"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, March 14, 2007

Reality Check

If you read the anti-death penalty blogs or the writings of some in the "legal academy," you quickly realize that they are hoping that momentum is building nationally for abolition. They point to decreased death sentences, political developments in some states like Maryland and Ohio, and the occasional appellate court victory.

Fortunately, it seems the partying is premature. A summary of recent events shows that the tide is not inevitably going the abolitionist way:

* In Arizona, the legislature has killed an abolition bill.

* The Texas legislature has passed legislation permitting the death penalty for repeat child molesters-- a direct challenge to the outdated SCOTUS ruling in Coker v. Georgia, 433 U.S. 584 (1977) that the Eighth Amendment forbids the death penalty for crimes other than murder.

* New Mexico has killed an abolition bill in committee.

* Montana has also killed an abolition bill in committee.

* Even in left-leaning Maryland, the unwillingness of the abolition bill's sponsor to consider exceptions for murdering behind bars or murders of police officers may doom the bill in committee. He's rolling the dice; the vote is tommorrow.

Don't look for the abolitionist establishment to acknowledge these stories-- they run counter to the "inevitable tide of abolition" myth they're trying to build.


David Elliot said...

Let's see:

Death sentences are down sharply, from a high of more than 300 a year in the late 1990s to somewhere between 100 and 125 a year today.

Executions in 2006 were at the lowest point in a decade.

Nationwide, for the first time in modern history, a plurality of Americans said they favored life without parole to the death penalty (Gallup, December '06).

12 states currently have moratoria in place (mostly due to the lethal injection morass), with the probable outcome being that executions will be down sharply this year.

Two states -- New Jersey and Maryland -- probably will abolish the death penalty this year or next.

One state -- Texas -- probably will account for 80 to 90 percent of all executions this year, meaning that the death penalty will increasingly become a geographically isolated phenomenon.

North Carolina's moratorium could be permanent -- the first time this has happened in a Southern state.

No matter how you view it, the death penalty is withering away on the vine. And with each and every cut that it sustains, politicians learn that it is no longer the "third rail" of American politics -- touch it and you get burned.

It is not so much a matter of whether the death penalty is going to be abolished, but when. Five years? Ten? 15? I don't know. But it most surely is going out of favor.

Dudley Sharp said...

Elliot is reaching and inaccurate.

Why the reduction in death sentences?
Dudley Sharp, Justice Matters, updated  11/06
The evidence supports that the reduction is caused by:
--- the dramatic reduction in murders/capital murders
--- prosecutorial frustration
----SCOTUS decisions

1. Murders are down nearly 40%. While death sentences are down around 60%, from their all time high, There very well may have been around a 60% reduction in capital murders, since the all time high of death sentences.  I have heard from a number of prosecutors that they have seen a dramatic reduction in the type of crimes that they would consider death eligible. 
This is the obvious reason for the large reduction in death sentences.
Career criminals, including career juvenile criminals, are being incarcerated much longer, and earlier, thereby curtailing their activities, including committing capital murders.
All categories of crime have been reduced. Because capital murders are a special type of crime, primarily murders accompanied by secondary crimes, such as robbery and rape, it is even more likely that capital murders have been reduced even more than murders.
2. a) SCOTUS decisions.  Ring required a re writing of statutes in many death penalty states, causing a substantial reduction. Atkins and Simmons have both had a reduction effect, as well.
This is an additional factual reason for a reduction in death sentences.
NOTE: There can be anywhere from a 1-3 year lag time between the murders and the death sentences given.  Because of various SCOTUS cases, that lag time may have increased a bit.
        b) Executions go up and down, a bit every year. Executions are dependent on court rulings, some of which effect more cases than others, such as those in 2a, as well as the national challenges to lethal injection, which have been quite active for some time, now.
3.  Many prosecutors now know that appellate judges in their jurisdictions won't allow executions. Some of those prosecutors have become much more reluctant to seek death. I would call that realistic frustration with agenda driven judges  -- such as Federal Judge Rakoff -- - not prosecutors deciding to be more selective on their own.
This, likely, has caused some small reduction in death sentences sought.
Of course, most prosecutors have always been very selective in pursuing death penalty cases.

Some false or speculative reasons for the reduction in death sentences.
--  Anti death penalty folks state that all those "innocents freed" from death row have caused prosecutors to be more wary in pursuing the death penalty.  This is a false claim.
There is no evidence to support that claim. To the contrary, virtually all death penalty prosecutors now know that 70-83% of those anti death penalty  "innocence" claims are false and that prosecutors are 99.7% accurate in convicting the actually guilty in death penalty cases and that the 0.3% actually innocent  are released on appeal. 
That will give prosecutors more confidence in prosecuting these cases, not less.

--  Some prosecutors believe the "CSI effect" is responsible for a reduction in death sentences, because jurors are now demanding  more scientific support for death sentences.
There is no evidence for this, that I know of. 
 --    Some speculate that the crime lab disasters have caused jurors to be more distrustful of lab results and prosecutors and that may explain some of the reduction. I can't say that hasn't happened, but I can't find evidentiary support for it either.
During this period of alleged distrust, a May, 2005 Gallup polling shows an increase in support for the death penalty  -- to 74% -- and a majority believe that we don't impose the death penalty often enough.  This 74% support is within the margin of error of the all time high for support.
An October 2005 Gallup poll showed 64% support - a 10% drop -  even though there had been no major death penalty news to warrant the drop. A January 2005 poll found 81% of Connecticut citizens supported the execution of serial rapist murderer Michael Ross.
Historically, I am told, jurors give less than death in 2/3rds of death penalty trials. Is there any evidence that jurors are now even less likely to find for a death sentence? Not that I know of. 

What of the reduction in executions? It is 1) the normal ebb and flow of cases, plus 2) SCOTUS cases, plus 3) crime lab problems.
Blind speculation is unnecessary. There are logical, factual reasons for the reduction in death sentences.

Dudley Sharp, Justice Matters
e-mail  sharpjfa@aol.com,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

David Elliot said...

Mr. Sharp states that I am "reaching and inaccurate" in stating that death sentences are down. He then concedes that death sentences are, in fact, down. Who is reaching and inaccurate?

Mr. Sharp also presents several Gallup polls from 2005 while conveniently ignoring the most recent one, in December 2006. (In that Gallup poll, respondents were asked, "What is the appropriate punishment for first-degree murder?" 48 percent said life without parole. 47 percent said the death penalty. Contrast that with a similarly worded question the year before, when 39 percent favored LWOP and 56 percent favored the death penalty.)

Who is reaching and inaccurate?

Mr. Sharp offers up all manner of speculations as to why, why, why death sentences and executions are on the decline.

Through it all, he confirms my point: The death penalty is withering on the vine.

Dudley Sharp said...

The only issue is are death sentneces down for some political reason or for some other reason.

If capital murders are down by 60% then we can all be grateful and that would explain the entire reduction in death sentnces and has nothing to do with the death penalty going out of favor.

The reduction in executions is entirely due to 4 recent Supreme Court decsions and a slew of lawsuits over lethal injections.

The polling data, as described by Elliot is very misleading.

64% of Americans support the death penalty (Gallup, 10/05). Five months earlier, it was 74%, of which 53% say the death penalty is not used enough. Catholics showed 70% support. (Gallup 5/05). Support was 74% in 2003, as well (Gallup 5/03). 74% is within the margin of error of the all time high for general support -- 80% (Gallup, 1994)

Support is actually much higher. 81% of the American people supported the execution of Timothy McVeigh, with only 16% opposed. (Gallup 5/2/01). "(T)his view appears to be the consensus of all major groups in society, including men, women, whites, nonwhites, "liberals" and "conservatives." "81% of Connecticut citizens supported the execution of serial rapist/murderer Michael Ross (Jan 2005).

While 81% gave specific case support for Timothy McVeigh's execution, Gallup also showed a 65% support AT THE SAME TIME when asked a general "do you support capital punishment for murderers" question. (Gallup, 6/10/01).

That wide 16% "error rate", between general support and specific case support, is likely due to the differences in (1) the widespread media coverage of anti death penalty claims ,without the balance of contradicting those false claims, producing 65% general support, and (2) the absence of that influence when looking at individual cases when the public knows the crimes, the guilt of the murderer, and absent the anti death penalty bias factor, producing 81% specific case support.

There doesn't appear to be any other explanation, unless the margin of error is huge - much larger than previously calculated and thus undermining the polling.

Further supporting the higher rates of support is this:

Percentage of respondents in favor of executing Saddam Hussein:

USA: 82%
Great Britain: 69%
France: 58%
Germany: 53%
Spain: 51%
Italy: 46%


22% of those supporting McVeigh's execution are, generally, against the death penalty (Gallup 5/02/01). That means that about half of those who say they oppose the death penalty actually support it under specific circumstances, just as it is imposed, judicially.

This provides firm evidence that death penalty support is much wider and deeper than expressed with the answer to the general death penalty polling question.

(1) The recent results of a poll conducted by Novatris/Harris for the French daily Le Monde on the death penalty shocked the editors and writers at Germany's left-leaning SPIEGEL ONLINE (Dec. 22, 2006). When asked whether they favored the death penalty for Saddam Hussein, a majority of respondents in Germany, France and Spain responded in the affirmative. Here the results by country

dudley sharp said...

and some more updated info

Release Date: May 4, 2006
Contact: Michael Rushford
(916) 446-0345


76% Favor Current or Tougher Capital Sentencing

A Gallup Poll released today shows that the American people remain strongly in favor of capital punishment. When asked, “In your opinion, is the death penalty imposed: too often, about the right amount, or not often enough?” 51% said not often enough and 25% said about right. The sum of 76% for current or tougher capital sentencing has been steady in a narrow range of 71% to 77% for the five years Gallup has been asking this question.

“This poll confirms that the American people are not turning away from the death penalty,” said Kent Scheidegger, Legal Director of the California-based Criminal Justice Legal Foundation, which supports capital punishment. “Claims to that effect by opponents of the death penalty are wishful thinking.”

The poll also confirms the annual moral values poll released last week by Gallup. That poll showed 71% of the American people consider capital punishment to be morally acceptable, the highest level of support for any of the 16 issues in the survey.

Since 1936, Gallup has asked the question, “Are you in favor of the death penalty for a person convicted of murder?” On this question, 65% said yes and 28% said no. This question understates support for current law by implying a single punishment for all murderers, according to CJLF’s Scheidegger. Since the restoration of capital punishment in 1976, all states with the death penalty have limited that punishment to a narrowed set of the worst murderers.

Since 1985, Gallup has also asked an even more heavily stacked question, “If you could choose between the following two approaches, which do you think is the better penalty for murder: the death penalty (or) life imprisonment, with absolutely no possibility of parole?” This question is slanted in two ways, according to CJLF. It requires a choice of a single punishment for all murders, and it incorrectly implies that parole can be absolutely precluded against future commutation or legislative changes. This question produced a statistical tie: 47% for death penalty versus 48% for life without parole. “It is quite remarkable on any controversial issue that a question heavily stacked in one side’s favor would produce no better than a tie,” said Scheidegger. “If they asked which punishment is appropriate for the worst murderers, which is the real question, the results would be quite different.”