if not on death row, incarcerated for something, it turns out, they did not do.

The justice system is systemically flawed and cannot be trusted to hand out absolute punishments, which are by their nature irreversible. The point is, to spell it out clearly and simply, you cannot use a flawed system and expect it to make absolute decisions. To do so invites grievous errors and systematic injustice.

You have said elsewhere that some of those must have been released on technicalities and perhaps you guess that a good lawyer or an error by the prosecution might be responsible for those releases and not the merits or facts of the case being reviewed. Certainly that's the impression you give.

To that I say what of it? If a person is going to be executed, an absolute punishment, and the system is just there shouldn't be any such reversals, ever. You have quoted others as saying that there is not one case of an innocent person being executed; perhaps people' being released in this way is one reason for that? Perhaps there are others who were not so lucky and, with no on to tell the tale, well, there is no record of such a person is there? Would there be?

Indeed, the fact that even you admit that there have been reversals shows that the system for executing people is flawed and thus an absolute punishment being meted out by such a system is bound to produce grievous errors, and, in fact, has in all probability, produced such errors.

It is hardly likely however that a system so biased as to produce the results would have any interest in a complete and public opening of all executions, those whose cases had them wind up on death row, those who were exonerated and or prove innocent. It would be a good task to undertake, a comprehensive study of all capital cases in those categories.

6) Pro & Con: The Death Penalty in Black and White

by DS Thursday, June 24, 1999 Intellectual Capital.com, 6/24/99. stored at www.prodeathpenalty.com/racism.htm

I don't know about you, but when I get into a discussion about the death penalty, my first thoughts go to the victim and to the brutality of the murder. That is the foundation of the just nature of the death penalty.

Too often these days, however the death penalty is discussed in different terms. Inevitably, with the racial history of this country, the effect of race in the application of the death penalty has become a central part of the death-penalty discourse. This is particularly true as some politicians are making the case for a death-penalty moratorium, in part to consider whether the death penalty is inherently racist.

All too often, however, those arguments are spurious. In the death penalty debate, it should be the facts, and not the hype, that are in be black and white.

A closer look at the statistics

Often such discussion begins with the obvious: the race of the defendant. The Death Penalty Information Center (DPIC) reports that African American murderers represent 35% of those executed, white murderers 56%. As the argument goes, this must be evidence of systemic racism, as African Americans represent 12% of the population, whites 74%.

Fortunately, the United States does not execute people based on their population counts but on the murders they commit. As African Americans represent 47% of murderers and whites 37%, we see that whites are twice as likely to be executed for committing murder as are their African American counterparts.

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

Look again at the statistics quoted. 35% of those executed are African American, while they represent 12% of the population. Random chance would not allow for such a result. If the justice system were blind, if all the background factors ever associated with perpetrators, for example class, as you suggested, were equal such a result would be evidence for an inequitable system. The same logic then applies to whites, if they are 74% of the population and only account for 56% of the executions they are under represented.

You then cite the statistics that 35% of those executed are African Americans while 56% are white. You say that this proves that white perpetrators are more likely to be executed. I urge you to look at the figures:

If whites represent 74% of the population and yet 56% of those executed for the perpetration, they are very under represented, if all predisposing effects were equal. Then, and still, African Americans would be over represented in those executed vis a vis their proportion of the population.

Then we look at the perpetration statistic itself: if African Americans represent 47% of the perpetrators and yet only 12% of the population and

Whites 37% of the perpetrators and 74% of the population you seem to see this as evidence that Whites more likely than African Americans to be executed.

Whites seem to under represented by half and African Americans seem to be over represented by a factor of nearly four.

Furthermore, the Bureau of Justice Statistics says that whites sentenced to death are executed 17 months more quickly than African Americans. With 98% of all head prosecutors in the United States being white, according to DPIC, how is such a result possible? Maybe prosecutors, judges and juries are focusing on the crimes and not the race of the defendant.

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

You put forth that since 98% of all head prosecutors in the United States are white, how is it possible that it takes longer, 17 months on average, to prosecute an African American than a White American? You sly ask: maybe prosecutors, judges and juries are focusing on the crimes and not the race of the defendant. How could that be? If all things were equal there would be no such differential. Maybe the system is being overly careful and is "trying to be careful" to avoid seeming racist. However this could be another bias in the system. From my point of view, any bias affecting the life or death dealings of the justices system is an argument against the Death Penalty. I would think you'd have to see that.

So, here again there is bias, and perhaps it is in favor of African Americans but again that should not be in a system which is supposed to be fair, balanced, and unbiased and, like I say, should be as absolutely correct in its decisions and operations as the punishment it metes out.

That is not the case, say anti-death penalty groups, such as Amnesty International, and now the United Nations. If you adjust for the specific aggravating factors present within capital crimes, you find clear evidence of racism.

Death-penalty opponents note, for example, that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder African Americans, under similar circumstances.

David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that African American murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty?

Quite easily.

The Supreme Court, as well as many others, confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely.

What difference does it make?

In Baldus' Philadelphia study, we find that if only 2% more white murderers had been sentenced to death and only 2.5% fewer African American murderers had been sentenced to death, then each group would have been sentenced to death by juries at the same rate -- a far cry from the 400% differential stated within the incorrect interpretation of "four times"!

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

Indeed what difference does it make?

Another choice error: you point out that the Supreme Court, in the famous race-based challenge to the death penalty (McCleskey v. Kemp), found in 1987 that those who murderer whites were 4.3 times more likely to be sentenced to death than those who murder African Americans, under similar circumstances.

You state that David Baldus, who did the statistical study on McCleskey's behalf, also completed a recent study in Philadelphia where it is was reported to show that African American murderers were four times more likely to receive a death sentence than white murderers. With such results, how can anyone dispute the racist application of the death penalty? And you say that this is done, "quite easily"

You say the Supreme Court confused odds with multiples. The data reflect odds of 4-to-1, not four times more likely. So I ask you this which would you rather risk an unfavorable outcome rated against you at odds of 4 to 1, or just having the unfavorable outcome be 4 times more likely than the favorable one?

I don't think either choice is appealing, since the favorable outcome, in either case, is the least likely. I am sure you would agree.

You are saying if African American's had 2.5% fewer and Whites had 2%more they'd have been even. Putting those figures together you have a spread of 5%, which is statistically significant. Here again your own statistics prove your undoing. If the system were unbiased and justice truly blind, there would be no difference whatsoever at all, one way or the other!

A punishment that fits the crimes

The next issue raised is the victim's race. While African Americans and whites comprise about an equal number of murder victims, the ratio of white-to-African American victims in death-penalty cases is about 7-to-1. This has given rise to the allegation that the "system" only cares about white murder victims. A horrible accusation, if true.

However, the ratio of white-to-African American victims in the aggravated circumstances necessary for a capital murder conviction (rape, robbery, car-jacking, burglary, police murders, serial/multiple murders, etc.) is from 4-to-1 to 8-to-1 -- numbers consistent with the victim ratios on death row.

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

Here is the salient point against any such argument, first if all things were equal, if all criminal behavior were equally distributed between the races and justice were blind, there would be no differential between the races in these statistics you quote. To the extent that there is a difference is the extent to which the society has become dysfunctional. How so?

First, you state that the rate for "aggravated circumstances" is similar to the rate for African Americans in death-penalty cases &endash; and you state that because these two factors are consistent that there is no bias in the death penalty ratio. Well what if both those statistics are produced by the same biased system? What if both are a product of a social structure which penalizes one's poverty, has a disproportionate allocation of wealth, is classist in nature therefore and is known to have "built in" prejudices? The surprise would be if the proportions were not similar.

The final resting place for the racism charge lies within those cases where African Americans have been executed for murdering whites and whites have been executed for murdering African Americans. There have been 144 African Americans and 10 whites executed under such circumstances, or a ratio of 14-to-1. As African Americans are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?

If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of African American robber/white victims versus white robbers/African American victims is 21-to-1.

Again, when looking at the circumstances consistent with capital crimes, we find no evidence of racial bias.

The determining factor for sentencing in death-penalty cases is what it should be -- the aggravating nature of the crimes. Both the Rand Corp. study of 1991 and the research presented by Smith College professors Stanley Rothman and Stephen Powers in 1994 confirm that finding. In other words, it appears that any racial variations present within the data are reflective of the crimes themselves and not racial bias within the system. A review of those studies, as well as of criminal-justice statistics, within the context of the aggravating circumstances present within capital murders and the related statutes, produces the same conclusion.

Don't assume the worst motives

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

This is my favorite part, as if the other parts were not just as enjoyable:

You assert that final resting place for the racism charge lies within those cases where African Americans have been executed for murdering whites and visa versa. You say there have been 144 African Americans and 10 whites executed under such circumstances, or a ratio of 14-to-1. As African Americans are about 2.5 times more likely to murder whites than the other way around, there appears to be a huge disparity in such executions. Is racism the reason?

A rhetorical question from you is so cute. This is what you do when faced with a fact that flies in the face of your theory; you do a bait and switch and hope that no one notices. You say "If we look at robbery, the aggravated crime found most often in capital cases, we find that when there is a robbery with injury, the ratio of African American robber/white victims versus white robbers/African American victims is 21-to-1"

Well the aggravated crime stats sure look good but despite your saying "If we look at robbery, the aggravated crime found most often in capital cases we find. A ration of…. 21 to 1" Interesting but not related to the fact you were trying to disprove. Perhaps there is some overlap, perhaps not. "Found most often" is a vague phrase and you offer no proof that the 21 to 1 figure is related in detail to the 14 to 1 figure in the first paragraph. Your argument fails on the grounds of faulty substitution, or at least one that is contestable on a level of logic or reason.

However, ignore the fact that a differentiation between crime rates is a symptom of our society's systemic injustice and disproportionate poverty and its correlation with an inability to access legal aid, your statistics prove my point. If justice were blind, if poverty were not a factor, if classism and systemic lack of opportunity were not factors and each and every crime's perpetrator were given fair their due, there would be no differential, one way or the other in conviction rates between races. Your own facts provide the proof I need to make my point.

There is vast and systemic bias in the justice system, in the allocation of society's resources, and the differential you point out only exemplifies the symptomatic results of those causes.

There will always be some variables of race, ethnicity, and class within any study of criminal-justice practices, and based on historic, as well as current prejudices, we can never lower our guard. Because all studies are subject to poor protocols, bias and misinterpretation, we must make reasoned judgments based on as many respected considerations as we may have at our disposal.

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

You end up with saying "there will always be some variables of race, ethnicity and class within any study of criminal-justice practices" You say we can never "lower our guard" Fine words, but they ring hollow in the light of the fact that your own statistics proved my point.

And even if criminal-justice statistics did not show the obvious correlation between crimes and the application of the death penalty, we should note what the Supreme Court stated in McCleskey: "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." Sound ideas should not be eliminated based on misguided statistics.

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

Pardon me if I take exception to the quoted remark. They may "decline to assume that what is unexplained … is invidious" But that is hardly a scientific attitude, hardly rational when it comes to guaranteeing the rights of humans. In such vital circumstances one would want to be as certain as possible that what is not explainable is, to the best degree possible, not at all invidious.

In the case of the death penalty, the facts lead to only one conclusion. No moratorium is necessary. copyright 1998-2005 DS

(The above portion was the same as in letter #5, so I am copying those comments here. I didn't want to cut the letter and possibly leave things unclear.)

Your facts lead me to only one conclusion that the only way to prevent innocent's from being executed, from alienating large subset of our population, from continuing the most egregious forms of miscarried justice that the moratorium on the death penalty should be immediate, complete and irreversible. We are guaranteed the right to life in this country. I think it is time we take that right and reaffirm it.

I close my arguments from A member of the Supreme Court:

If statistics are any indication, the system may well be allowing some innocent defendants to be executed…Serious questions are being raised about whether the death penalty is being fairly administered in this country. Perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used.

Sandra Day O'Connor 7/2/2001, speech to the Minnesota Women Lawyers group

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DS to DB Debate letter #10

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The Death Penalty: Neither Hatred nor Revenge

Death penalty opponents say that the death penalty has a foundation in hatred and revenge. Such is a false claim.

This simply is debatable. Many who write me about my stance on the death penalty claim that this is the reason they support it, to "kill the killer" as they say. One said, "It's no crime to kill a killer." And, logically speaking, I had a field day with that statement.

You may, but it is true, when put in context. Murder is different than punishment for murder. In this context, both involve killing, but no one would equate the two, any more than they would equate legal incarceration to illegal kidnapping.

A death sentence requires pre existing statutes, trial and appeals, considerations of guilt and due process, to name but a few. Revenge requires none of these and, in fact, does not even require guilt or a crime.

Many supporters of the death penalty quote the famous "Eye for an eye" quotation and, in their view, the justice system is merely the means to obtaining revenge. They say it all the time. You may not, or this writer may not, but the people who write me do, fervently, believe that revenge is, or should be, the purpose of the death penalty.

Eye for an eye is a call for lesser more balanced punishments than in the past. It is the opposite of calling for revenge. Many are simply unaware of this.

The criminal justice system goes out of its way to take hatred and revenge out of the process. That is why we have a system of pre existing laws that limit punishments and prosecutions to specific actions in response to specific rules of evidence and procedure. And it is also why those directly affected by the murder are not allowed to be fact finders in the case.

They can try to take it out of the system, but that is a whole different thing than taking it out of a survivor's heart, out of a family's mind and soul, or dealing with cultural values that instill a righteousness to those who "right wrongs."

I have no doubt that some survivors want revenge. That is exactly why the system does not allow them to become fact finders in those cases.

Mr. McVeigh was seeking revenge and so were some of the survivors of his horrid act. The system, if you will recall, is made up of persons, flawed, human persons whose feelings do effect how they act, react, and read evidence.

We should not get rid of our feelings. We should learn to control our actions within our feelings. That is why the criminal justice system is set up the way it is.

Calling executions a product of hatred and revenge is simply a way in which some death penalty opponents attempt to establish a sense of moral superiority. It is also a transparent insult which results in additional hurt to those victim survivors who have already suffered so much and who believe that execution is the appropriate punishment for those who murdered their loved one(s).

I don't believe that all death penalty cases involve revenge, I do not now offer that as a reason for challenging its legitimacy. I do say that many, many of its supporters voice revenge as being the primary reason why they support it. Say what you will about the detractors of the death penalty, but it is the persons who support it who do so because they want the system to exact revenge for murder.

My experience and the polling data disagree with you.

Dear Sir, I have seen the proof. You can find the proof as well. Just go to a bar on a Friday night and start talking about the death penalty. You will hear, from its supporters that vengeance is a big part of their equation.

You can go to any bar and ask any yahoo any question about an important policy issue and you may get an off the cuff remark. That's pretty meaningless. Get that same yahoo in a serious discussion of issues and implementation and you will get a much more considered response.

If that is pretty meaningless than look at your paragraph below. Then take a look at my reply to it.

I find that most people support the death penalty because they believe it is a just and appropriate punishment. Most will also acknowledge that they prefer disinterested third parties to be the fact finders in this case, as opposed to the victim survivors. Ask many people "Would you rather have a death penalty system where surviving members of the victims kill the murderer out of revenge or a system where jurors consider the most just punishment for the crime?" Virtually 100% will say the latter. That is reality.

Would that we had a "disinterested third party" to make such decisions but we do not. We are all to human. We do not have a system that is completely objective and fair. We do not have system that applies the death penalty in any objective way. Your last point is rather disingenuous, asking people if they think having victims kill perpetrators? Please, how ridiculous is that?

Who would want to spread the trauma in such a fashion? Who would want to risk looking into the eyes of their beloved's killer, pulling the trigger only to later on find out that there was an error? Most all of us are not killers and none would want to become such. That is the point your question really answers. Also, I think what you said, again, supports my position. While it might be all well and good to have a death penalty, very, very few would want to personally take responsibility and implement it.

Look at recent history. Prior to extensive searches and metal detectors, almost any weakly imaginative person could smuggle weapons into a courtroom and kill the murderer that murdered their family member. It didn't happen 99.99% of the time. Why? Because no matter how people may talk about revenge, it really is not within them. We may express our emotions but, ultimately and fortunately, out hearts and minds control them. The death penalty is sought and given out of a sense of justice.

Sincerely, DS

Look at recent history, we do have metal detectors in courts and for a good reason. There have been cases where people have taken revenge in court.

Many people believe in letting "justice take its course" and pray for the death of the perpetrator, or the accused which we know may not be the same person. Many people vocally express the exact opposite of what you say. Granted many trust the system, granted many control their hearts and minds but likewise many do not. Look at recent history, the lynch mobs in the south made no bones about what they were about. You don't hear those who speak to me of revenge being an important factor. I, being on the other side of the fence, do.