Deadly Justice, Ch 13, 14, 15 - PowerPoint Presentation

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Deadly Justice, Ch 13, 14, 15Public Opinion, Cost, Deterrence

Reminders: speaker tonight. Next week, we go into detail on the Racial Justice Act. Please do this readings on the class web site, especially the laws themselves (they are very short), and the “order granting appropriate relief” from 2012. Judge Weeks, who wrote that order, is coming to class on Wed.Speakers in coming weeks are not necessarily on Wednesdays, so check.Feb 26, 2020

Baumgartner, POLI 203, Spring 2020

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Public opinion: The Gallup Poll Question: “Are you in favor of or opposed to the death penalty for persons convicted of murder?”

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See the Gallup web sitehttps://news.gallup.com/poll/1606/death-penalty.aspx

BTW, on the first day of class I asked you all these questions. Your results compare to the Gallup results are on the class web site, Week 2.Big news from Gallup, when choosing from Death or LWOP, 2019 showed a 60-36 preference for LWOP, first time so strong.Baumgartner, POLI 203, Spring 20203

Question wording mattersHigher support:Generic questionSpecific individuals such as Saddam Hussein, Timothy McVeigh, Unibomber

Lower support:DP v. LWOP v. possibility of paroleYoung defendantFelony murder cases / accomplice to the crime (very low support)Also note: death penalty is very rare. And people not supporting the death penalty can’t be on the jury. So there is something different from answering the generic Gallup Poll question and voting for death.Baumgartner, POLI 203, Spring 2020

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A dynamic dyad-ratios algorithm (thank you, Jim Stimson)

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Opinion index: up from 1970s through 1995, then down.Death Penalty and general punitiveness

Opinion and actual death sentences

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State by state variation: no impact, huh?!State by state

Regions of Texas. Houston not the highest.

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An opinion paradoxGenerally pretty high levels of support, in the abstractBut very low levels of actual usePolitical leaders have felt the power of public opinion on this

Since the mid-1990s, significant declines in supportLWOP is availableCrime rates have droppedConcerns about innocence / exonerationsSeveral states have abolished, through LEGISLATIVE action, and the politicians did not get booted out.So some big shifts in the last 20 years, as compared to the earlier periodBaumgartner, POLI 203, Spring 2020

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A philosophical question for you to ponder:Should your odds of death depend on the state of public opinion? (data below for NC only)

What if you did a crime in 1993?3-4 per 100 homicides, compared to almost none today

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Evolving standards of decencyWe do expect that the justice system will evolve over time.Various improvements / safeguards have been added to the system over time…Does that mean that those sentenced to death in earlier periods should have their sentences reversed? Should reforms be retroactive?

If they were retroactive, they might not make it through the legislature… So many contradictions and puzzles here…Baumgartner, POLI 203, Spring 202010

Cost (with Justin Cole, class of ‘18)Costs are surprisingly highNot just individual trialsCosts must include having the death penalty as an option, for the entire state

Savings: Use DP as a plea bargaining tool, have inmate plead to LWOPLess time in prisonExpensesQualified jury, longer trial, more experts, more prosecution resources, more defense attorneys, two-stage trial, automatic appealsInefficiencies: very high reversal rate, long delays in prison, death rows more expensiveBaumgartner, POLI 203, Spring 2020

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Some estimatesNJ: abolished in 2007; 1982 to 2005: 197 capital trials; 60 death sentences; 10 inmates on death row; zero executions.Total cost of the system: $253 million

PA: $800 million, 408 death sentences, 3 executionsCA: $4 billion, 13 executionsNC: $11 million per year (2005-06 estimate)These numbers should blow your mind.Baumgartner, POLI 203, Spring 202012

We found 21 serious studiesTypically focused on one state at a timeSome looked at each stage of the process; some made an estimate per case (death v. not death sought); some an annual total for the state; some for the entire modern period since 1973.

It would be cheaper if the system were more “efficient”Reduce appealsReduce time to executionBut these reforms could lead to innocents being executed. So the trends have been to more and more inefficiencies. High reversal rates are expensive. Long delays + low probability of death = very expensive.Baumgartner, POLI 203, Spring 2020

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It’s expensive to ensure accuracyTrials last longerMore expertsBad lawyers, so reforms in the 1990s mandate more resources for the defense, including mitigation experts, two trained attorneys, etc.

“Death is different” jurisprudence from the USSC: more appealsThe cost argument is bringing libertarians and small government people to the table. The costs are so so large that you could really think about re-allocating that money to something like police officers on the street, or anything else. Is the death penalty a “luxury we cannot afford”?Is this a conversation we should even have? Does cost matter in matters of justice? Should it matter?Baumgartner, POLI 203, Spring 2020

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DeterrenceOften taken for granted that the death penalty deters.Certainly compared to no penalty at all, being punished would deterBut note the real question is compared to the next harshest available punishment, LWOP

Does death deter, over and above LWOP?What is the “additional penological value” of death?Retribution, certainly possibleBut we’d need to argue about if there is an additional deterrence value for death after, say, 25 years in solitary… That’s the California argument by the federal judge in Jones v. ChappellBaumgartner, POLI 203, Spring 2020

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DeterrenceHow it was used in Furman and GreggEvidence and studiesWhere we stand today on deterrencePublic opinion on deterrence

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Furman v. GreggThe lack of deterrent value was laid out as a reason to abolishIt can’t deter if it is used extremely rarely on a randomly selected handful

But in 1975, in the midst of a rise in crime, Isaac Ehrlich published a study in the American Economic Review“Price theory” – raise the price, demand goes downHere: the object being purchased is… murder. Raise the price of murder, demand goes down.Homicides from 1933 through 1969Clearance rate: 89 percentPercent of those charged who are convicted: 43 percentExecutions as a percent of previous year’s convictions: 3 percentControls: labor force participation, unemployment, number of young men in the population, income, time trend, percent nonwhite in the population, population size, government spending, police spending. (Think about this study…)

Result: 7 or 8 homicides prevented, BUT, significant only at the 90 percent level, caveatsTake-home for the press / advocacy world: Each execution saves 8 lives!!!

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ControversiesSocial scientists argued back and forth about this. Ehrlich’s study was cited by the US Solicitor General (Robert Bork) in his argument before the USSC in Gregg v. Georgia.

Do we have a moral requirement to execute those who kill?Problem is in evaluating the evidence.Note: Ehrlich’s study was death v. no punishment at all, not death v. LWOP.Baumgartner, POLI 203, Spring 2020

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“Model Uncertainty and the Deterrent Effect of Capital Punishment” (2008)

All previous estimates from the literature on “how many lives are saved by one execution”Note: it looks just like a random bell curve.Note: it has a huge variability.Note: Lots of estimates are negative: what’s the morality of that? Each execution leads to more violence?Baumgartner, POLI 203, Spring 202019

National Academy of Sciences reviewNAS brought together a committee to review the issue2002 report, then updated in 2014Conclusion: studies on this topic are “not informative”

The science on this question is clear: we don’t know.But note that virtually none of the studies have been psychologically reasonable: from the perspective of the potential killer, do we really think they are considering this?Baumgartner, POLI 203, Spring 202020

Public Opinion on DeterrencePeople tend to believe in deterrence, or used to.Trend is sharply downward over time; see Gallup poll results: 1985, 62-32 yes. 2011, 32-64 no.

People do cite deterrence as a reason to support or oppose.Retribution, deterrence often the most common pro-DP argumentsDecline in belief in the deterrence value is part of the explanation for the decline in DP opinion generallyLWOP, another form of the death penalty, has undercut the deterrence argument: which would deter more? 50 years in a cage, until you die of old age, or a rapid execution?Baumgartner, POLI 203, Spring 2020

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The strange argument about deterrenceThe “rational murderer”Calculate the benefit of the crime

Calculate the odds of being captured by the police x the odds of being sentenced to death x the odds of that sentence being carried out, assign values to these outcomesCompare the cost and the benefit, then act accordingly.Note most models relate to the odds of being caught at all, not being caught then subject to this v. that punishment, so they are not even good approximations of the “murderer’s calculation”.More typical murderersMentally deranged, either permanently or at the time of the crimeStrung out on drugs or alcohol or bothCompletely unaware, as you were before this class started, about the odds of various punishments, given a homicide.

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