[Vision2020] Deterrence, Costs and Benefits of Death Penalty
Bruce and Jean Livingston
jeanlivingston at turbonet.com
Sat Oct 28 12:44:39 PDT 2006
Gary, it has been a busy week for me, and I apologize for failing to respond in a more timely way to your kind words about my former client. I appreciate that very much.
I understand your feelings about Mr. Duncan, and the seeming strength of the case against him. The difficulties in limiting the appeals process to cases that seem certain are why I would not support diminishing the protections of the appeals process in certain situations. It will probably be borne out that the Duncan case is as strong as it seems, for the reasons that you set forth. The difficulty in shortening the process is the test for what is certain. You cite the confluence of an eyewitness, a confession, and DNA in one case as a recipe for certainty. It seems certain in this case that the eyewitness is not mistaken, but in 52% of the wrongful convictions in "Actual Innocence" the eyewitness was mistaken. Similarly, 23% of the "confessions" turned out to be "false confessions" in the same study. The DNA certainly adds an element of surety, so long as the DNA is not planted evidence that is the result of police or prosecutorial misconduct (or even incompetence). Such misconduct is of course rare, (if a little less so in Cook County Illinois, or Los Angeles County California), but in the cases where the wrong person was convicted, such misconduct appears in 31% (by police) and 26% (by prosecutor) of the cases. (The numbers add up to more than 100% because frequently several of these factors occur in the same case). The difficulty for me is not the horrible, high profile and seemingly certain case you describe, but the cases that have the same kind of evidence -- that are thought to be "certain" -- and yet turn out to be wrong. I know of no way to shorten the process by definitions that do not include the cases of the wrongly convicted.
But given your overall expressions of what you would do, i.e., the circumstances in which others in this country and community would prefer to race to execution but you would not, I will agree to disagree about Duncan and commend you on your skepticism toward the death penalty in those other instances -- where it is given in this country, but you would not.
To the rest of you, I give you George Will, who upon reading "Actual Innocence" expressed grave reservations about the use of the death penalty in this country and asked why those who berate government as inefficient and incompetent are so trusting in the use of government to execute citizens. After all, Will noted, "Conservatives, especially, should draw this lesson from the book: Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order."
Bruce Livingston
----- Original Message -----
From: g. crabtree
To: Bruce and Jean Livingston ; vision2020 at moscow.com
Sent: Friday, October 20, 2006 5:21 PM
Subject: Re: Deterrence, Costs and Benefits of Death Penalty
Bruce,
I think that we are scarily close to being in agreement on this depressing topic. You write "you may think it's more important to execute the heinous killer and a few innocent people, too." Nothing could be further from the truth. What I would argue for is to see the death penalty handed down ONLY in the cases such as I described. I do not believe that the DP should ever be given in a case where the only evidence is an eye witness or "a fingerprint and a hair." As an example, I think that it's ludicrous that Scott Peterson was given a capital sentence, based on the understanding I was given of the case from the sensational coverage presented on the tube. Some of the examples given at the DPIC links that you provided were equally mind boggling.
This having been said, In cases such as Duncan's where you have evidence far "beyond all reasonable doubt," an expedited death is, to me, desirable. In this case we have not only a confession but eye witnesses, extensive forensic evidence, a long, sordid criminal history and if I'm not mistaken, DNA. Add to this his computer diaries and if a case like this doesn't qualify for the potassium chloride express I can't imagine any that would. Years of appeals and review in a case such as this one is, to my mind, uncalled for and does not represent justice.
As I wrap up this lame run down of my chaotic thoughts on this topic, I'd like to say I'm sorry about your former client. In a profession such as yours I imagine that this is the sort of thing that goes a long way toward washing away whatever pleasure you receive from cases with more benign outcomes.
gc
From: Bruce and Jean Livingston
To: g. crabtree ; vision2020 at moscow.com
Sent: Friday, October 20, 2006 12:03 PM
Subject: Deterrence, Costs and Benefits of Death Penalty
Gary,
I agree with you that harsh punishment has a deterrent effect. The question is how many people that are not deterred by the harsh punishment of life without parole ("LWOP") will actually be deterred by the further harsh punishment of being executed. I agree that there must be someone, somewhere, who might actually make the decision to murder based on the fact that only LWOP and not death was available, but I think that the statistical significance of the numbers of such people must be relatively insignificant. We "normal", generally law abiding types don't murder people primarily because it's wrong to take another's life. Secondarily, even if people might like to kill someone if they got extremely angry, they don't kill because they don't want to be incarcerated for the rest of their life. I don't think that people weigh death as opposed to life in prison, when deciding whether to kill or not. They restrain themselves over the thought of "harsh punishment," and I think few of us differentiate between the two. LWOP is so harsh, as opposed to wandering around free, that I don't believe that the additional harshness of death is a significant additional deterrent.
I also agree that proving whether there is a deterrent effect or not must be very difficult. Many of the deterrence studies may well be the result of manipulating statistics to support a pre-ordained result fitting the author's bias.
Theoretically, I understand your thought that even without a proven deterrence effect, some killers are just so vicious and evil, that death ought to be imposed. It is a natural reaction for many of us. You are essentially saying that the worst of the worst deserve it. If we are going to have a death penalty, who would argue with that? Hitler, McVeigh, the 9-11 terrorist assassins, and those you list in your post below would all seem to qualify.
When you suggest that we ought to speed up the system for these "worst of the worst" and execute them quickly, that is where I have to argue against you, but not because I think that your desired result (speeding things up) is necesarily wrong. If we are to have the death penalty, it ought to be for the worst of the worst, and it ought to be implemented quickly. However, there is an undesired consequence of implementing policy to reach your desired result. I think your suggestion to speed things up cannot be implemented without a systemic change that will ensure that the innocent victims that we wrongly convict and place on death row erroneously will be executed, along with your more deserving, especially heinous killers. On balance, you may think it's more important to execute the heinous killer and a few innocent people, too. I would rather let the heinous killer rot in jail, sequestered from the free people outside the prison, and retain a better chance of showing that the wrongly convicted person in fact is innocent. As I stated in my earlier post, speeding up the process of executing people can only be done systemically, by withdrawing procedural protections. If you decrease the procedural protections in the appeal and habeas corpus process, then you decrease the ability to prove innocence for those who are wrongly convicted. The cost of speeding up the system is an increase in the likelihood of executing the already disturbing numbers of wrongly convicted people on death row.
Some see the execution of the innocent in military terms, as "collateral damage." I have a very conservative uncle with a military background who sees it exactly that way. For him, executing the innocent is a "cost of doing business" in a country with the death penalty. I can't bring myself to that point. Setting aside the morality of the death penalty and assuming we should have one, I would rather let people rot in jail a while longer before execution, so that we are doing our best to provide an opportunity to exonerate the wrongly convicted and condemned. Cutting back on the right of habeas corpus to speed up the process has a significant cost to society in addition to the "benefit" of exacting retribution more quickly; it likely makes murderers of us all in the sense that we as a society are all killers when we execute someone, and speeding the process up will make it more likely that we execute an innocent person.
Last, the main qualification of your support for quick execution seems to include a very restrictive additional requirement, and if that qualification were always reliable (or even nearly so), I would have more difficulty arguing against it. You include "confessed" in your string of adjectives describing particularly horrible killers for whom we should speed up the process. If confessions were always reliable, I would accept that. In any event, I commend you for your thoughtfulness on the topic, as it demonstrates a level of sophistication that often escapes the death penalty debate. I have not found a good means for always discerning when a confession is not true. There are a number of examples of "confessed" killers, condemned to death row, who subsequently have been exonerated. Earl Washington, from Virginia is a classic example. There's the rub for me.
If anyone really cares about this issue enough to read about it some more, an excellent read is Actual Innocence, Barry Scheck and Peter Neufeld's book. The authors analyze the lessons learned from the cases in which exonerations have shown that our capital punishment, so-called "beyond a reasonable doubt," system has serious flaws. Among the reasons that the jury convicted someone wrongly are false confessions. The biggest contributor to wrongful convictions, by far, was mistaken eyewitness testimony. Erroneous forensic lab reports, police and prosecutorial misconduct, lying "snitch" witnesses, and bad lawyering were also common problems running through the exoneration cases. False confessions occurred in 23% of the exonerations that formed the basis of the Actual Innocence book. Remarkably, mistaken eyewitness testimony occurred in 52% of the cases.
See the summary of Actual innocence here: http://www.deathpenaltyinfo.org/article.php?scid=6&did=141
The following link may also be interesting to those with an interest beyond this lengthy post.
http://www.deathpenaltyinfo.org/article.php?did=412&scid=6
Sorry if I am boring those who think this list ought to be limited to more local concerns. I believed in the death penalty, until appointed in 1989 to represent a man that I came to believe was innocent, notwithstanding my initial skepticism of his tale, not unlike Morgan Freeman's response to Tim Robbins in the great movie, the Shawshenk Redemption, that "sure, everone's innocent in here [in prison]." Having to tell my client that we had finally lost and that he was going to be executed in less than an hour, despite my belief in his innocence is not something that I would wish on anyone. And you know what? It was a lot worse for him.
Bruce Livingston
----- Original Message -----
From: g. crabtree
To: vision2020 at moscow.com
Cc: Bruce and Jean Livingston
Sent: Friday, October 20, 2006 7:26 AM
Subject: Re: [Vision2020] Duncan plea deal
Bruce, I am not currently arguing the deterrent effect of the death penalty with Joe. I am simply trying to figure where he comes by the notion that "A long life in prison is far worse than a short death" considering the seeming evidence to the contrary. Your input and expertise on this topic is much appreciated.
As I have said before on this forum, I find it difficult to believe that no angry or disgruntled potential killer has been given pause in his actions by the thought of harsh punishment. I find it hard to envision the method by which you could prove this type of negative.
Even if it were determined beyond all shadow of a doubt that there was no deterrent effect in the death penalty I would still be in favor of capital punishment for a very select few, Duncan being a prime example. Confessed, remorseless, multiple murdering deviants such as him (along with Malvo, Creech, Ridgeway, Rader, etc.) should be put down as expeditiously as possible for, among other reasons, the danger they present to prison guards and fellow prisoners to say nothing of the general population, should they manage to get loose. If the argument is brought up that it's cheaper to sentence these offenders to LWOP, I would suggest that perhaps the appeal and review process should be streamlined to hasten these vermin's passing. When wild animals wantonly kill a human we do not lock them up for the rest of their natural lives. We destroy them as quickly and humanely as possible. I do not believe that these types of killers should be shown any greater courtesy.
gc
----- Original Message -----
From: Bruce and Jean Livingston
To: g. crabtree ; Joe Campbell
Cc: vision2020
Sent: Thursday, October 19, 2006 6:04 PM
Subject: Re: [Vision2020] Duncan plea deal
Funny that I crossed in the mail with Gary on this one.
Let me say that I do not disagree with Mr. Sharp on the huge number of folks, proportionately, who get sentenced to death and choose life in prison over death. I think that is an accurate statement, regardless of whether the real numbers may be 99 % or 95 %. I have known a number of convicted murderers who instructed their attorneys not to appeal the death sentence, but then reconsidered and sought to avoid the death sentence and not just the guilty verdict.
However, I would question the logic that concludes that because people fear death and would choose LWOP over execution, (if they could), that therefore the death penalty has a significant deterrent effect. For the most part, I think that those thoughts about preferring LWOP to execution only occur after the person has been caught.
Bruce Livingston
----- Original Message -----
From: g. crabtree
To: Joe Campbell
Cc: vision2020
Sent: Thursday, October 19, 2006 5:46 PM
Subject: Re: [Vision2020] Duncan plea deal
Joe, thank you for the clarification. I will readily concede that the single statistic does not in and of itself totally support the conclusion. I obviously excerpted the quote from a larger work and, perhaps, should have excised the conclusion or included the entire argument. Either way, to throw Mr. Sharp under the bus as a charlatan because of my imprecision is to do him a serious disservice. A cursory look at his bio/CV reveals that he is indeed extremely knowledgeable in his field. This combined with the fact that you do not dispute the pertinent statistic causes me to disregard your charge on the appeal to authority fallacy.
Mr. Sharp's scholarship and my lack of logical thinking aside, lets return to your original premise "A long life in prison is far worse than a short death." You've done a masterful job of tap dancing on my meager reasons for doubting your claim. Now how about you take on the more difficult task of providing some evidence to support why it is that you believe that 98.8% of inmates sentenced to death fight to remain alive if your contention is correct? What is it that you base your assertion on?
gc
From: "Joe Campbell" <joekc at adelphia.net>
To: "g. crabtree" <jampot at adelphia.net>
Cc: "Pat Kraut" <pkraut at moscow.com>; "vision2020" <vision2020 at moscow.com>
Sent: Thursday, October 19, 2006 9:03 AM
Subject: Re: [Vision2020] Duncan plea deal
> Dear Gary,
>
> Let me try to make the point more clearly.
>
> Your "expert" said: "Of the 7300 inmates sentenced to death since 1973, 85,
> or 1.2% have waived remaining appeals and been executed. 98.8% have not
> waived appeals. The evidence is overwhelming that murderers would rather
> live on death row than die."
>
> Here is the argument:
> 1. 98.8% of inmates sentenced to death since 1973 have not waived appeals.
> 2. Therefore, murderers would rather live on death row than die.
>
> How exactly does (1) support (2)? This is an invalid argument since conclusion (2) makes speculative claims about the will to live of murderers whereas premise (1) merely reports the percentage of folks who have and have not waved appeals.
>
> The content of the conclusion is substantially different from the content of the premise. No social scientist worth his salt would be so bold as to draw such a speculative conclusion based on such unrelated "facts." Your "expert" is no expert at all. Thus, you are guilty of the fallacy of appeal to authority.
>
> Does this make sense now?
>
> --
> Joe Campbell
>
> ---- "g. crabtree" <jampot at adelphia.net> wrote:
>
> =============
> Well so much for the reasoned response. What I'm not finding in the usual
> reply is anything to support your original contention. You seem to object to
> any facts presented with no rational explanation. You style yourself an
> expert and then present no expertise. You bluster and blather and attempt to
> shift the discussion to different ground presumably because you find it
> difficult, perhaps impossible to make your case. I guess I'll just have to
> assume that you have nothing to back up your original assertion and that
> this is the very best you can do. How surprising. I guess it's time to let
> this sorry topic die. (after your disjointed, wounded, and yet strangely
> self congratulatory, reply of course.)
>
> gc
> From: "Joe Campbell" <joekc at adelphia.net>
> To: "g. crabtree" <jampot at adelphia.net>
> Cc: "Pat Kraut" <pkraut at moscow.com>; "vision2020" <vision2020 at moscow.com>
> Sent: Wednesday, October 18, 2006 4:21 PM
> Subject: Re: [Vision2020] Duncan plea deal
>
>
> Thank you, Locksmith Crabtree! The recent cold has been getting me down, so
> I much appreciate the large dose of hot air coming from your direction!
>
> I did not dispute the "facts" noted by your "expert." What I disputed was
> his opinionated conclusion and the suggestion that it followed from the
> "facts."
>
> Your "expert" said: "Of the 7300 inmates sentenced to death since 1973, 85,
> or 1.2% have waived remaining appeals and been executed. 98.8% have not
> waived appeals. The evidence is overwhelming that murderers would rather
> live on death row than die."
>
> The facts do not support the conclusion; the inference is hogwash. Believe
> me, for I'm an expert! As you noted, I teach logic in my day job! You seem
> to be a bit selective in who you choose to lable "expert," though, so it is
> doubtful that this will impress you. (The key factor appears to be that the
> "expert" happens to agree with you.)
>
> Suppose I say that (1) Mike Rogers claims that Larry Craig cheats on his
> wife and add that (2) Mike Rodges is an expert who supports his views with
> "facts." Can I pass this off as evidence and argument, too?
>
> You need to tell me how it is that your "expert" gets to his conclusion from
> the scant facts that you've presented. If you can do this, his expertise
> won't matter, for I know a good argument when I see it. Moreover, you'll
> have convinced me that your view IS supported by facts and inference. As it
> is it appears to be based on the false assumption that all of our problems
> will go away once we start killing more people.
>
> --
> Joe Campbell
>
> ---- "g. crabtree" <jampot at adelphia.net> wrote:
>
> =============
> Professor Campbell, let me see if I understand you correctly. You claim that
> I have committed the logical fallacy of appeal to authority and then provide
> nothing to backup your assertion. I would think that to make your charge
> stick you would have to A. Provide some evidence that Mr.Sharp is not
> knowledgeable on the topic being discussed or B. (and more importantly)
> that the statistics he cites are in error, Or C. That I am misapplying Mr.
> Sharp's expertise or statistics. Quoting an person knowledgeable in the
> field who is referencing verifiable statistics is NOT a logical fallacy.
> (You actually teach logic? As your "day job?") It would seem that you've
> achieved the enlightened state of "I'm right and facts be damned." With
> that in mind, I guess I would enjoy seeing what you can come up with by way
> of "neat quotes in favor of your position." I would hope that they might
> contain a scrap of fact rather then the usual emotion and fallacious
> statement that has been characteristic of your previous responses. What
> empirical data or statistic can you provide to support your assertion that
> "A long life in prison is far worse than a short death?" What pearl of
> reason will you come up with to counter the pesky fact (in bold below) that,
> statistically, murderers prefer to be behind bars rather then answering to
> their Maker? I would have thought that as man who pridefully proclaims "I
> am an expert about KNOWLEDGE." you should surely be able to set me straight
> in short order. Instead all I'm seeing is fallacy followed by mistake. I
> look forward to a reasoned response. Baring that, I guess I'll have to
> settle for your usual reply.
>
> gc
> ----- Original Message -----
> From: "Joe Campbell" <joekc at adelphia.net>
> To: "g. crabtree" <jampot at adelphia.net>
> Cc: "Pat Kraut" <pkraut at moscow.com>; "vision2020" <vision2020 at moscow.com>
> Sent: Tuesday, October 17, 2006 8:12 PM
> Subject: Re: [Vision2020] Duncan plea deal
>
>
>> Sorry for not responding to your wonderful example of an appeal to
>> authority earlier, Gary, but I've been busy with my day job.
>>
>> Here is my response: Your comments below commit the fallacy of appeal to
>> authority. Do you really think that I can't find some neat quotes on the
>> web in favor of my position?
>>
>> --
>> Joe Campbell
>>
>> ---- "g. crabtree" <jampot at adelphia.net> wrote:
>>
>> =============
>> Actually Joe, if by empirical you meant "derived from or guided by
>> experience or observation" I would have no choice but to disagree. I would
>> think that just about everyone who has given even the most fleeting
>> attention to the news for the last few years could cite five or more
>> instances of murderers fighting to avoid the death penalty for every one
>> that embraces that option. According to the folks at DPINFO.COM (death
>> penalty information) what appears to be an unbiased clearinghouse for this
>> type of information.
>>
>> "At every level of the criminal justice process, virtually all criminals
>> do everything they can to lessen possible punishments. I estimate that
>> less than 1% of all convicted capital murderers request a death sentence
>> in the punishment phase of their trial. The apprehended criminals' desire
>> for lesser punishments is overwhelming and unchallenged.
>>
>>Of the 7300 inmates sentenced to death since 1973, 85, or 1.2% have waived
>>remaining appeals and been executed. 98.8% have not waived appeals. The
>>evidence is overwhelming that murderers would rather live on death row than
>>die. Why? The survival effect -- life is preferred over death and death
>>is feared more than life. Even on death row, that is the rule."
>>Dudley Sharp, Resource Director, Justice For All
>>
>> With this in mind, I would contend that your assertion that "It is not as
>> if your view has any more empirical support than mine!" is, once again,
>> wrong.
>>
>> gc
>>
>>
>> ----- Original Message -----
>> From: "Joe Campbell" <joekc at adelphia.net>
>> To: "g. crabtree" <jampot at adelphia.net>
>> Cc: "Pat Kraut" <pkraut at moscow.com>; "vision2020" <vision2020 at moscow.com>
>> Sent: Sunday, October 15, 2006 7:50 AM
>> Subject: Re: [Vision2020] Duncan plea deal
>>
>>
>>> Gary,
>>>
>>> It is not as if your view has any more empirical support than mine!
>>>
>>> --
>>> Joe Campbell
>>>
>>> ---- "g. crabtree" <jampot at adelphia.net> wrote:
>>>
>>> =============
>>> Reason #3: A long life in prison is far worse than a short death.
>>>
>>> If this is truly the case, why do you suppose so many vermin such as
>>> Duncan
>>> prefer/fight for the life sentence? For the most part this, is true of
>>> all
>>> convicted killers. What do you base your contention on? I can't imagine
>>> that
>>> it's even how you, personally, would feel should you ever be in a similar
>>> circumstance. (not that you would, of course) This "long life in prison
>>> is
>>> worse than death." mantra seems to be bandied about as a truism with
>>> precious little supporting evidence. In fact, most evidence points the
>>> other
>>> way.
>>>
>>> gc
>>> From: "Joe Campbell" <joekc at adelphia.net>
>>> To: "Pat Kraut" <pkraut at moscow.com>
>>> Cc: "vision2020" <vision2020 at moscow.com>
>>> Sent: Saturday, October 14, 2006 6:33 AM
>>> Subject: Re: [Vision2020] Duncan plea deal
>>>
>>>
>>>> Pat,
>>>>
>>>> Unfortunately, the fact is that you and I will pay more if he is
>>>> (eventually) put to death. Yet another reason not to have the death
>>>> penalty.
>>>>
>>>> Reason #3: .A long life in prison is far worse than a short death
>>>>
>>>> --
>>>> Joe Campbell
>>>>
>>>> ---- Pat Kraut <pkraut at moscow.com> wrote:
>>>>
>>>> =============
>>>> But why do I have to pay for him to continue to have life in any form?
>>>>
>>>>
>>>>
>>>>
>>>> If we do discover a complete theory..of everything...we shall all,
>>>> philosophers, scientists and just ordinary people,
>>>> be able to take part in the discussion of why it is that we and the
>>>> universe
>>>> exist if we find the answer to that,
>>>> it would be the ultimate triumph of human reason...for then we would
>>>> know
>>>> the mind of God.
>>>> Stephen Hawking
>>>> ----- Original Message -----
>>>> From: <whayman at adelphia.net>
>>>> To: "Andreas Schou" <ophite at gmail.com>
>>>> Cc: <vision2020 at moscow.com>
>>>> Sent: Friday, October 13, 2006 3:09 PM
>>>> Subject: Re: [Vision2020] Duncan plea deal
>>>>
>>>>
>>>> Hello all,
>>>>
>>>> I would agree with anyone that Duncan tests the limits much more than
>>>> even
>>>> more than Malvo in the DC area. What Duncan apparently did lies outside
>>>> the
>>>> human scope of sympathy. But even within this absolutely and
>>>> disgustingly
>>>> twisted psychopathic scenario, I still cannot advocate a penalty of
>>>> death
>>>> for anyone. Duncan included.
>>>>
>>>> Killing, as we all know, brings back no one. The argument of the death
>>>> penalty as resolution and closure I find closer to vengeance than
>>>> justice.
>>>>
>>>> Please don't take me wrong; I don't think rehab etc. is the issue in
>>>> this
>>>> case. I do hope that the rest of his life is spent anonymously and
>>>> ignobly
>>>> incarcerated.
>>>>
>>>> Warren Hayman
>>>>
>>>> =======================================================
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>>>> serving the communities of the Palouse since 1994.
>>>> http://www.fsr.net
>>>> mailto:Vision2020 at moscow.com
>>>> =======================================================
>>>>
>>>> =======================================================
>>>> List services made available by First Step Internet,
>>>> serving the communities of the Palouse since 1994.
>>>> http://www.fsr.net
>>>> mailto:Vision2020 at moscow.com
>>>> =======================================================
>>>>
>>>> =======================================================
>>>> List services made available by First Step Internet,
>>>> serving the communities of the Palouse since 1994.
>>>> http://www.fsr.net
>>>> mailto:Vision2020 at moscow.com
>>>> =======================================================
>>>>
>>>
>>>
>>>
>>>
>>
>
>
>
>
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