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Ultimate
Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty by Scott
Turow Rating: ••• (Recommended) |
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Evolution Novelist and lawyer Scott Turow presents
non-fiction in his new book, Ultimate
Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty. In
this book, Turow methodically describes how his own position on the death
penalty has evolved over the past decade, especially as a result of his own
criminal law work and involvement in an Illinois State commission on the
death penalty. While my position hasn’t changed as a result of reading
Ultimate Punishment, I can appreciate how many readers will be able to watch
their positions evolve as they listen to Turow. For those who think about
deterrence as the main reason for having the death penalty, here’s Chapter 9,
“Deterrence,” (pp. 57-62): During the third presidential debate in 2000, Jim Lehrer asked both candidates whether they believed the death penalty was a deterrent. "I do," George W Bush answered, without
disagreement from Al Gore. "It's the only reason to be for it." Mr. Bush, so far as I can tell, was wrong on both
scores. There are a number of compelling rationales for capital punishment.
And deterrence, upon examination, doesn't appear to be one of them. When I started my Commission work, I felt that if
it could be established that a death sentence, as opposed to life
imprisonment, actually deters other people from committing murders, it would
have to weigh heavily in any candid assessment of the subject. As a result, I
became an unbearable noodge to the Commission's gifted research director,
Jean Templeton, who is both a lawyer and a sociologist by training, as I sought her assistance in
wading through the learning in this area. At one point, I even persuaded Jean to undertake a
very informal statistical cross-comparison between Illinois and surrounding
states. We ended up measuring Illinois against Michigan, and Missouri against
Wisconsin, death penalty states versus non-death penalty states, pairs that
had similar urban density, racial makeup, and income levels. The murder rates
were higher in the death penalty jurisdictions. Indeed, Texas, which has
performed more than a third of the executions in the United States since
1976, has a murder rate well above the national average. On the other hand,
in the last decade, not only has the consolidated murder rate in states
without the death penalty remained consistently lower than in the states that
have had executions but the gap has grown wider. As a result, some sociologists
have suggested that executions actually inspire murder, a so-called
brutalizarion effect, although proof of this point is as generally unavailing
as that regarding deterrence, for many of the same reasons. Statistical
cross-comparisons between states
are inevitably subject to
dispute. For example, many of the states that don't have the death penalty
didn't have high murder rates to start; thus when murder rates drop, as they
have since 1993, there might be a natural tendency for rates in the low states
to drop faster. And many statistics can be argued both ways. New York
reenacted its death penalty in September 1995. after the number of murders in the
the state had already gone into steep decline. On the other hand, New York's
rates have remained low versus other jurisdictions. Is this owing to the
death penalty? Proponents usually find the clearest deterrent effect from
executions, and there's yet to be one in New York. Admittedly, you can go dizzy trying to make sense of
the numbers and variables, but rigorous study is still not on the side of
deterrence. For example, William Bailey and Ruth Peterson, scholars who had
yet to close the book on deterrence, nonetheless conceded in 1994:
"Deterrence and capital punishment studies have yielded a fairly consistent
pattern of non-deterrence." In 1996, Michael Radelet and Ronald Akers
published a study in which they asked acknowledged experts—sixty-seven of the
current and former presidents of three professional criminology
organizations—whether the existing research supported a deterrence
justification for capital punishment, without regard to their personal
beliefs. Eighty percent said it did not. A 1995 poll by Peter D. Hart Research Associates of
386 police chiefs across the nation found that although the vast majority of
them supported the death penalty for philosophical reasons, 67 percent felt
it was inaccurate to say that the death penalty significantly reduces the
number of homicides. The principal academic support for deterrence has
come from free-market economists, who believe that all social choices are the
work of rational decision-makers responding to incentives. The economists,
accordingly, have a professional interest in proving that the incrementally
more severe punishment represented by the death penalty functions to prevent
murder. Led by the pioneering work of Isaac Ehrlich in themis-1970s,
these scholars have developed formulas for regression analyses the length of
New Jersey, quantifying every conceivable variable. The Nixon administration
relied on Ehrlich's results in successfully asking the U.S. Supreme Court to
reauthorize capital punishment in 1976. Yet Ehrlich and his followers have
been stingingly criticized for methodological and conceptual shortcomings by
other scholars, and more recent studies haven't seemed to answer objections.
A 2001 paper found a deterrent effect, but the formulas employed also showed
that murders are more prevalent in rural areas than in cities, a result that
flies in the face of experience. Nor does the econometric framework fully address
fundamental objections to the psychological model being employed. My own
impression, based on experience but little social science, is that murder is
not a crime committed by those closely attuned to the real-world effects of their
behavior. It's characteristic of the criminal offenders I've represented over
the years, especially the young and the poor, that many seem unable even to
conceive of the future. Instead, killers appear to me to act out a range of
narcissistic and infantile impulses—rage, perverted self-loathing, or a
grandiose conviction they'll never be caught—in which consequences have no
role. Defenders of Ehrlich and his followers adhere to the numbers, lf the
data bear them out, they contend—for example, by showing a decline in murders
in the wake of executions—their assumptions must be correct. At the end of the day, the best I could say was
this: If the
death penalty is a deterrent, that fact is not visible to the naked eye. When
you are asking citizens to capitulate to their government's right to kill
them, you'd better be able to show them something they can understand in
their own terms. Econometric models and regression analyses cannot possibly contribute
much to the debate. There
is, of course, another economic argument made in behalf of the death penalty:
it saves public funds, because the state does not have to provide lifetime
support to an incarcerated killer. But in this, like so many other things,
lawyers have a huge impact on costs. In the United States in 2000, the average period
between conviction and execution was eleven and a half years, with lawyers
and courts spewing out briefs and decisions all that time. Public funds pay
for almost all of this, since capital offenses are most often committed by the
poor whose defenses are usually maintained at the cost of the state. There is
a lot to pay for. Two lawyers at trial, one on appeal, another for the
post-conviction proceedings, another for the habeas. And there must be
prosecutors to oppose them, cops and other investigators to put the case in
shape for trial, judges to hear the matter, probation officers, mitigation
experts, usually a couple of shrinks, court reporters, and transcripts. And
none of this considers the costs of incarceration while the convicted
defendant is awaiting execution. Those on death row in Illinois and a number
of other states are most often held in single cells, since a man with nothing
to lose doesn't make an especially good roommate when you aggravate him.
Given all those costs, researchers seem to agree that imposing the death
penalty is more expensive than leaving a killer alive. A new study published
in 2003, which was conducted by the gubernatorial commission in Indiana,
concluded that in present values, the costs in death penalty cases exceed the
total price of life without parole by more than a third. Yet cost, I decided ultimately, is basically a red
herring. Certainly cost savings don't justify capital punishment. But they do
not provide a compelling argument against it, either, in most states.
Capital prosecutions are relatively rare. There have been roughly ten to
fifteen new death sentences in Illinois every year. Even if we imagine that
the costs in those cases exceed those in a non-capital case by a million or
even two million dollars, the most grandiose number used by death penalty
opponents, the amount saved by abolition is small in terms of a $52.5 billion
state budget. The money spent on the death penalty may have high symbolic
value, but curtailing that expenditure is certainly not enough to give us a
tax cut or better schools. After two years of reading studies, I decided I
wasn't going to find any definitive answers to the merits—or failings—of the
death penalty in the realm of social science. Whether you are in favor of or against the
death penalty, you’re likely to find plenty of interest to read in Ultimate
Punishment. Steve Hopkins, November 24, 2003 |
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ã 2003 Hopkins and Company, LLC The
recommendation rating for this book appeared in the December 2003
issue of Executive
Times URL
for this review: http://www.hopkinsandcompany.com/Books/Ultimate
Punishment.htm For
Reprint Permission, Contact: Hopkins
& Company, LLC • 723 North Kenilworth Avenue • Oak Park, IL 60302 E-mail: books@hopkinsandcompany.com |
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