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by Michael Schearer

Introduction to Criminal Justice Professor Needleman December 12, 1997

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SHOULD THE DEATH PENALTY BE ABOLISHED? The death penalty is often cited, as its placement in Taking Sides implies, to be one of the nations most controversial issues. The long history of capital punishment, the volumes of academic work, and the seeming endless supply of individuals willing to debate for and against it seems to confirm such a proposition. Many seem to believe that a change of just one or two individuals on the Supreme Court would tip the scales back toward those who oppose the death penalty. Surely, such an issue is too controversial for there to be an obvious answer. However, research clearly demonstrates that, not only does the death penalty fail to stir a deep controversy in the nations fabric, but that the answer to the question, should the death penalty be abolished, is remarkably clear. Phoebe C. Ellsworth and Samuel R. Gross (1994) report in the Journal of Social Issues that since 1982, consistently 70-75% of the American public have supported the death penalty. While most peoples death penalty attitudes (pro and con) are based on emotion rather than information or rational argument...[p]eople feel strongly about the death penalty...and feel no need to know more about it. [Emphasis added] Essentially, the large majority of the American public have made up their minds about the death penalty, and few will change their minds despite the pleas of academics who know better about supposed racial bias and the assumed arbitrary and capricious manner in which it is applied.1 Furthermore, polls consistently show that voters cast their ballots for candidates based on issues such as abortion and taxes and not the death penalty. There are a number of reasons why individuals support or oppose capital punishment. Despite the fact that many Americans base their opinions on emotion, it is
Interestingly enough, it is these same left-leaning academics who despise the Burkean notion of aristocracy in favor of some French philosophes conception of equality. Of course, this contempt for classical conservatism disappears when it is they who comprise the natural aristocracy of Edmund Burke and John Adams.

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now becoming more clear that the so-called statistical proof of racial bias and arbitrary and capricious application is likely to be grounded in as much emotion as those less informed. Despite the volatility surrounding the death penalty when it was first ruled unconstitutional,2 the Supreme Court has consistently held since then that capital punishment is clearly constitutional, and furthermore, that statistical evidence of racial bias is not evidence enough to conclude that discretion in applying the sentence has been abused.3 However, new research suggests that racial bias death sentences may not even exist. Nancy E. Roman (1994) reports on Stephen Kleins study of data collected by Californias Department of Corrections, which found that [t]here is no evidence...that the death penalty is imposed in an arbitrary or racially discriminatory manner. Roman also notes that Patrick A. Langan, who is the senior statistician at the Bureau of Justice Statistics, found no statistical basis that racial bias exists in the criminal justice system. The media perpetuate the theory of bias through events such as the Rodney Kingincident, Langan says. Interestingly enough, even the oft-cited study by Law Professor David Baldus of the University of Iowa (used to show racial disparity in McCleskey v. Kemp) has come under attack. In findings published in the October 1994 issue of Technology Review, MITs Arnold Bennett explains the problem:
Fundamental misunderstandings of statistical results can arise when two words or phrases are unwisely viewed as synonyms, or when an analyst applies a particular term inconsistently. A powerful example of the first problem arose in 1987, when the U.S. Supreme Court issued its controversial McCleskey v. Kemp ruling concerning racial discrimination in the imposition of death penalty. The Court was presented with an extensive study of Georgia death sentencing, the main finding of which was explained by the New York Times as follows: "Other things being as equal as statisticians can make them, someone who killed a white person in Georgia was four


Furman v. Georgia, 408 U.S. 238 (1972). The Court found that, while the death penalty was not unconstitutional per se, the way in which it was administered violated the Eighth Amendments protection against cruel and unusual punishments. 3 McCleskey v. Kemp, 481 U.S. 279 (1987).

Schearer 4 times as likely to receive a death sentence as someone who killed a black." The Supreme Court understood the study the same way. Its majority opinion noted that "even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks."

As Bennett continues, he elaborates on what exactly the study found and how these results were misconstrued to create some great racial disparity:
But the Supreme Court, the New York Times, and countless other newspapers and commentators were laboring under a major misconception. In fact, the statistical study in McCleskey v. Kemp never reached the factor of four" conclusion so widely attributed to it. What the analyst did conclude was that the odds of a death sentence in a white-victim case were 4.3 times the odds in a black-victim case. The difference between "likelihood" and "odds" (defined as the likelihood that an event will happen divided by the likelihood that it will not) might seem like a semantic quibble, but it is of major importance in understanding the results.

Bennett does acknowledge a small disparity that the Baldus study found.

But he

indicates, the judges and the journalists...and the researchers should be blamed for greatly exaggerat[ing] the general understand of the degree of disparity. So, even in the case of the Baldus study, one of the most often cited reports in relation to the death penalty, no real evidence of a large racial disparity exists concerning the death penalty. Another criticism of the death penalty concerns the possibility of innocent victims being executed. This led Justice Harry Blackmun to declare in 1994, From this day forward, I shall no longer tinker with the machinery of death4 (Costanzo and White 1994). Justice Blackmun cited a Stanford University study by Hugo Bedau and Michael Radelet, which claims to identify 350 cases in which defendants convicted of capital or potentially capital crimes in this century, and in many cases sentenced to death, have later been found to be innocent. (Markman 1994). Stephen Markman and Paul Cassell, both with the Department of Justice at the time the Bedau-Radelet study was published, decided to study the same cases because they felt the study was a pseudo-fact [that could] gain permanent currency in the capital-punishment debate.

Callins v. Collins, 114 S. Ct. 1127 (1994).

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As Markman (1994) explains, only 23 people (of the 350 total cases) were actually put to death. Furthermore, to be found innocent, Bedau and Radelet relied on defendants briefs, collected newspaper rumors, transcribed the unshaken convictions of defense attorneys, and identified lapses in prosecutorial conduct or trial procedure. Furthermore, Bedau and Radelet acknowledge that in none of these cases...can we point to the implication of another person or to the confession of the true killer... Bedau and Radelet cite the case of James Adams, who is the only alleged example of an erroneous execution since capital punishment procedures were radically revamped by the Supreme Court in 1976 (Markman 1994). As Stephen Markman explains, however, innocence for James Adams is based upon a highly skewed picture of the evidence, a practice with Markman finds to be systematic throughout their analysis (1994). He concludes:
After sustained and systematic research, Bedau and Radelet point to 23 out of more than 7,000 executions during the twentieth century in the United States which they believe to have been erroneous. Presumably, these would be among the most compelling cases for the authors proposition. Yet, in each of the cases where there is a record to review, there are eyewitnesses, confessions, physical evidence, and circumstantial evidence in support of the defendants guilt. authors claims that the defendants were later found or proven to be innocent are utterly unpersuasive. (Markman 1994).


Thus, one of the primary arguments of death penalty, and one that Justice Blackmun relied upon, falls apart. There is no real evidence in Bedau and Radelets study which shows any innocent person was wrongfully executed. Why do people support the death penalty? As previously disclosed, Ellsworth and Gross (1994) found that most opinions were not based on facts, but rather emotions. Those who support the death penalty support it for a variety of reasons, including deterrence, incapacitation, and justice. Sociologists contend capital punishment is not a significant deterrent to murder (Bailey and Peterson 1994), but can deterrence really be measured? Does not capital punishment at least provide individual deterrence against the

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convicted murders who are paroled and kill again? Furthermore, citizens demand that the death penalty be applied so that justice can be proportional. As James C. Anders (1989) told the U.S. Senate Committee on the Judiciary, [t]he death penalty comes closest to meeting this supreme standard while still falling short because those criminals sentenced to execution still had the luxury of choosing their fate while their victims did not. Finally, if people believe that the death penalty serves to protect a vastly greater number of innocent lives than are likely to be lost through its erroneous application (Markman 1994), it seems inappropriate to assume that peoples emotions, when based on moral notions of justice, are not sufficient reason to support the death penalty. Lastly, the opponents of capital punishment cannot satisfactorily answer the following questions: How can a process that has been in place for centuries be cruel and unusual? How can a process that existed during the ratification of both the 8th and 14th Amendments be cruel and unusual? How can the death penalty be

unconstitutional per se when both the 5th and 14th Amendments explicitly recognize the ability of the state to take life when defendants are afforded due process? While the vast majority of Americans have made up their minds that the death penalty is no longer a controversial issue, a bitter fight still exists, primarily among those involved in law and sociology. The vast amounts of research and the reasonably short nature of this paper cannot be reconciled to the point where any truly comprehensive argument could be made for either side. However, this paper has attempted to

demonstrate the questionable validity of the arguments used by those who oppose the death penalty, particularly studies that show bias or error in capital punishment. Surely this debate will rage on in academic and legal circles for years to come. But, as has been shown, the American public is squarely behind the death penalty, and has little concern

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for supposed bias in the process. Arguments against the death penalty suffer from a weakness that, at best, is veiled by misinformation, and at worst, can be undermined by open-mindedness. Thus the question, should the death penalty be abolished, is one that can be answered with a resounding no.

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Anders, James C. 1989. Statement of James C. Anders. Pp. 280-284 in Taking Sides: Clashing Views on Controversial Legal Issues, edited by M. Ethan Katsch. Guilford, CT: Dushkin Publishing Group/Brown & Benchmark Publishers, McGraw-Hill Higher Education Group. Bailey, William C., and Ruth D. Peterson. Murder, capital punishment, and deterrence: a review of the evidence and an examination of police killings. Journal of Social Issues Summer 1994:53-74. Bennett, Arnold. 1994. How statistics can mislead you. MIT Technology Review October 1994. Costanzo, Mark, and Lawrence T. White. 1994. An overview of the death penalty and capital trials: history, current status, legal procedures, and cost. Journal of Social Issues Summer 1994:1-18. Ellsworth, Phoebe C. and Samuel R. Gross. 1994. Hardening of the attitudes: Americans views on the death penalty. Journal of Social Issues Summer 1994:19-52. Markman, Stephen. 1994. Innocents on death row? Justice Blackmun is convinced that innocent people are likely to be executed. Where is the evidence? National Review Sept. 12, 1994:72-76. Roman, Nancy E. 1994. Researchers debunk idea of racial bias: some researchers now say racial bias in death sentences doesnt exist - contrary to the conventional wisdom behind the proposed Racial Justice Act. Insight on the News June 13, 1994:17.