Friday, September 28, 2012

Let’s Finally Abolish the Death Penalty in Nevada

By Dahn Shaulis, Ph.D. Nevada Department of Corrections Caseworker (2001-2007)

[This report is an update of a previous statement I made in 2010.]

The Governor of Nevada and the Nevada Legislature need to examine the Death Penalty so they can make a thoughtful decision about abolishing or maintaining capital punishment in 2013. In calling for an end to the Death Penalty in the Silver State, I present six major reasons why it should be abolished.  

1. First, and most importantly, the Death Penalty is a cruel and unusual punishment that violates contemporary standards of decency in the Western industrialized world. The US trails the worldwide long-term humanitarian trend to abolish the Death Penalty. Since World War II, nearly one hundred nations have abolished the Death Penalty or created long moratoriums. No other nation in the western industrialized world executes prisoners at the rate that the US does. Since 2007, the UN General Assembly has endorsed a worldwide moratorium of the death penalty. Most of the nations who use the Death Penalty have extensive human rights problems.

The US joins China, Vietnam, Iran, Pakistan, Saudi Arabia, Syria, and Iraq as one of a few nations that continues to regularly execute people. Japan and Singapore are the only other highly industrialized nations to carry out executions.

Several religious organizations oppose the Death Penalty. The Vatican consistently opposes the Death Penalty. Methodists argue that “the Death Penalty denies the power of Christ to redeem, restore and transform all human beings.” Since 1961, the Unitarian Universalist Association of Congregations has called for a moratorium on executions. The Society of Friends, also known as Quakers, favors the world-wide abolition of the Death Penalty. Religious witnesses to executions such as Pastor Carroll Picket, a former Texas prison chaplain, have articulated the immoral and barbaric nature of killing people to show killing is wrong.

While The American Medical Association confusingly allows doctors to participate in executions, it also states “a physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.”

Former head of the Georgia Department of Corrections Allen Ault calls executions “the most premeditated murder possible” and asserts that it takes a lasting toll on many people, including the corrections workers who must do the killing.

The number of death sentences and executions have decreased significantly since their peaks in 1999, as further questions about the nature of the Death Penalty are examined. The number of people in the US sentenced to death has also been falling nationally from about 300 a year in the 1990s to about 120 people per year. Even in Texas, the number of people sentenced to death has been decreasing significantly since the life-without parole alternative was instituted in 2005.

Abolishing the US Death Penalty would not be unique. Executions were prohibited in the US from 1972 to 1976 after the Furman v. Georgia decision. In the last decade, the Supreme Court has determined that executions of low IQ individuals (2002) and juveniles (2005) violated the 8th Amendment and were unconstitutional. The US, though, continues to execute mentally ill people and non-citizens, which is a violation of international law. From 2007 to 2008, a national moratorium was placed until lethal injection questions could be answered.

Although many Americans favor the Death Penalty, 64% do not believe the death penalty serves as a deterrent and only 57% of Americans believe the death penalty is fairly applied. When respondents are given life without parole alternatives to the Death Penalty, the percentage favoring capital punishment falls below 50%. Race and education play a part in opposition to the Death Penalty. “Nonwhites” and people with more education are most skeptical of the death penalty; 56% of nonwhites oppose the Death Penalty. White people with racist attitudes are more likely to support the Death Penalty than those who have fewer racist attitudes (Unnever and Cullen, 2007). According to the Gallup Poll, almost all Americans (92%) believe that someone has been wrongly executed in the last five years.

Pro-Death Penalty proponents claim that this particular type of state-sponsored killing is about the rights of victims. But according to former Los Angeles District Attorney Gil Garcetti, the Death Penalty does not typically bring closure. It feeds retribution and revenge impulses rather than the positive values of redemption, rehabilitation and healing. Murder Victims for Reconciliation is one group that recognizes the importance of forgiveness and the possibility of redemption.  

2. The US Death penalty is inconsistent and arbitrary. I can tell you from my professional experience as a prison caseworker that Death Row does not house "the worst of the worst." Historically, the Death Penalty in Nevada has been fraught with injustice based on inequalities of race and class. "Mitigating" and "aggravating" factors are particularly racially biased (see this link)

While it’s difficult to know for sure that an innocent person has died in the Nevada Death Chamber, I do know that Victor Jimenez and Roberto Miranda were both released after serving years on Death Row. In 2006, Mr. Miranda settled out of court for $5,000,000.

 I can also tell you that anecdotally, one can look at those who have not received the Death Penalty, offenders such as Chaz Higgs and Darren Mack, and realize that the Death Penalty is not dealt out evenly. As ethics professor Jeffrey Reiman has documented in The Rich Get Richer and the Poor Get Prison, corporate and governmental actions which can cause much more social damage and death are not even considered capital crimes.

 In 2003, Illinois Governor George Ryan commuted sentences of all Death Row inmates after finding that the Chicago Police had used torture to exact confessions. Eight years later, Illinois eliminated its Death Penalty. In 2004, the state of New York’s Supreme Court ruled that its Death Penalty was unconstitutional and issued a moratorium. Legislatures in Montana, Nebraska and Maryland are within a few votes of eliminating the Death Penalty. In 2008, The Maryland Commission on Capital Punishment reported that (1) racial and geographic disparities exist in how the death penalty is applied, (2) Death Penalty cases are more costly than non-Death Penalty cases and take a greater toll on the survivors of murder victims, (3) there is no persuasive evidence that risk of execution is a deterrent to crime, and (4) the unavailability of DNA evidence in some cases opens the "real possibility" of wrongly executing an innocent person. In 2011, Oregon Governor Kitzhaber told reporters. “I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am governor.”

After conducting a three-year, eight-state study of the Death Penalty, the American Bar Association concluded that the administration of capital punishment is “a haphazard maze of unfair practices with no internal consistency," and called for a moratorium (ABA, 2006). The primary method of distinguishing those who receive the death penalty from those who do not is a state-by-state system of disparate aggravating and mitigating factors. States also vary widely in how prosecutions must act ethically and legally. Only a few states require prosecutors to provide full disclosure of evidence (i.e. exculpatory evidence) that could exonerate defendants.

The chance a person charged with a capital crime lives, dies, or walks away free largely depends on where the crime was committed and how much money the defendant has. Capital punishment is not permitted in the District of Columbia and 18 states: Alaska, Arkansas, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. New York, Kansas, and New Hampshire have not executed anyone since the 1973 moratorium. Colorado, Idaho, Nebraska, Oregon, Pennsylvania, and Wyoming have not executed anyone in more than a dozen years. North Carolina has not executed anyone since 2006, after several Death Row prisoners were exonerated. California, with the largest death row, also has not executed a prisoner since 2006 and in 2012, its abolition is up for referendum.

Thirty four states allow the Death Penalty, but few states actually practice executions more than once every two years. Those states that do have regular executions (Texas, Oklahoma, Alabama, Georgia, Virginia, Arizona, and Ohio) are traditional sites of slavery, racist lynchings, and white supremacy organizations.

The decline in death sentences has occurred in all four regions of the country over the past decade, with a 50% drop between 2000 and 2010.

About half of all recent US executions have occurred in only four counties, all in the state of Texas. In 2007, Texas held 26 of the 42 US executions, where the amount of money spent on appeals is miniscule. In 2008, 18 of 37 US executions were held in Texas. In many states, probation is a rare or impossible sentence for murder, yet until 2007, residents of Dallas County, Texas could receive probation for a murder conviction. The Dallas News found that it happened in Texas at least 120 times from 2000 through 2006. Legal loopholes made probation available even for killers with violent criminal histories, including previous murders. There were also cases in which prosecutors in Dallas County pursued murder charges despite strong self-defense arguments or weak evidence. Some defendants told The Dallas News that they accepted plea bargains because they feared being convicted. Incidentally, Dallas County has led the nation in the number of convictions overturned on DNA reviews (Dunklin, 2007).  

3. The Death Penalty serves as a symbol of racism, classism, and absolute state power in the US. In a justice system that is structurally racist and classist, the Death Penalty is unfairly and disproportionately meted out on poor people and people of color. Pro-Death Penalty advocates claim this form of state-sponsored killing is imposed on society’s most heinous criminals (incorrectly labeled as “the worst of the worst”), yet no serious scholars could argue that crimes are adjudicated in proportion to the damage and suffering they cause society (Reiman and Leighton, 2009). If the Death Penalty were applied in proportion to the deaths and social and economic damage created, a significant number of white collar criminals, business executives, and government officials would receive the Death Penalty. However, wealthy offenders rarely get the Death Penalty. Informants who can make deals and provide information are also spared and sometimes released. Serial killers who provide information on killings may also be spared and in extreme cases, released.

Pro-Death Penalty researchers do not deny that the application of the Death Penalty is racist (Shepherd, 2004) and classist. Racism pervades the criminal justice system, ranging from racial profiling prior to arrest to post-conviction representation. Unfortunately, in McCleskey v. Georgia (1987), the US Supreme Court ruled that state Death Penalty laws are constitutional even when statistics indicate they have been applied in racially biased ways. Justice Lewis Powell, who voted in the majority in McCleskey, soon regretted his decision, stating, “I have come to think that capital punishment should be abolished.”

There is an extensive body of literature indicating that due process is profoundly affected by economic class. Pro-Death Penalty advocates even agree that a viable defense is expensive and that it pays to be rich if you have been accused of killing someone. Eighty to 95% of all people on Death Row cannot afford a private lawyer. In an economy where one gets what he or she pays for, private attorneys often earn 2000% more money for a capital case than a court-appointed attorney. This has allowed wealthy men like Texas oilman T. Cullen Davis, real estate heir and state prosecutor Thomas Capano, real estate heir Robert Durst and banking heir John DuPont, the Menendez brothers (sons of an entertainment executive) for example, to avoid capital punishment or prison. An analysis of Georgia cases showed that prosecutors were almost twice as likely to ask for the death penalty when the defendant couldn't afford a lawyer.

The General Accounting Office (1990) reviewed more than 50 studies of race and punishment and found "a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty." The victim’s race is also important in whether one gets the death penalty. Juries are six times more likely to give the death penalty to those who have been accused of killing a white person. Thirty-four percent (34%) of all people executed in America since 1976 have been black.

Racism plays a huge role in determining who dies. In one glaring example, Texas law enforcement authorities picked Clarence Lee Brandley from among many suspects in a circumstantial case of rape and murder of a white woman. As authorities told Brandley- convicted but released in 1989 after being exonerated-"You're the nigger, so you're elected" (Cockburn, 1999).

Pro-Death Penalty adherents claim “any racial combinations of defendants and/or their victims in death penalty cases, is a reflection of the crimes committed and not any racial bias within the system.” These adherents base this argument from studies that do not explain why people of color are more likely to hold these aggravating factors. For example, robbery and burglary are the most common “aggravating factors” for earning a death sentence from a homicide. People from lower economic strata are much more likely to commit such crimes for economic reasons—not as planned murders.

Juries are not a random selection of the citizenry, but hand-selected individuals who all, without exception, must swear to favor the death penalty. Juries are more conviction prone than randomly selected citizens. In Dallas, Texas, the DA's office prepared a manual for new staff, which said: "You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual who believes that Defendants are different from them in kind, rather than degree...You are not looking for any member of a minority group which may subject him to suppression-they almost always empathize with the accused...Minority races almost always empathize with the Defendant (McCann, 1996)." The Death Penalty allows racist, sexist, and homophobic people to participate in the process while eliminating or minimizing others from the process (Butler, 2007).

Cases of judicial and prosecutorial racial animus are well documented (Cockburn, 1999). Texas has an infamous history of racist district attorneys and judges. In Texas, only white person has ever been executed for killing a black person. In Harris County, Texas, the District Attorney pursued the death sentence against black and white defendants at the same rate even though black defendants committed less heinous murders.

Additional points about race and the Death Penalty:

 • In 96% of the states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. (Baldus, 1998).

• 98% of the chief district attorneys in death penalty states are white; only 1% are black. (Pokorak, 1998).

• A comprehensive study of the death penalty in North Carolina found that the odds of receiving a death sentence rose by 3.5 times among those defendants whose victims were white. (Boger and Unah, 2001).

• A study in California found that those who killed whites were over 3 times more likely to be sentenced to death than those who killed blacks and over 4 times more likely than those who killed Latinos. (Pierce and; Radelet, 2005).

• No white person has been executed for the murder of a black in Georgia, nor has the death penalty ever been sought in such a case. Of the 12 African Americans executed in Georgia since 1983, six were sentenced in cases where prosecutors succeeded in removing all potential black jurors.  

4. In a comprehensive review, the National Academy of Sciences (2012) reported that there is no conclusive evidence the Death Penalty deters future murders. Some studies indicate that the Death Penalty may increase violence in some states because of its “brutalization effect. “

Eighty-eight percent of the former and present presidents of the country's top academic criminological societies say that the death penalty does not act as a deterrent to murder (Radelet and Lacock, 2009).

Studies suggesting the Death Penalty deters murders are seriously flawed and fail tests of robustness and replication. Columbia University law professor Jeffrey Fagan noted that these studies contain crucial technical and conceptual errors, including inappropriate methods of statistical analysis, failures to consider all relevant factors that drive murder rates, missing data on key variables in key states, weak to non-existent tests of concurrent effects of incarceration, and other deficiencies. University of Chicago Law School professor Cass Sunstein states that “existing studies contain significant statistical errors, and slightly different approaches yield widely varying findings, a problem exacerbated by researchers' tendency to report only those results supporting their conclusions.” Yale and Wharton professors John J. Donahue and Justin Wolfers state "We show that with the most minor tweaking of the [research] instruments, one can get estimates ranging from 429 lives saved per execution to 86 lives lost. These numbers are outside the bounds of credibility." UCLA researcher Richard A. Berk reports that studies showing the Death Penalty as a deterrent have a limited number of observations (executions are rare in most states). Berk suggests that Texas justice, where most of the data points exist, is the only place where executions may serve as a deterrent. Sorenson et al. (1999) questioned the deterrence value of executions even in Texas, finding no relationship between execution rates and murder rates.

According to Paul R. Zimmerman (2003), only electrocution, which is frequently horrific, has a deterrent effect. However, the electric chair is rarely used to kill people in the US.

Using more recent panel data, Kovandzic et al (2009) reported that the Death Penalty was not a deterrent.

Researchers argue that commuting sentences may result in increased deaths in the community. But this argument supports abolition of the Death Penalty in the long run, because commutations will undoubtedly occur. Many other factors appear to have much stronger relationships with homicide rates, including economics, better policing, age demographics, gun laws, and drug laws.

Some studies indicate that the Death Penalty may create a “brutalization effect.” In a study of 27 states, Emory researcher Joanna Shepherd (2005) reported that the Death Penalty deterred murder in six states, increased murder in 13 states, and had no effect on the murder rate in eight states. Shepherd added that this brutalization effect resulted in 250 additional murders per year or 5000 deaths from 1977 to 1996; she concluded that states like California should consider ending the Death Penalty to protect innocent people.

Older studies of the Death Penalty in Arizona and Oklahoma reported that executions were related to increased murders. States with the highest number of Death Row inmates and the highest execution rates have the most number of law enforcement officers killed. Psychologically, violent people may decide to kill more than one person, including police, if they know they may get the Death Penalty anyway.

Additional points about the Death Penalty and murders

• Death Penalty states consistently have higher murder rates than states without the Death Penalty. States without capital punishment have murder rates that are 30-40% lower than those that sanction state-sponsored killing.

• The murder rate declined in Canada after capital punishment was abolished.

University of Chicago economist Steven D. Levitt (2007) points out the “creative” use of data by Death Penalty proponents. Levitt adds that "no rational criminal should be deterred by the death penalty, since the punishment is too distant and too unlikely to merit much attention." State laws in the US vary in their definitions of "premeditation." In some states, premeditation can be interpreted as taking place a few seconds before the murder. Burglars and robbers, for example, rarely plan to murder, but situations get out of control and people may be killed. The offenders who do make advanced plans are often involved in heavily emotional situations and are not focusing upon the consequences. Those realities, along with the fact that most offenders feel they will never be caught, negate the effects of deterrence for most offenses.  

5. The Death Penalty is financially costly. California is estimated to have spent more than $4,000,000,000 to keep its Death Penalty. Sixty three percent of its citizens would prefer that the money be spent on alternatives. New Jersey, which repealed its Death Penalty, estimated that it could have saved more than $200 million if it had not reinstated the Death Penalty. Recent studies in Tennessee, Kansas, Indiana, Florida, North Carolina, Maryland, Illinois, New Hampshire, Pennsylvania, and California have all concluded that costs associated with Death Penalty cases are significantly higher than those associated with Life without Parole cases. The costs are even greater when the cost of capital punishment is weighed against the opportunity costs of using scarce resources on prevention. Where the Death Penalty is less costly, such as Texas, the state is willing to minimize appeals which may result in wrongful executions.  

6. A number of Death Row inmates have been exonerated. It is very likely that innocent people have been executed. When people are aware that innocent people have been executed they are more likely to believe that the Death Penalty is wrong. The number exonerated since 1973 has been estimated between 34 and 138. Pro-death penalty experts admit that at least 30 to 40 people have been exonerated and released from Death Row since 1973. Northwestern University Law School’s Center on Wrongful Convictions details at least 39 executions, a majority in Texas, that have been carried out in the US in the face of “compelling evidence of innocence or serious doubt about guilt (Burkhead, 2009).” Recently, Anthony Graves was exonerated after serving 18 years on Texas’ Death Row, after it was revealed that prosecutors withheld important information. Like Mr. Graves, many exonerees have suffered more than a decade on Death Row before their cases were overturned.

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