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.

…

​“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.

…

​“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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