Deterrence

Life Plea in Police Killing Highlights Turbulence Over Philadelphia Death-Penalty Reform

Two men charged with killing Philadelphia Police Sgt. Robert Wilson III have been sentenced to life without possibility of parole, plus an additional term of 50 to 100 years, as prosecutors in one of the nation’s largest death-penalty counties agreed not to seek the death penalty in exchange for the defendants’ guilty pleas. Philadelphia District Attorney Larry Krasner (pictured) appeared in court on June 25 to personally explain the rationale behind the plea deal that ensures brothers Carlton Hipps and Ramone Williams will spend the rest of their lives in jail. Krasner told the court that the mothers of Sgt. Wilson’s two young children “do not want the death penalty” and that the plea deal would “minimize the re-traumatization” that would occur if they were exposed to a capital trial and lengthy appeals. Krasner said “[t]he death penalty in Pennsylvania is not what people think it is. The reality is people are not executed in Pennsylvania. They die in custody on death row.” The plea deal drew highly publicized criticism from the Philadelphia Fraternal Order of Police and other members of Wilson's family who wanted the death penalty to be pursued. It also provoked opposition from activists who said that Krasner’s use of the death penalty as leverage for the guilty pleas violated his campaign promise never to seek death sentences. The Philadelphia lodge of the FOP—who, along with former prosecutors who were fired from or left the DA’s office, have engaged in a prolonged public relations war against Krasner’s proposals for criminal-justice reform—called the plea deal “despicable.” On social media, it urged its members to attend the sentencing to “show support” for the Wilson family. Krasner said that the mothers of Wilson’s children had received threatening messages, which they believed were from the FOP, pressuring them to ask Krasner to seek the death penalty. Only family members who opposed the deal came to the court hearing. Krasner’s decision not to seek the death penalty comes in the wake of a twenty-year decline in Philadelphia’s use of capital punishment. The city imposed 99 death sentences in the 1990s, 21 in the first decade this century, and fewer than one every other year in the 2010s. Nearly 150 death sentences imposed in the city since the 1970s have been overturned, and there has been only a single execution. After highlighting the high cost of capital punishment, Krasner said, “A choice to waste money may be a choice to endanger police officers. And frankly, if you really want to get down to it, when did the death penalty prevent this outcome? The death penalty has not stopped it here. The death penalty has not stopped it in the past. And, every bit of scientific evidence indicates that it’s not going to stop it in the future.” A Death Penalty Information Center analysis of FBI murder data has shown that over the last three decades, police officers have been killed at a rate that is 1.37 times higher in states that currently have the death penalty than in states that have long abolished it.

Public Health Experts Criticize Trump’s Proposal to Seek Death Penalty for Drug Traffickers

Saying “the ultimate penalty has to be the death penalty,” President Donald Trump (pictured) announced on March 19 that he will direct the Department of Justice to seek the death penalty against drug traffickers. The proposal, included as part of the administration’s plan to address an opioid epidemic that has resulted in as many as 64,000 overdose deaths in 2016 alone, drew immediate criticism from public-health and criminal-justice experts. “We can’t execute our way out of this epidemic,” said Dr. Andrew Kolodny, co-director of the Opioid Policy Research Collaborative at Brandeis University. “To be talking about the death penalty sounds to me like a step backwards.” During the announcement, Trump acknowledged resistance to his death-penalty proposal, saying, “[m]aybe our country's not ready for that. It's possible, it’s possible that our country is not ready for that.” Since 1994, federal law has authorized the death penalty for “drug kingpins” who traffic in large quantities of drugs, even if no killing has occurred. But the U.S. Supreme Court has ruled that the death penalty is unconstitutional for crimes against individuals in which no one is killed, and no prior administration—Republican or Democratic—has used the drug kingpin provision to seek the death penalty. Experts said the opioid crisis should be dealt with as a public-health issue and that harsher penalties for drug dealers would not fix the problem. Instead, they said, the administration should focus on addiction treatment. “The reality is, most people who are selling drugs are suffering from opioid addiction, and they sell drugs to support their own habit,” Dr. Kolodny said. “When I start hearing about the death penalty, it just seems to me we’re going in the wrong direction.” Dr. Guohua Li, professor of epidemiology and anesthesiology at Columbia University, agreed, saying “[c]riminal justice can play a complementary role in addressing the opioid crisis, but relying on the criminal justice system to address public health problems has proven unwise, costly, ineffective and often counterproductive.” Legal experts said the constitutionality of death sentences for drug dealers would likely be the subject of extensive litigation. “The death penalty is uncertain as a constitutionally permissible punishment without that connection to an intentional killing,” said Ohio State University law professor Doug Berman. Hamilton County, Ohio, Prosecuting Attorney Joe Deters, known for aggressively pursuing the death penalty, said “[t]o seek a death penalty case [simply for for drug trafficking] would be almost impossible. We'd have serious constitutional problems.” Former Harris County, Texas, homicide prosecutor Ted Wilson called the proposal “kind of over-the-top.” The death penalty for drug dealers "in my opinion just doesn’t fit,” he said. Senator Dick Durbin (D-Illinois) compared the President’s death-penalty proposal to past failed drug policies, saying, “We cannot arrest our way out of the opioid epidemic—we tried that and ended up with an even bigger addiction problem and the world’s largest prison population. The war on drugs didn’t work in the 80’s, and it won’t work now by reviving failed deterrence measures like the death penalty for drug dealers.  We must instead crack down on the over-production and over-prescribing of painkillers, and increase treatment for those suffering from addiction—both of which have bipartisan support in Congress." A study by the Pew Charitable Trusts, released March 8, found that harsher penal sanctions had no measurable impact on drug use, drug overdose deaths, and drug arrests. The data, Pew said, “reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations. The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.”

Experience Shows No “Parade of Horribles” Following Abolition of the Death Penalty

States that have recently abolished the death penalty have not experienced the “parade of horribles”—including increased murder rates—predicted by death-penalty proponent, according to death-penalty experts who participated in a panel discussion at the 2017 American Bar Association national meeting in New York City. Instead, the panelists said, abolition appears to have created opportunities to move forward with other broader criminal justice reforms. The transcript of that panel presentation, Life After the Death Penalty: Implications for Retentionist States, which was posted by the ABA on January 3, features discussion of the political factors that contributed to repeal and research into the effects of death-penalty abolition in those states in which repeal has recently occurred. The panel discussion, jointly hosted by the American Bar Association Section of Civil Rights and Social Justice and the New York City Bar Association in August 2017, featured four speakers with backgrounds in death-penalty activism, reform, or research: Thomas P. Sullivan, Co-Chair of the 2000 Commission on Capital Punishment in Illinois; Shari Silberstein, Executive Director of Equal Justice USA; Celeste Fitzgerald,& former Director of New Jerseyans for Alternatives to the Death Penalty; and Robert Dunham, Executive Director of the Death Penalty Information Center. The first three speakers described the circumstances that led to abolition in the six states that legislatively repealed or judicially abolished capital punishment between 2007 and 2014 and explained how abolition sponsors overcame opponents' arguments that, as Fitgerald characterized it, “abolition would bring about a 'parade of horribles.'” Silberstein summarized those worries, saying, “The death penalty proponents' arguments were all the traditional ones you would expect. They talked about the bloodbath that would come if there were no death penalty: murders would spike; the killings of police officers would spike; killings of corrections officers would spike.” Dunham discussed DPIC's research on three decades of murder rates in the U.S., which, he said, shows that abolition of the death penalty had no discernible effect on murder rates in general or murder rates of police and corrections officers killed in the line of duty. Dunham said that if the arguments advanced by death-penalty proponents were factually supported, murder rates in general and the rates at which police and corrections officers were killed should have risen after states abolished the death penalty, both in those states and in comparison to trends in other states. And, Dunham said, “if—as opponents of death-penalty abolition had argued—police officers were especially vulnerable without the death penalty and its repeal would lead to 'open season on police officers,' you'd expect to see not just an increase in the rate at which police officers were killed, but an increase in the number of murders of police officers as a percentage of all homicides.” None of this happened, he said. Instead, murders of law enforcement officers were much lower in the states that recently abolished the death penalty. “[T]he death penalty appears to make no measurable contribution to police safety,” Dunham said. The panelists also observed that repeal of capital punishment had created an opportunity for additional criminal justice reform. Sullivan noted that, prior to repeal, “[a] great deal of time, attention, and effort were spent on the few cases that involved the death penalty in Illinois, while little attention was given to the huge number of people who were convicted and incarcerated for crimes. All that time, attention, and money can now be shifted to reforming the entire Illinois criminal justice system. That would mean that there has been a double benefit from having abolished the death penalty in Illinois.” Silberstein said that in New York, abolition permitted “stakeholders who could not talk to each other in the same way when the death penalty was on the table because [of] differences over the death penalty” to discuss “how best to achieve the key goals of safety and healing [and] work on increasing funding and programs to reduce violence.”

Conservative Voices Continue to Call for End of Death Penalty

From October 2016 to October 2017, support for capital punishment among those identifying themselves as Republicans fell by ten percetage points. Two op-eds published towards the end of the year illustrate the growing conservative opposition to the death penalty. Writing in The Seattle Times on December 27, Republican State Senator Mark Miloscia (pictured, l.) called for bipartisan efforts to repeal Washington's death-penalty statute. In a December 13 commentary in the Washington Times, conservative political strategist Richard Viguerie (pictured, r.) describes what he calls the "stunning" surge in Republican sponsorship of bills to end capital punishment. Setting forth moral and practical reasons for his support of Washington Senate Bill 5354, Miloscia writes that "[i]t is time to pass a strong, bipartisan repeal of the death penalty." Miloscia cites his Catholic pro-life beliefs as the primary reason for his opposition to capital punishment and highlights Pope Francis' calls for an end to the death penalty. He writes, "Given our modern prison system and ability to neutralize individuals as threats without killing them, it is never imperative to execute someone." But beyond religious beliefs alone, Miloscia sees "many practical reasons why conservatives of all faiths are rethinking the death penalty." Among them, he cites the high cost of capital punishment and the "ever-present risk of killing an innocent person," which he says are "even more unjustifiable" given the absence of any valid evidence that executions affect murder rates. Further, he writes, "many murder victims’ families oppose capital punishment because it’s little more than a long, re-traumatizing process that doesn’t give them the justice that they deserve." Miloscia sees a major shift underway in Republican thinking on the issue, paving a path for bipartisan repeal: "Republicans are turning against the death penalty, which means that opposition to capital punishment is no longer a partisan stance. As the death penalty slowly loses its supporting constituency, the punishment’s future becomes doubtful." Conservative leader Richard Viguerie also sees a dramatic change in how conservatives view the death penalty. Viguerie cites a 2017 report by Conservatives Concerned About the Death Penalty, which found a surge in Republican sponsorship of death-penalty abolition bills that Viguerie says "has been gaining momentum." As part of this "massive shift," he writes, one-third of all sponsors of death-penalty repeal bills in 2016 were Republicans. Viguerie writes, "conservatives are recognizing that capital punishment is a broken government program that runs counter to conservatism’s foundational tenets of valuing life, fiscal responsibility and limited government." He, too, points to religion, and Catholicism in particular, as a reason for conservative opposition, but says that the Tea Party movement—with its support of limited government—and the election of younger legislators who are statistically more likely to oppose the death penalty, has contributed to the change. He foresees a continuing decline in conservative support for the death penalty: "As state legislatures undergo their makeovers, the public turns against the death penalty, and political leaders voice their capital punishment concerns, we should expect to see even more from Republican officials. Republicans will likely continue to sponsor repeal bills with increasing frequency and reverse the flawed criminal justice policies once advocated by their ideological predecessors of the 1980s and 1990s."

New Jersey Marks Tenth Anniversary of Abolition of Capital Punishment

On December 17, 2007, New Jersey abolished the death penalty. On the tenth anniversary of abolition, the editorial board of the New Jersey Law Journal writes, "On the Death Penalty, New Jersey Got it Right." The editorial board wrote, “Abolition has proven its worth, in that there has been no surge of murders, a significant decline of prosecution and appeal expenses, and the elimination of unremediable judicial mistakes. [Abolition] was and remains both the right thing and the sensible thing to have done.” In August 1982, New Jersey reenacted the death penalty, six years after the United State Supreme Court decision in Gregg v. Georgia upheld the constitutionality of state capital punishment laws. However, no defendant was ever executed in the state. In January 2006, the state legislature passed a bill creating the New Jersey Death Penalty Study Commission and imposing a moratorium on executions until the commission issued its report. The study commission’s report, released on January 2, 2007, recommended abolishing capital punishment. Among other findings, the commission determined that the costs of imposing the death penalty were “greater than the costs of life in prison without parole” and that there was “no compelling evidence that the New Jersey death penalty serves a legitimate penological intent.” Less than a year later, Governor Jon Corzine signed legislation abolishing the death penalty. Murders fell in New Jersey after the moratorium and repeal bills became law, marking the first time since 1999 that New Jersey experienced a drop in murders for two consecutive years. One year after repeal, New Jersey prosecutors reported that the abolition had not hindered prosecution of the state’s most violent offenders. The Law Journal editorial board said that, after a decade, the study commission’s assessment that the death penalty was not a deterrent to murder “has proven its worth." The murder rate in New Jersey has been lower than it was in 2007 for eight of the past nine years and a 2017 DPIC study of murder rates over the last three decades found no difference in murder trends based upon whether a state had, or did not have, capital punishment. A December 15 statement released by the Catholic Bishops of New Jersey hailed the state’s abolition of the death penalty “as a victory for the dignity of life.” The Bishops wrote that while they “affirm the state’s duty to punish criminals, to prevent crime, and to assist victims,” they also “recognize the need to improve our criminal justice system and to forge a greater societal commitment to justice.” Society, they said, “has effective ways to protect itself and to redress injustice without resorting to the use of the death penalty.”

Report: Deterrence is Based on Certainty of Apprehension, Not Severity of Punishment

The certainty of apprehension, not the severity of punishment, is more effective as a deterrent. So argues Daniel S. Nagin (pictured), one of the nation’s foremost scholars on deterrence and criminal justice policy, in his chapter on Deterrence in the recently released Academy for Justice four-volume study, Reforming Criminal Justice. Reviewing deterrence scholarship since the 1960s and five leading studies from the past two decades, Dr. Nagin concludes that evidence supporting a deterrent effect from "the certainty of punishment is far more convincing and consistent than for the severity of punishment." Moreover, he writes, "[t]he certainty of apprehension, and not the severity of the ensuing legal consequence, is the more effective deterrent." Dr. Nagin is the Teresa and H. John Heinz III University Professor of Public Policy and Statistics at Carnegie Mellon’s Heinz College of Information Systems and Public Policy and previously chaired the Committee on Deterrence and the Death Penalty for the National Research Council of the National Academies of Science (NAS). In that capacity, he served as co-editor of the 2012 National Academies report, Deterrence and the Death Penalty. Nagin explains in his Academy for Justice chapter that although "certainty must result in a distasteful consequence" for the punishment to be a deterrent, "[t]he consequences need not be draconian, just sufficiently costly, to deter the prohibited behavior." In making policy judgments about the justification for increasingly severe sanctions, he says, "the deterrent return to increasing an already long sentence appears to be small, possibly zero." The 2012 NAS Committee found that "research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates" and recommended that those deterrent studies "not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide." A February 2015 study by the Brennan Center for Justice of the dramatic drop in crime in the U.S. in the 1990s and 2000s found that the death penalty had no effect on the decline in crime

Louisiana Justice Recused From “Angola 5” Death-Penalty Appeal After Radio Interview Commenting on the Case

Louisiana Supreme Court Justice Scott Crichton (pictured) will not participate in deciding the appeal of a prisoner sentenced to death in a controversial, high-profile prison killing, after Crichton publicly commented on the case during an appearance on a local radio program. On November 21, Crichton recused himself from the pending appeal of death-row prisoner David Brown, one day after Brown's lawyers sought his removal from the case because of Crichton's on-air comments about the "Angola 5" case and the judge's derrogatory references to capital appeals. Brown is one of the five men charged in the murder of prison guard, Capt. David Knapp at the Angola State Penitentiary in 1999. Crichton's "notice of self-recusal" provided no explanation for his decision. However, Brown's lawyers had argued in their recusal motion that, during an October 23 talk-radio appearance on the KEEL Morning Show with Robert and Erin, "[Crichton] and his interviewer agreed that inmates with life sentences 'have nothing to lose' and that murders by prisoners, like 'the Angola 5 in South Louisiana,' prove that the death penalty is a deterrent because inmates who have been executed cannot then harm prison guards." The lawyers also argued that Crichton had expressed personal opinions about the death penalty both on the October 23 program and in other recent radio interviews that violated the Code of Judicial Conduct and disqualified him participating in Brown's death-penalty appeal. In addition to his comments about the Angola 5 case, Justice Crichton—a former death-penalty prosecutor and judge in Caddo Parish, where the rate of death sentences per homicide was nearly 8 times greater between 2006 and 2015 than in the rest of Louisiana—disparaged death-penalty appeals, saying that it "boggles my mind" when an "inmate who has committed capital murder who is on death row is begging for his life. Think about the fact that the victim gets no due process." In 2014, a trial court had reversed Brown's death sentence after finding that Hugo Holland—another former Caddo Parish prosecutor who had been appointed as a special prosecutor to handle the case—had withheld evidence that a prisoner interviewed in connection with the murder had told prosecutors that two of the five men charged in the killing had admitted to him that only they had committed the murder. The Louisiana Supreme Court later reinstated Brown's death sentence, ruling that the suppression of this evidence was not "material" to the jury's sentence. Crichton had complained in previous appearances on the talk show about the appeal process in the death-penalty case of Nathaniel Code, against whom Crichton had obtained a death sentence in the 1980s: “He’s been on this crazy post-conviction relief status,” Crichton said. “He had 18 years of [post-conviction appeals] in the state system, which is absurd, obscene, and hideous.”

BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty

In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."

Pages