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Execution Numbers

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There have been 53 executions this year, and no more scheduled, compared to 60 last year. The Death Penalty Information Center is in full spin cycle, making much ado about not much. Henry Weinstein has this story in the LA Times. Particularly annoying is DPIC's repeated trumpeting of the fact that this-or-that statistic is down from its all-time high. Pick any dozen statistics at random, and you will probably find at least eleven of them are down from their all-time highs and up from their all-time lows: the price of gold, the price of gas, the NASDAQ 100, the percentage of teens smoking weed, etc., etc., etc. "Down from the all-time high" is a practically meaningless fact, and why this gets treated as newsworthy is something of a mystery.

The fact that the execution number is only down seven despite all the lethal injection litigation is the surprise here. Halfway down the story, Josh Marquis is quoted noting that the murder rate is down. Also, he says, prosecutors and juries are "becoming appropriately more discriminating about when to respectively seek and impose a death sentence."

The drop in new admissions to death row is more interesting. Half of this drop over the last decade is attributable quite simply to the drop in the murder rate, a fact I have never seen in a DPIC release. What accounts for the other half? I have heard anecdotally from prosecutors that the number of especially heinous crimes warranting the death penalty is down even further than the murder rate generally, but I have no way to quantify that. Josh's "appropriately more discriminating" hypothesis is quite plausibly a factor. The fact that in most states a death penalty is not likely to be carried out for a decade or two might discourage prosecutors from seeking it in cases close to the borderline.

I would be interested in comments from those "in the field" on this.

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Here is a collection of impressions:

DPIC does not mention that Roger Keith Coleman was proved guilty by DNA testing after years of claims that he was innocent.

There is now more active scholarship going on about deterrence and the death penalty than we have seen in a number of years.

Although DPIC tries to downplay the significance of the Wisconsin referendum, the fact is that a majority of the voters supported resumption of capital punishment in a state that has not the death penalty since the 1850's.

Although DPIC mentions the Scalia concurrence in Kansas v. Marsh, it does not mention that Scalia specifically criticized the DPIC's methodology for determining exonerations on Death Row.

For instance, DPIC only added one name to its list of exonerees--in February, 2006. The conviction of John Ballard was reversed on appeal in Florida because there was a legal insufficiency of evidence to prove his guilt, although there was perhaps enough evidence to create a suspicion of guilt. As with many of the names on the DPIC List, this is a far cry from proving "actual innocence." The inclusion of Ballard's name on the list is typical of the methodology of the DPIC which Scalia criticized in his concurrence in Kansas v. Marsh.

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