When Justice Sandra Day O’Connor was a senator in Arizona, one of the people she asked to draft the state’s death penalty law was Rudolph Gerber. She requested that he “write a law we can live with.” Mr. Gerber went on to become a prosecutor, an Arizona trial judge, and eventually a judge on the Arizona Court of Appeals for 13 years. He recently expressed his changing views on capital punishment as he experienced how the law was put into practice:

“My experience, not atypical by any means, revealed some intractable trial court problems surrounding the death penalty. For one thing, prosecutorial discretion to seek death remained exactly what it had been when I was a prosecutor—unstructured and capricious, with elected county attorneys usually deciding to pursue it at their whim in a high-profile case offering the prospect of political advantage. For another, capital codefendants were offered widely disparate plea bargains that, though intended to secure testimony against the supposedly more culpable offender, sometimes punished the less culpable and rewarded the more culpable.

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“In addition, legislators crafting capital legislation with gusto lacked firsthand knowledge about the many types of individuals within the universe of first-degree murderers….Elected county attorneys and legislators touted capital punishment without any realistic understanding of these differences or of capital sentences’ caprice, infrequency, small ‘return,’ and above all, the financial drain on law enforcement monies otherwise usable for more effective tools of crime fighting.”

(R. Gerber, “Survival Mechanisms: How America Keeps the Death Penalty Alive,” 15 Stanford Law & Policy Review 363, 374 (2004)).

In another article, former Judge Gerber analyzed the requirements for a punishment to act as a deterrent to crime, namely: swiftness of application, certainty of receiving the punishment, proportionality to the severity of the crime, and public exposure to the punishment being carried out. His article finds the death penalty to be seriously lacking on all counts:

“Our nation’s history of capital punishment demonstrates a steady departure from the four requirements needed both for deterrence and for rational calculation of disincentives. Our capital punishment system is not swift because the appeals process takes many years, with the average death row resident spending well more than a decade on death row after the commission of the original murder. Our capital punishment is not certain because only a miniscule number of murders receive the death sentence, and even among those so sentenced, only one in ten is actually executed. Capital punishment no longer mirrors the severity of the original killing because lethal injection has made execution physically painless. Perhaps most notably absent among these requirements, executions today are no longer public events accessible either firsthand or even via detailed media accounts. They have moved progressively from the town square to the jail yard to the privacy of the execution room where the few witnesses are not those needing to learn the deterrence message—paradoxically, the only audience present is the wrong one.

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“We should not be surprised then that law enforcement officials as well as criminological scholars regularly conclude that capital punishment offers no prospect of deterrence….To capital punishment enthusiasts and economic theorists alike who urge deterrence as a realistic goal of capital punishment, our execution history from colonial days to the present shows deterrence falling so far below these requirements as to be not only illusory but beyond recapture.”

(R. Gerber, “Economic and Historical Implications for Capital Punishment Deterrence,” 18 Notre Dame Journal of Law, Ethics & Public Policy 437, 449-50 (2004)). See also New Voices.

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