Reports

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

NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty

The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution. 

New Report Documents “Dramatic Rise” in Republican Support for Death-Penalty Repeal

"The death penalty is dying in the United States, and Republicans are contributing to its demise," concludes a new report, The Right Way, released on October 25 by the advocacy group Conservatives Concerned About the Death Penalty. The report traces "the dramatic rise in Republican sponsorship of bills to end the death penalty" and the trends that it says helped contribute to this rise. Based on this data, the report says "[m]ore Republican lawmakers are recognizing that the death penalty is a broken policy and taking an active role in efforts to end it." The data in the report reflect both the emergence of Republican leadership in bills to repeal the death penalty and increased bi-partisanship in the sponsorship of these bills. Forty Republican legislators sponsored bills to abolish the death penalty in 2016, the report says, "ten times as many [who] sponsored repeal bills ... in 2000." It also reports that the percentage of repeal-bill sponsors who are Republicans has risen to 31%, a six-fold increase since 2007. The report highlights grassroots, party-level, and religious shifts in Republican views about and activism against the death penalty. In addition to the national Conservatives Concerned About the Death Penalty, conservative anti-death-penalty advocacy groups have formed in eleven predominently Republican "red states." In Kansas, the state Republican Party "removed its death penalty support from the Party’s platform in 2014" in favor of a neutral position and voted down an attempt to restore a pro-death penalty stance in 2016. The report also says Evangelicals are increasingly "forsak[ing] the death penalty," pointing to the public involvolvement of prominent Evangelical leaders opposing state efforts to carry out executions in a number of recent cases and the new policy of position the National Association of Evangelicals, expressing neutrality on the death penalty and acknowledging its flaws. Recent national polls confirm the report's observations. The October 2017 Gallup poll on the death penalty indicated that death-penalty support among Republicans fell by ten percentage points, from 82% to 72%, in the last year, and the Pew Research Center reported a seven percentage-point decline in support for capital punishment between 2011 and 2015 among respondents who described themselves as conservative Republicans. The Right Way highlights the actions of five Republican state legislators' efforts to repeal capital punishment in predominantly Republican states, and addresses the substantive concerns that have given rise to Republican death-penalty opposition. "Plagued by wrongful convictions, high costs, and delays," the report says, "the death penalty has proven to be ineffective and incompatible with a number of core conservative principles. It runs afoul of conservative commitments to limited government, fiscal responsibility, and a culture of life." As renewed pushes to abolish the death penalty move forward in states like Utah and New Hampshire, the Gallup organization suggests that the actions of Republicans may be critical in determining the death penalty's future. It's analysis of this year's poll states: "Thirty-one states, primarily in Republican-leaning regions, allow the death penalty. The likelihood of many of those states changing their laws hinges on whether rank-and-file Republican support for capital punishment remains high or declines in the future."

DPIC Releases New Report, "Battle Scars: Military Veterans and the Death Penalty"

On November 10, on the eve of Veterans' Day, the Death Penalty Information Center released a new report, Battle Scars: Military Veterans and the Death Penalty. The report examines the plight of U.S. military veterans who have been sentenced to death, estimating that about 300 veterans are currently on death row. Many of these veterans suffer from Post-Traumatic Stress Disorder (PTSD) or other mental disabilities caused or exacerbated by their time in combat. Often when these veterans were on trial facing the death penalty, their military service and related illnesses were barely presented to the jury. The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with PTSD, who had been granted 100% disability by the Veterans Administration. His combat trauma was largely unexplored at trial, and the Georgia Pardons Board denied him clemency. DPIC's press release noted: "As the country prepares to honor its military veterans on November 11, it may be a sobering and surprising revelation that many veterans have been adjudged as 'the worst of the worst,' condemned to death, and executed by the government they once served." The report urges more attention be paid to veterans facing execution: "Early intervention, peer assistance from veterans, and involvement of veteran officials with prosecutors, defense attorneys, and judges could all be instrumental in steering a case away from the death penalty," the report states.

DPIC's Year End Report: Death Sentences Remain Near Historic Low

On December 18, the Death Penalty Information Center released its latest report, The Death Penalty in 2012: Year End Report,” on developments in capital punishment in the past year. The report noted the number of new death sentences in 2012 was the second lowest since the death penalty was reinstated in 1976, representing a nearly 75% decline since 1996, when there were 315 new death sentences. Only nine states carried out executions in 2012, equaling the fewest number of states to do so in 20 years. In 2012, use of the death penalty was clustered in a few states. Just four states (Texas, Oklahoma, Mississippi, and Arizona) were responsible for over three-quarters of executions nationwide. Death sentences were also primarily imposed in a few areas, with four states (Florida, California, Texas, and Pennsylvania) accounting for almost two-thirds of the nation’s death sentences. “Capital punishment is becoming marginalized and meaningless in most of the country,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “In 2012, fewer states have the death penalty, fewer carried out executions, and death sentences and executions were clustered in a small number of states. It is very likely that more states will take up the question of death penalty repeal in the years ahead.”

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STUDIES: New Report Sees Demise of California's Death Penalty

A new report on the state's death penalty system published by the ACLU of Northern California catalogs numerous intractable problems and waning public support which may lead to the end of capital punishment in the state.  According to the report, "California's Death Penalty is Dead: Anatomy of a Failure," the death penalty in California is being slowly abandoned as prosecutors, legislators and taxpayers are increasingly turning to life in prison without parole as an alternative punishment.  Only three death sentences were imposed in the state between January - June 2011, a significant decline compared to the same period last year when there were 13.  This marks the lowest number of new death sentences within a six-month period since the death penalty was reinstated in 1978.  The report also highlights that voters in the 2010 election opted for officials who supported replacing the death penalty over those who aggressively campaigned in favor for the death penalty.  A 2011 poll revealed that 63% of likely California voters supported commuting all existing death sentences to life without parole, thereby saving the state hundreds of millions of dollars.  The commutation proposal received support from respondents across political party lines and from all regions of the state.  Among the problems highlighted in the report are the enormous costs of the death penalty, the long delay in assigning lawyers for death penalty appeals, and the absence of any meaningful return for all the resources spent. Read full text of the report here.

STUDIES: Death Sentences in California Show Arbitrariness of the System

A new report released by the ACLU of Northern California reveals that only three counties–Los Angeles, Orange, and Riverside–accounted for 83% of the state's death sentences in 2009. Los Angeles County, with 13 death sentences, was the leading death penalty county in the entire country last year. According to the report, California, with the largest death row in the country, spends $137 million annually on the death penalty, while the state is cutting back on many vital services. The report also indicated an increase in the Latino population of California's death row in recent years; 50% of the death sentences in 2007 were for Latinos even though they comprised only 36% of the state's population.

The executive summary of the report concluded, "A shift to permanent imprisonment would mean significant savings in a time of fiscal crisis, would eliminate the risk of executing the innocent, and would lead to more consistent policies across all California counties. California is on track to spend $1 billion on the death penalty in the next five years, though even more funds are required to protect the innocent from wrongful conviction and to ensure timely review of lengthy death penalty cases. For all the money dedicated to the death penalty in California, only 1 out of 100 people sentenced to death has actually been executed during the last thirty years."  Click here for the full report.

STUDIES: Innocence Network Exonerations 2009

Twenty-seven people were exonerated and released from prison this year, including some who had been on death row, according to a new report from The Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongfully convicted people.  The 27 exonerees served a combined 421 years in prison for crimes they did not commit.  The exonerations occurred through the work of the Innocence Project Network, which consists of 54 organizations, including 45 in the U.S.  The Innocence Project concentrates on wrongful convictions and uses DNA testing, while also promoting reform of the criminal justice system.  (Click on the thumbnail to access full text of the report.)  The most recent person exonerated was James Bain, who was imprisoned for 35 years before DNA testing revealed that someone else had committed the crime that led to his conviction.

 

 

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