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Comment on McCord, If capital punishment were subject to consumer protection laws

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by Barry Latzer
Professor, John Jay College of Criminal Justice

David McCord’s Afterword in Judicature (March-April 2006) contends that capital punishment is akin to consumer fraud. These are the same old anti-death penalty arguments in new guise.

Consider first his claim that the death penalty “does not work to sentence only the guilty to death” because “over 20 demonstrably innocent persons . . . have been sentenced to death in the post-Furman era.” In the first place, the death penalty has nothing to do with the wrongful convictions. These 20 (I will assume McCord’s number is accurate) also would have been wrongly convicted if they had been given life sentences. Does McCord think that capital trials, which, as a rule, are far more scrupulously conducted than noncapital proceedings, are less reliable for guilt determination? I’d be interested to hear his arguments on this point.

Second, again assuming that there were 20 miscarriages of justice, isn’t the “does not work” conclusion premature without looking at the failure-to-success ratio? According to the recent Bureau of Justice Statistics count, there were 7,187 death sentences from 1977 to 2004. With 20 wrongful sentences, the failure ratio is .003 (20/7187). Does Professor McCord know of any other product – criminal justice or otherwise – with that low a failure rate?

Let’s turn to his claim that the death penalty is flawed because most of those who are sentenced to death will not actually be executed. This is true. But what is the reason? Might it have something to do with endless judicial delays caused by such pointless redundancies as federal habeas corpus? Surely McCord is not saying that the system is as efficient as it could be, or that no capital punishment scheme could conduct a fair-minded review of sentences in under 11 years, the current average. But if McCord agrees that the capital punishment system can be made more efficient and still be fair, then he should not blame the sentence for the failure to properly implement it.

His third argument is that capital punishment is undermining public confidence in the criminal justice system generally. First of all, this argument is a bit dated. The big drop in crime has knocked public concerns about criminal justice right off the worry list. But to the extent that public dissatisfaction remains, it doesn’t support a more lenient system. If anything, the public’s unhappiness reflects a perceived failure to sentence harshly enough. The average guy isn’t disgruntled because we have a death penalty, he’s frustrated because thinks that we have a phony death penalty, a law on the books that too rarely gets enforced. The latest Gallup Poll (May 8-11, 2006) bears this out. When asked whether the death penalty was imposed “too often, about the right amount, or not often enough?,” only 21% of the respondents said “too often.” 51% said “not often enough.” That view supports not a recall of the death penalty “product,” but rather, a ramped-up use.

Last, we turn to McCord’s claim that many of the worst murderers are spared. I will accept for the sake of argument his little study of the 2004 murder cases and his claims about the relative reprehensibility of the various crimes.

In the first place, I am surprised that McCord would find any reduced use of the death penalty troublesome. As for the maldistribution issue, in previous writings he said that the failure to impose the death penalty on all equally blameworthy murderers (what he called “underinclusion”) simply was not a major concern.* He recognized that prosecutors frequently spare defendants for reasons having nothing to do with blameworthiness, e.g., unpersuasive witnesses, weak forensic evidence, local hostility to the death penalty, a desire to trade leniency for testimony against another criminal, etc. McCord didn’t think that this was improper. In fact, he thought that underinclusion should not even be a consideration when evaluating death penalty jurisprudence.

It is interesting that nearly ¾ of the spared murderers (323/443 = .73) in McCord’s 2004 study were saved by prosecutors, not juries. He should tell us why they were spared, and whether or not he thinks the refusal to seek the death penalty was justified.

In a perfect world, of course, each would get his due, and proof problems wouldn’t matter. In the real world, where underinclusiveness abounds, evenhandedness in the distribution of punishments – all punishments – remains a worthy but elusive goal. But the lack of equal justice, as the late Ernest van den Haag called it, is not a shortcoming of the death penalty. Nor is it more of a problem because the punishment is death. It is a dilemma for the entire criminal justice system, one which can be reduced, but never eliminated.

But if one is especially concerned to reduce the lack of evenhandedness in the distribution of capital punishments, the solution is not elimination of the punishment altogether. Uneven distribution is most obviously resolved by more even distribution. It follows, therefore, that we should develop policies that encourage the application of the death penalty to more of the heinous murderers.

Professor McCord hasn’t made a good case for “recall,” but he has, unwittingly, offered good reasons to improve and increase the application of capital punishment.

2 Comments

Prof. Latzer,

Interesting criticism of the McCord piece.

I'm not at all sure I buy it, but then I'm coming at it from the other side.

You argue that the fact that incorrect convictions of innocent defendants is not unique to capital cases makes it irrelevant in a discussion of the death penalty.

This is perverse. If someone is convicted wrongfully and serves 8 years out of a 25 year sentence, he can be released, apologized to, and he can perhaps sue (if he is not politely requested to sign a waiver, or else).

If an accused murderer is convicted, exhausts his appeals and habeas rights, and is executed, and then years later he is found to be innocent, a wrong of a distinguishable and substantially greater magnitude has occurred.

Undo-ability matters.

Murderers spared by prosecturs - an interesting topic. Accused or suspected murderers are "spared" all the time, by the decision whether to charge, or whether to seek the DP. Whether prosecutors do this out of the goodness of their hearts, or because they believe the jury will not convict (if offered the DP) or will not sentence the Def. to to die if they do convict, or some other reason may be beyond the scope of McCord's article.

However, I don't think it changes any calculus. Prosecutors are acting, in theory on behalf of society as a whole, but in fact on behalf of law enforcement. We hope and expect that those interests are aligned.

Judges, however, and juries should be a check on prosecutors. The law, furthermore, should be a check on both prosecutors and judges (and, some would argue, on jurors as well).

I may not agree with your reasoning or your position. Nevertheless, keep up the stimulating work.

Eh Nonymous makes some good points but fails to address two of the central issues in the underinclusiveness debate -- defendant choice, and the wishes of the victim's family.

Similarly situated defendants often make different choices when faced with a plea offer which would allow them to escape the possibility of the death penalty. Sometimes, defendants plead guilty and avoid putting themselves at risk for the ultimate punishment. Sometimes, defendants refuse such plea offers and decide to take their chances in front of a jury.

Critics of the death penalty might reasonably ask why a prosecutor would ever offer a murderer a plea to life in prison and then go on to try them capitally. There are numerous reasons why this might be done, but the most powerful in my experience has been the influence that the victim's family has in influencing prosecutorial choices. The simple fact is that, if a victim's family wants the prosecutor to offer the defendant a plea to life in prison on the chance that it could allow the family to avoid a long and painful trial, a prosecutor has very little practical incentive to deny the family's request. And where the crime is especially atrocious, the defendants in those cases have a strong incentive to accept such pleas. But if defendants turn down such pleas, the victim's family almost always demands the death penalty.

Underinclusiveness arguments seldom consider the issues of defendant choice and the influence cast over the prosecutorial decision-making process by the stated desires of the victim's family. These factors weigh heavily on the prosecutors who must make the decision about whether or not to seek the death penalty. They do not necessarily overwhelm other factors, but they exert significant influence over the decisions, and critics of the death penalty must take these factors into account as they weigh how severely they wish to criticize prosecutorial discretion in seeking the death penalty.

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