The following ruminations combine various things I have written over the years.

Claims that capital punishment saves lives involve one or both of two issues: (a) it disables the executed murderer from killing again [disabling effect]; and (b) it deters other criminals from committing future murders [deterrent effect] In discussing capital punishment I have never before addressed (b) because I lack sufficient familiarity w/ the literature, and what I do know does not lead me to any confident conclusions on the deterrent effect of capital punishment.

In 2006 however, CALIFORNIA LAWYER magazine gave a somewhat simplistic summary of some research on the deterrent effect issues. The following quotations come from CALIFORNIA LAWYER’s June, 2006 issue:"In 1975 an economist at the University of Chicago, Isaac Ehrlich, was both credited and blamed for helping to convince the U.S. Supreme Court to lift the moratorium on capital punishment.... Ehrlich[‘s work] showed that for every individual executed eight [victim] lives were saved," presumably because criminals were deterred from murder.

The article then goes on to assert that subsequent analysis by the National Academy of Sciences "shot down this analysis." My understanding however, is that this is erroneous. Those who oppose capital punishment presented critiques of Ehrlich’s work while other scholars defended it. The result was continued disagreement about Ehrlich’s work, not agreement that Ehrlich was wrong. (It bears emphasis that this is not my conclusion. I have not studied the matter and am simply noting that very competent people who evaluated Ehrlich’s work did, and continue to, disagree on its validity.)

The CALIFORNIA LAWYER article continues: "But the debate did not go away, and over the past decade many more studies have been published, some of which even suggest that Ehrlich underestimated [italics in original] the death penalty’s deterrent value. Fo example, in an article published in AMERICAN LAW AND ECONOMICS REVIEW in 2003, three economists found that for each convicted killer who was executed nineteen lives were saved. And last fall legal scholars Cass Sunstein and Adrian Vermuele declared in the STANFORD LAW REVIEW that the deterrent effect of executions is so strong that the government has a moral obligation to carry them out. [NOTE: I have not read this article but have skimmed what appears to be the original ms. from the University of Chicago where both authors teach. That article does not flatly endorse the notion that executions deter murder and save roughly 19 lives for each execution, but treats that notion respectfully. The authors’ concern is to argue the moral point that if this is true, then government is morally required to impose capital punishment. That is quite a remarkable assertion because politically Sunstein is very liberal.]

"Also last fall economist Joanna M. Shepherd, who teaches at the Emory Law School in Atlanta and was one of the authors of the 2003 AMERICAN LAW AND ECONOMICS REVIEW article published an article in the MICHIGAN LAW REVIEW that concludes that executions deter homicides – but only if enough people are executed. In fact, in states that execute people infrequently, Shepherd claims, the death penalty leads to more homicides because it contributes to what she calls an ‘atmosphere of brutalization.’"

THE "ATMOSPHERE OF BRUTALIZATION" EFFECT

This last issue is something of an embarrassment to both sides. There is some evidence that murders actually increase in the week after an execution. Obviously proponents of the death penalty are loath ro consider the possibility that executions may actually promote murders. Neither, however, have opponents addressed this point at length because it has embarrassing aspects for them as well.

To understand why, it is necessary to seriously consider why it would be that an execution would actually spur criminals to kill more people. (The issue must be analyzed in terms of spurring criminals to murder because ordinary law abiding adults virtually never murder under any circumstances. So what we are talking about here is that execution of one criminal may spur other criminals to murder.) The question is why would that occur. I propose an answer that, for different reasons, neither opponents nor proponents of capital punishment have been willing to deal with.

Whether or not they agree with it, everyone understands the theory that capital punishment deters killings by focusing criminals’ minds on the danger that they may be punished by death. But my theory of why execution of one criminal may spur others to kill is that executions may also focus criminals’ minds in a different direction. The imposition of capital punishment incites them to punish those whom they feel have transgressed against them and so deserve it. We conceptualize criminals as people who have little or no compunction against violating laws and/or injuring others. But that does not preclude criminals also having a self-righteous desire to kill in order to punish what they see as crimes against them. E.g.: His woman is cuckolding him – so punish her, and perhaps her boyfriend, by killing one or both of them. Or, someone owes him money but is not paying up – so punish the debtor by killing him.

Whether or not the law says certain conduct is a crime, a criminal whom that conduct injures may see it as a crime. And the well-publicized fact that the state has just executed someone for a real crime may incite criminals to self-righteously kill people they perceive as having committed wrongs against them. Of course, they might have killed that person anyway, but the execution may give them a mental or emotional impetus to do so earlier.

Capital punishment opponents have not focused on this point because it runs counter to the opponents’ belief system which imagines that capital punishment "brutalizes" society. That is a theory for which there is no evidence. If it were valid the brutalizing effect on society would incite people in general. But we know that murder is almost exclusively confined to extreme aberrants; it is only criminals whom capital punishment may incite to impose death on people – people who are most often other criminals. (90-95% of adult murderers have prior crime histories, but so do c. 3/4s of murder victims.) Of course some politically incorrect people might feel that insofar as capital punishment impels criminals to kill each other that is a social benefit, not a reason to eschew capital punishment.

THE MORAL DIMENSION --DISABLEMENT EFFECTS OF CAPITAL PUNISHMENT

Opponents of capital punishment frequently dismiss the issue that capital punishment disables the executed criminal from killing in the future. They dismiss this on the ground that once imprisoned for life the criminal cannot kill again. Would that that were true. In fact, he can escape and kill, he can be let out by pardoning officials; and even if still in prison, he can kill guards and other prisoners. Admittedly such cases are rare. But they exist. I have made no study of these matters. The stories that follow are just ones that I happen to be able to dredge up out of my old man’s memory:

MACDUFF:

In the mid-1960s MacDuff sneaked up on a couple of teenagers necking in a Texas lover’s lane. He locked the boy in the truck, raped the girl and then murdered both of them.

He was sentenced to death but then in 1967 the Supreme Court issued various decisions that effectively nullified every state’s death penalty statute, wherefore MacDuff was committed to prison for life. But in 1992 the Texas Prison system was woefully overcrowded and facing litigation on the matter. So the governor pardoned MacDuff whose reaction was to go on a month long multi-state spree in which four women were kidnapped, raped and tortured to death.

HERBIE:

In the early 1950s a quite precocious Michigan sixteen year old whom I’ll call Herbie dragged an eight year old boy into a woods, raped him and murdered him. Herbie was eventually convicted of kidnaping and murder and sentenced to life imprisonment. After c. 15 years in prison he succeeded in convincing the staff that he was cured and the governor pardoned him.

In the late 1980s Herbie came under suspicion when a 14 year old boy whom he had known, and who lived half a mile from him in Wisconsin, disappeared. Checking into Herbie’s background, Wisconsin authorities found that he was a suspect in two cases in Florida where boys had disappeared. He had not been prosecuted because their bodies could not be found. Upon being questioned he disappeared and the Florida authorities were unable to locate him until the call came in from Wisconsin years later. But it didn’t matter anyway because the Florida authorities could not prosecute him because they have never found the boys’ bodies.

Nor could the Wisconsin authorities do anything because they also could not find their missing boy’s body. Immediately after being questioned in the case Herbie decamped for parts unknown. We now know that he went to California where he is suspected in the disappearance of at least one other young boy whose body has never been found.

Then he went to Phoenix. But by then Herbie was getting old and seems not connected to any child disappearances there. Interestingly, he did made a habit of parking his van near junior high schools to watch the children as they walked home from school. What he was doing while he was watching the children may be deduced from the fact that when his van was examined the drivers’ side floor and dashboards were found to be covered in dried semen.

Herbie’s van was examined after he was arrested for the Wisconsin murder. He was convicted and sentenced to life imprisonment based, inter alia, on the authorities’ belated finding of the boy’s body buried a few steps away from the door to the dwelling in which Herbie was living at the time the boy disappeared.

THE FALLIBILITY OF GOVERNMENT

Government is fallible so killers may be released to kill again. In MacDuff’s case four young women were raped and tortured to death because a state governor could not figure out that public safety would be best promoted by not releasing a rape-murderer on the public. In Herbie’s case, at least three, probably four – indeed probably more – boys died because yet another governor could not be trusted to keep a rape-murderer in prison for life

Admittedly these are rare examples. But so is capital punishment rare. The bottom line here is that at least eight, and probably more, totally innocent victims died because of the mercy government accorded two sadistic perverts.

On the other hand, there are also very rare examples of another kind of government fallibility: innocent people arrested, prosecuted, convicted and sentenced to death.

[NOTE: A vehement proponent of capital punishment with whom I have discussed this insists that there has never been a case of even one clearly innocent person being executed after being erroneously convicted. Instead government has always discovered their innocence in time to obviate the death sentence albeit they may have served time on death row.]

[A Case in Point:    Some years ago Virginia executed a man named Roger Coleman despite the anguished opposition of death penalty opponents and others who accepted (or feigned acceptance) of his fervent denials that he had raped and savagely murdered his sister-in-law. At the time of his conviction and execution DNA evidence was in its infancy. Subsequently death penalty opponents petitioned the governor to fund DNA testing of evidence found in or on the victim’s body. The governor did and the result was: yes, Roger Coleman raped and murdered her.]

The fact remains that innocent people are convicted by mistake, perhaps laziness or incompetence of criminal justice personnel. Moreover, though much more rarely than conviction by mistake, there are cases where conviction occurred through deliberate police misconduct. Here are two examples with which I am familiar from two jurisdictions notorious for malignant and corrupt law enforcement:

1. PHILADELPHIA: A police officer was murdered and the detectives were under great pressure to solve the case. Unable to do so they simply arrested and framed a black prostitute and two itinerant black men. After serving eight years of a life sentence all were released upon proof that they were innocent and had been railroaded. (Ironically, the prostitute has said the frame-up saved her life, commenting that she had been a whore and an addict and would probably have been dead within a year. But in prison she got religion, obtained college and professional degrees and is now gainfully employed as a professional.)

2. CHICAGO: Jones v. Chicago. A teenage black broke into a tenement home where he murdered a 12 year old black girl's brother, raped her, and beat her until he thought she was dead. She survived but had severely impacted memory and only knows the street nickname of the attacker.

The Chicago police were under terrific pressure because of publicity on the case. So they arrest Jones, the honor student son of a black Chicago cop. Though he is a total straight arrow they are able to convict him because the forensic evidence proves him guilty.

Or it would prove him guilty if it were genuine. But the real evidence (which proves Jones' innocence) has been discarded and faked evidence substituted along w/ perjured testimony from a Chicago police lab employee.

So Jones is convicted and sentenced to life. But at that point a police detective who had early been assigned to the case sees a news item about it. From the first he had insisted Jones was not guilty – and that the street name the girl gave corresponded to the name of a druggie and general asswipe. The detective had put up such a fuss about the Jones boy being innocent that he had been transferred to a different precinct and told that the case against the Jones boy had been dropped. When the detective learned Jones had instead been tried and convicted the detective went to the defense lawyer and together they got the conviction overturned. Jones sued the city and obtained a $600,000 judgment.

Note that these cases exhibit not just despicable conduct but counter-intuituve despicable conduct. In the Philadelphia case the result of the misconduct was not just framing innocent people, it was that the murder of a police officer was never solved. In the Chicago case the son of a police officer was framed. The cops who framed these victims apparently did not care about injury even to their fellow officers.

These ruminations are inspired by my learning of a recent study which discloses that many jurors who have voted for capital punishment did so because they did not trust our criminal justice system to keep criminals behind bars. More on that in a moment.

As a criminologist I was opposed to capital punishment for the simple reason that all the appeals and other safeguards involved are disproportionately expensive There are other arguments against capital punishment but they are generally not persuasive to me. For instance, I have scant patience with arguments that African-Americans are disproportionately likely to receive capital punishment. To argue that implies that even though African-American murderers may be being properly punished, the fact that white murderers are getting less than they deserve somehow says African-Americans should escape the appropriate sentence. On the contrary, the proper solution is to take steps to assure that more white murderers will be executed. Its not as if they didn’t deserve it.

But there are people who do not deserve it, to wit innocent people wrongly convicted; and at least some such criticisms are the result of police misconduct.