Judging the Death Penalty

On Monday, the California Commission on the Fair Administration of Justice—the committee created by the California State Senate to study, among other criminal justice issues, the state of the death penalty in sunny California—released a 117-age report saying that the system is pretty much screwed. (Okay, I don’t believe they used the term “screwed.” They said “deeply flawed,” but that qualifies as an equivalent.) California has the biggest backlog of cases in the nation, noted the report, and for all intents and purposes, the system, said the commission members, is close to collapse.

Among the commission’s recommended remedies is the suggestion that California drastically cut the number of crimes that qualify for the death penalty, leaving only multiple murders, the killing of law enforcement officials or witnesses, and the torture of murder victims—all heinous enough.

(I should mention here that, in the past, the commission has made recommendations on other issues, most of which have resulted in bills being passed by the California state legislature—that have all been vetoed by Governor Schwarzenegger. But whatever. We won’t go there for the moment.)

This recommendation comes right in the wake of the US Supreme Court’s decision to disallow the use of capital punishment for child rapists who do not kill their victims. Then, a few months before, the Supreme Court ruled that the state of Kentucky, specifically, could resume using lethal injection in order to execute those on the state’s death row. But the court wrote the decision in such a way that it clearly opened the door to other legal challenges.

So, change of some sort is in the wind with regard to the death penalty. But what kind of change?

At least one facet of the newest SCOTUS rulings is examined in this Washington Post Op Ed written by Cass R. Sunstein and Justin Wolfers, two of the nation’s top researchers when it comes to the matter of whether the death penalty is truly a deterrent or not.

Here’s how the Op Ed opens:

To support their competing conclusions on the legal issue, different members of the court invoked work by each of us on the deterrent effects of the death penalty. Unfortunately, they misread the evidence.

Justice John Paul Stevens cited recent research by Wolfers (with co-author John Donohue) to justify the claim that “there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.” Justice Antonin Scalia cited a suggestion by Sunstein (with co-author Adrian Vermeule) that “a significant body of recent evidence” shows “that capital punishment may well have a deterrent effect, possibly a quite powerful one.”

What does the evidence actually say?

To find out….read it. But here’s an interesting bit of thinking from the essay’s conclusion:

Why is the Supreme Court debating deterrence? A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.

We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?

We are not sure how to answer that question. But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows.

And what if the evidence shows that it is negligible as a deterrent, what then?

PS: To further help your own thinking on this issue, here’s a link to to some of the death penalty facts and figures gathered by my colleagues at the USC Annenberg Institute for Justice and Journalism.