A Reply to The Atlantic on the Death Penalty | National Review Online

A Reply to The Atlantic on the Death Penalty | National Review Online

Andrew Cohen went after what I have written on the death penalty at National Review Online and in my book Freedomnomics, pushing the claim that “no reliable study by credible researchers has ever found any deterrent effect” from the death penalty. He also gets into the issue of race and quotes John H. Blume, a professor at Cornell Law School and death-penalty opponent, as asserting: “Every credible study has found a statistically significant race of victim effect” on who gets sentenced with the death penalty.

As for the first claim, Cohen relies on a deceased economist who died before he could evaluate my claim and the April 2012 report from the National Research Council (NRC). But even that report, which was edited by two strong death-penalty opponents, contradicts the assertion that “no reliable study by credible researchers has ever found any deterrent effect.” Instead, the report concludes that there are approximately equal numbers of papers showing deterrence as showing no clear effect.

Unfortunately, the NRC report itself is rather biased as it excludes more than half the academic research done. It counts only ten studies (nine were peer-reviewed) that look at all 50 states and what happens when states adopt the death penalty. By my count, 20 peer-reviewed studies and four non-peer-reviewed ones were of the type that the NRC considered — following the 50 states over time to see how murder rates change when states use the death penalty. Without offering any explanation, the NRC just ignored the bulk of the research that showed the death penalty deterred murders.

Another Round in the Death-Penalty Debate | National Review Online

Another Round in the Death-Penalty Debate | National Review Online

Balko, a blogger/reporter for theWashington Post, based his reply on empirical evidence. He puts a lot of faith in studies by death-penalty opponents. Let me address his major points in turn:“It’s important to factor in the severity of the crime. And when a black defendant and a white defendant are convicted of murders with similar aggravating circumstances, the black defendant is significantly more likely to get the death penalty.”
Over the period from 1977 to 2011, the rate of aggravating circumstances for murders was higher for black defendants for murder than it was for whites. Yet, despite that and with whites accounting for fewer murders than blacks (whites commit about 46.8 percent of all murders committed by whites and blacks), whites account for 57 percent of the white and black prisoners sentenced to death for murder.
Finally, even after being sentenced to death at a higher rate than blacks, whites on death row over the decades have had a significantly higher probability of actually being executed than blacks. Over the years from 1977 to 2011, 65 percent of the total number of whites and blacks who have been executed have been white.
This last point is particularly important, since everyone on death row has been convicted of murder with aggravating circumstances. If there is any bias, it is in the opposite direction that Balko claims.
“DNA testing has shown that the criminal justice system is flawed — more flawed than most of the public had probably thought. Lott tries to dismiss these concerns, and it’s here that his statistics really get screwy. . . .  I don’t know where Lott gets the number 34. I can’t find it anywhere at the Innocence Project link he provides. The actual number of people convicted of murder who were later exonerated by DNA testing is 104.”
If someone has trouble finding a number, the easiest thing to do is to contact the person who provided the number. Balko had time to reach out to the Innocence Project to discuss my numbers, and he and I have e-mailed each other in the past. However, when writing this recent attack on me, he didn’t contact me before declaring that he couldn’t figure out where the number 34 came from.
Thirty-four is the number of people charged with the death penalty for murder who were later cleared because of DNA evidence. As to the source of the figure, it is right at the top of the page that I linked to, though it does require addition: “18 of the 316 people exonerated through DNA served time on death row. Another 16 were charged with capital crimes but not sentenced to death.” 34 = 18 + 16.
If you wanted to look at all murders, not just those where the death penalty was sought, the number of convictions reversed since 1989 is 53, not 104. Since then there have also been about 260,000 convictions for murder. Of course, it isn’t fair to compare the 53 reversals with all murder convictions, because DNA evidence wasn’t available to exonerate people in all cases.
Using the claim that DNA evidence is available for about 4.5 percent of murder cases, 53 exonerations out of 12,000 cases gives an error rate of 0.44 percent.
“Lott also mistakenly assumes that we’ve already reviewed all of those 12,000 murder cases for which DNA evidence was relevant. We haven’t. We continue to find new exonerations from years past.”
It is true that the DNA evidence in all 12,000 cases has not been examined, but that is misleading. First, very few of those convicted of murder even ask for their DNA evidence to be re-examined. Presumably they don’t ask because they know what the evidence will show.
Even more telling, only 5 of those 53 exonerations have been for convictions since 2000. The already small error rate has dropped dramatically.
But Balko is simply wrong when he writes: “Even Lott’s own 0.3 percent would represent 10 people. Maybe he’s comfortable with 10 innocent people getting executed.” All these numbers provided by Balko and myself are for convictions, not executions. There is no DNA evidence proving that the wrong person has ever been executed.
“A recent study by a group of researchers led by Samuel Gross, a law professor at the University of Michigan Law School, conservatively estimated the figure at 4 percent for death-penalty cases. They estimate that it’s higher for non-capital murder cases.”
But just because a conviction is overturned doesn’t mean that the conviction was a mistake on the merits. Convictions are overturned regularly for many reasons, including technical ones. Many times guilty people go free because evidence that was used at trial is later determined during an appeal to have been improperly obtained. The paper co-authored by Gross defined “exoneration” as occurring when someone was removed from death row by a “legal action by courts or executive officials.”
“I think the far more troubling measure of the death penalty and race is the influence of the race of the victim. In most states, defendants convicted of killing white people are quite a bit more likely to be sentenced to death than defendants convicted of killing black people.”
This claim is extremely misleading. These estimates account for nothing other than race. But if you have two drug gangs that get into a fight and one of the members of a gang dies, you aren’t going to get the same push for the death penalty as you would when a small businessman is killed in a robbery. The race results disappear as soon as you account for even simple variables such as income or occupation.
But, as much as Balko might like it, the debate isn’t only about innocent people being executed or about racism. Innocent people’s lives are saved thanks to the death penalty. Most peer-reviewed studies by economists, as I show in my bookFreedomnomics, find that each execution saves roughly 15 to 18 potential murder victims.

The Shaky Case against the Death Penalty | National Review Online

The Shaky Case against the Death Penalty | National Review Online

Let’s analyze the three main arguments made on ABC against the death penalty.
1. “Support for the death penalty has fallen from 80 percent in 1993 [actually 1994] to 60 percent in 2013.”...what ABC News didn’t explain was that the years chosen were carefully cherry-picked. Support for the death penalty in 1994 was the highest ever recorded,according to Gallup. But consider instead all the 43 surveys from 1936 to 2012. Those surveys showed that an average of 63.8 percent of Americans supported the death penalty. Sixty percent in 2013 is down slightly from the average over the preceding 76 years, but it was hardly an earth-shattering change.
2. “Some states . . . for the same crime [are] three times more likely to sentence an African-American defendant to death. I think that’s very, very troubling. . . . Race is an issue.”This is simply false. In murder cases, whites are executed much more frequently. Nationally, from 1977, when the death penalty was reinstituted, to 2011, the last year for which the FBI has compiled data, 64.7 percent of those executed were whites, but whites committed only 47 percent of the murders.
Nor do individual states stand out in the way this statement claimed. I went through the totals for each individual state over the seven years from 2005 to 2011, and none have the imbalance the ABC News panel complained about.
3. “We still see 60 percent still supporting it despite the fact that innocent people are on death row.” . . . ”I am troubled by the fact that there are people who have been exonerated through DNA. That’s horrific, and we have to do something about that.”Nobody wants an innocent person convicted. The Innocence Project claims that, since 1989, 34 people convicted of any type of murder have been exonerated by DNA evidence; of these, 18 had been sentenced to death. In that same time, about260,000 Americans have been convicted of murder, with DNA evidence being used in about 12,000, or 4.5 percent. The error rate then was less than 0.3 percent, and it is actually much lower than that, since many of the exonerations came from convictions that were made before 1989. Furthermore, DNA evidence has improved its accuracy in trials over the past couple of decades, as it has become more commonly used. There is an old saying that it is better to let ten guilty people go free than to convict one innocent person. But the current system seems to be doing much better than that.
Finally, all this ignores one extremely important point: There is overwhelming evidence that the death penalty deters murder and saves lives. Combine that with the fact that errors, few to begin with, are becoming ever less common, and objections to the death penalty are basically eviscerated.

L.A. Times Uses Classic Liberal Bias Techniques in Article on Death Penalty ...

L.A. Times Uses Classic Liberal Bias Techniques in Article on Death Penalty Initiative

via Patterico's Pontifications by Patterico on 4/24/12

In reporting on an initiative to abolish the death penalty, the L.A. Times tells us about the "[g]rowing numbers" of people — conservatives, even! — who oppose capital punishment:

Growing numbers of conservatives in California have joined the effort to repeal the state's capital punishment law, expressing frustration with its price tag and the rarity of executions.

The numbers have grown so much, it's now a "chorus"!

The chorus of criticism has death penalty advocates worried, even though California voters have historically favored capital punishment, passing several measures over the last few decades to toughen criminal penalties and expand the number of crimes punishable by death.

Way back in 2004, I discussed the way this newspaper employs phrases like "growing chorus" to describe public opinions they agree with:

[W]hy another story on this topic? Blame the "growing chorus":

A growing chorus of Bush critics has emerged in recent weeks, saying his youthful conduct then is freshly relevant today.

I have warned you that such language is a signal that the paper agrees with the criticism. When the paper disagrees with criticism of a candidate, it is portrayed as an attack by political opponents. When the paper agrees with the criticism, the criticism becomes a mysterious and disembodied (but ever-growing) entity. Doubts grow. Criticism emerges.

This doesn't apply merely to criticism of candidates, but any public controversy that the paper's editors want to push. The fact is that the way an article is worded can skew the reader's perceptions markedly even if the facts are correct. Since we're revisiting old posts, let's look at another example, this time from 2007:

The article in question begins:

WASHINGTON — The growing controversy over White House recordkeeping and disclosure swirled around presidential adviser Karl Rove on Thursday, as congressional Democrats said they were told some e-mails that Rove sent from a Republican National Committee account are missing.

I have to take my hat off to the reporters for the skill in which they portray the controversy as a ghostly entity with a spirit all its own — rather than as attacks on the Administration by partisan Democrats.

And so it is with the article on the death penalty initiative. We are told about all the public officials who have changed their minds on the death penalty, and told that this represents a growing chorus that has death penalty supporters worried. But just how worried are they? When we hear the actual quote, it doesn't sound like they are as worried as they were portrayed:

"The people of California have regularly voted for the death penalty by wide margins, but of course it has to be a matter of concern," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which advocates for tough criminal penalties. He said fundraising to defeat the November measure would be difficult.

And indeed, when we look at the numbers, support for the death penalty is still strong even in reliably Democratic California. The last time the Field Poll surveyed Californians on this issue, 68% supported the death penalty (.pdf). Although the poll tries to claim that a growing number of people support life without parole for first degree murder, that is misleading, because we don't impose death in every first degree murder case — by a longshot. Death is reserved for the worst of the worst, and asking people what punishment they prefer for first degree murder in the abstract (as the Field Poll does) does not answer the question whether they want to reserve death as an option for serial murderers, child rapist-murderers, people who murder and continue to kill after being incarcerated, and so forth. Kent Scheidegger addressed this in 2010:

But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports capital punishment, said the question on death and life without parole was misleading because respondents were asked to choose a uniform punishment for all first-degree murderers.
"The question really is, do you favor the death penalty for the worst murderers?" Scheidegger said. "Very few people want the death penalty for every first-degree murder case."
Overall, he said, the poll shows that "support for the death penalty is pretty stable."

As long as the California initiative is described in a fair and non-misleading manner on the ballot, I am not particularly concerned about it.
By the way? One of the big arguments in the article is that the death penalty costs too much. I will never stop being amazed by the gall of those who throw up roadblocks to the implementation of the death penalty, and then argue that we shouldn't have the death penalty because there are so many roadblocks. But this is what death penalty opponents do.
It's a "by any means" necessary point of view. And one of the "means" is to take strong public support for the death penalty and portray it as a growing, swelling, ever-increasing opposition. They will suggest, as the article does, that abolishing the death penalty is better for victims:

Most death row inmates would be returned to the general prison population and be expected to work. Their earnings would go to crime victims.

Don't you care about victims, Californians?
Seen this way, the editors aren't behaving as journalists here, but as partisans. In that vein, I will note that the article is by Maura Dolan, one of two reporters who screwed up a DNA story to make it sound more favorable to the defense, and refused to admit that she had gotten it wrong.
Nice to see she's on the death penalty beat. I have a feeling this article will be the first in a growing chorus of articles by her designed to sway Californians to vote for this initiative.
UPDATE: Here's another one I missed, from April 14: Fight against death penalty gains momentum in states.

The fight against the death penalty is gaining momentum, opponents of the practice say, with Connecticut's decision this month to abolish capital punishment making it the fifth state in five years to so do.

It's a growing chorus!

Davis execution

http://www.redstate.com/erick/2011/09/21/there-is-no-travesty-of-justice-in-georgia-executive-troy-davis/

http://ftp.resource.org/courts.gov/c/F3/52/52.F3d.907.94-8224.html
is the holding in a federal appeals case, not trial transcriptsor the record of the FOIA

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Churches Debate Troy Davis

Churches Debate Troy Davis

via The American Spectator and The Spectacle Blog by Mark Tooley on 10/3/11

Georgia's recent execution of convicted police-killer Troy Davis activated many religious death penalty opponents. But there was significant dissent from the claims that Christianity uniformly opposes capital punishment. The 16 million Southern Baptist Convention, America's largest Protestant communion, specifically affirms it. And its most prominent theologian defended it amid the Davis controversy.

"The death penalty is intended to affirm the value [and] sanctity of every single human life, and thus by the extremity of the penalty to make that visible and apparent to all," declared Louisville-based Southern Baptist Theological Seminary President Albert Mohler, who presides over his church's largest seminary. "There is something within us that cries out for the fact that murder must be punished and that the lives of the innocent, in terms of being the victims of these crimes, must indeed be vindicated."

Mohler warned that the "general trend of secularization and moral confusion has undermined the kind of moral and cultural consensus that makes the death penalty make sense." And he observed: "We really do not now have the bedrock shared consensus that every single human life is a life made in the image of God and that every single human life at every stage of development is to be honored and protected and preserved."

As Mohler pointed out in his podcast, Georgia's execution of Davis inflamed thousands of protesters. But the execution on the same day of a far less appealing Texas white supremacist who brutally dragged to death a black man did not arouse the same fury. "It seems that even those who oppose the death penalty outright believe there are some cases that ought to be opposed more than others," Mohler said. Of course, some of Davis' advocates insisted he was actually innocent of gunning down a police officer who was defending a homeless man in a Burger King parking lot amid multiple witnesses, though the courts rejected appeals across 20 years.

"It is precisely because the taking of one human life by another means that the murderer has effectively, morally and theologically, forfeited his own right to live," Mohler explained. "The death penalty is intended to affirm the value [and] sanctity of every single human life, and thus by the extremity of the penalty to make that visible and apparent to all."

The official Southern Baptist stance on capital punishment cites the divine command to Noah after the flood, as recorded in Genesis: "Whoever sheds the blood of man, by man shall his blood be shed; for in the image of God has God made man." Unlike the punishments instituted later under the Mosaic code for the Hebrew theocracy, this command is considered by Southern Baptists and many Christians as still universally binding. They also cite St. Paul's admonition in Romans that government is divinely ordained to "wield the sword" against the wicked.

In a resolution Southern Baptists approved in 2000, they declared they "support the fair and equitable use of capital punishment by civil magistrates as a legitimate form of punishment for those guilty of murder or treasonous acts that result in death." They also emphasized that the death penalty is right only "when the pursuit of truth and justice result in clear and overwhelming evidence of guilt."

Contrastingly, and speaking for liberal Protestants, the 7.7 million U.S. member United Methodist Church declares that "when governments implement the death penalty then the life of the convicted person is devalued and all possibility of change in that person's life ends." Emphasizing "reconciliation," the denomination's Social Principles insist: "We oppose the death penalty and urge its elimination from all criminal codes." Methodism has opposed capital punishment since 1956. Similarly other liberal governed denominations such as the Episcopal Church and the Presbyterians have also opposed it since the late 1950's. Although not addressing the Troy Davis case, the National Council of Churches has opposed capital punishment for over 40 years.

The more conservative Lutheran Church-Missouri Synod declares that "that capital punishment is in accord with the Holy Scriptures and the Lutheran Confessions." Although more liberal now and rarely discussing it, the National Association of Evangelicals still has a 40-year policy noting that "if no crime is considered serious enough to warrant capital punishment, then the gravity of the most atrocious crime is diminished accordingly." It supports the "death penalty for such horrendous crimes as premeditated murder, the killing of a police officer or guard, murder in connection with any other crime, hijacking, skyjacking, or kidnapping where persons are physically harmed in the process."

Roman Catholicism's teaching on capital punishment is more complex but popularly portrayed as uniformly opposed. The late Avery Dulles, an American Cardinal and highly respected teacher, was a key interpreter of his church's stance. "Self-defense of society continues to justify the death penalty," Dulles said in 2002. "One could conceive of a situation where if justice were not done by executing an offender it would throw society into moral confusion," he said. "I don't know whether that requires any more than that it remain on the books, symbolically, that it be there for society to have recourse to." A year earlier, he noted that capital punishment's decline in the West reflected an "evaporation of the sense of sin, guilt, and retributive justice, all of which are essential to biblical religion and Catholic faith."

Cardinal Dulles, who died in 2009, wrote that the early church and doctors of the church were "virtually unanimous in their support for capital punishment." He insisted that Roman Catholicism has "never advocated unqualified abolition of the death penalty" and there is "no official statement from popes or bishops, whether in the past or in the present, that denies the right of the State to execute offenders at least in certain extreme cases." Dulles observed that Pope John Paul II taught that "as a result of steady improvements in the organization of the penal system," cases mandating execution "are very rare, if not practically nonexistent." He explained that the Pope, with the church's bishops, had concluded that modern states, although rightly authorized to execute the guilty, should mostly avoid it, "if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment."

Dulles perceptively explained that modernity is confused over capital punishment because it wrongly interprets it as the angry popular will enacting vengeance. But historic Christianity has understood capital punishment as the state acting as God's instrument for justice. Absent a few voices like Mohler's, such careful reasoning rooted in Christian tradition is mostly absent in today's' religious debates over the death penalty and likely will remain so.

Not executing the innocent

409cv00130_92part1.pdf (application/pdf Object) DavisRuling082410.pdf

Troy Anthony Davis was convicted in the murder of a police officer and sentenced to death.

This is not a case of executing an innocent man, as investigation detailed in the ruling shows.

Where is the Truth in the Troy Davis Death Penalty Coverage?

Where is the Truth in the Troy Davis Death Penalty Coverage?

via Big Journalism by Accuracy in Media on 9/27/11

From Accuracy in Media's Cliff Kincaid:
Charles Lane must be one of the loneliest people in the newsroom of The Washington Post. A member of the editorial page staff of the Post and occasional guest on the Fox News Channel, he dared to put his name on a column in the paper that carried the headline, "Troy Davis was guilty," a reference to the convicted cop killer executed by the state of Georgia but who was declared innocent by the "progressive" community.

Davis, who had been convicted of the murder back in 1991, acknowledged he was at the scene of the crime but claimed that he didn't pull the trigger.
But wait. Didn't we read in the Post that "all but two eyewitnesses recanted" their testimony against him? That's what Post reporter Sandhya Somashekhar put in her September 22nd story about how the case was expected to shape a debate over the use of capital punishment.
We should hope that the case helps shape a debate about the need for our media to reports facts and not the lies and myths of those trying to abolish the death penalty. Charles Lane has begun that debate.
Amnesty International used a variation of the claim, insisting that "all but two of the state's non-police witnesses from the trial have recanted or contradicted their testimony." So the Post distorted the matter even beyond what Davis's apologists were saying.

Lane pointed out that Chief Judge William T. Moore of the U.S. District Court in Savannah, an appointee of President Bill Clinton, convened a hearing in June 2010 to look into the matter and that Davis's  case "crumbled" under scrutiny. He explained, "Davis' lawyers declined to put two of Davis' purported recanting witnesses on the stand, though they were available—one even waited outside the courtroom. Judge Moore quite logically found these omissions 'suspicious.' Davis' lawyers did not call the 'real' shooter; nor did Davis, with his life on the line, testify. Perhaps this reflected his experience at trial, where he told his story to the jury, and the jury did not believe it."
Lou Arcangeli, a retired deputy chief of police for the Atlanta Police Department, has offered his own view on media coverage, saying, "This case demonstrates that when a lie is unchallenged and repeated often enough it comes to be taken as fact, and truth is lost in the fog of time. The facts of Officer Mark MacPhail's murder, and the trial that convicted Davis with its legally admissible facts, have been lost in the blitz of social media and news media misinformation."
Going beyond this general criticism, he singled out "the lies of CNN and other television companies." He explained, "It is an inflammatory lie when Anderson Cooper on CNN states that there is no physical evidence against Davis. The court record states that after killing Officer MacPhail, Davis fled to Atlanta, blood was found on his clothes and numerous eyewitnesses repeatedly testified to his actions that night."
The false claim about "no physical evidence" linking him to the crime was picked up by scores of media reports.
Arcangeli noted that Savannah police officers and the Fraternal Order of Police posted the facts about the case online. The claim that "Seven of the nine non-police witnesses against Davis have recanted their testimony or contradicted the story they told in court" is listed as myth number one. But this was just one of several myths or lies about the case perpetrated by groups that used the Davis case in their campaign against the death penalty.
Another myth was the one cited by Arcangeli that "There was never any physical evidence tying Davis to the murder for which he was convicted and sentenced to death."
The truth:

"A bullet that was removed from the jaw of a man who was shot by Troy Davis earlier in the day was compared to a bullet removed from Officer MacPhail. The ballistics matched!
"During the latest Pardons and Parole Board hearing a Georgia Bureau of Investigation ballistics expert was present to testify about this evidence.
"Bloody 'spotted' clothing was removed from Davis' house after he was named as a suspect. Because of the way Troy was standing above Officer MacPhail when he executed the officer he would have received a faint splatter of blood (because Officer MacPhail was on the ground most of the splatter would have been dispersed out along the ground and not upward)."

Amnesty International had listed several political and religious leaders and groups in support of clemency for Davis.
Incredibly, in the case of the Pope, it was reported that his U.S. envoy, Monsignor Martin Krebs, had sent a letter in 2007 claiming that the Davis conviction "was not based on any physical evidence"—the same falsehood that has been circulating for years.
On CNN, the prosecutor in the Davis case attacked the claim that witnesses had seriously "recanted" and also questioned Pope Benedict's intervention. He said, "This is not something I had previously thought the Holy See had expertise in, that is to say, Georgia's evidentiary rules."
Spencer Lawton, the former Chatham County prosecutor, said, "There is the legal case, the case in court, and the public relations case. We have consistently won the case as it has been presented in court. We have consistently lost the case as it has been presented in the public realm, on TV and elsewhere."
He said he had a policy of not commenting on "pending cases" but decided to speak out after the parole board denied clemency and Davis's execution was set for September 21.
Davis's lawyers couldn't even find one member of the U.S. Supreme Court to vote that day to stay the execution. The application for a stay of execution "is denied," the court said.
The point bears repeating: not even one liberal or "progressive" justice on the court would go along with the ploy.
Troy Davis and his media groupies lost. But their campaign is not over. We now have to be on the look-out for their next manufactured and orchestrated case.

Peter Hitchens on Murder (among other things)

Why it's so hard to compare apples with apples on the subject.

Which brings me alongside Mr Hadley's responses to my most recent posting. But before I board his vessel with cutlass aloft, a few reactions are necessary to comments on my Sunday column. Mr Brant asserts that murder has not substantially increased since the abolition of the death penalty. Several points here: Can he please cite his sources? Is he referring to homicide as a whole? If he is using 'murder' as his definition, is he aware that the definition of 'murder' alters according to the legal punishment of that crime? For instance, when we still had a death penalty, but after it was weakened by the Homicide Act of 1957 many killers attempted to avoid the noose by pleading 'diminished responsibility' and so being sentenced for manslaughter. After this weakening, convictions for murder rose slightly, but not spectacularly (from 32 in 1956 to 51 in 1961) . But convictions for 'manslaughter due to diminished responsibility', most of which would probably have been prosecuted and sentenced as murder before 1957, climbed from 11 to 41 between 1957 and 1964. Add them to the murder figures, and you get quite a significant jump.

Once the death penalty ceased to operate at all, this process continued. The distinction moved elsewhere. Rather than trying to avoid being hanged, the accused's lawyers sought to avoid a 'life' sentence. And the prosecution, mindful of prison overcrowding and the high cost of jury trials,has joined in (the affronted relatives of victims sometimes write to me about the resulting injustice). What has tended to happen in subsequent years is that many more cases which would once have been charged and prosecuted as murder were reduced (for speed and cheapness) to charges of manslaughter. So, many cases whose actual nature would have had them classified as murder in, say, 1955, will have been recorded as manslaughter in post 1965 Britain. It is very difficult, given the fluid boundary between the two, to establish numbers.

Then, as the 1948 Royal Commission on the subject rightly pointed out, one must always be careful with direct before and after comparisons. Generally, countries which abolish the death penalty have suspended it or restricted it for a long period before the moment of abolition. (Most of the American states which claim to have the death penalty for political purposes never actually execute anyone, which also tends to confuse the matter, and those which do only execute after immense delays, by which time the murderer has often forgotten what he did, and so that many sentenced murderers actually die of natural causes on Death Row, making 'comparisons' between 'death penalty' and 'non-death-penalty' states virtually meaningless).

In Britain's case, the 1957 Homicide Act, which prevented the execution of gang members who had participated in a homicidal crime, and enshrined the 'diminished responsibility' defence, effectively eviscerated the death penalty although it wasn't formally abolished for another seven years. Britain never executed many murderers in modern times (the highest tally in the post-war period was 18 in 1951) but by the time abolition came, the annual total of hangings rarely rose above two. A serious comparison of pre and post abolition should therefore track the whole period between 1945 and now, and examine in detail many of the homicides nowadays classified as 'manslaughter'.

It should also, as I have rather often pointed out, recognise that trauma surgery has hugely improved since 1964, and that many homicidal assaults, which would undoubtedly have resulted in death 45 years ago, now do not do so. This is not because of the criminals being gentler, or lacking the intent (or callous heedlessness of the consequences of their savagery) which lead to death. A clue as to how many such 'hidden murders' now take place is offered by the growth in attempted murder cases, which rose between 1976 and 1996 from 155 to 634. In the same period instances of 'wounding to endanger life' rose from 5,885 to 10,445. All these figures, and a careful examination of this superficially persuasive but in fact worthless part of the abolitionist case, are to be found in the chapter 'Cruel and Unusual' of my reviled book 'A Brief History of Crime'. Any decent library will find it for you. The issue is also addressed in another chapter 'Out of the Barrel of a Gun', which shows that two post-war suspensions of the death penalty (one in 1948 and the other in 1955-57) caused by Parliamentary debates on abolition, correlate with two substantial but temporary increases in the incidence of armed and violent crime (the form of crime which death penalty supporters argue is deterred by capital punishment). In both cases the figures fell again after the suspension ended, only to increase, and carry on increasing evermore, after final abolition.

Is the Death Penalty racist?

From Distributed Republic:

Let's take a look at the numbers.

In 2007, about 42% of the prisoners on death row were black, while 56% were white*. Of the 1088 prisoners actually executed since 1984, 374, or about 34%, were black. About 1/8 of the US population is black, so relative to their representation in the general population, blacks are definitely overrepresented on death row, and in executions.

But that's a silly basis for comparison. The question isn't whether a random black person is more likely to be executed than a random white person, but whether a black murderer is more likely to be executed or sentenced to death than a white murderer. Between 1976 and 2005, 52% of all murders were committed by black offenders. So it turns out that blacks are actually underrepresented on death row relative to the rate at which they commit murder.

Granted, there could be other reasons besides an unbiased criminal justice system for the underrepresentation of black murderers on death row. It could be that black murderers are more likely to be tried by predominantly black juries, who may be less inclined than predominantly white juries to impose the death penalty. It could be that whites are more likely to commit the types of murders that invite death sentences. It could be that juries find black victims less sympathetic, perhaps because of racism, or perhaps because they really are less sympathetic (e.g., gang members). But it clearly is not true that blacks are overrepresented on death row in any relevant sense.
....
Another interesting point: The death penalty really is applied in a profoundly sexist manner. 11% of murders committed from 1976-2005 were committed by women, but only 54 (less than 2%) of the more than 3,000 prisoners currently on death row are women, and only 11 women have been executed since 1976, accounting for just over 1% of all executions. But when was the last time you heard a leftist complaining about the sexist application of the death penalty?

The world court roars

From SCOTUS Blog:

The International Court of Justice ruled unanimously on Monday that the U.S. government violated a duty under international law by failing to stop Texas from excuting a Mexican national last summer.  The Court located at The Hague in The Netherlands, however, seemed to absolve the U.S. Supreme Court of any specific violation even though it refused to block that execution.

....

The opinions released Monday can be found, in PDF format, here. A press release on the decision is here.  (Thanks to Howard Bashman of How Appealing blog for the alert to this decision.)

Hmmm....  Did the U.S. government have a legal means of stopping Texas?

Texas to execute an innocent bystander?

Well, apparently not.

Steve Verdon at Outside the Beltway writes that:

Kenneth Foster is innocent of murder. Even the State acknowledges this fact, but in three weeks Foster will be executed for the murder of Michael LaHood. Consider this another installment of "Our Stupid Judicial System."

His source is The Nation, which maintains that the convict, one Kenneth Foster, has been sentenced to die for a murder which took place 100 yards away from him.

the controversial Texas state “law of parties,” under which the distinction between principal actor and accomplice in a crime is abolished. The law can impose the death penalty on anybody involved in a crime where a murder occurred. In Foster’s case he was driving a car with three passengers, one of whom, Brown, left the car, got into an altercation and shot LaHood dead. Texas is the only state that applies this statute in capital cases, making it the only place in the United States where a person can be factually innocent of murder and still face the death penalty.

Well, that sounds absolutely Gilbertian:

"Unfortunately, the code of the Mikado has no provision for 'not knowing', or 'having no idea', or 'not being there'."

Beldar thinks he sniffs some anti-death penalty bias in the story. First, there's a gratuitous reference to Foster's race – the only such reference in the cited article. Second:

...read the last sentence of that quoted paragraph. What kind of statute could the "this statute" reference be to, such that it even potentially could be applicable nationwide in defining what is or isn't murder? Well, yes — Texas is the only state in the Union that applies the Texas felony murder statute. In Florida and Arizona and a bunch of other states that follow the traditional felony murder rule, they apply their own state statutes (some of which are very comparable, and others less so).

But of course, you spotted that, didn't you? Any crime show junkie knows that there are lots of ways you can wind up guilty of murder even if you never touched the victim, or even if you never intended there to be a victim in the first place.

Then Beldar (linked above) cheated.

He read the fifth circuit appellate decision.

During the guilt/innocence phase of Foster's trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally.

Some people might have been clued in by this behavior that a crime was going on.

The Court also found that...

...Foster could not have helped but anticipate the possibility that a human life would be taken in the course of one or more of his co-conspirators' armed robberies. By transporting a pair of pot-smoking armed robbers to and from one robbery after another, Foster clearly displayed the type of "reckless disregard for human life" the Supreme Court had in mind when it employed that term in Tison. Foster knowingly engaged in criminal activities known to carry a grave risk of death ....

in summary, the court found that Foster:

(1) actively participated in the group's robberies; (2) knew members of the group were using a gun to commit them; (3) shared the proceeds from them; (4) was the getaway driver; and (5) expressed no remorse when Michael LaHood was murdered. [Additionally,] after Brown shot Michael LaHood, Foster "drove him away ..., all the while telling Brown to hide the gun"; further, when police pulled over the vehicle, Foster encouraged Brown to hide the gun in his underwear.

Beldar's comment on this is:

In the meantime, I wish the opponents of capital punishment like Mr. Rothberg would quit lying by omission, trying to make someone like Foster look like an innocent bystander randomly sentenced to death by those fiends down in Texas just because he's black. Your dishonesty does your cause a disservice, and thereby ultimately makes you into an enemy of those on death row.

Does the death penalty deter?

Opponents of the death penalty like to claim there's no deterrent effect. There have been some studies carried out which beg to differ.

What gets little notice, however, is a series of academic studies over the last half-dozen years that claim to settle a once hotly debated argument _ whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer.

"Science does really draw a conclusion. It did. There is no question about it," said Naci Mocan, an economics professor at the University of Colorado at Denver. "The conclusion is there is a deterrent effect."

A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. "The results are robust, they don't really go away," he said. "I oppose the death penalty. But my results show that the death penalty (deters) – what am I going to do, hide them?"

Statistical studies like his are among a dozen papers since 2001 that capital punishment has deterrent effects. They all explore the same basic theory _ if the cost of something (be it the purchase of an apple or the act of killing someone) becomes too high, people will change their behavior (forego apples or shy from murder).

To explore the question, they look at executions and homicides, by year and by state or county, trying to tease out the impact of the death penalty on homicides by accounting for other factors, such as unemployment data and per capita income, the probabilities of arrest and conviction, and more.

Among the conclusions:

• Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).
• The Illinois moratorium on executions in 2000 led to 150 additional homicides over four years following, according to a 2006 study by professors at the University of Houston.
• Speeding up executions would strengthen the deterrent effect. For every 2.75 years cut from time spent on death row, one murder would be prevented, according to a 2004 study by an Emory University professor.

A list of some studies is here.

Death Penalty as a deterrent?

Some time ago, a paper came to my attention. The paper, written by two researchers, one from Emory University and one from Clemson University, is called, "The Deterrent Effect of Capital Punishment: Evidence from a 'Judicial Experiment'”. It purports to show that executions for murder save lives by deterring future murders.

Our results indicate that capital punishment has a deterrent effect, and the moratorium and executions deter murders in distinct ways. This evidence is corroborated by both the before-and-after comparisons and regression analysis. We also confirm that the moratorium and executions do not cause similar changes in non-capital crimes. The results are highly robust.

I can't find the "eighteen for one" quote mentioned below in this linked paper – I remember seeing a different one which I'll have to hunt for later.

...now economists have entered the debate. And they have brought to the task a dazzling range of highly sophisticated techniques originally developed to answer more prosaic questions, such as whether tax breaks encourage saving. More often than not the economists find that executions do save lives. The most dramatic finding comes from Joanna Shepherd and a team at Emory University in Atlanta. They have taken advantage of the fact that some parts of the US don't execute murderers, and only a handful of states execute them consistently.

(snip)

As they starkly report their central finding: each execution results in an average of 18 fewer murders.

Source

Reaction to execution in Europe

Stanley "Tookie" Williams is dead, executed for his murder of four people a quarter of a century ago. Reaction in Europe reinforces my belief that the E.U. should be pronounced "Eeewwww".

Leaders of Austria's opposition Green Party even called for Mr. Schwarzenegger to be stripped of his Austrian citizenship...

In Graz, Mr. Schwarzenegger's hometown, local Greens said they would file a petition to remove the California governor's name from the city's Arnold Schwarzenegger Stadium. A Christian political group suggested it be renamed for Williams.

Tookie Williams

If I lived near San Quentin, I might be inclined to organize a counter for the inevitable candle-light vigils at the prison. This would be a candle-snuffer vigil, with photos of the victims.

The Volokh Hornet's Nest

Eugene Volokh has upended a hornets' nest with his recent comments on capital punishment. His thoughts on a recent execution in Iran seem to echo those of Larry Niven. In a short story, an extraterrestrial, told that we have laws against cruel and unusual punishment, asks, "what do you do about cruel and unusual crimes?"

And we do have to look at the deterrence effect. At one point, discussing Hitler's hanging of those who were involved in his attempted assassination with piano wire,

Had things been reversed, my regret would have been that hanging with piano wire didn't inflict enough pain on Hitler (though I would have been glad that he hadn't been turned over to a too-"civilized" government that would have dispatched him with less pain).

And the deterrent effect works in many ways, and on many levels. I recently saw (again) an episode of Columbo in which the detective was able to determine who committed a pair of murders. Unfortunately, the murderer had diplomatic immunity. Fortunately, Columbo was able to arrange things so the king of this foreign country was present to overhear the murderer's confession.

The murderer decided that waiving diplomatic immunity and submitting to American justice was far preferable to what he was likely to receive back home.

A fictitious case where deterrence worked has countless parallels in real life. Who knows how many plea bargains are made because a defendant doesn't want to risk drawing the ultimate penalty?

To those who insist that criminals are not sufficiently focused in the future to be deterred by threats of capital punishment, I can only say, tell that to the criminal organizations. They use that same threat to enforce order within their own ranks.